IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160331

Docket: M133465

Registry:
New Westminster

Between:

Ubaldo Erasmo
Maldonado Elizalde

Plaintiff

And

Michael Steven
Mooney
also known as
Michael S. Mooney
also known as
Michael Mooney

Defendant

Before:
The Honourable Mr. Justice A. Saunders

Reasons for Judgment

[1]            
The plaintiff Mr. Maldonado – being of Hispanic extraction, he
follows the convention of his maternal surname being placed last – sustained a
significant back injury in a rear-end collision on August 26, 2009. Liability
is admitted. In issue at trial are pecuniary and non-pecuniary damages
including loss of earning capacity and cost of future care.

Evidence

Background

[2]            
Mr. Maldonado was born in Mexico. His formal education is limited
to Grade 6, with a few additional months of adult high school. When in his
mid-20’s he began crossing the border into the United States and working as a
construction labourer, primarily in masonry, where he gained some experience
working with scaffolding.

[3]            
In September 2008, when he was 29 years of age, Mr. Maldonado
immigrated to Canada as a refugee. He settled in Vancouver. He obtained a work
permit in early 2009, and in April of that year began working for Skyline
Scaffold Ltd. (“Skyline Scaffold”), initially as a helper, an entry-level
position. At first, his job consisted of packing gear back and forth around
construction sites. He then started assisting on erecting scaffolds. He
advanced quickly, and by the time of the August 26 accident, he had been
entrusted by his employer with two residential scaffolding job of his own,
which he completed with the assistance of a helper. Mr. Maldonado’s hope
was eventually to become independently employed as a subcontractor to
scaffolding companies. His goal was to earn $100,000 per year.

Impact of the Accident

[4]            
The rear-end impact from the subject collision was relatively severe. Mr. Maldonado
suffered headache, soreness in his neck and shoulder and between his shoulder
blades, and low back pain. As discussed further below, his recovery has
plateaued and these symptoms persist, particularly the low back pain. The pain
from his injuries caused significant sleep disturbance. He has gained weight; pre-accident
Mr. Maldonado’s weight was in the range of about 200 pounds, since then it
has ballooned up to as high as 245 pounds, and he is now about 20 to 25 pounds
heavier than before the accident. He is also depressed.

[5]            
Mr. Maldonado attempted to return to work about six weeks after the
accident, but found that he was too sore to work with the scaffolding crew. For
the first few weeks he served as the company’s driver, mostly driving equipment
to and from worksites in a small pickup truck.

[6]            
Mr. Maldonado has impressed his employer with his skill, dedication
and attitude, and has now worked his way into a position as shop manager for CC
Equipment Sales Ltd. (“CC Equipment”), a “sister” company of Skyline Scaffold. It
is unlikely he will return to work as a scaffolder, and the possibility of a
future as a scaffolding subcontractor, his pre-accident dream, is now closed to
him.

Current Employment

[7]            
After driving for Skyline Scaffold for a few months, the general manager
of CC Equipment, Mr. Gosal, saw Mr. Maldonado backing up a trailer,
and was impressed with his skill. He said to the owner of the two companies, Mr. Chorbajian,
“I want him working for me”. CC Equipment then began to borrow Mr. Maldonado
as a driver for specific jobs, a couple of times per week. When a few more
months passed without Mr. Maldonado’s physical condition improving to the
point where he felt able to resume scaffolding, Mr. Chorbajian offered him
a full-time position as a driver for the two companies, part of his salary being
paid by each.

[8]            
While initially Mr. Maldonado’s salary was split between the two
companies, by late 2013 he was working for CC Equipment exclusively. He had
performed, and still performs, several different jobs within that company: he
still does driving and deliveries, usually with the assistance of a helper; he
does mechanical and electrical repair work on CC Equipment’s products; he has
trained to be a hoist technician; and, in the words of Mr. Chorbajian, he
has helped out “in a pinch” on job sites. Mr. Gosal described Mr. Maldonado’s
current position now as being “more of a manager”; Mr. Chorbajian
described him as the “service manager”.

[9]            
CC Equipment is the exclusive dealer in the Lower Mainland for the
compact products of a large construction equipment manufacturer, Whacker
Neuson, and is the repair and warranty service centre for all Whacker Neuson’s
other dealers. Mr. Gosal testified that Mr. Chorbajian’s next step
will be to undergo formal certification at Whacker Neuson’s “Academy”, located
in Milwaukee, Wisconsin.

[10]        
Mr. Maldonado’s evidence was that when Mr. Chorbajian first
approached him with the offer of a full-time position as driver for the two
companies, he said to him, “You’re pretty talented, we want to keep you”. The
evidence of Mr. Gosal and Mr. Chorbajian confirms that they hold Mr. Maldonado
in high regard. Mr. Gosal described him as being “actually a key to our
company”. He described Mr. Maldonado as very knowledgeable and dedicated. He
testified, “Basically, to replace Mo I’d need five people, straight up”. Mr. Chorbajian
testified that when he began to get feedback after the accident that scaffold
work was proving too difficult for Mr. Maldonado, he was determined to
find a role for him as “I don’t want to lose good people”. He described the
plaintiff as, “really the definition of ‘mechanically inclined’”, with “really
big intangibles”. He said that despite Mr. Maldonado’s disability, he
would find a job for him, “no matter what”.

[11]        
Mr. Chorbajian described the job classifications at Skyline Scaffold. His
scaffolding field staff is made up of labourers; and scaffolders, or builders.
Above them are managers: foremen, field supervisors and the construction
manager.

[12]        
Mr. Maldonado was being paid as a labourer at the time of his accident.
This, he described, is a probationary position, earning between $15 and $18 an
hour. Scaffolders are paid between $21 and $31 an hour, depending on their
skill and experience. He described this position as requiring a great deal of
physical and mental strength, and an ability to work with others under
pressure.

[13]        
Foremen are responsible for day-to-day operations of a crew on site.
Their hourly wage is in the range of $25 to $38.

[14]        
His field supervisors are “a couple of guys” who have responsibility for
several sites at a time. They have to plan ahead, anticipating material and
labour requirements, and co-ordinate with the yard; they are also responsible
for meeting with sales staff and estimators to ensure that a job is done in
compliance with the contract. It is not uncommon, Mr. Chorbajian
testified, for a field supervisor to make “low six figures” in annual income –
he estimated, “maybe $125,000” in salary and benefits.

[15]        
Overseeing the field supervisors is a single construction manager.

[16]        
The field supervisor and construction manager positions do not entail
heavy physical work.

[17]        
Mr. Chorbajian testified in chief that but for the accident, Mr. Maldonado
should eventually have been able to assume a position in “scaffold management”.

[18]        
Mr. Chorbajian was asked in cross-examination why, given Mr. Maldonado’s
talents, he wasn’t kept with Skyline Scaffolding and moved into a supervisory
position after his return to work. His explanation – which I accept – was that had
Mr. Maldonado spent more time in scaffolding, he would have advanced into
a supervisory position, but they would not normally promote someone into that
position without prior experience as a foreman.

