IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Moini v. Liang,

 

2016 BCSC 702

Date: 20160420

Docket: M103991

Registry:
Vancouver

Between:

Homayoon Moini

Plaintiff

And

Jia Yao Liang (aka
Michael Liang),

Evgeny Ermolenko
and Oleg Ermolenko

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

 

– and –

Docket: M150159

Registry:
Vancouver

Between:

Homayoon Moini

Plaintiff

And

Lucas Turcott,
Ensign Pacific Lease Ltd.,

Kirmac Automotive
Collision Systems (Canada) Inc.

Defendants

Before:
The Honourable Mr. Justice Thompson

Reasons for Judgment

Counsel for the Plaintiff in both actions:

L. Giustra

Counsel for the Defendants Ermolenko and the Third Party
in the first action, and the Defendants in the second action:

S. Murphy

Place and Dates of Trial:

Vancouver, B.C.

February 1-5 & 9,
2016

Place and Date of Judgment:

Vancouver, B.C.

April 20, 2016

 



 

[1]            
This is a global assessment of damages arising from three motor vehicle
accidents: 31 October 2008, 1 October 2009, and 27 January 2013. Each of the
accidents occurred in Greater Vancouver. The plaintiff commenced two actions to
advance his claims — the first
action encompasses the first two accidents.

[2]            
The defendant Jia Lao Liang has taken no part in the proceedings. ICBC
is a statutory third party. Mr. Murphy appears for ICBC and for all defendants
except Jia Lao Liang, and when I use the term “defendants” in these reasons I am
referring to the parties Mr. Murphy appears for.

[3]            
The plaintiff Homayoon Moini is 59 years old. He is married to Razieh Tarkeshian
and they have two children, a 12-year-old girl and a 6-year-old boy. Mr. Moini
was a businessman and taxi driver before the motor vehicle accidents. His case
is that he has soft-tissue injuries, chronic pain and a major depressive
disorder caused by the three collisions, and that these conditions have given
rise to a permanent partial disability. He seeks non-pecuniary damages, damages
for past and future loss of income earning capacity, damages for cost of future
care, and special damages, to a total of approximately $1 million.

[4]            
While the defendants acknowledge that the plaintiff suffered some degree
of injury in each of the collisions, they point to evidence of pre-existing
pain and depression and they question the proof of causation of the plaintiff’s
complaints. The defendants also take issue with the extent of the injuries and damages
claimed, and submit that the plaintiff has failed to mitigate his losses. They
submit that the total award ought to be in the $60,000 to $160,000 range.

Before the Motor Vehicle Accidents

[5]            
Mr. Moini was born in Tehran in 1957. He obtained his high school
qualification in Iran, and left for the Philippines to study. He testified that
he completed a civil engineering degree in Manila, and followed that up with 18
months of specialized study in environmental and sanitary engineering. He took
an MBA program thereafter, and the awarding of that business degree concluded
his seven and one-half year post-secondary education career.

[6]            
When Mr. Moini left Tehran, he planned to return home to work with his
father in the family’s construction sales business. He testified that his
interests lay in business, like his father, his grandfather and his
great-grandfather before him. His plans were altered by the revolution in Iran
that occurred while he was studying in the Philippines, and Mr. Moini came to
Toronto in December 1987. He worked for a construction firm for about six
months as a surveyor doing foundation compaction calculations, and then moved
to a consulting engineering firm where he worked for a year or so before moving
to Vancouver in late 1989 or early 1990.

[7]            
Mr. Moini moved to Vancouver to open a flooring business with a Manila
schoolmate, Ali Joukar, and two others. The two partners of Mr. Moini and Mr.
Joukar were not with the business for very long. At a point not specified in
the evidence, the business was incorporated as Flamingo Carpets and Rugs Ltd.
(“Flamingo Carpets”). In order to acquire new business for Flamingo Carpets,
Mr. Moini and Mr. Joukar made on-site calls on contractors building homes or
low-rise apartment buildings. Measurements were taken and quotations provided. As
part of this process, the building contractors were shown samples of floor
coverings. Professional floor layers did the installation work.

