IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Uppal v. Judge,

 

2016 BCSC 642

Date: 20160413

Docket: M112748

Registry:
Vancouver

Between:

Bhupinder Singh
Uppal

Plaintiff

And

Tarsem Judge,
Kirandip Kaur Judge
and Reginald Thomas Fitzgerald

Defendants


and –

Docket: M122468

Registry:
Vancouver

Between:

Bhupinder Singh
Uppal

Plaintiff

And

Karnail Singh
Bassi

Defendant


and –

Docket: M142696

Registry:
Vancouver

Between:

Bhupinder Singh
Uppal

Plaintiff

And

Deny Ha and Lai
Minh Ha

Defendant

– and –

Docket: M155897

Registry:
Vancouver

Between:

Bhupinder Singh
Uppal

Plaintiff

And

Hardeep Kaur Pannu

Defendant

Before:
The Honourable Madam Justice Loo

Reasons for Judgment

Counsel for the Plaintiff:

J.J. Hyde
K. Walkinshaw

Counsel for the Defendants:

S. Kovacs

Place and Date of Trial/Hearing:

Vancouver, B.C.

November 30, December
1-3,
December 7-8, and December 10, 2015

Place and Date of Judgment:

Vancouver, B.C.

April 13, 2016



 

INTRODUCTION

[1]            
The plaintiff, Bhupinder Singh Uppal, claims damages arising out of four
motor vehicle accidents that occurred on July 20, 2009, May 13, 2010, June 10,
2012, and December 21, 2014. Mr. Uppal commenced four separate proceedings that
were heard together. Liability has been admitted, except for the accident of
May 13, 2010. For the reasons which follow, I find the defendant Karnail
Singh Bassi liable for the accident of May 13, 2010. Damages are therefore the
only issue.

[2]            
Mr. Uppal’s claims are complicated by the fact that he had pre-existing
physical and psychological injuries. Between December 2001 and January 25, 2006
he had at least nine motor vehicle accidents. He commenced proceedings relating
to seven of the accidents and they were settled in May 2009. There are
extensive medical reports and a functional capacity evaluation report relating
to Mr. Uppal’s conditions and symptoms shortly before the settlement.

[3]            
Mr. Uppal was a poor historian. He had difficulty recalling details of
his earlier accidents, or how he felt from time to time following the more
recent accidents and did so in just general terms. But he did the best he
could, and it will become apparent that his poor memory is likely a symptom of
his psychological injuries.

background

[4]            
Mr. Uppal is 55 years old. He was born in Punjab, India, where he
completed the equivalent of high school, and attended college for two years. He
came to Canada in 1980. He qualified as a carpenter, sawyer, and painter. He
worked for different companies manufacturing doors, building custom furniture,
kitchen cabinets and countertops, until he developed a severe allergy to wood
dust, and could no longer work for any wood related industries.

[5]            
In the 1980s and 1990s – about 23 or 24 years ago – Mr. Uppal is not
particularly good with dates – he worked in custom home construction “from scratch”.
He cleared the lots, dealt with city hall, organized the trades, and did some
clean-up work. In 1997 he began working as a bus driver for BC Transit (now
known as Translink’s Coast Mountain Bus Company).

[6]            
Mr. Uppal has been married for over 34 years. He and his wife, Harminder
Kaur Uppal, have three adult children. The youngest, who is 23 years old, lives
at home. The family has lived in the same house in Surrey since 2005. Mrs.
Uppal works full time as a library assistant for a non-profit organization.

[7]            
Before December 2001, Mr. Uppal was physically active and enjoyed
playing soccer, tennis, walking, jogging and other activities. He looked after
maintaining the exterior of the house, such as cleaning the gutters and power
washing, and he enjoyed taking care of the yard, including the flowerbeds and
vegetable garden.

[8]            
On December 6, 2001 Mr. Uppal was driving when he was rear-ended. He
suffered low back pain, neck pain, pain in his left knee, tinnitus, and
headaches. He had physiotherapy, acupuncture, and acupressure treatments, and
was seen by various physicians. He was off work until he returned to work as a
utility operator in July 2003 as part of a gradual return to work program. A
utility operator generally worked two hours shifts during rush hours at transit
loops, dealing with questions from transit riders.

[9]            
In February 2004 Mr. Uppal was driving a bus when he was struck on the
side of the bus by another vehicle. The accident aggravated his previous
injuries “to some degree” but he continued working. In August 2004 he was
driving a bus when another vehicle suddenly made an illegal turn in front of
him, and he T-boned the vehicle. The bus jolted on impact. Mr. Uppal’s back
pain was aggravated, he took no time off work, but increased his pain
medication.

[10]        
Mr. Uppal did not advance claims relating to the February and
August 2004 accidents.

[11]        
On December 19, 2004 Mr. Uppal was driving, when a motorist failed to
stop at a stop sign and T-boned the driver’s side of his vehicle. Mr. Uppal
does not recall what injuries he sustained in that accident because the
injuries from his many accidents have been similar.

[12]        
Mr. Uppal no longer recalls the date of his next accident or whether he
was T-boned or rear ended. The medical reports indicate that following an
accident in September 2005, Mr. Uppal was unable to work as a bus driver, but
worked a few hours a week as a utility operator.

[13]        
Mr. Uppal also cannot recall the date of his last accident before his
July 20, 2009 accident. He thinks it was 2006, and from the medical reports it
appears it was. Mr. Uppal was driving his vehicle east bound along Marine Drive
when he was rear-ended, and the vehicle that struck him was also rear-ended.
Mr. Uppal testified that his injuries were aggravated “for a bit”.

Medical evidence: the earlier accidents

[14]        
The medical evidence relating to the earlier accidents assists in
determining Mr. Uppal’s original position when the first of the subject
accident occurred on July 20, 2009.

[15]        
In October 2004 Mr. Uppal was assessed by Dr. John le Nobel, a
specialist in physical medicine and rehabilitation, and diagnosed as suffering
from a chronic pain condition, primarily in his low back. He had psychological
difficulties arising from the December 2001 accident, including sleep
deprivation, fatigue, anxiety, depression, and memory problems. He also
suffered from dizziness and tinnitus, or ringing in his ears. He was limited in
his tolerance for work and non-work related activities, and his prognosis was
guarded.

[16]        
Dr. Simon Ngui is a general practitioner who has been Mr. Uppal’s family
physician since February 1983. In his April 3, 2009 report, Dr. Ngui concluded:

In summary, Mr. Bhupinder Uppal was involved in numerous car
accidents. He sustained soft tissue injuries to his cervical spine, upper
dorsal spine and lumbosacral spine. The injuries in these areas were aggravated
by each subsequent car accident. It is difficult to ascertain the impact of
each car accident on Mr. Uppal’s physical and mental functioning.

He has been assessed by numerous
specialists and the consensus of opinion is that Mr. Uppal has developed a
chronic pain syndrome and suffers from a major depressive illness.

[17]        
Dr. Ngui agreed with the recommendations of Paul Pakulak, an occupational
therapist (set out at para. 28 herein). At trial, he testified that
Mr. Uppal could “probably” improve, even if he did not follow
Mr. Pakulak’s recommendations.

[18]        
Dr. Rubin M. Feldman, a physical medicine and rehabilitation specialist,
first saw Mr. Uppal in November 2002, and at various times thereafter. In his
medical legal report dated March 17, 2009, he states:

SUMMARY AND OPINION:

52.   This
review has brought together involvement by a number of different professionals
who have evaluated this man at various stages in his evolution covering the
numerous motor vehicle accidents in which he was involved.