[19]        
Mr. Maldonado testified that his function in the workplace continues
to be affected by his injury. For about the first five years after the accident
his sleep was disturbed, and he would frequently wake up after only about three
or four hours sleep with a pounding headache. The headaches have improved and
lessened in frequency. However, it is still the case that his neck, the area
between his shoulder blades and his low back become painful when he exerts
himself doing work as a mechanic. He testified that his neck pain is “up and
down”, that he has learned to do stretches that help a lot, and has learned how
to position himself when he sleeps to avoid irritating it. If he is driving at
work and not doing anything too physical, his neck pain is alleviated but if he
irritates his neck first thing in the morning, it is sore all day. He will get pain
between his shoulder blades from bending over and doing heavy work, and feels
that this results in him losing arm strength. His low back is also very
painful; if he does not do heavy physical labour during the day he is “okay” but
any heavy physical work brings on low back pain, and this often produces pain
or cramping down his left leg. He has to take one or two Tylenol or Advil,
mostly every day, and also relies on Naprosyn. His employer has accommodated
him by providing him with a massage chair, which he rests in during the day as
necessary; Mr. Gosal testified that he sees Mr. Maldonado using it
for 30 or 45 minutes at a time.

[20]        
Mr. Maldonado testified that he seldom has “good days". His
job was easier in the year 2014 when CC Equipment had additional staff, but
then they lost a young employee, leaving the plaintiff as the only mechanic,
and now much of the heavier mechanical work has to be done by him. CC Equipment
has hired a helper to work alongside him in the shop, and assist him with
heavier delivery jobs. Even with these forms of accommodation, there are now
many more “bad days” when he is in pain to the point of being irritated even at
having to talk to coworkers; he regrets that there have been episodes of him
exhibiting a “bad attitude” because of his pain.

Treatment and Ongoing Concerns

[21]        
Mr. Maldonado has undergone physiotherapy and kinesiology
treatments on referral from his doctors. He underwent 27 physiotherapy
treatment sessions in September – December 2009, and another 32 sessions in May
– November 2010. Special damages for those treatments are admitted in the
amount of $1,835. Thirty-eight kinesiology treatments were undertaken at
Mountainview Kinesiology in July – December 2001, at a further cost, which is
also admitted, of $2,825.60. The kinesiology treatments, recommended by his GP,
Dr. Mohammed, were financed by Mr. Maldonado’s legal counsel.

[22]        
Mr. Maldonado has also been prescribed a variety of medications,
admitted to be because of the accident: NSAIDS such as Naproxen, Celebrex and
extra-strength ibuprofen; muscle relaxants; stomach ulcer drugs (his stomach
having been upset, by the anti-inflammatories); and antidepressants. The total
cost of the prescriptions has been, as of May 2015, $1,393.97.

[23]        
Mr. Maldonado was married in November 2010 and he and his wife had
a daughter. They have since separated. He attributes the failure of his
marriage to the effect of his injuries. He was always tired at the end of every
day and wanted to rest a lot, and his wife was unhappy when she saw that he was
going to have long-term physical problems. He feels there was a specific issue
over the lack of sexual activity due to his back pain. He also testified as to
now being unable to play with his energetic five year-old daughter for extended
periods of time, due to pain.

[24]        
The plaintiff testified as to the restrictions his injuries place on his
ability to undertake housekeeping activities. At the time of the accident he
was sharing a house with several other persons, and his housekeeping obligation
was limited to cleaning the bathroom once a week. He tried to continue to do so
after the accident but believes he probably wasn’t doing it properly, given the
pain he experienced with bending and lifting. During his brief marriage, his
wife did all of the housework. Following his separation, Mr. Maldonado had
a housekeeper come in to assist him, approximately ten times over the period
June 2012 to January 2014. He then moved back into another shared accommodation
arrangement, and he is responsible only for light housekeeping.

[25]        
Mr. Maldonado also described limitations in his recreational
activities. He did attempt to start swimming on the advice of Dr. Alex,
but found that he could only continue for 10 or 15 minutes before being
bothered by pain between the shoulder blades. He tries to walk for exercise,
but finds he can only walk a few blocks before he has to stop and rest because
of low back pain. In 2013 he purchased a 14-month gym membership, but found
that exercises aggravated his symptoms. He has discussed with his GP, Dr. Alex,
the desirability of hiring a personal trainer to assist him in weight loss, but
he has been unable to afford this.

[26]        
Mr. Maldonado describes feelings of depression. These stem from the
breakdown of his marriage and his frustration with his physical condition. His
family physician had him on anti-depressants for approximately a year,
beginning in March 2013.

Collateral Evidence

[27]        
Mr. Maldonado’s coworkers testified as to him exhibiting what is
sometimes referred to as “pain behaviour", that is changes in facial
expression, gait etc. which appear consistent with him suffering significant
pain.

[28]        
Mr. Chorbajian has observed Mr. Maldonado being in apparent
discomfort through his facial expression, the way he “lumbers around” and the
way he stoops. He does not have the impression that Mr. Maldonado is
embellishing in any way. He said that Mr. Maldonado has “always got a
bottle of pills with him”.

[29]        
Mr. Gosal testified that he can see from the expression on Mr. Maldonado’s
face when he bends over to lift, or when he is “pulling wrenches”, that he is
in pain. He said, “I know he’s a tough guy – he’ll work through pain”.

[30]        
Ms. Turner, the office administrator, testified that she has
observed him grimacing in pain while working in the shop. She’s sees him taking
Advil three times a week on average – that, she said, has consistently been the
pattern since she started working at CC Equipment in 2013. She also testified that
Mr. Maldonado “gets cranky quite a bit”; he can seem irritated, which can
escalate into rudeness, and then he apologizes and says that it’s because he’s
in pain.

Medical Evidence

Physiatrist – Dr. Kleinman

[31]        
Mr. Maldonado was assessed by a physiatrist, Dr. Max Kleinman,
in April 2014. His report states the following diagnoses:

1. Biomechanical disorder of the cervicothoracic and
lumbosacral spine with chronic spinal deconditioning – Mr. Maldonado
describes symptomatology consistent with chronic myofascial sprain/strain. … It
is my opinion that the muscles, ligaments and capsules of the cervicothoracic
and lumbosacral spine likely underwent partial tearing and strain as a result
of the forces involved in the accident. Mr. Maldonado has now developed
scar tissues that impacts on him in a way that is both physically painful and
functionally disabling. It is important to note that Mr. Maldonado has
been able to transition back to the workforce but has specific difficulties in
particular while performing heavier activities. His findings from this
perspective are consistent with and are the hallmark of chronic spinal
deconditioning. Mr. Maldonado has been left with incomplete recovery of
his accident-related injuries. The injured musculature now lacks the same endurance
and strength for daily activities, resulting in a reduced pain threshold when
fatigue is reached. Mr. Maldonado, as noted, has been able to return to
the workforce but has plateaued, which is not an atypical recovery arc.

2. Left lower extremity referral – Query neurogenic versus
soft tissue contribution – Mr. Maldonado continues to experience referred
pain into the left lower extremity. … I believe he is suffering a soft
tissue/sciatic, nociceptive [i.e. pain referred from the muscles] referral originating
from the injuries sustained into the lumbosacral spine.

3. Chronic pain with
associated depressive symptomatology – the diagnosis of a pain or
psychological disorder requires a DSM-V evaluation and is outside of my area of
specific expertise. I did not get the impression that Mr. Maldonado has a
true “chronic pain syndrome" … Instead, I believe that he is suffering
from the incomplete resolution of chronic pain and impact on his function. Mr. Maldonado’s
condition has been managed by his family physician and it is important to note
that there was marital discord and that he has been using an antidepressant
symptomatology consistent with this rationale.