[8]            
The Flamingo Carpets work was described as involving much driving around
the Lower Mainland to meet with builders, take measurements and present
samples. The samples would be carried around the building sites. Mr. Moini
described the heaviest parts of his Flamingo Carpets work as putting flooring
material in the company van and delivering it to the construction sites, and
picking up carpet from manufacturers or suppliers. For small repair-type jobs,
Mr. Moini did some of the installation work. He described the Flamingo Carpets
work as being 50% sales and 50% physical (including driving).

[9]            
At some point in the midst of his involvement in this flooring business,
Mr. Moini was also the proprietor of a Davie Street pawn shop. This was a joint
venture with Mr. Joukar but it was Mr. Moini that focused on the pawn shop
operation. Mr. Moini’s evidence is that he operated that shop for about 18
months before it was sold for three times the purchase price. Mr. Moini then
took over another pawn shop, located on Robson Street. The Robson Street venture
turned out poorly — a fire in a
nearby restaurant damaged the whole block and the pawn shop premises were bulldozed.

[10]        
The Robson Street
business did not include Mr. Joukar, who had at that time a restaurant business
that did not include Mr. Moini. Although Mr. Moini could not remember the years
in which he operated these pawn shops, I accept the evidence of Ms. Tarkeshian
that the Robson Street fire occurred in March 2004. Mr. Moini kept a hand in
the Flamingo Carpet business while he was engaged in work at the pawn shops,
but Mr. Joukar handled the great majority of that work when Mr. Moini was
running the Davie Street pawn shop. When Mr. Joukar was actively engaged in his
restaurant business and Mr. Moini his Robson Street venture, my impression is that
the Flamingo Carpets business was left to simmer on the back burner.

[11]        
In about 2005, Mr. Moini
started driving taxi. His evidence is that through to the time of the October 2008
MVA, he was working a 12-hour shift, five or six days each week. No records
were produced and no other evidence was led to corroborate Mr. Moini’s evidence
about the number of hours he worked per week. Mr. Moini testified that he
earned $5000 to $6000 per month. His evidence is that most of his earnings as a
taxi driver came to him in cash. He testified that he declared little of his
income on his tax returns, and that there are no records of his actual earnings
as a taxi driver.

[12]        
At the time just before
the October 2008 MVA, their plan as a family was that Ms. Tarkeshian would work
in daycare businesses until she acquired enough experience to operate her own
daycare. They would sell their Vancouver apartment and buy a residence that
would allow for a daycare business on one floor. Mr. Moini would continue to
drive taxi to pay the mortgage. His evidence is that he planned to buy a
half-share in a taxi cab (with license) which he expected to cost him between
$150,000 and $250,000. He planned to work until about age 70 because his
children are young and will need financial support for many years.

[13]        
Mr. Moini’s evidence
about his health before the subject accidents was vague. He recalled a 1994
rear-end car accident, which caused upper shoulder and back pain. He could not
recall how long it took, but he said that he fully recovered.  He was asked by
his counsel about accidents in 2001 and 2004 or 2005 but could recall little to
nothing of those incidents. I gather from the cross-examination of Mr. Moini
that he remembers being off work but fully recovering after a 2007 WCB back
injury, but he could not recall how long his recovery took. He testified that
before the October 2008 MVA he had sleeping issues associated with shift work,
but denied significant depression or anxiety. He acknowledged that he was being
prescribed anti-depressant medication and Tylenol No. 3 (i.e., with codeine) in
the months leading up to the October 2008 MVA.

From the
2008 MVA to the Present

[14]        
Mr. Moini described the
October 2008 MVA. He was driving taxi on Smithe Street when a vehicle in the
lane to his right (driven by the defendant Jia Lao Liang) made an abrupt lane
change and struck the car being driven by Mr. Moini. The October 2008 MVA
resulted in pain in his neck, upper shoulders, upper back and lower back. Mr.
Moini took some time off work but could not recall how much time. He was able
to return to driving taxi before his next accident, but he testified that he
worked shorter shifts. His condition was improving such that he was optimistic
that he would be able to return to 12-hour work shifts.