53.   Clearly
the first accident [December 6, 2001] was the one that set the stage for the
problems that were to take place later on. In the same way, the accident which
occurred in September 2005 aggravated him further and all the other accidents
in between served to reduce his self-respect and his self-image, as well as his
self-confidence relative to driving a transit bus. This has spread into ail
areas of his life, reducing his quality of life significantly and causing
severe depression, anxiety, and the development of a chronic pain syndrome.

54.   To his
credit, he made a very valiant attempt to return to work and had he not been
involved in any other accidents he would likely be driving a bus today. The other accidents which took place after 2004, however, resulted
in a gradual diminution of his abilities and confidence to continue with
driving a transit bus, recognizing the safety issues and significant problems
physically because of the frequency with which he needed to rotate his head to
the right and left and use his arms in the performance of his job all causing
severe pain and muscle spasm.

55.   As a result, as he is now, he certainly is unable to return to
the kind of work that he was doing before and he likely could not be involved
in any gainful employment because of the ease with which he develops pain.

56.   As recommended by Drs. Read [consultant in neuropsychology]
and O’Shaughnessy [forensic psychiatrist], with which I agree totally, this man
needs now a three-pronged approach to treatment involving pharmacological and
psychological attention to his chronic pain, a cognitive behavioural approach
towards dealing with his anxiety and depression, and attempts to improve his
physical function with an appropriate physical rehabilitation program involving
a general conditioning exercise program under the direction of a personal
trainer or kinesiologist together with a strengthening program to gradually
increase his stamina without causing pain while this process is going on.

….

58.   [I]t is still impossible, even with the best of intentions, to
determine whether the prognosis will be favourable. Certainly he should have
the opportunity of improving his function as much as possible but I would be
unable to give you an opinion as to whether, at the conclusion of all these
interventions, he would be able to be gainfully employed. Much will depend upon
the kind of work that he would choose to do since it would likely have to be a
situation in which he does not need to be very physically active in the work
that he does and it would need to be in an environment where there would be
very little stress or heavy demands on his physical ability.

….

60.  I should also
note that throughout the time that I followed Mr. Uppal, I never felt that he
was malingering or magnifying his symptoms. He always was genuinely concerned
about the adverse effects on his ability to work caused by his many problems as
described in this report. His consistent goal, at all times, was to be able to
return to his job on a full-time basis, a goal which he will likely not
achieve. He always dealt with all the issues and problems which he had in an
honest and forthright manner.

[19]        
On February 20, 2009 Mr. Uppal was again assessed by Dr. le Nobel. In
his medical legal report dated March 12, 2009, Dr. le Nobel states:

Much of his treatment to date has been passive. At the
present time he is performing little in terms of active rehabilitation
exercise. Much of his day is spent in a sedentary manner, either sleeping or
resting. His responses to questioning today indicate a combination of concern
and a lack of understanding regarding anticipated normal physiological
responses to exercise activity. There is not, however, from my understanding,
any physiological barrier to him engaging in a programme of active exercise
rehabilitation, supported by adjunctive pain relieving measures (medications,
physical therapy techniques) as well as supportive counselling for his
psychological condition, medications for his sleep and depression and anxiety
and close monitoring of his exercise technique and performance.

The best available option for
such an interdisciplinary treatment approach is likely through a facility such
as the Vancouver Pain Clinic or Columbia Pain Centre. Given the multiplicity of
diagnoses and the long time since he was injured, I would anticipate that such
an interdisciplinary programme will be lengthy. I would allow
at least two or three months to gauge his tolerance for such a reconditioning
programme, with a plan to extend the total of such a programme to 12 to 18
months should he show promise during the initial 2-3 month trial period. …. It
is not at all certain to what degree he can improve. Some improvement is
certainly possible.

[20]        
When Mrs. Uppal was interviewed by Dr. Donald E. Read,
neuropsychologist, on July 17, 2007, she told him that she thought her
husband’s physical and mental health was still not back to where it had been
before the December 6, 2001 accident. He improved after he returned to work at
the beginning of 2004, but each of the accidents in 2004, 2005, 2006 and 2007
set him back: his powers of concentration and memory got worse with each
successive accident, as did his irritability.

[21]        
Dr. Read conducted clinical interviews and a neuropsychological
assessment of Mr. Uppal in February and March 2009. He diagnosed Mr. Uppal as
suffering from post-traumatic disorder. In his report dated March 24, 2009, Dr.
Read states:

He remains highly anxious, severely depressed, and in chronic
pain at the present time, despite being on medication and receiving
psychological counselling and psychiatric treatment. He meets the diagnostic
criteria of the current edition of the American Psychiatric Association’s
Diagnostic and Statistical Manual of Mental Disorders (DSM-1V-TR) for a severe
posttraumatic stress disorder (PTSD). … [I]t appears that the
cumulative effect of these many accidents has resulted in Mr. Uppal becoming
severely traumatized: he becomes emotionally distressed when he is reminded in any
way of the accidents, he avoids situations that remind him of the accidents, he
has intrusive thoughts, nightmares and dreams about the accidents, he avoids
talking about the accidents, he feels less connected to other people, he has a
foreshortened life expectancy, he has ongoing problems with concentration, his
mind wanders all the time, even when he needs to concentrate, he is much more
irritable, his sleep remains disturbed despite being on medication, he is
easily startled by sudden noises or movements, and he feels jumpy and on edge
most of the time. He is always on the lookout for danger, particularly when he
is in a motor vehicle. He is worse as a passenger than he is when he is
driving, but he is always very vigilant.

….

[I]t remains my
opinion that Mr. Uppal’s current cognitive complaints are due to the effects of
anxiety and depression and chronic pain, and not to the residual effects of a
concussive brain injury. Severe problems with anxiety, depression and chronic
pain only serve to increase the likelihood of sleep disturbance and to decrease
an individual’s ability to cope with physical pain.

[22]        
When Mrs. Uppal was interviewed by Dr. Read on March 16, 2009 she told
him that since she last spoke to him on July 17, 2007, her husband had become
more irritable, his sleep was worse, he had no motivation, he did not do much, he
did not want to socialize, and their relationship was worse because they did
almost nothing together.

[23]        
In his report dated March 12, 2009, Dr. Neil S. Longridge,
otolaryngologist, opines that Mr. Uppal suffered from tinnitus in both ears
following the December 2001 accident which damaged his balance system. The
tinnitus interferes with his sleep and concentration, is moderate in severity,
and is likely to be present on a long term permanent basis.

[24]        
Dr. Satinder Narang is a psychiatrist who has seen Mr. Uppal regularly
since July 2002 when he diagnosed Mr. Uppal with major depression. He noted
that Mr. Uppal managed to recover and return to work as a bus driver and
that it was important for Mr. Uppal’s sense of self-esteem to work. His
functioning took a major turn for the worse after the accident on September 30,
2005, and he likely met the criteria for post-traumatic stress disorder.

[25]        
Dr. Narang last saw Mr. Uppal on January 6, 2009 before writing his
report of March 14, 2009. In that report he stated that Mr. Uppal’s psychiatric
symptoms of depression and anxiety were in partial remission, but he remained
vulnerable to further episodes of worsening symptoms of the disorders, and to episodes
of post-traumatic stress disorder. His chronic symptoms of depression and anxiety
also affected his memory.