[32]        
Dr. Kleinman believes that Mr. Maldonado’s overall recovery
has plateaued, which is predictive of a worse long-term prognosis. He notes in
his report that while most soft tissue injuries generally resolve within a
matter of months, there is a subset of individuals who take longer to recover,
with a certain percentage that never fully recover. Dr. Kleinman believes that Mr. Maldonado
falls into the latter category, particularly taking into account his psycho-emotional
factors, the long-standing duration of his problems, his current presentation
and the nature of his work. He described Mr. Maldonado as having a “guarded”
prognosis and has increased vulnerability to further exacerbation of his
chronic injuries.

[33]        
Dr. Kleinman makes a number of recommendations as to future care,
including an in-home assessment with a trained therapist, and including
continuing supportive care as needed, including physiotherapy, chiropractic and
massage.

[34]        
Dr. Kleinman was cross-examined on his report. Confronted with the
opinion of the defence orthopedic surgeon, Dr. Kokan, that x-rays of Mr. Maldonado’s
lumbar spine showed mild degenerative changes – which Dr. Kokan believed
the radiologist had missed – Dr. Kleinman stated that even if there were
mild degenerative changes, that would be highly unlikely to lead to him
changing his opinion.

[35]        
Dr. Kleinman conceded that there is no form of medical imaging that
can detect the injuries he has diagnosed, but stated that his diagnosis – that Mr. Maldonado
likely underwent partial tearing of the musculature of the spine as a result of
the accident – was not purely derived from subjective complaints; rather, it
was demonstrated by the restricted range of motion and the localized areas of
tenderness on examination, in addition to the reports of pain.

[36]        
Dr. Kleinman was not seriously challenged on his conclusions. He
did not resile from his opinion or qualify it to any significant degree.

[37]        
I was impressed with the thoroughness of Dr. Kleinman’s report. He
gave his testimony in a straightforward manner. I accept his conclusions as to
the nature of Mr. Maldonado’s injuries and the prognosis.

Occupational Therapist – Russell McNeil

[38]        
Mr. Maldonado underwent a functional capacity evaluation by an
occupational therapist, Mr. Russell McNeil, in May and June 2012. Mr. McNeil’s
conclusions as to Mr. Maldonado’s overall functional capacity are stated
in his report as follows:

In summary, Mr. Elizalde has
demonstrated the capacity to perform activity that requires light to medium
level strength. He demonstrated restrictions in his capacity for activity
requiring sustained or static vertical reaching as well as restrictions in his
capacity to perform below waist work requiring bending and stooping. There were
measured restrictions in his capacity to perform to two handed carrying and two
handed lifting. There were restrictions in his tolerance for static standing.
Overall, there were restrictions in his activity tolerance, which adversely
affected his capacity to maintain a productive work pace.

[39]        
Mr. McNeil was cross-examined on his report. The cross-examination
was relatively brief, and did not erode Mr. McNeil’s opinion. I was
impressed with the Mr. McNeil’s testimony, and I accept his conclusions
without reservation.

Psychiatrist – Dr. Rasmusen

[40]        
The plaintiff was assessed by a psychiatrist, Dr. Rasmusen in March
2015.

[41]        
Dr. Rasmusen diagnosed Mr. Maldonado as suffering from a major
depressive disorder as a result of the motor vehicle accident. This diagnosis
was based upon the plaintiff exhibiting five of nine “A Criteria” specified in
the DSM-V. Specifically, he exhibited:

a) Depressed mood most of the day, nearly every day, which is
a distinct change from normal functioning;

b) A decreased or loss of interest in all, or almost all,
activities;

c) Psychomotor agitation or retardation nearly every day (observable
by others, not merely subjective account);

d) Fatigue or loss of energy nearly every day;

e) Diminished ability to think or concentrate, or
indecisiveness;

f) Recurrent thoughts of death (not
just fear of dying), recurrent suicidal ideation without a specific plan

[42]        
The latter point derives from a comment made by Mr. Maldonado
during the assessment; Dr. Rasmusen writes in his report:

On occasion, he has had passive
suicidal thoughts but denies any plan or intention of harming himself and
states that he would not do so because of his daughter.

[43]        
This aspect of Mr. Maldonado’s symptoms – as well as others, such
as his report to Dr. Rasmusen that he becomes jumpy and possibly nauseous
if anyone honks their horn while he is driving – was not mentioned by Mr. Maldonado
when he gave evidence. However, Mr. Maldonado was not challenged on these
aspects of his symptoms as reported to Dr. Rasmusen during cross-examination,
and I do not find Dr. Rasmusen’s opinion should be given any less weight
as a consequence.

[44]        
Dr. Rasmusen testified that the level of pain experienced by the
plaintiff will be a complicating factor: pain can lead to depression, and can
also lead to lack of sleep which will in turn exacerbate depression and create
irritability. He testified that when pain is a factor, anti-depressant
medications tend not to work as well. The preferred treatment in Mr. Maldonado’s
case would be cognitive therapy, and he recommended that Mr. Maldonado
undergo 10 to 12 sessions with a licensed psychologist who deals with
long-standing pain. An aggressive treatment program with an antidepressant
medication such as Cymbalta might have a beneficial effect, as would a trial of
gabapentin or Lyrica to help Mr. Maldonado’s sleep, but even with such
therapies Dr. Rasmusen’s opinion was that the plaintiff would likely have
some elements of depression permanently.

Orthopaedic Surgeon – Dr. Kokan

[45]        
The defence, as noted, tendered the opinion of Dr. Kokan, an
orthopedic surgeon. Dr. Kokan’s report provides a “Summary of Causation"
which reads as follows:

Mr. Maldonado is an otherwise hard-working determined
individual who is obese and does, in the writer’s opinion, have very early
signs of degenerative changes on x-rays at the time that he was involved in a significant
rear-and collision.

He remains with a mild-to-moderate amount of mechanical low
back pain at this stage which was probably going to become symptomatic at
some point in his life independent of the above motor vehicle accident.
However, I do feel that the motor vehicle accident has precipitated the onset
of symptoms from it. Furthermore, I feel that he would have recovered better if
he was in better physical condition and if he was involved with less physically
demanding work.

[Emphasis added.]

[46]        
As to the diagnosis, Dr. Kokan believes Mr. Maldonado to be
suffering from mechanical low back pain due to degenerative facet joints in the
lumbosacral spine, with a possible disc bulge; and, early degenerative cervical
spine spondylosis. His report concludes that when he examined Mr. Maldonado
in June 2013, he found “essentially minimal to no neck pain and mild to
moderate low back pain symptoms that are mechanical in nature and not
neurologically-based".

[47]        
As to the prognosis, his report again commented on the possible
contributing role of the pre-existing asymptomatic arthritis:

Again, the motor vehicle accident that he was involved in was
quite high energy from the description. I do feel that his presentation is
genuine and I do think that the motor vehicle accident played a part in
bringing on the symptoms that we see today. However, it needs to be understood
by the courts that his occupation is another factor that puts his back at
strain and so is his general size as well. I think it is it’s reasonable to
assume that he may not have had back pain or, if he did, it would have been to
a lesser degree at this stage had he not been in the motor vehicle accident, but
I am certain that this would have come on as mentioned within the next 5-10
years and of a similar nature.