[15]        
Mr. Moini was again driving
taxi when the October 2009 MVA occurred. His car was travelling on Main Street
when it was struck by a vehicle (driven by the defendant Evgeny Ermolenko) that
left a stop sign on a cross-street. The taxi being driven by Mr. Moini was
struck on the driver’s side by the front of the Ermolenko vehicle. Mr. Moini’s
evidence is that he suffered a cut to his forehead and that he blacked out for
some seconds. He testified that his neck, upper shoulders, upper back and lower
back were re-injured.

[16]        
After the October 2009
MVA, he testified that he was no longer able to help his wife with the
housework. His evidence is that he customarily did one-half of the housework
including mopping, cleaning the bathroom, cooking, doing dishes, and cleaning
the patio. He also found it difficult to participate in child care such as
feeding his children or taking them to the park or swimming. Mr. Moini and his
wife both testified that after the October 2009 MVA she took over his share of
the chores and child care.

[17]        
After the October 2009
MVA, Mr. Moini took more time off from his work as a taxi driver. He was unable
to remember how long it was before he returned to work. When he did return, he
worked reduced hours and took frequent breaks. He estimated that his driving
time per shift was about six hours. He testified that sitting for long periods
aggravated his neck and back pain. In 2010 he stopped driving taxi. His
evidence was that he could no longer make good money so it was not worth
continuing.

[18]        
In 2011, Mr. Moini
returned to work at Flamingo Carpets. In the period of time since Mr. Moini had
last worked at the company, Mr. Joukar had taken all of the profits because it
was Mr. Joukar that had continued to do the company’s work. After he returned, Mr.
Moini’s arrangement with Mr. Joukar was that each would operate a separate
division of the business, and take profits separately. Mr. Moini operated his
division from a new location in rented premises in Port Coquitlam. This
required the family to move from Vancouver to Port Coquitlam. The Vancouver
apartment was sold and a Port Coquitlam apartment purchased. It was evident
from the testimony of Ms. Tarkeshian that while she understood the reason for
the move, she was not enthused about it.

[19]        
Mr. Moini testified that
before the January 2013 MVA he experienced some improvement in his condition:
“it was getting a little better, but not completely.” He said that he could not
do as much driving as he used to do in his work at Flamingo Carpets so he
concentrated on walk-in customers and advertised using a website and flyers —
as opposed to calling on contractors at building sites. Mr. Moini’s evidence is
that he could not make deliveries of anything but small loads of product so he
hired a driver to do some deliveries; during the first stretch of time that Mr.
Moini worked at Flamingo Carpets, the company did not hire drivers because
Flamingo Carpets had a delivery van and the partners did the deliveries.

[20]        
The January 2013 MVA
happened on Westwood Street in Port Coquitlam when an overtaking vehicle
(driven by the defendant Turcott) struck the driver’s side of Mr. Moini’s car.
Mr. Moini testified that he experienced pain in the same areas that were injured
in the previous two accidents. He also testified to psychological problems
arising after the January 2013 MVA: problems with concentration and memory, and
feelings of panic and depression. He has particular problems with sleeping and
testified to having nightmares.

[21]        
Mr. Moini’s evidence is
that these emotional problems have affected him in his Flamingo Carpets
business. He says that he cannot effectively interact with customers because he
forgets words and cannot explain the products as well. He says that his
tolerance when negotiating is not what it was. His evidence is that his
relationship with his wife and children has also suffered. The plaintiff’s wife
testified to an increasing disinterest by Mr. Moini in family life and his lack
of patience with the children.

[22]        
Mr. Moini’s evidence is
that his physical and emotional condition has not improved in the time since
the January 2013 MVA. The pain in his neck and back is present every day. It is
worse in the mornings and in the evenings — the afternoon is a bit better. His
wife has now hired someone for household cleaning to cover his share of the
housework.