[26]        
Mr. Uppal was seen by an occupational therapist, Paul Pakulak, who
assessed Mr. Uppal for two days in March 2009, and prepared a report dated
March 30, 2009. His opinion was based on physical testing and expressly
did not take into account the impact of Mr. Uppal’s emotional or cognitive
problems. In his report, Mr. Pakulak set out the following medications that Mr. Uppal
reported using:

1.   Imipramine, 25 mg, 6 tablets per day

2.   Apo-Alpraz, .25 mg, 2-3 tablets per week

3.   [Sleeping medication] Zopiclone, 5 mg, 2 tablets per day

4.   Tylenol #3, 3-4 tablets per day

5.   [Analgesic] Celebrex, 200 mg, 3-4 tablets per week

6.   Nexium, 40 mg, 1 tablet per day

7.   Extra Strength Tylenol, 500 mg, 7-8 tablets per week on
average

8.   [Muscle relaxant] Robaxacet
Platinum, 3-4 tablets per week on average

[27]        
According to Dr. Read’s report, Mr. Uppal was also taking the sedative
Lorazepam three times a week, and Bisoprolol twice daily.

[28]        
The defendants emphasize Mr. Pakulak’s rehabilitation recommendations
because they contend that Mr. Uppal never followed them, so I set them out:

There are a number of further recommendations for
rehabilitation efforts in the medical documents reviewed and as such I would
recommend that consideration should be given to the provision of funding for
the following

1.     As recommended by Dr. le Nobel he may benefit from participation in
a chronic pain management program such as that offered by the Vancouver Pain
Clinic or the Columbia Health Centers. The cost of the 28 day program at the
Vancouver Pain Clinic (including reporting and a two day follow-up) is
approximately $14,000 and the cost of a six week program at the Columbia Health
Centre is approximately $13,570.

2.     Dr. Lau recommended that he may benefit from the provision of an FM
system to help compensate for ongoing tinnitus. For a previous report, Ms. Lau
estimated the cost of this system at $4950. She estimated the cost of replacement
batteries for the hearing aids at $6 per week for a total yearly cost of $312.

3.     Dr. Lau also recommended that he would benefit from auditory
training for CAPD. Again, for a previous report, Ms. Lau estimated the cost for
this retraining at $2885.

4.     The recommendation for participation
in ongoing psychological counseling has been made. It is difficult to predict
the overall cost of this program, however, based on my professional experience,
I would recommend an allowance for weekly sessions for a six month period with
monthly follow-up sessions for a further six month. At a cost of $160 per hour,
the total cost of sessions in the first year should not exceed $5120. Given the
poor prognosis regarding his depression and other psychological symptoms, it may
be reasonable to provide funding for ongoing periodic sessions. A provision for
6-8 sessions per year would seem reasonable. At a cost of $160 per hour, the
total yearly cost of this service should not exceed $1280.

5.     The need for increased exercise efforts has also been
recommended (Dr. le Nobel recommended a 12-18 month period of treatment
including the pain management program and guided exercise efforts). As such, he
will likely benefit from working with a one on one kinesiologist to assist him
in developing an exercise therapy and fitness program that he will be able to
tolerate and then complete independently. I would suggest an initial sessions
frequency of three times per week for a period of 8 weeks with weekly follow-up
sessions for a further three months and monthly follow-up sessions for the
remainder of the first year. At a cost of $50 per hour the total cost of 44, 60-minute
sessions will be approximately $2200.

6.    In order to
facilitate ongoing participation in an exercise program, he will require the
provision of a pass to a local recreation centre that offers access to both a
pool and fitness room. The cost of such a pass will vary but typically ranges
between $400 and $500 (required for the next 10-15 years). Most facilities
offer senior’s rates beginning at age 60 or 65. These passes typically range in
price between $250 and $300 for seniors.

[29]        
Mr. Pakulak also recommended funding for gardening, yard work, and
pressure washing and gutter cleaning services.

[30]        
Dr. Feldman, Dr. Read, and Mr. Pakulak all commented on the impact of
Mr. Uppal’s symptoms on his ability to work. Dr. Feldman opined that “he
likely could not be involved in any gainful employment because of the ease with
which he develops pain”. Dr. Read opined that his future employability will
“depend largely upon the successful treatment of his current severe symptoms of
anxiety, depression, and post- traumatic stress, and alleviation of his chronic
pain conditions.” Mr. Pakulak opined that Mr. Uppal’s “ongoing difficulties
will likely make it very difficult for him to manage more than a few hours of
activity at a time and may preclude him from working consecutive days.

[31]        
As I indicated, Mr. Uppal’s actions relating to the earlier accidents
were settled in May 2009. There is no evidence relating to any terms of the
settlement, including whether Mr. Uppal received funding for any of the
rehabilitation recommendations.

[32]        
In early 2009 Mr. Uppal was working two hour shifts or six to 10 hours a
week as a utility operator, as well as spending one hour each way, travelling
to and from work. The utility operator program only operated during the school
year, and not during the summer months, so Mr. Uppal was not working during the
summer of 2009.

[33]        
Mr. Uppal testified that just before the accident of July 20, 2009, he
still experienced pain in his neck, back, and shoulders, “what area was worse
than the other, I don’t know”, but he was generally feeling better. His
symptoms waxed and waned. He had good days and bad days. Each day was unpredictable.
His low back pain was also aggravated by prolonged sitting (he had difficulty
sitting in court), standing, and cold weather. However, he was more mobile, and
he was thinking about buying another motorcycle (he sold his motorcycle
following the earlier accidents) and riding again.

the accident of July 20, 2009 (Uppal v. Judge, No. M112748)

[34]        
On July 20, 2009 Mr. Uppal was driving his vehicle, a 2001 Mercedes Benz
SLK 230, eastbound along 72nd Avenue in Surrey when he stopped for a vehicle
making a left hand turn. The van that was stopped behind him was rear ended by
a small Mercedes and the van rear ended Mr. Uppal’s vehicle. Mr. Uppal
“felt sort of jolted”, his turban partially slipped off his head, and he
experienced numbness in his neck and shoulders. He got out of his vehicle to
the vehicle behind him and saw an infant or child crying “very very
vigorously”. It was not an infant’s “regular cry”. He was worried that the infant
had been badly hurt.

[35]        
The collision aggravated Mr. Uppal’s neck, back, and shoulder injuries,
and he increased his pain medications. He had nightmares following his earlier
accidents but by July 2009, they had subsided. After the July 20, 2009
accident, he began having recurring nightmares about the infant being hurt in
the accident.

[36]        
A few weeks after the accident Mr. Uppal spoke to his supervisor, and
told him he had been involved in another accident and was unable to return to
work. He subsequently received a letter dated August 12, 2009 from Coast
Mountain Bus Company terminating his employment on the basis that he had been
absent from work for a significant period of time, he was unable to perform any
meaningful work, and that the employment relationship was at an end. Mr. Uppal
was devastated by his termination.

[37]        
However, by the fall of 2009, Mr. Uppal felt well enough to work for
Mrs. Amarjit Gill, a family friend. Mr. Uppal agreed with Mrs. Gill to
subdivide one lot into four fully serviced lots and to construct a house on one
of the lots for a total fee of $30,000. At first their contract was verbal but
later, Mr. Uppal and Mrs. Gill entered into a written contract dated March
24, 2010, although Mr. Uppal started the work in the fall of 2009.