[Emphasis added.]

[48]        
Dr. Kokan qualified the latter statement to a considerable degree
under cross-examination. He acknowledged that the evidence is clear – “there is
no question” – that his back is hurting because of the injuries sustained in a
motor vehicle accident; The accident, he said, was “almost the straw that broke
the camel’s back", “the match that ignited everything". As to his
comment that he is “certain” that low back pain would have come on in any
event, he acknowledged that the wording in his report comes across as strong,
and that “high likelihood" would probably be a better choice of words.
Furthermore, in saying that Mr. Maldonado would in any event have
experienced low back pain of a “similar nature”, Dr. Kokan testified what he meant
to say was that the location of the back pain would be the same, not
the severity. In his view, there is a high likelihood that the plaintiff would
have had back pain within another five or 10 years, given the degenerative
changes, but Dr. Kokan acknowledged that he cannot say that the back pain
would likely have been so severe that it would have prevented the plaintiff
from engaging in heavy physical work.

Family Physician – Dr. Alex

[49]        
Mr. Maldonado’s family physician, Dr. Alex, wrote a report for
the plaintiff’s counsel dated March 6, 2015. In this report, she purported to
summarize the clinical notes of Mr. Maldonado’s previous GP, Dr. Mohammed,
who treated him from January 2011 to January 2013, as well as her own clinical
notes from when she assumed responsibility for his care in March 2013. Dr. Alex’s
opinion did not fully support Mr. Maldonado’s claim, and her report was
tendered by the defence.

[50]        
The conclusion to Dr. Alex’s report states:

In conclusion – Mr. Maldonado
has mostly recovered from his MVA related cervical and shoulder strain. The
soft tissue burning in his shoulder blades is due to muscle fatigue, now that Mr. Maldonado
has started working as a mechanic and will get better with endurance. Mr. Maldonado
continues to be disabled from mechanical low back strain and needs to be on
Naprosyn BID on bad days. This low back pain is mainly related to his weight
and poor core strength. There does not appear to be any need for surgery at
this time or in the near future. The prognosis is guarded.

[51]        
She elaborated on this opinion in her testimony in-chief, saying that
due to his physical attributes he now may be prone to low back strain.

[52]        
I found Dr. Alex’s conclusion to be remarkably superficial in that
it did not address whether, or to what extent, Mr. Maldonado’s weight and
poor core strength might be attributable to his injuries, e.g. the possibility
of his inability to exercise vigorously being due to pain, or the possibility
of his muscles lacking the ability to regain their pre-accident strength due to
scarring.

[53]        
On cross-examination by Mr. Maldonado’s counsel, Dr. Alex
acknowledged that she would defer to the opinion of a physiatrist or an
orthopaedic surgeon as to Mr. Maldonado’s prognosis.

[54]        
Through cross-examination, it emerged that Dr. Alex, in her report,
had not simply recounted the notes of Dr. Mohammed, but also interpolated
her own conclusions into her summary; for example, her report stated a
diagnosis of “mechanical low back pain improving” as of November 2011, when no
such opinion is expressed in Dr. Mohammed’s notes. There were numerous other
errors and incorrect assumptions made by Dr. Alex in her attempt to
summarize the course of Mr. Maldonado’s recovery, during the period prior
to her assumption of responsibility.

[55]        
One glaring example is that Dr. Mohammed’s February 27, 2012 notes
indicate:

Low back problems

– doing mechanical work

-worse after [illegible]

[56]        
In her report, however, Dr. Alex inserted into her summary of this
note:

On examination Normal back exam.

[57]        
It appears that Dr. Alex simply fabricated this comment.

[58]        
This tendency of Dr. Alex was also seen in her report’s summary of
her own treatment of Mr. Maldonado; for example she stated in her report
that on July 19, 2013 (the visit in question was actually on July 9^th):

Back exam was normal. No Motor
weakness.

However, in her clinical
notes the only notation as to examination findings is:

O/E: – wt = 225 pounds.

Dr. Alex could not provide the court with any
explanation as to why she had included the “no motor weakness” finding in her
report.

[59]        
I found Dr. Alex’s preparation of the report to have been so
careless and slipshod as to seriously call into question her competence, at
least as an expert witness. I give her opinion no weight whatsoever.

Damages

Non-Pecuniary Loss

[60]        
In summary, I find that at the time of trial, six years post-accident,
the plaintiff’s recovery from soft tissue injuries to his cervicothoracic and
lumbarsacral spine has plateaued. He experiences significant low back pain and
thoracic pain when his spine is subject to the stresses of his physically
demanding occupation. His prognosis is, in the words of Dr. Kleinman, “guarded”.
He is unlikely ever to fully recover and the likelihood is that he will
continue to have significant back pain for the rest of his life, with increased
vulnerability to future injury. There is some significant possibility that Mr.
Maldonado would have gone on to experience some degree of low back pain, but
for the accident, but it is not probable that this would have been disabling,
or to the same degree that Mr. Maldonado now experiences.

[61]        
Mr. Maldonado is also suffering from depression. Although Dr. Rasmusen
believes there is a causal connection between the major depressive disorder and
the motor vehicle accident, from Mr. Maldonado’s own testimony his
reaction to the break-up of his marriage must be a significant causal factor as
well. It is clear from Mr. Maldonado’s testimony that he relates the
break-up of his marriage to the effect of his injuries. I am unable to draw that
conclusion. We heard no testimony from Mr. Maldonado’s wife. There is
rarely a single cause to the break-up of a relationship; I do not dispute
genuineness of Mr. Maldonado’s perception that the accident was a factor,
but there is simply not sufficient evidence for me to make that finding on a
balance of probabilities.

[62]        
Nevertheless, I do conclude that Mr. Maldonado’s psychological
reaction to his injuries has undoubtedly complicated his emotional reaction to
his divorce. In this respect the two causal factors are best viewed as one
tortious and one non-tortious cause. The injuries continue to contribute to the
depression as a causal factor and the defendant is fully liable for the
consequences.

[63]        
The prognosis for the depression, I find, is not so grave as with
respect to his physical injury. There is a reasonable prospect that Mr. Maldonado
may experience at least some degree of recovery from his depression, although
as Dr. Rasmusen concluded some degree of permanent depressive symptoms
will likely continue.

[64]        
The plaintiff relies on five case authorities for non-pecuniary damages.
In ascending order with respect to the awards, they are: Thompson v. Choi,
2015 BCSC 1283 ($90,000); White v. Wienes, 2015 BCSC 188 ($100,000); Benson
v. Day, 2014 BCSC 2224 ($110,000); Chahal v. Righele, 2014 BCSC 108
($120,000); and Easton v. Wolovets, 2015 BCSC 210 ($125,000).