[23]        
Mr. Moini testified that
in the period of time up until the October 2008 MVA, he was well able to
financially support his family. His evidence is that since 2010 the family has
survived on lines of credit, money from his mother and his wife’s parents, and the
sale of their gold and jewellery at discounted prices. He and his wife
testified that she left her job at a daycare to stay at home and look after the
chores and the children.

[24]        
Mr. Moini testified that
his second stint at Flamingo Carpets was not a success. The Port Coquitlam lease
expired at the end of December 2015 and Mr. Moini’s evidence is that he has discontinued
his Flamingo Carpets work. In August 2015, he began the process of training to
work as a realtor. He is taking a real estate course through UBC. The course is
home-based and Mr. Moini’s evidence is that he has so far completed only four of
twenty required assignments — he says that his problems with concentration and
memory are causing him increased difficulty with the course as the concepts
become more difficult. He last did coursework in October or November 2015.

Burden of
Proof

[25]        
In F.H. v. McDougall, 2008 SCC 53 at para. 43, Mr. Justice
Rothstein, writing for the Court, said that in all cases evidence "must be
scrutinized with care" and "must always be clear, convincing and
cogent … to satisfy the balance of probabilities test." With regard to
those cases in which there is an inherent improbability that an event occurred,
Rothstein J. quoted from Lord Hoffmann’s speech in the case of In Re B
(Children),
[2008] UKHL 35 at para. 15: “Common sense, not law, requires
that in deciding this question, regard should be had, to whatever extent
appropriate, to inherent probabilities.”

[26]        
There may be a degree of an inherent improbability in cases such as the
matter at hand where there are long-lasting complaints of pain yet little or no
objective evidence of continuing injury: Price v. Kostryba (1982), 70
B.C.L.R. 397 at para. 6 (S.C.). However, if after scrutinizing the evidence
with care it is found that there is sufficiently clear, convincing and cogent
evidence that the proposition advanced is more probable than not, the standard
of proof will be fully satisfied.

[27]        
In soft-tissue injury cases, much turns on whether the plaintiff’s
testimony can be considered reliable. The plaintiff’s account of the changes in
his physical and emotional condition is the foundation for the expert opinion
evidence. If the plaintiff’s account is not convincing, the experts’ opinions
will be undermined: Samuel v. Chrysler Credit Canada Ltd., 2007 BCCA 431
at para. 41.  

The Plaintiff’s Credibility

[28]        
The plaintiff’s account of the changes in his physical and emotional
condition is not convincing. In very large measure, the opinions of the various
experts he has retained are underpinned by the history he provided to them.
Consequently, much of the expert opinion evidence led by Mr. Moini lacks a
proper foundation. As a witness, Mr. Moini was a very vague historian. He
answered countless questions by saying that he did not remember. In the result,
his testimony lacked clarity and cogency.  

[29]        
As vague as his evidence was, the more troubling issue is his capacity
for bending the truth for financial gain. He testified that it was his practice
in the years leading up to the subject accidents to file false tax returns in
order to avoid paying his proper share of income tax arising from his work as a
taxi driver. As will be detailed later in these reasons, in these years he
declared income of approximately $15,000 per year. However, his evidence at
trial is that he was actually earning four to five times that amount. Mr. Moini
has created for himself the challenge of satisfying the burden of proving the elements
of his case — to the
required degree of being clear, convincing and cogent — when for years immediately before the subject accidents
he says he was engaged in what can only be described as a form of fraud.

[30]        
In argument, it is said
on Mr. Moini’s behalf that at this trial he has been quite candid that he filed
false returns. However, I find that the only reason he has made this admission
is to advance his damages claims. There is certainly no evidence that he has
invited the Canada Revenue Agency to conduct a reassessment for the years he
now says he so significantly under-reported his income.

[31]        
Mr. Moini is an intelligent and highly educated man of business. It is
not lost on him that the expected outcome of this case is a damages award in
his favour, and that the quantum of the award is a function of the extent of
his disability that can be traced to the accidents. It is not lost on him that in
assessing his disability, the Court looks to his evidence and experts’ opinions
based on the information he chose to relay to the experts. Mr. Moini’s
acknowledged capacity to disregard the truth when it is to his financial
advantage, together with the vague character of much of his evidence, casts a long
shadow over both the veracity and the reliability of his evidence.