[38]        
By the spring of 2010 Mr. Uppal “was feeling better”, he was trying to
be more active, trying to push himself, going on more walks, exercising more,
and working for Mrs. Gill.

[39]        
Mr. Uppal considered himself to be Mrs. Gill’s general contractor. He
dealt with issues as they arose with city hall, he managed the building site,
he hired and coordinated the trades, locked and unlocked the site at the
beginning and end of each day, made sure that the site was accessible and clean
for the trade that was scheduled to work on any particular day, and cleaned up
debris as needed. There were days he felt more pain than on other days, but if
he took pain medication, he was able to do the work that needed to be done.

[40]        
Mr. Uppal was paid $15,000 and had completed about half of the work for
Mrs. Gill, when he was involved in the accident of May 15, 2010, and
unable to complete the work “because of my pains”. He arranged for his cousin
Harpal Uppal to take over and complete the contract work and his cousin was
paid the remaining $15,000.

[41]        
Mrs. Gill testified that Mr. Uppal completed the subdivision and the house
had been constructed to about the lock-up stage when he informed her that he
would not be able to finish the job because of his injuries from the accident.

[42]        
Surinder Paul Singh Badesha has known Mr. Uppal for over 35 years. Mr. Badesha
testified that in the winter of 2009 or early 2010 he approached Mr. Uppal
and he agreed to construct a house for him by hiring all of the necessary trades,
and dealing with city hall and everything else for $45,000. When he later
phoned him and told him that his building plans were ready to be picked up from
city hall, Mr. Uppal told him that he could not do the work but did not tell
him at the time why he could not do the work. When Mr. Badesha called him at a
later date, Mr. Uppal told him that he had been in an accident.

[43]        
The work for constructing Mr. Badesha’s house started in late 2010.

[44]        
Mr. Uppal testified that when he started working on Mrs. Gill’s house,
his plans were to get back into construction slowly. When he was building houses
before 2000, he worked on more than one project at a time. He was working for
Mrs. Gill, when Mr. Badesha offered him a job. He anticipated that the
construction start of Mr. Badesha’s house would be in the summer of 2010. The
two projects would overlap, but from a cost and efficiency point of view, the
more projects he had, the more efficient the work would be, and the more money
he could make. Instead of doing some of the physical clean-up work himself –
which he does if he is working on just one house – he could hire a labourer to
do the physical work.

the accident of May 13, 2010 (Uppal v. Bassi, No. M122468)

[45]        
Mr. Uppal testified that on May 13, 2010 he was driving out of the
parking lot of the strip mall at 80th Avenue near 132nd Street, Surrey, and was
planning to make a left hand turn, so that he could head west along 80th
Avenue. He saw that the eastbound traffic on 80th Avenue was stopped because
the traffic light on 80th Avenue at 132nd Street was red. In front of him were
two eastbound vehicles:  a vehicle in the nearest eastbound lane, and a
semi-trailer in the next east bound lane. Both vehicles had stopped so that
there was enough space for him to make his left hand turn in front of them and
head west.

[46]        
A Google area photograph of the area shows two driveways to the strip
mall, two eastbound lanes of traffic, and a left hand turn lane for drivers
headed north on 132nd Street. The left hand turn lane begins at or near the
entrance where Mr. Uppal testified that he was exiting.

[47]        
Mr. Uppal testified that there was no traffic westbound along 80th
Avenue because of the red light, so he made eye contact with both eastbound
drivers, and then began making his left hand turn. He passed the first vehicle,
and was passing the semi-trailer when suddenly there was a big loud noise. At
first he did not know what happened. His air-bag deployed, and he was shaken
and dazed until a police officer arrived and told him to get out of his
vehicle. His vehicle was a total loss. He was taken to hospital by ambulance
where he remained for the day.

[48]        
Baldip Sanghera is a truck driver. On May 13, 2010 Mr. Sanghera was
driving a semi-truck with a 53 foot trailer. The total length of his truck
trailer unit was approximately 70 feet in length. He was eastbound on 80th
avenue, and was stopped for a red light at 132nd street. Because of the height
and size of his truck, Mr. Sanghera left “a big space” so that he could see the
vehicles in front of him. There was an eastbound vehicle stopped to his right
or passenger’s side. There was no vehicle on his left because to his left were
cross-hatched yellow lines – where drivers were not to drive – which then lead to
a left hand turn lane.

[49]        
Mr. Sanghera testified that he observed a vehicle coming from his
passenger’s side make a left hand turn in front of him and at the same time he saw
a vehicle come from his driver’s side, and the two vehicles collided in front
of his truck. He was surprised by the vehicle coming from his driver’s side because
there was no lane for eastbound travel to his left.

[50]        
Mr. Sanghera called 911, got out of his truck, walked around the scene
of the accident, and waited until the police came and he spoke to them.

[51]        
Mr. Bassi speaks Punjabi and testified through an interpreter. He testified
that he was driving along 80th Avenue and was intending to make a left hand
turn on 132nd Street. As he approached 132nd Street, the light was green for
left turn vehicles. To his right there were two other lanes, but those lanes
had a red light. He had a green light. As he was driving in his lane, to his
right there was a semi-truck, and he collided with a vehicle that had come from
a parking lot and crossed two lanes. He was unable to see Mr. Uppal’s vehicle
until the moment of impact.

[52]        
Mr. Bassi said that when the police came, he was unable to speak to them
because he does not speak English, and they were unable to speak to him because
they could not speak Punjabi. He was given a ticket and paid a fine for
breaching ss. 159 and 160 of the Motor Vehicle Act, R.S.B.C., c. 318,
which provide:

Passing on left

159  A driver of a vehicle must not drive to the left side of
the roadway in overtaking and passing another vehicle unless the driver can do
so in safety.

Clear view on passing

160  A driver of a vehicle must
not drive to or on the left side of the roadway, other than on a one way
highway, unless the driver has a clear view of the roadway for a safe distance,
having regard for all the circumstances.

[53]        
Mr. Bassi insisted that he was ahead of the cross-hatched yellow marking
which is at odds with where both Mr. Sanghera and Mr. Uppal testified that the
accident occurred. Mr. Bassi was given several opportunities to note on the
Google aerial photograph where the accident occurred and where he claims Mr. Uppal
exited the parking lot. There is however, no driveway at the locations where
Mr. Bassi claims Mr. Uppal exited the parking lot.

[54]        
It is clear that Mr. Bassi wants this Court to believe that he was in
the left hand turn lane at the time of the accident, and he tried to place the
accident closer to the intersection than it was. I do not believe Mr. Bassi,
and accept the evidence of Mr. Sanghera. I find that Mr. Bassi was driving
along the cross-hatched yellow line in his effort to get into the left hand
turn lane and catch the left turn signal. I find that he is wholly at fault for
the accident of May 13, 2010.

[55]        
Mr. Uppal said that after the accident, he was disoriented for a time,
and then began to experience a “sort of numbness” in his body, and “then the
pain started to get worse”. He injured his right wrist in the accident, and had
increased pain in his neck, lower back, and left leg. His tinnitus “got worse”
and his headaches “got a lot worse”. He does not recall exactly when the pain
in his right wrist resolved, but it was within a few months. The impact of the
collision caused his seatbelt to leave a burn mark on his beige jacket which
could not be removed by the dry cleaners. He showed the court the visible burn
mark on his jacket.