[65]        
The situation of the plaintiff in Thompson has some similarity to
that of Mr. Maldonado. The plaintiff in that case was a 44-year-old male construction
labourer, who primarily worked constructing and installing sheet metal
flashings for roofing companies. His injuries were primarily to the soft
tissues around the neck and shoulders. Seven years post-accident he was
continuing to suffer significant symptoms including pain on a daily basis – to
judge from the amount of medication he took, perhaps more severe pain than that
suffered by Mr. Maldonado – and in addition, symptoms of numbness and
tingling in his arm when working on a sustained basis with his arms lifted
above shoulder level. He could not perform tasks requiring him to look upwards
without taking frequent breaks; this eliminated working on soffits from the job
function he was able to undertake. Crouching and kneeling were also difficult
for him. He had some depressive symptoms, and underwent some counselling, which
was beneficial. There was medical evidence that his symptoms could worsen
because of a pre-existing asymptomatic disc bulge in the cervical spine. The
trial judge concluded there was a reasonable chance the plaintiff would
experience improvement, though he would never fully recover his former level of
function.

[66]        
The plaintiff in White was a 49-year-old male who was injured in
a motor vehicle accident in December 2009. At the time of trial, 4 ½ years
later, he was suffering intermittent neck and back pain. He had continuing
sciatica. He developed headaches that were triggered when he looked to the
right. An initial symptom of tingling in his hands had resolved fairly quickly
after the trial.

[67]        
The trial judge found that the plaintiff’s continuing back pain was due
to ongoing aggravation of pre-existing degenerative disc disease. However, the
trial judge rejected the plaintiff’s evidence, and that of the plaintiff’s
witnesses, as to the degree to which he was physically disabled by pain. Non-pecuniary
damages were assessed in the amount of $100,000. This was after the trial judge
made a deduction for the measureable risk that the pre-existing disc disease
would have become symptomatic in the future in any event, however the reasons
for judgment do not disclose the amount of the deduction made.

[68]        
The plaintiff in Benson was a 57-year-old male with chronic neck
and back pain. The court accepted that this condition was chronic, but stable. The
plaintiff also suffered an adjustment disorder – although the trial judge
concluded that the plaintiff’s anxiety level was less dramatic than had been
portrayed – and there were also minor but significant cognitive issues. He was
employed in house construction, and had been able to return to work
post-accident, though modification of his activities was necessary to avoid
aggravation. He was awarded damages of $110,000. The reasons of Mr. Justice
Skolrood helpfully summarize the damages authorities relied upon by the plaintiff
and defence, at paras. 92-93.

[69]        
The plaintiff in Chahal was a 46-year-old woman. She developed
serious headache, left shoulder, upper and lower back pain, and pain and
stiffness in her neck. The trial judge concluded that the plaintiff’s life had
drastically changed for the worse as a result of the accident. Any improvement
she had experienced had only been episodic; a return to her previous condition
was unlikely and she would probably live for many years with chronic pain and
depression. The injuries had a major effect on her social life. She was awarded
$120,000.

[70]        
Lastly, the plaintiff in Easton was a 33-year-old male. He
sustained a thoracic outlet syndrome injury, leading to myofascial pain and
chronic pain. He underwent surgery for the thoracic outlet syndrome – first rib
resection – and was then injured in two subsequent actions. He was unable to
return to work in the carpentry trade, and at the time of trial was only able
to work at a reduced workload, and reduced salary, with a small contracting
company which made substantial accommodations for his disabilities. His damages
were awarded in the amount of $125,000.

[71]        
Emphasising the transformative impact of the collision on Mr. Maldonado,
and using these cases as a guide, plaintiff’s counsel submits that damages for
pain and suffering ought to be awarded in the range of $90,000 to $110,000.

[72]        
The defendant contends that before making substantial deduction for
failure to mitigate, Mr. Maldonado’s damages should be assessed in the
range of $30,000 to $40,000. The defendant places reliance on three decisions
of this court in which general damages were awarded in the amount of $40,000: Haines
v. Shewaga, 2009 BCSC 340; Olynyk v. Turner, 2012 BCSC 1138; and Mothe
v. Silva, 2015 BCSC 140.

[73]        
In my view, the injuries suffered by the plaintiffs in each of these
three cases are so dissimilar from those in the present case that the decisions
provide no guidance at all.

[74]        
In Haines, the trial judge found that the plaintiff had
exaggerated the effects of his injuries, misrepresented the intensity, frequency
and duration of the pain and the extent and duration of the impairment of his
ability to perform work and also misrepresented the impact on his recreational
activities. Most of the effects of his injuries had, it was found, “dissipated”
before trial. Damages were awarded on the basis that the plaintiff would
continue to experience episodes of mild to moderate pain in his mid-back on an
intermittent basis.

[75]        
The trial judge in Olynyk assessed damages on the basis of the plaintiff
having suffered a mild soft tissue injury to the neck and a moderate injury to
the low back. The frequency and intensity of pain symptoms had improved
significantly before trial; he was left with some residual pain that would
likely be permanent, but it was found that he would be able to engage in
recreational activities in the future if he lost weight and committed to a
program of core strengthening and stretching; for example, the trial judge
stated at para. 86 of the judgment:

[86] … He will likely still
experience some pain if he plays golf, but I am not persuaded that he will be
unable to play or that playing will cause so much pain and discomfort that it
would not be worth the effort.

That is not Mr. Maldonado’s situation.

[76]        
Likewise, the plaintiff in Mothe, a 44-year-old longshoreman,
initially suffered headaches and soft tissue injuries to his neck, back and
shoulder areas, and was left with ongoing chronic neck and shoulder pain and
related headaches at the time of the trial. The injuries, as found by the trial
judge, contributed to fatigue and a “discouraged, pessimistic outlook”, and
reduced the plaintiff’s enjoyment of recreational activities and family life. They
were not, however, so serious as to completely prevent the plaintiff from engaging
in recreational activities; one of the plaintiff’s collateral witnesses gave
evidence that he and the plaintiff would go running at noon along the dyke at
Tsawwassen, for a distance of three to five kilometres, though he noted that at
times Mr. Mothe “struggles”. Again, this does not approach the severity of
Mr. Maldonado’s injuries and functional limitations.

[77]        
I am persuaded by the plaintiff’s submissions, and I award Mr. Maldonado
non-pecuniary damages in the amount of $110,000.

[78]        
Lastly, the defendant, as noted, argues for a 20% to 40% reduction in
the plaintiff’s non-pecuniary damages by reason of what is argued to have been
a failure to mitigate his loss, in several respects: the plaintiff’s failure to
take advantage of personal trainers who may have been available at the gym he
joined; failure to follow advice from Dr. Alex in 2015 to try further
physiotherapy or massage therapy; and failure to undertake a course of
treatment with Viagra or Cialis to treat erectile dysfunction.

[79]        
There is no evidence that a personal trainer would have been available
at the gym in question, had he made inquiries, at a cost he would have found
affordable.

[80]        
Dr. Alex’s recommendation to undergo further treatment was only
made relatively recently; there is no evidence that such treatments would have
provided anything more than temporary symptomatic relief. The plaintiff is in
the best position to judge when that is needed. In any event, his testimony on
cross-examination, which I accept, was that such expenses are not covered by
his extended health provider, and are simply beyond his means at present.

[81]        
As for medication to treat erectile dysfunction, Mr. Maldonado
testified that he is not in a relationship.

[82]        
I do not find these issues support a claim of failure to mitigate sufficient
to justify discounting of the damages award. The onus is on the defendant to
demonstrate that the plaintiff’s conduct was unreasonable, and to demonstrate
that the foregone course of action would have made a material difference to the
plaintiff’s condition. The defendant has failed to satisfy this onus.