[32]        
That said, determination of the issues on this damages assessment
requires a consideration of all of the evidence —
and
especially any evidence that is not derivative of Mr. Moini’s
subjective reporting and thus capable of corroborating Mr. Moini’s account of
the changes in his physical and emotional condition: Andraws v. Anslow,
2016 BCCA 51 at paras. 12-16.  

Causation

[33]        
Causation must be established on a balance of probabilities before damages
are assessed. As McLachlin C.J.C. stated in Blackwater v. Plint, 2005
SCC 58 at para. 78:

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
v. Leonati
, [1996] 3 S.C.R. 458].

[34]        
In a case like this one, I must be alive to the possibility that
accident injuries and pre-existing issues were both materially contributing
factors, i.e., that both the accident injuries and the pre-existing issues are
substantially connected to a disabling condition beyond the de minimus range:
Farrant v. Laktin, 2011 BCCA 336 at paras. 46 and 51. If the injuries
arising from the subject accidents are a materially contributing cause of the
plaintiff’s damage, causation is proven and Mr. Moini is entitled to
compensation — albeit an amount
of compensation that does not better his “original position.”

The Injuries and Extent of
Disability

[35]        
I begin this part of the analysis by making findings as to Mr. Moini’s
“original position”. What were his medical issues in the time leading up to the
October 2008 MVA, and to what extent were they disabling?

[36]        
There are two reports in evidence from Mr. Moini’s long-time family
doctor. In his 7 January 2010 report, Dr. M.K. Leung summarizes his patient’s
status in the months before the October 2008 MVA:

Mr. [Moini] is a 52 year old Taxi Cab driver. He has had pain
here or there in the past and takes Tylenol #3 for non-specific pain. The last
request for Tylenol #3 from him was in January 2008. In May [2007] at work he
lifted a heavy object and had low back pain. He was again prescribed Tylenol #3
and Naprosyn. This [seemed] to resolve with physiotherapy provided by WCB.

On August 19,
2008 he came in with multiple complaints including chest pain, sore throat,
cough, headache all over. He requested Remeron 15 mg QHS for 3 months which he
took for his depression.

…

Mr. Homayoon Moini had a history
of using Tylenol #3 for incidental aches and pains. His latest request was on
January 15, 2008. He has had no complaints about his neck or back prior to his
accident.

His neck showed multiple level
degenerative changes on his x-ray, however, he did not have any specific
complaints about his neck and lumbar area prior to his [October 2008] MVA. Due
to his MVA he developed pain in his neck and shoulder, and lumbar area.

[37]        
I take it that when Dr. Leung wrote that Mr. Moini “did not have any
specific complaints about his neck and lumbar area prior to his [October 2008]
MVA,” Dr. Leung is referring to the months leading up to that accident, because
he refers in his report to the 2007 WCB injury and he presumably would have
remembered his involvement in Mr. Moini’s previous back and neck injury claims
(arising from two 1994 motor vehicle accidents) that went to trial: Moini v.
Jude
(11 June 1996), Vancouver B943745/B950400.

[38]        
Dr. Leung did not appear as a witness in the case at bar. During
argument, I was told by counsel for Mr. Moini that Dr. Leung has retired and
could not be found. This is unfortunate as Dr. Leung was Mr. Moini’s doctor for
over 20 years and he might have been able to provide more insight into Mr.
Moini’s “original position” — in
particular, Mr. Moini’s
pre-existing pain and depression problems and
the extent of disability they caused, and the ways in which his original
position has been altered by the subject accidents.

[39]        
The above quotation from Dr. Leung’s first report does not provide a
clear description of Mr. Moini’s condition before the October 2008 MVA. It is
impossible to draw firm conclusions from a sentence like, “He has had pain here
or there in the past and takes Tylenol #3 for non-specific pain.” It may well
be that Dr. Leung was handicapped by Mr. Moini’s shortcomings as an historian. I
remind myself at this juncture that Mr. Moini has the burden of proof,
including the burden of establishing what his “original position” was.