[56]        
Mr. Uppal testified that the 2010 accident was “one of the worst
accidents I’ve had”. It aggravated his mobility, all of his injuries, and
“workability”. It brought back recurring nightmares. He would wake up in the
middle of the night sweating so much that his bed sheets were wet.

[57]        
Mr. Uppal had 22 physiotherapy treatments from June 21, 2010 until
September 16, 2010.

[58]        
Mr. Uppal testified that it was not until 2011 that he felt able to work
again. He agreed to subdivide a lot and construct two houses for Sunny Gill,
the son of Mrs. Amarjit Gill. He helped Mr. Gill with the development
process, obtained a demolition permit, and was paid $5,000. By the time Mr.
Gill obtained the building permit and construction could begin, he was involved
in another accident on June 10, 2012, his “condition declined”, and he
told Mr. Gill about his “worsened conditions” and “my pains”. He could no
longer do the work for Mrs. Gill.

[59]        
Mr. Gill testified that he paid Mr. Uppal $5,000 of the total $30,000
agreed to price, and Mr. Uppal did some preliminary work for the subdivision in
or around the middle to the fall of 2011. By the time construction was ready to
start in 2012, Mr. Uppal told him that because of a car accident, he was
physically unable to do the work. He had Bhupinder Dhillon finish the project
and the first house was completed in 2013.

the accident of June 10, 2012 (Uppal v. Ha, No. M142696)

[60]        
On June 10, 2012 Mr. Uppal was taking his wife and mother to a funeral.
He was driving along Kittson Parkway in Delta and following a van which made a
right hand turn at a T-intersection. Mr. Uppal continued along Kittson Parkway,
when suddenly the van made a U-turn and collided with Mr. Uppal’s vehicle
by striking the front axle and shredding the tire. Mr. Uppal’s body shook from
the impact of the collision. The estimated cost to repair Mr. Uppal’s vehicle (a
2008 Infiniti FX35) was over $14,000.

[61]        
Mr. Uppal saw his family physician the next business day. He was unable
to work. He exercised and tried to improve his health. He improved slowly, but
cold damp weather “really affects me badly” and he experienced more spasms and
headaches.

[62]        
Mr. Uppal testified that the accident worsened his condition again, as
well as injuring his right knee. He had been improving slowly until then. It
made his tinnitus much worse than did the other accidents, and the nightmares
returned. He was in a “bad mood”, irritable, and his inability to help with the
household chores and yard work, irritated his relationship with his wife.

[63]        
Between June 27, 2012 and February 28, 2013 he attended physiotherapy
regularly for a total of 65 visits.

[64]        
It was not until 2014 that Mr. Uppal felt like he was able to work. He
started looking for employment opportunities. He had experience as a truck
driver and had preliminary discussions about working part-time as a truck
dispatcher. Sometimes towards the end of 2014 – Mr. Uppal freely admits that he
could be wrong with the date because he has a hard time remembering and there are
so many dates to remember – he spoke to someone about working at Keywest
Asphalt, a paving company, but there was nothing specific before Mr. Uppal had
another motor vehicle accident on December 21, 2014.

the accident of december 21, 2014 (Uppal v. Pannu, No. M155897)

[65]        
On December 21, 2014 Mr. Uppal was driving along 64th Avenue in Surrey, when
the defendant, who was driving along 130th Street, ran a red light and collided
with Mr. Uppal’s 2008 Infiniti FX 35, causing over $7,500 in repair costs.

[66]        
Mr. Uppal testified that the accident made his condition worse again. From
the time of the accident in June 2012 until the accident in 2014, his condition
had improved, and his tinnitus “had declined”. He sustained no new injuries,
but his existing injuries which were already aggravated by the cold and damp of
winter, were further aggravated.

[67]        
At the beginning of February 2015 Mr. Uppal began working for Keywest
Asphalt as a sales manager and estimator. He “wasn’t feeling the greatest”
because of his last accident, but he wanted to take advantage of the job
opportunity. He took more pain killers and anti-inflammatories to help him get
through the day. The job involved a lot of driving around the Fraser Valley and
North Delta. For the first couple of months Mr. Uppal drove a company vehicle
“doing small estimates”, but nearly had a serious accident on two occasions. Once
his truck ran off the road and almost into a ditch, and once he drove into
oncoming traffic and only realized his mistake when he heard a lot of honking.

[68]        
Mr. Uppal discussed the near miss accidents with Dr. Ngui who
recommended that he not take pain killers during the day if he was driving. Mr. Uppal
took his advice and continued to work but the pain became intolerable. One
morning the pain was so bad that he could not get out of bed, and an ambulance took
him to emergency where he was treated with morphine and told not to drive. He
quit working for Keywest Asphalt after just two and a half months.

[69]        
When asked about his present physical limitations, Mr. Uppal testified
that “bending is the biggest” and lifting. His lower back hurts and bothers him
the most. It changes from day to day. Prolonged sitting and standing is also
difficult. His ability to sleep was “quite bad” after the May 2010 accident, “it’s
a little bit better now”, but overall, he still has difficulties sleeping at
night, so he is often drowsy during the day. He considers himself “a little
worse” than what he was before the accident on July 20, 2009.

[70]        
Mrs. Uppal – not surprisingly – cannot remember how many accidents her
husband has been in. She too testified in general terms about her husband’s
condition. However, I find her, like her husband, to be a credible witness. She
testified that immediately before the July 2009 accident he helped with
household chores and the yard “when he was feeling good”; not for long, “but
he’d try for sure”. She has seen him after an accident “go down”, but then seen
him feeling better. It has been “peaks and valleys”. Every time he starts looking
and feeling better, there would be another accident, and then his mood changes,
and the “atmosphere” changes. He has difficulty sleeping, he is very irritable,
agitated, and frustrated, because for a long time, he has not been able to do
what he wants to do. But he tries, and she sees him try. She puts her own
interests and mood aside so that she is there for him and tries to make him
more comfortable and happier.

[71]        
Mrs. Uppal testified that she cannot recall her husband complaining
about any specific health difficulties after each accident, but she has a specific
recollection of the May 13, 2010 accident. At the time, Mr. Uppal’s grandfather
was alive. They had planned a three-day prayer event for him at the temple with
family and friends that was to begin on May 14, 2010. In addition to prayers,
there was a “24/7” social and food event. Mr. Uppal and the rest of the
family were looking forward to the event which required a lot of planning and organization.
However, the accident on May 13, 2010 changed everything about her husband,
including his body language. He was “so distraught” and unable to participate
in the event. The accident “really brought him down,” and she saw him cry.

[72]        
Mrs. Uppal testified that there were also many football games that Mr.
Uppal wanted to, but could not attend. Their youngest son played football for
Simon Fraser University and Mr. Uppal wanted to see him play, but was limited
in what he saw because of his injuries.

[73]        
Mrs. Uppal testified that she sees her husband regularly doing
stretches. She corroborated his testimony that he goes to the house of his
friend who has gym equipment, two or three times a week, so that he can work
out. He also goes for walks with her when he is feeling better. She sees him
try to do things and it makes her hopeful, but it has been one accident after
the other.

the medical evidence: the subject accidents

[74]        
Dr. Ngui saw Mr. Uppal at regular two to three week intervals following
each of the accidents from July 20, 2009 to December 21, 2014. He
testified that Mr. Uppal had not recovered from his injuries sustained in
the earlier accidents, when he was injured in the accident in July 2009.