Loss of Earning Capacity

[83]        
The plaintiff’s claim for loss of earning capacity is framed in terms of
loss of a capital asset – his pre-accident endowment of physical strength and
stamina, which permitted him to exercise his learned skills as a scaffolder. This,
it is maintained, resulted in loss of opportunities to advance with Skyline
Scaffold into higher-paying positions on scaffolding crews, and loss of the
opportunity to pursue a lucrative career as a scaffolding subcontractor.
Furthermore, it is submitted that the plaintiff is now less valuable to his
present employer, and to other potential future employers.

[84]        
However, in terms of evidence, the plaintiff relies on the expert
evidence of an accountant. The accountant has analyzed the past and future
losses in terms of the loss of income, by comparing the plaintiff’s “with
accident” projected earnings, adjusted annually at an assumed rate of 2.5%, to
potential “without accident” earnings based on data for B.C. males employed in
construction trades.

Past Loss of Earning Capacity

[85]        
Prior to the accident, when still formally classified as a helper with
Skyline Scaffold, Mr. Maldonado had been earning a wage of $16 an hour
(slightly more than the base “helper” range of $14 to $15 attested to by Mr. Chorbajian),
working 40 to 50 hours a week. When he began driving upon his return to work,
his wage increased to $17 an hour, though his hours were limited to between 28
and 35 hours per week. In his permanent positon as a driver for the two
companies, he was paid $24 an hour on a straight 40 hour week commencing in
January 2011, with some modest annual bonuses. He has continued to be paid at
that rate.

[86]        
The plaintiff’s expert accountant, Mr. Lakhani, compared estimated with-
and without-accident earnings, and opined that the past income loss, net of
income taxes and E.I. premiums, is $37,412. This is the sum of losses during
three periods of time: a gross loss of $5,484, derived from earnings at his pre-accident
wage rate, until Mr. Maldonado returned to full-time work, according to
Skyline Scaffold’s records, in the beginning of December, 2009; earnings at
higher assumed hourly rate of $17.00, from December 2009 to the end of
February, 2010; and thereafter, to trial, earnings as a scaffolding
subcontractor to Skyline Scaffold, at a salary Mr. Lakhani bases, as noted
above, on statistics of earnings for full-time, full-year B.C. male employees
working as construction contractors.

[87]        
The plaintiff concedes a point made in cross-examination of Mr. Lakhani,
that he failed to take into account the loss of employer CPP contributions that
would result if Mr. Maldonado had become an independent sub-contractor. With
the plaintiff having to make such contributions on his own account, this would
have lowered the past loss of $37,412 by approximately $11,000, to a net loss
of about $26,000.

[88]        
On the other hand, the plaintiff submits that the data relied upon by Mr. Lakhani
provided for construction contractors earning income of approximately $60,400
in 2011, escalating to $72,700 in 2014, whereas Mr. Chorbajian testified
that a scaffolding subcontractor who runs his business properly can earn what
Skyline Scaffold pays its field supervisors, i.e. $125,000. Given Mr. Maldonado’s
drive, energy and talent,  it is submitted that he would probably, as a
subcontractor, have earned well in excess of the statistical figures relied
upon by Mr. Lakhani, and the plaintiff contends for a past earnings
capacity loss in the range of $40,000 to $50,000.

[89]        
The defendant takes the position that there is at least the possibility
that the plaintiff would still, but for the accident, have transitioned into
the driving and mechanical work that he does now, as his natural talents likely
would have come to the attention of his employer. I do not view this as a
realistic possibility. All of the evidence points to the likelihood of Mr. Maldonado
returning to work on the scaffolding crews, had he been physically able to do
so. Further, to voluntarily move over to CC Equipment Mr. Maldonado would have
been sacrificing, at least, the opportunity to earn a wage at the upper end of
the $21-$31 range for scaffolders – higher than his present wage rate – and the
opportunity to work more than a 40-hour week. There is nothing in the evidence
to suggest a real possibility of him making such a sacrifice.

[90]        
The defence also argues that Mr. Lakhani did not account for the
months off work the plaintiff took because of a knee injury in 2014 that
resulted in a WCB claim. In fact, however, Mr. Lakhani’s calculations do
account for that loss, in that he only used Mr. Maldonado’s actual
earnings for 2013-2014, and – presumably because of a lack of information – assumed
full employment during 2014 year under the “with accident” scenario. This
criticism, I find, has no merit.

[91]        
The contention that Mr. Maldonado would have become a scaffolding
subcontractor is based entirely on the plaintiff’s own assertion that this was
his goal, and his evidence that he advised Mr. Chorbajian that this was
his goal in one conversation, when he joined the company. Mr. Chorbajian,
however, gave no evidence in support of this scenario. He did not testify as to
having any memory of that conversation. He gave no evidence as to the
likelihood of Mr. Maldonado being employed by Skyline Scaffold individually
as an independent contractor. He did say that Skyline Scaffold has used
subcontractors in the past, but he was referring to subcontracting companies
with their own crews, not individual workers. As I have noted, he did say that
a subcontractor could make as much as Skyline Scaffold’s field supervisors, but
that is through controlling the labour costs of their work crews. Moreover, he
testified that Skyline Scaffold has moved away from the use of subcontractors,
as safety and compliance requirements have “ratcheted up”.

[92]        
The only other basis upon which I could conclude there being a real,
significant possibility of Mr. Maldonado becoming a subcontractor is a
letter in evidence – submitted as part of the plaintiff’s Skyline Scaffold
employment records – from Skyline Scaffold’s business manager, a Ms. Nicholls,
in which she says:

It was the intent that Mr. Maldonado
would begin to sub-contract with Skyline Scaffold Ltd and he would move from
payroll and run his own crews independently. Those discussions were happening
in the summer of 2009, my recollection would be early August, but may have been
in July.

Ms. Nicholls, however, did not testify, and there
is no provision made in the parties’ document agreement under which the
statements made in the letter could be admitted for their truth. I also note
that Ms. Nicholls does not indicate that she had first-hand knowledge of
these “discussions”, and her memory of the timing and use of the plural,
“discussions”, does not accord with Mr. Maldonado’s evidence of their
having been one conversation with Mr. Chorbajian shortly after he
commenced employment. The plaintiff’s counsel, I note, placed no reliance on
this letter in closing argument.

[93]        
Mr. Maldonado clearly has drive and ambition that, but for the
accident, would have augmented his physical strength and work skills. However,
there is no evidence as to whether he has the entrepreneurial and
organizational skills that would reasonably be viewed as necessary to success
as owner of a subcontracting company. There is no evidence that individual workers
are hired in this trade on a subcontracting basis. And, as I have said, there
is no evidence that Mr. Chorbajian would have subcontracted individually with
Mr. Maldonado. The evidence does not support a finding that this was
probably a real, substantial possibility.