[40]        
I am not prepared to put weight on Mr. Moini’s evidence as to his health
before the October 2008 accident. It was vague and unreliable. One example of
the degree of unreliability is what Mr. Moini told Dr. Christopher Robertson,
the psychiatrist he retained to provide expert opinion evidence in this case:

He was taking Tylenol No. 3
before the [October 2008] accident in part to relax him. He would take it about
once per month or when he had a severe headache before the [October 2008] accident.

He denied
other problems with pain before the [October 2008] accident.

…

He said that he thinks he was
first down or depressed when he sold his downtown condo and had to move to
Coquitlam. His wife did not like this. He felt more sad and lonely. He thinks
that he has been down since 2009 or 2010.

[41]        
This history provided by Mr. Moini to Dr. Robertson does not accord with
the facts. Mr. Moini was taking Tylenol with codeine much more frequently than
once per month in the lead-up to the October 2008 MVA. Dr. Leung’s report makes
it clear that Mr. Moini was being treated for pain and depression before the October
2008 MVA, and that prescriptions for Tylenol No. 3 were being written for pain
relief not relaxation. Dr. Robertson’s report summarizes the filling and
refilling of the prescriptions for Tylenol with codeine: 

He was given Tylenol No. 3 in
May 2006, 100 tablets. This was refilled in March 2007 at 100 tablets as well
as in May 2007 at 100 tablets. It was refilled again with 60 tablets at the end
of May 2007. It was refilled at 60 tablets in September 2007. It was refilled
at 100 tablets in January 2008. It was refilled at 50 tablets in April 2008,
100 tablets in July 2008, 90 tablets in April 2009, 50 tablets in October 2009,
100 tablets in January 2010, 100 tablets in November 2010, and 100 tablets in
June 2011.

[42]        
Mr. Moini told Dr. Robertson that he was first down or depressed at a
time after the first or second of the subject accidents. This does not fit with
the evidence that I accept: Ms. Tarkeshian dates the onset of his depression to
the loss of the Robson Street pawn shop in the March 2004 fire. Indeed, in the
16 May 2008 entry in Dr. Leung’s chart respecting his depression — about six months before the first of
the subject accidents —
there is a note that he “lost store due to
accident.” In context, I think this must be a reference to the loss of the Robson
Street shop in the fire.

[43]        
A second flagrant example of Mr. Moini’s unreliability as an historian
is what he told Dr. Simon Horlick, the orthopaedic surgeon he retained for
medical legal purposes. After recounting the dates of the 2008, 2009 and 2013
accidents and that the accidents resulted in “subjective complaints
predominantly related to his neck and low back,” Dr. Horlick says: “He denies
any prior history of neck or low back subjective complaints or functional
limitations prior to the history of these motor vehicle accidents.” This latter
statement by Mr. Moini to his consultant on an important subject is simply
untrue. As noted above, Mr. Moini pressed to trial his neck, shoulder and back injury
claims arising out of previous motor vehicle accidents, and he had a 2007 WCB
back injury claim.

[44]        
I find that Mr. Moini’s depression dates back at least as far as 2004. Dr.
Robertson’s opinion about Mr. Moini’s condition before the subject accidents
was based on what he heard from Mr. Moini and what he was able to glean from the
chart of Dr. Leung and other clinical records, and was expressed thus:

Overall, in looking at Mr.
Moini’s pre-accident psychiatric history, my best assumption based on the
evidence available to me would be that he probably had chronic, low-grade
depressive and anxiety symptoms that would more likely than not have continued.

[45]        
While the quality of the evidence makes it impossible to confidently
make findings, I conclude that at the time of the October 2008 MVA Mr. Moini was
suffering from some degree of depression and that he had chronic generalized
aches and pains requiring very frequent use of Tylenol with codeine for relief.
 