[75]        
In his report dated September 12, 2015, Dr. Ngui states that Mr. Uppal
sustained soft tissue injuries and aggravated his previous soft tissue injuries
in each of the four subject accidents. He was sent for physiotherapy, massage
therapy, and prescribed analgesics and anti-inflammatory medications which
unfortunately aggravate his gastric irritation. He was also referred to
specialists to deal with his headaches, dizziness, neck, shoulder, and back
pains following the accidents. In his conclusion, Dr. Ngui states:

Conclusions/Prognosis

….

2.    Mr. Ulppal will continue to be
assessed in our office at 2-3 month intervals for follow up of his soft tissue
pains following the MVAs. He has been advised to continue to see his 3
specialists, Dr. Samad, the ENT specialist regarding his tinnitus, Dr. Gurwant
Singh regarding his headaches and dizziness, and Dr. Narang regarding his
depression and anxiety.

In my opinion, these soft tissue injuries to his neck,
shoulders and back and the associated symptoms of headache, dizziness, tinnitus
are related to all the MVAs.

The long-term prognosis for Mr. Uppal is guarded. We will
need to monitor his progress and will advise him to continue followup with his
specialists.

…

With regards to recommendations
to future treatment, we would recommend that Mr. Uppal be assessed by a
rehabilitation consultant, as well as an occupational therapist to assess his
work capacity and to provide for vocational assistance in determining a
suitable line of work. I also recommend he be given a rehabilitation program
that would include active rehabilitation and membership in a gym and pool
facility, for the next 6 to 12 months to allow him to strengthen his core
muscles and increase his physical fitness and strength to enable him to
eventually return to some type of employment suitable for him.

[76]        
Dr. Narang saw Mr. Uppal for two hour long appointments on September 15
and 21, 2015. In his report dated October 1, 2015 he states that since his last
report in March 2009 Mr. Uppal continues to show further symptoms of major
depression, anxiety disorder, and chronic pain. His depression, anxiety, and pain
symptoms had not fully resolved before the accident of July 20, 2009. His
symptoms were aggravated after each accident for varying periods of time. Dr.
Narang states:

In spite of all this, he tried to
take on responsibility of supervising in construction in early 2010 before having
to give up that job in May that year because of another accident. A similar
thing happened in 2012 when he took on this responsibility and had another
accident in June of 2012. After the most recent accident in December 2014, he
again took on a job as an "estimator" with a paving and asphalt
company, but could not last longer than three months. At his last appointment
on September 21st, he was still expressing a desire to find a
part-time job, possibly as a dispatcher, that would not put him under too much
stress and worsen his physical problems. It shows that Mr. Uppal continues to
strive and make efforts, in spite of his psychiatric and physical symptoms, to
get back to some productive work. This is contrary to Dr. K. Riar’s comment
regarding Mr. Uppal “being stuck in a predicament of being totally disabled and
not able to do anything productive.”

[77]        
Dr. Narang also states that each of the four accidents also worsened
Mr. Uppal’s memory, concentration, energy level, and ability for sustained
work. His prognosis for recovery is poor and he will continue to have
intermittent or chronic symptoms of depression and anxiety in the long-term,
and episodes of post-traumatic stress disorder.

[78]        
However, maintaining an active day routine is helpful for both physical
and psychiatric symptoms, so Dr. Narang has encouraged Mr. Uppal to do
volunteer work and working out at a gym or community centre. He recommends that
Mr. Uppal have an active rehabilitation program that includes membership
in a gym and pool facility for six to 10 months to strengthen his core muscles
and increase his physical fitness and strength so that he can eventually return
to suitable employment.

[79]        
Dr. Narang also states that Mr. Uppal has attended many psychological
treatments, including a number of years of cognitive behaviour therapy, but with
limited beneficial results. He first needs to develop a regular routine and
activity before psychological treatments will be of benefit. He disagrees with
Dr. Riar’s recommendation that Mr. Uppal attend group therapy because he
is unable to sit for a long period of time, and it will worsen his pain
symptoms. Dr. Narang emphasizes that Mr. Uppal’s prognosis for recovery is
poor, “but not zero”. His symptoms can get better, and they can get worse.

[80]        
The defendants rely on the opinions of Dr. Kulwant Riar, psychiatrist,
Dr. J.P. Thompson, orthopaedic surgeon, and Dr. Gabriel H. Hirsch, physical
medicine and rehabilitation specialist.

[81]        
Dr. Riar interviewed Mr. Uppal on October 1, 2014 and November 5, 2014.
In his report dated March 30, 2015, he opines that before the July 20, 2009
accident Mr. Uppal had a “symptomatic symptom disorder where pain was the
prominent feature”, and that “his pre-existing pains were aggravated every time
after every accident, but whatever aggravation was there it improved.” His
somatic symptom disorder has been complicated by ongoing depression, anxiety
and other psychological factors, including not working and financial strains. Each
accident has aggravated his condition for a short while but he would have had a
somatic symptom disorder regardless of the accidents.

[82]        
Dr. Hirsch assessed Mr. Uppal on January 6, 2015 and opines that in
the spring of 2009, “Mr. Uppal’s prospects for gainful employment in any
capacity were virtually non-existent”, and that “on balance of all of the
evidence”, “his reported musculoskeletal symptoms would be pretty much the same
at present, even in the absence of the three (sic) subject motor vehicle
accidents”. Dr. Hirsch also diagnosed with mild right patellofemoral joint
syndrome (right knee pain) from the June 2012 accident.

[83]        
Dr. Thompson examined Mr. Uppal on January 27, 2014, and opines that Mr. Uppal
probably sustained soft tissue strains or sprains to his neck, shoulder girdle
and low back from the collisions in July 2009, May 13, 2010 and June 2012, as
well as contusions to his right wrist and left knee from the May 13, 2010
accident. He had similar symptoms and functional limitations before July 2009,
and they were probably aggravated by the subsequent accidents. He “has probably
recovered to his base line level of symptoms that existed prior to the July 20,
2009 motor vehicle collisions”.

Assessment of damages

Non-pecuniary damages

[84]        
Both parties rely on Schnurr v. Insurance Corporation of British
Columbia
, 2015 BCSC 1630. In that case the plaintiff claimed damages for
injuries sustained in three separate motor vehicle accidents. At the time of
the first of those accidents, she was suffering from a chronic pain disorder
and related psychological problems from three earlier accidents, and was not
capable of working. The plaintiff – like Mr. Uppal – was a poor historian,
but because of the litigation and settlement of the three earlier accidents,
there was considerable medical evidence relating to the plaintiff’s condition
immediately before the first of the subject accidents. Mr. Justice Skolrood
referred to the general principles of causation in negligence as summarized in Athey
v. Leonati
, [1996] 3 S.C.R. 458 at paras. 13-17, and stated:

[153]  Where, as here, a plaintiff has pre-existing
conditions, the court must consider how those conditions relate to the
plaintiff’s current complaints. A defendant tortfeasor is liable for all
injuries caused by a tort even if those injuries are more severe than might
otherwise be the case due to the plaintiff’s pre-existing condition (the “thin
skull rule”). However, the defendant is liable only for the injuries actually
caused by the accident and not for any effects of the pre-existing condition
that the plaintiff would have experienced in any event (the “crumbling skull
rule”). Put another way, the defendant is liable for the additional damage but
not the pre-existing damage (Athey, at paras. 34 – 35).