[94]        
What I am able, however, to conclude from the evidence is that but for
the accident, there is a very high probability that Mr. Maldonado would
have continued to work for Skyline Scaffold, and that he was so skilled and so
highly regarded that he would most likely have received a wage increase to at
least the base rate for scaffolders, $21 per hour, by the fall of 2009, with an
additional 13 hours of work a week on average (45 hrs/wk as a scaffolder, less
an average of 34hr/wk worked with-accident). I further conclude that he would
have relatively quickly earned a wage increase or increases bringing him up to his
present actual wage level of $24 with, on average, an additional 5 hours a week
of work (45 hr/wk without-accident, vs. 40 hrs/wk with-accident commencing
January 2011). Thereafter, there is a good probability of his hourly wage
increasing to at least the mid-range of a scaffolder, or the lower end of a
foreman – slightly more than the $24 wage he is currently earning. This range
of probable results could easily yield a gross income loss, up to the date of
trial, of $60,000 to slightly more than $100,000.

[95]        
This range, in my view, represents the maximum of Mr. Maldonado’s
gross income loss – in other words, the most plausible “best case scenario” – and
would be subject to negative contingencies for the possibility of what I judge
to be these most probable outcomes not coming to fruition.

[96]        
There is further, in my view, the need to make a significant deduction
for the contingency of workplace injury as a scaffolder, reflecting the
marginal increased risk of injury over his present position. (Mr. Lakhani did
not apply any negative labour market contingencies to Mr. Maldonado’s past
employment because he assumed that Mr. Maldonado had worked on a
full-time, full-year basis after the initial absence immediately following the
accident. This assumption, we know, is incorrect; Mr. Maldonado was paid
more than $22,000 in worker’s compensation benefits in 2014.) I would find, on
the evidence as to the demanding, physical nature of the job, that Mr. Maldonado
would have faced a greater risk of injury under the without-accident scenario,
again justifying some downward adjustment.

[97]        
Applying a marginal income tax rate of 28%, I value the past loss of
earning capacity as a net loss of income of $45,000.

Future Loss of Earning Capacity

[98]        
The plaintiff presents Mr. Lakhani’s opinion as evidence of the
minimum future loss sustained by the plaintiff. Mr. Lakhani, again, took
as his starting point in the “without accident” scenario, the available 2010
full-time, full-year age-earnings data for B.C. males working as construction
contractors. With the raw data organized in five-year age cohorts, Mr. Lakhani
derived single-year values by simple mathematical interpolation, and then
applied a formula to increase each year’s income, to anticipate changes in
average weekly wage rates. The results were then subject to deduction for
labour market contingencies, including the participation rates for B.C. males
who have not completed high school.

[99]        
Mr. Lakhani arrived at a “without accident” present value of
cumulative future income, to age 65, of $1,475,186; and, using the methodology
referred to above, a “with accident” future value of $1,252,451. The
difference, $272,735, is his best estimate of Mr. Maldonado’s future loss.

[100]     The
plaintiff submits that this likely grossly understates Mr. Maldonado’s
actual loss. If it were found that Mr. Maldonado would be working for
Skyline Scaffold as a field supervisor by this point in time, but for the
accident, earning $100,000 annually, the economic multiplier used by Mr. Lakhani
would yield cumulative future losses with a present value of $2,268,500, and an
estimated future income loss of $1,016,049.

[101]     The
plaintiff submits a further alternative analysis, based on Mr. Chorbajian’s
evidence that because he has had to hire a helper to assist Mr. Maldonado
with deliveries and heavier repair work, the plaintiff is being paid “a good
$7.00 or $8.00 an hour” less than would otherwise be the case, a mechanic with
no journeyman credentials being typically paid in the “lower $30’s”. That
difference in pay, it is submitted, could result in an income loss of $15,000
per year, or $420,000 cumulatively over the next 28 years of Mr. Maldonado’s
working life; a loss with a present value of  $319,219.

[102]     Given
these possible scenarios, the plaintiff submits that a fair, reasonable
assessment of the loss of future earning capacity is in the range of $400,000
to $500,000.

[103]     I do not
find there is any substantial likelihood of Mr. Maldonado being employed
as a field supervisor by this point in time, but for the accident. Mr. Chorbajian
testified that there are only a “couple” of such positions with Skyline
Scaffold; there is no evidence that such a position would have opened up, and
no evidence that there were not others who were more likely or as likely to be
promoted into that position. Mr. Chorbajian only testified to the
likelihood of Mr. Maldonado eventually attaining a supervisory position –
i.e. as a field supervisor, or as a foreman. Having said that, there is a real
and substantial possibility that Mr. Maldonado has lost the opportunity to
be appointed into a field supervisor’s position, at a salary in the “low six
figures”, at some unknown point in the future.

[104]     There are
difficulties in applying Mr. Lakhani’s analysis to Mr. Maldonado’s
circumstances. The “without accident” income Mr. Lakhani postulates for
the year 2015, $78,062, would be equivalent to slightly more than $33 an hour
on a 45-hour week, well into the upper range of $25-$38 paid to foremen.
Whether Mr. Maldonado would have been able to obtain merit-based raises to
that level over the course of less than six years is at least questionable, and
Mr. Chorbajian gave no explicit evidence to that effect.

[105]     Moreover,
I see Mr. Lakhani’s analysis being particularly problematic in respect of
its use of participation rates for construction contractors generally.
Tradespersons such as electricians, plumbers, carpenters and drywallers do not
typically engage in physical labour nearly as arduous, nor as potentially
hazardous, as scaffolders. The “without accident” scenario of Mr. Maldonado
remaining employed doing physical labour with Skyline Scaffold – i.e. anything
short of a field supervisor’s position – would be subject to the negative
contingencies of increased absences from the workforce due to injury, and
earlier retirement or transfer into less remunerative work due to age-related
declines in stamina and capacity.

[106]     There is
also, for Mr. Maldonado in particular, the negative contingency of his
physical work capacity being adversely impacted by the possibility of
pre-existing degenerative changes in his lumbar spine becoming manifest.

[107]     The
defendant submits that Mr. Maldonado is in fact more marketable as an
employee than he was at the time of the accident, due to having obtained
certification as a hoist technician and having been trained in repair of CC
Equipment’s line of construction equipment. I see this factor as having
mitigated Mr. Maldonado’s loss. It remains the case that notwithstanding
this training, there are real possibilities of future employment in more
lucrative positions that are now permanently closed off due to his injuries.

[108]     Undoubtedly
the most difficult factor in quantifying Mr. Maldonado’s loss is a piece
of evidence I have not yet referred to, which bears on the prospects for a
significant increase in his income in the immediate future. Mr. Chorbajian
testified that he wants to hire another mechanic and have the plaintiff
formally become manager of CC Equipment’s shop. To provide the plaintiff with
an incentive, Mr. Chorbajian offered him, “in the past few months”, profit
sharing of the shop’s revenue. Mr. Chorbajian said that he intends to put this
in place “definitely sooner rather than later”, and that in the next few months
following the trial he expected that he would start generating data and sharing
it with Mr. Maldonado. He said that the shop is a “work in progress”, that
it was “tough to say” how a profit-sharing arrangement would impact his income.
It would be structured as a bonus, a percentage of profit on top of Mr. Maldonado’s
regular salary.

[109]     There was
no further testimony offered or elicited as to how profitable the shop has
been, what its projected profits might be, or what share of profits Mr. Maldonado
might be offered.

[110]     Mr. Gosal
confirmed in his testimony that earlier in 2015, as he recalled, he overheard Mr. Chorbajian
making a proposal for Mr. Maldonado’s “part ownership” of the shop,
something that to his knowledge had never previously been offered to a CC
Equipment employee.