[46]        
It is also difficult to assess the degree to which these pre-existing problems
were functionally disabling. Mr. Moini is not a reliable historian. Ms.
Tarkeshian’s evidence is that she does not remember the amount of time off work
caused by the WCB injury. She says that her husband’s depression did not cause
him to lose time from work before the October 2008 MVA. Her evidence is that he
was up to doing the household chores, including heavier tasks. While I think it
likely that his pain and depression was impacting his work as a taxi driver to
some degree before the October 2008 MVA, I am satisfied on the basis of Ms. Tarkeshian’s
evidence that after Mr. Moini returned from the WCB injury he was able to work
his usual hours — whatever those
hours may have been
: Mr. Moini’s uncorroborated evidence that he was
working five or six 12-hour taxi shifts per week does not make it so.

[47]        
The defendants admit that Mr. Moini was injured in each of these three
collisions. As difficult as it is to be definite about the “original position”
given the unsatisfactory nature of the evidence led by Mr. Moini, it is no
easier to sort out the extent to which his original position has been altered
as a result of the three accidents. My conclusion is that his injuries worsened
his pre-existing pain and depression, but only modestly so. My analysis will
include an outline of the medical and other expert opinions, but I reiterate
that the expert opinion evidence is of limited assistance because it is very
much founded on what Mr. Moini reported to the experts.  

[48]        
Dr. Leung’s second report was written on 10 April 2012, approximately
two and one-half years after the second of the three accidents. Dr. Leung
relates that Mr. Moini achieved progress in an active rehabilitation program.
By this time, Mr. Moini had turned away from taxi driving and returned to
Flamingo Carpets. Nevertheless, Dr. Leung’s opinions are expressed in terms of
the likelihood of Mr. Moini returning to full-time taxi driving. At that time,
Dr. Leung was not confident that even after a further session of rehabilitation
that he would be able to cope with 12-hour shifts. Interestingly, Dr. Leung
reports that Mr. Moini was doing all his household chores without difficulty.

[49]        
It is a very close call, but I am prepared to accept that the first two
accidents worsened Mr. Moini’s physical condition sufficiently to make it
reasonable for him to abandon taxi-driving. It seems that returning to full
taxi shifts was not in prospect and it was probably sensible for him to return
to the floor covering business. Dr. Leung’s opinion about Mr. Moini working in
the carpet business was expressed as follows:

In 1995 he worked in carpets.
After an MVA in 1995, around 1996 he said ordering, scheduling, deliveries,
re-ordering, stock appraisals were too onerous and time consuming, therefore he
stopped his carpet business. I do not see any difficulty for him with these
activities. He has to be careful moving heavy objects in the carpet business.

[50]        
Since the time of Dr. Leung’s second report, Mr. Moini was hurt in the
January 2013 MVA. An orthopaedic surgeon, Dr. Barry Vaisler, saw Mr. Moini for
medical-legal purposes in December 2010 (after the second of the subject
accidents) and in August 2013 (after the third of the subject accidents). In
his report of 15 November 2013, Dr. Vaisler comments on the extent of Mr.
Moini’s disability:

It is my
understanding that at the time of my seeing him on August 15, 2013 he was back
at work selling flooring materials and was managing with his work duties
provided he avoided driving, visiting construction sites and heavy lifting. He
should be able to continue on with light duty work for the foreseeable future
and his tolerance to driving and visiting constructions sites will most probably
improve with the [exercise] treatment recommendations. He will, however, almost
certainly have a permanent disability with respect to work activities involving
heavy lifting, heavy labour and probably also prolonged sitting due to injuries
sustained in the motor vehicle accident of October 31, 2008 and probably also
the accident of January 27, 2013.

…

He is most probably going to
continue to require help with the heavier chores around his house involving
lifting and sustained or repetitive bending for the foreseeable future as a
result of injuries sustained in the motor vehicle accidents.      