[154]  Significantly, the issue of causation is
distinct from the issue of damages. The ‘but for’ test applies even if there
are several tortious and non-tortious causes for a plaintiff’s injury, and in
such cases each negligent defendant is fully liable for that injury. After
determining causation, the rules of damages then consider the plaintiff’s
original position, apportionment between the defendants, and other relevant
considerations. This was succinctly stated by McLachlin C.J.C. for the Court in
Blackwater v. Plint, 2005 SCC 58 at para. 78:

It is important to distinguish between
causation as the source of the loss and the rules of damage assessment in tort.
The rules of causation consider generally whether “but
for” the defendant’s acts, the plaintiff’s damages would have been incurred on
a balance of probabilities. Even though there may be several tortious and
non-tortious causes of injury, so long as the defendant’s act is a cause of the
plaintiff’s damage, the defendant is fully liable for that damage. The rules of
damages then consider what the original position of the plaintiff would have
been. The governing principle is that the defendant need not put the plaintiff
in a better position than his original position and should not compensate the
plaintiff for any damages he would have suffered anyway: Athey. …

[155]  In cases such as this, where there are
multiple causes of the plaintiff’s injuries, the court must determine whether
the injuries are divisible or indivisible. In Sediqi v. Simpson, 2015
BCSC 214 [Sediqi], Madam Justice Fisher described the difference between
the two types of injuries this way at para. 36:

Divisible injuries are those that can be separated so that
their damages can be assessed independently. Indivisible injuries are those
that cannot be separated: Bradley v. Groves, 2010 BCCA 361 at
para. 20.

[156]  Whether an
injury is divisible or indivisible affects both the causation analysis and the
damages analysis, as summarized in Moore v. Kyba, 2012 BCCA 361 at
paras. 35–43 [Moore]. First, the causation analysis determines
whether a defendant is liable for an injury. Each defendant is separately
liable for the divisible injuries that they have caused, and jointly liable for
indivisible injuries that they caused together with the other defendants. Next,
the damages analysis determines what compensation a plaintiff is entitled to
receive from a defendant and again, individual defendants must compensate
divisible injuries and indivisible injuries must be compensated by the
defendants jointly.

[85]        
Like the plaintiff in Schnurr, even though many of Mr. Uppal’s
complaints relating to the subject accidents are related to injuries sustained
in the earlier accidents, it is possible to determine his original position
shortly before the accident on July 20, 2009.

[86]        
I find that Mr. Uppal’s injuries resulting from the accidents on July 20,
2009, May 13, 2010, June 10, 2012 and December 21, 2014 are divisible from the
injuries arising out of the earlier accidents, but that his injuries from the
subject accidents are indivisible. It is difficult, if not impossible, to
separate out which of the subject accidents caused or contributed to which
injuries.

[87]        
The experts generally agree that each of the subject accidents caused
injury by exacerbating or aggravating his pre-existing neck, shoulder, and low
back problems, as well as his psychological or psychiatric symptoms. Mr. Uppal
also had long standing abdominal or gastrointestinal problems. The accidents in
2009 and 2010 made his problems worse, and in turn, increased his blood
pressure. While each of his physical and psychological symptoms, including his
chronic pain disorder were pre-existing, all of his symptoms were made worse
for a time after each accident.

[88]        
Dr. Hirsch opined that Mr. Uppal would have returned to his pre-existing
baseline by the spring of 2013, nearly four years after the July 2009 accident.
Mr. Uppal disagrees and argues that Dr. Hirsch is wrong because his level
of functioning improved both before and after the 2009 accident, and he reached
the best he felt in many years in the spring of 2010 when he started working
for Mrs. Gill. He has not reached where he was before the first accident
in 2009 or his high water mark when he felt the best in the spring of 2010.

[89]        
Mr. Uppal contends that the appropriate range for non-pecuniary damages
is from $65,000 to $95,000: Jiwani v. Borodi, 2014 BCSC 1164; Larsen
v. Moffett
, 2015 BCSC 222; Gosal v. Singh, 2009 BCSC 1471.

[90]        
The defendants argue that at the time of the first subject accident in
July 2009 the prospect for any improvement in Mr. Uppal’s symptoms were questionable,
Mr. Pakulak made rehabilitation recommendations, but Mr. Uppal never
followed those treatment recommendations. While there may have been some
aggravation of Mr. Uppal’s “perception of his symptoms” as a result of the
accidents, that finding rests on the court’s finding that he is a credible
witness. All of the doctors who have treated Mr. Uppal have accepted his
assertion that he has increased pain, but his evidence is questionable. He
cannot say how he felt at any point in time. His evidence is therefore suspect.
It lacked the detail that is required to properly make an assessment. The
defendants rhetorically ask: “What got worse? How did it get worse? How long
did the worsening last for?” The questions remain unanswered.

[91]        
The defendants in arguing that Mr. Uppal’s evidence is suspect, point
out that he testified that between spring of 2009 and July 2009 Dr. Narang
was weaning him off his medications, but that evidence was contradicted by Dr.
Narang. It was not until much later.

[92]        
If there was a contradiction in the evidence on that point, I do not
find that it affects my finding of Mr. Uppal’s credibility. He made it clear
that he had a poor memory for dates, he stated that he cannot say from memory
how he was feeling any particular point in time, all of his symptoms go up and
down like a see-saw. The evidence is clear that his memory was affected by the
earlier accidents and was made worse by the subject accidents. His symptoms of
anxiety and depression were in remission in January 2009, but he was vulnerable
to episodes of worsening symptoms. His symptoms were aggravated and worsened
for varying periods of time, after each of the subject accidents.

[93]        
The defendants argue that Mr. Uppal never followed Mr. Pakulak’s
recommendations and as I understand the argument it is to the effect that Mr.
Uppal therefore could not have improved or got better before July 20, 2009. I
accept Dr. Narang’s opinion that Mr. Uppal has had limited success with
psychological treatments, including cognitive behavioural therapy. Mr. Uppal
has attended pain clinics, and he has worked with a kinesiologist.

[94]        
I find on all of the evidence, that before the July 20, 2009 accident,
Mr. Uppal was gradually improving, but that with each accident his symptoms
were aggravated and worsened for varying periods of time, particularly with the
accident on June 10, 2012. Mr. Uppal is not a malingerer. He felt the best he
had for a long time in the spring of 2010 when he was working for Mrs. Gill. He
has not returned to that state or the state he was in before the July 2009
accident.

[95]        
The defendants rely on Dr. Hirsch’s opinion that Mr. Uppal’s “reported
musculoskeletal symptoms would be pretty much the same at present, even in the
absence of the three subject motor vehicle accidents”, and that

by the spring of 2013 Mr. Uppal
probably had recovered to his baseline physical state with respect to the
injuries he incurred to his neck and back in the three subject motor vehicle
accidents. With respect to the effects of the injuries he sustained to his neck
and back in the most recent motor vehicle accident in December 2014, he has
probably not quite recuperated to the baseline pre-July 2009 motor vehicle
accident level.