[111]     Mr. Maldonado
made no mention of this offer in his testimony, either in chief or in
cross-examination. I find this disturbing. His failure to disclose this leads
me to draw an adverse inference that he has an expectation that his loss of
income will be significantly mitigated as a result.

[112]    
The process by which a loss of earnings is to be quantified was
summarized by the Court of Appeal in Jurczak v. Mauro, 2013 BCCA 507:

[35] Quantifying
a loss may be aided by some mathematical calculation, but there is no
particular formula. As stated in Rosvold v. Dunlop, 2001
BCCA 1:

[8] The most basic
of those principles is that a plaintiff is entitled to be put into the position
he would have been in but for the accident so far as money can do that. An
award for loss of earning capacity is based on the recognition that a
plaintiff’s capacity to earn income is an asset which has been taken away. Where a plaintiff’s permanent
injury limits him in his capacity to perform certain activities and
consequently impairs his income earning capacity, he is entitled to
compensation. What is being compensated is not lost projected future earnings
but the loss or impairment of earning capacity as a capital asset. In some
cases, projections from past earnings may be a useful factor to consider in
valuing the loss but past earnings are not the only factor to consider.

…

[11] The task of
the court is to assess damages, not to calculate them according to some
mathematical formula. Once impairment of a plaintiff’s earning capacity as a
capital asset has been established, that impairment must be valued. The
valuation may involve a comparison of the likely future of the plaintiff if the
accident had not happened with the plaintiff’s likely future after the accident
has happened. As a starting point, a trial judge may determine the present
value of the difference between the amounts earned under those two scenarios.
But if this is done, it is not to be the end of the inquiry. The overall
fairness and reasonableness of the award must be considered taking into account
all the evidence.

…

[18] The assessment of damages is a
matter of judgment, not calculation. …

[Emphasis added; citations omitted.]

[36] This process is “an assessment rather than a
calculation” and “many different contingencies must be reflected in such an
award”: Barnes v. Richardson, 2010 BCCA 116 at para. 18.
“Ultimately, the court must base its decision on what is reasonable in all of
the circumstances. Projections, calculations and formulas are only useful to
the extent that they help determine what is fair and reasonable”: Parypa
v. Wickware, supra, at para. 70.

[37] With that
said, if there are mathematical aids that may be of some assistance, the court
should start its analysis by considering them… .

[113]     The
following year, the Court of Appeal held in Schenker v. Scott, 2014 BCCA
203, that the trial judge had failed to provide adequate reasons justifying the
future earnings award, had misapprehended material evidence and had made an
award that could not be supported by the findings of fact. The trial judge, it
was said, appeared simply to have “plucked a number from the air”, with the
only justification provided being “a testing of the award’s reasonableness
against somewhat similar cases” (para. 56). The failure to analyze the
evidence, assess probabilities and the implications that the findings of fact
had for the loss assessment were held to be errors of principle, sufficient to
engage appellate review.

[114]    
Elaborating on the deficiencies in the trial court’s analysis, Mr. Justice
Harris said:

55. …There is no clear analysis
of whether Ms. Schenker proved a substantial possibility of future income
loss derived from her diminished marketability. There is no explicit analysis
of the general level of earnings Ms. Schenker would have realistically
achieved, but for the accident, taking into account her intentions and the
probabilities of achieving them. There is no projection of her likely earnings
taking into account her injuries and other relevant contingencies.

[115]     I do not
read Schenker as standing for the proposition that such explicit,
detailed analyses of expected earnings under the “without accident” scenario
and projection of likely earnings under the “with accident” circumstances are now
a required component of reasons for judgment in cases dealing with lost earning
capacity. Such a requirement could be seen as inconsistent with the Court of
Appeal’s admonition in Rosvold that the process of determining damages
for loss of capacity is an assessment, not a calculation. The factual matrix in
many cases – and this is one of them – can be so complex and there can be so
many unknowns that the range of possible earnings under each of the many
alternative with- and without-accident possible outcomes precludes specific
projections being made. The object is to arrive at a fair result, supported by
the evidence, after weighing the positive and negative contingencies, with the
path of reasoning being sufficiently articulated to allow meaningful appellate
review.

[116]     Given the
evidence I have summarized above and the concerns I have expressed as to the weight
to be given the expert report and the relative likelihood of various scenarios,
I assess Mr. Maldonado’s future loss of earning capacity at $175,000.

Cost of Future Care

[117]     The
plaintiff seeks a substantial award under this heading, in the range of $50,000-$100,000.
It is based on recommendations made by the occupational therapist Mr. McNeil,
and the physiatrist Dr. Kleinman. The present value of these future costs
is analyzed in a separate report from Mr. Lakhani.

[118]     The chief
components of the claim, and their claimed present values, are as follows:

[119]     I find
some justification in the evidence for the pain management devices.

[120]     I also
find some justification for allowing the cost of a personal trainer to work
with Mr. Maldonado to find ways he might be able to exercise, increase his
cardiovascular fitness and stamina, increase his core strength and lose weight,
while minimizing the degree to which his symptoms are aggravated. Given the
nature of the plaintiff’s injuries, however, there is no justification for
basing such an award on a certainty that a consultation would be successful and
would likely lead Mr. Maldonado to incurring annual expenses of the
magnitude claimed. There is also the likelihood that as Mr. Maldonado aged
he would, but for the accident, have found it beneficial to exercise regularly
at a gym, as many of us do.

[121]     Given Mr. Maldonado’s
work situation and the degree to which he has already found ways to accommodate
and make adjustments for his injuries, I do not see that the expense of
consultations with experts is justified.

[122]     Some substantial
allowance may be appropriately made for Mr. Maldonado incurring the cost
of adjunct health therapies on an as-needed basis, but the amount claimed is
not supported medically and is clearly excessive.

[123]     In
addition, Dr. Rasmusen has recommended 10 to 12 sessions with a
psychologist with training in chronic pain issues. The projected expense is
$180 per session. I find this claim justified and reasonable.

[124]     Some
allowance should also be made for the plaintiff’s continuing use of over-the
counter medication and Naprosyn. No particular quantification of this expense has
been given in the evidence.

[125]     I award Mr. Maldonado
$30,000 under this head.

Loss of Housekeeping Capacity

[126]     The
plaintiff’s evidence as to the impact of his injuries on his ability to
undertake normal housekeeping activities is as stated above. Mr. McNeil’s
functional capacity evaluation confirms restrictions in his ability to engage
in bending, lifting and vertical reach. The plaintiff submits that an award
under this heading in the range of $10,000 to $20,000 is appropriate.

[127]     Although
he currently lives in a shared accommodation setting in which the demands on
him are minimal, I find there is a real and substantial possibility of Mr. Maldonado’s
living arrangements changing in the future such that his injuries will have a
material impact on his ability to undertake normal yard work and housekeeping
tasks. I award $10,000 under this head.

Special Damages

[128]     These are
agreed at $6,054.57.

Summary

[129]     Damages
are awarded as follows:

[130]    
The plaintiff is presumed to be entitled to his costs at Scale B. If
there are factors unknown to me that should be considered in awarding costs,
counsel make arrangements through Supreme Court Scheduling – New Westminster
for further oral submissions to be made at 9:00 a.m. on a mutually convenient
date.

“A. Saunders J.”