[96]        
However, Dr. Hirsch expressly defers to a mental health care
professional with respect to Mr. Uppal’s mental health issues. Dr. Narang
was not challenged on his opinion that the subject accidents worsened Mr.
Uppal’s symptoms of depression, anxiety, chronic pain, post-traumatic stress
disorder, memory, concentration, ability for sustained work, and energy level.

[97]        
I do not accept the defendants’ argument that a total non-pecuniary
award of $25,000 should be apportioned between the four accidents: $10,000 for
the 2010 accident and $5,000 each for the remaining accidents.

[98]        
I find an award of $65,000 for non-pecuniary damages to be appropriate.

Past wage loss

[99]        
As a result of the accidents, Mr. Uppal lost $15,000 he would have
earned from his contract with Mrs. Gill, $45,000 he would have earned from Mr. Badesha,
and $25,000 he could have earned from Mr. Gill, for a total wage loss of
$85,000. Mr. Uppal emphasizes that this is his income loss from confirmed
projects. If the accidents had not occurred he would have had the opportunity
to find other suitable work. He also earned $5,000 from Keywest Paving in 2015
until he had to quit after just two and a half months because of symptoms
arising from the accidents. He contends that but for the subject accidents he
could have earned an average annual income of $75,000, so that his estimated
past income loss to the date of trial is $350,000.

[100]     I find
that based on all of the evidence, work is critical to Mr. Uppal’s sense of
self-worth. He will work and look for work whenever he is able to, and will
work despite being in pain.

[101]     The
defendants argue that when Mr. Uppal began working for Mrs. Gill he complained
to both Dr. Ngui and Dr. Narang of increased pain symptoms, difficulty
sleeping, and that back spasms prevented him from walking very far. Mr. Uppal’s
evidence that he stopped working for the Gills and did not do the work for Mr. Badesha
because of the May 13, 2010 accident “is not sufficient to support the
contention that the plaintiff was unable to complete that work due to the
accident”. The defendants contend that Mr. Uppal would have been unable to
complete the work regardless of the accident, and there is no expert evidence
that he was unable to complete the contract work because of the 2010 accident. The
fact that he had to stop work as a utility operator in 2008 – (I find he was
still working as a utility operator in early 2009) – supports the contention
that he is unable to work because of pain related symptoms from his earlier
accidents.

[102]     None of
this was put to Mr. Uppal on cross-examination, and even Dr. Hirsch found that
despite Mr. Uppal’s reported multi-site pains, he should be physically capable
of performing tasks which are of light physical demand.

[103]     I conclude
that Mr. Uppal was unable to complete his project manager jobs because of the
2010 accident. The work was otherwise suitable and flexible for him. His
primary task was to line-up and co-ordinate the trades, as well as deal with
city hall for the necessary permits. He was required to open the site in the
morning and close the site at night, but his days were flexible. He was not
required to be on the site all day long, but could come and go. It was work
that gave him flexibility, with very little stress or heavy demands on his
physical ability. Mr. Uppal is not an invalid. He has travelled to distant
places and has regularly done volunteer work for the past few years. He spent a
few weeks in China in or around the fall of 2009. In or around 2011, he spent
about three weeks in villages in the Dominican Republic with a church group on
a water purification project, around three or four times a month he helps feed
the homeless in Vancouver’s downtown east side, and he volunteers for other
initiatives benefiting women and children in need.

[104]     Mr. Uppal
contracted with Mrs. Gill to be paid $30,000 for his work. He began working for
her in the fall of 2009 and by May 15, 2010 was paid $15,000 or half of the
contract amount. Sometime in 2010 Mr. Badesha offered him work for $45,000. Mr.
Uppal thought the construction start date would be in the summer of 2010. Mr.
Badesha said the work started in late 2010. There is no evidence how long the
work would take – whether it would be completed in 2010 or extend into 2011. In
the fall of 2011 Mr. Uppal was offered a $30,000 job by Mr. Gill. He was paid
$5,000 for some preliminary work he did in the fall of 2011, but was unable to
finish the work because of another accident. Mr. Gill testified that the
construction start was not until sometime in 2012 and the first of two houses
was completed in 2013.

[105]     I find
that but for the accidents, Mr. Uppal lost $80,000 from his project management
contracts, and he could have done other work. He could have worked a few hours
a day, but I do not expect he would always have work because of the cyclical
and sporadic nature of house construction, and that absent the accidents, he
would have difficulty at times working consecutive days. I find an appropriate
award for past wage loss to be $125,000.

Future wage loss

[106]     Mr. Uppal
claims that while he has improved, he has still not reached as good as he felt
in the spring of 2010 and may continue to suffer reduced or diminished earning
capacity. He claims a further year’s income at $75,000. I do not find
Mr. Uppal would have earned an annual income of $75,000 but find the
amount is appropriate for future loss of income or loss of earning capacity.

Special damages

[107]     The only
item of special damages that the defendants dispute are two private MRIs
(magnetic resonance imaging) of his lumbar spine totalling $2,685.14. In direct
examination Dr. Ngui was shown a report dated June 10, 2010 and a report dated
April 4, 2014 from Canadian Magnetic Imaging (a private MRI), and was asked why
he ordered the MRIs. He testified that he ordered the first MRI because Mr. Uppal
was still having recurrent pain in his lower back radiating down his lower leg
and he wanted to make sure that he did not have a disc herniation in his lumbar
spine. He ordered the second MRI, because Mr. Uppal was still experiencing
recurring lower back pain and pain radiating down his legs, and he decided to
order another MRI. Dr. Ngui was never questioned in direct or cross-examination
why he chose to order a private MRI from Canadian Magnetic Imaging, rather than
a public MRI. It may be that the wait times for a public MRI were too long. I
do not know. I find that Dr. Ngui ordered or requested that Mr. Uppal have two
MRIs at facilities which required Mr. Uppal to pay an out-of-pocket fee, which
he did. He followed his physician’s advice and I am unable to find that his
advice or course of treatment was unreasonable.

[108]     I find
that all of the items of special damages claimed, including the physiotherapy
and MRIs were related to the accidents and were reasonable.

[109]     Mr. Uppal
is awarded the sum of $5,630.14 for special damages.

Cost of future care

[110]     In his
report dated January 6, 2015, Dr. Hirsch notes that Mr. Uppal was engaged in a
supervised exercise program at Mountainview Kinesiology in March 2013, and that
according to the progress reports dated May 7, 2013 and August 20, 2013 he felt
50 percent improvement in pain relief and activity level. Dr. Hirsch
recommends that Mr. Uppal have five to ten sessions with a kinesiologist or physiotherapist
to ensure that he performs appropriate exercises in a regular exercise program,
and that Mr. Uppal also considers participating in Tai Chi, yoga, Pilates or
aqua exercises.

[111]     Dr. Narang
opines that further sessions of physiotherapy and kinesiology might help to
improve Mr. Uppal’s physical functioning as they have in the past.

[112]     Mr. Uppal
seeks $3,000 for cost of future care. I find this sum to be reasonable, and
award him $3,000 for cost of future care.

Conclusion

[113]     In
summary, Mr. Uppal is awarded the following damages:

1.

Non-pecuniary damages

$65,000.00

2.

Past wage loss

$125,000.00

3.

Future wage loss

$75,000.00

4.

Special damages

$5,630.14

5.

Cost of future care

$3,000.00

Total

$273,630.14

[114]    
Mr. Uppal is also entitled to his costs.

“Loo J.”

_______________________________

The Honourable Madam Justice Loo