[51]        
In the lead-up to the trial, Dr. Vaisler was unavailable and Mr. Moini
was sent to Dr. Horlick for assessment. Dr. Horlick’s opinion on disability and
prognosis is as follows:

Given that his diagnosis is
myofascial in origin, it is unlikely he will have progressive impairment or
disability associated with same, although the likelihood of him being
completely relieved of his subjective complaints now that he is several years
with ongoing intermittent discomfort is unlikely. However, there is no
contraindication, in my opinion, to him continuing to work in his employ in
sales whether it be in flooring or real estate. However, his ability to work in
the installation side of flooring, or other demanding capacity such as a taxi
driver, in my opinion is not compatible given his ongoing subjective complaints
and functional limitations.

[52]        
I conclude that the opinions of Dr. Horlick and Dr. Vaisler about Mr.
Moini’s prospects of returning to his previous work as a taxi driver ultimately
rest on what they were told by Mr. Moini. These opinions are undermined by the
unreliability of Mr. Moini’s account of his condition before the accidents and
his account of the changes of his condition as a result of the accidents.

[53]        
Dr. Robertson last saw Mr. Moini in October 2015. Dr. Robertson’s
diagnosis is that Mr. Moini meets the criteria for Major Depressive Disorder.
The assumptions upon which his opinion is based are made explicitly on the
basis that the information provided to him by Mr. Moini and the information
contained in the clinical records (which would reflect what Mr. Moini told
other clinicians) is a “reasonably accurate reflection of the symptoms, events
and functioning described unless otherwise noted.” Dr. Robertson’s opinions on
diagnosis and causation rest on a foundation of insufficient reliability.

[54]        
Based on Ms. Tarkeshian’s evidence, I am prepared to accept that Mr.
Moini’s pre-existing anxiety and depression has been made worse by the series
of accidents in 2008, 2009 and 2013. However, it has not been proved to my
satisfaction that the aggravation of his pre-existing emotional difficulties
has been to the extent that it has been disabling for Mr. Moini in his work as
a taxi driver or in the flooring business.

[55]        
The plaintiff led evidence from Mr. Jeff Padvaiskas, an occupational
therapist. Mr. Padvaiskas’ opinion that Mr. Moini is not suited to work as a
taxi driver or fully suited to work as a carpet store operator were based on
what he learned from interviewing Mr. Moini, from reading the medical reports,
and from the results of functional testing. As I have endeavoured to make
clear, I doubt the reliability of Mr. Moini’s account — his evidence in court and what he told those who
prepared medical reports. I cannot, therefore, attach weight to Mr. Padvaiskas’
opinions on Mr. Moini’s work capacity.

[56]        
The plaintiff also
engaged Ms. Avita Sharma, a vocational rehabilitation consultant, to provide an
opinion regarding the nature and extent of Mr. Moini’s vocational limitations.
Ms. Sharma’s opinion that Mr. Moini is not currently competitively employable is
based on the history taken from Mr. Moini, the medical reports, and the
opinions of Mr. Padvaiskas. Again, the foundation for this expert’s opinion is
thoroughly compromised.

[57]        
The defendants obtained opinion evidence from an orthopaedic surgeon and
a psychiatrist. Neither met with Mr. Moini. I agree with the plaintiff’s
submission that the defendants’ experts’ inability to take a history and
examine Mr. Moini significantly detracts from the weight that can be attached
to their opinions. Counsel for the plaintiff made telling points in her
cross-examinations of these experts about the critical importance of taking a
history from the patient. Of course, in this case, these well-aimed jabs cut
both ways: taking a history is important but what really matters to these
experts is receiving a reliably accurate history.

[58]        
With the expert evidence undermined by the plaintiff’s credibility
problems, it is difficult to make findings about the extent of disability — all the more so when it comes to the
future. Doing the best I can with the evidence I have, I find that after Mr.
Moini’s
forthcoming treatment at the pain clinic and further follow-up
treatment and counselling, it is likely that his depression and pain will
lessen. I think it is likely that he will be back to his “original position” or
better within the next year or so.

The Mitigation Argument

[59]        
The defendants submit that the plaintiff failed to take prescribed
medications and psychotherapy to treat his depression, and that if he had done
so he could have avoided part of his loss. The defendants urge a finding of a
failure to mitigate, and seek a 10% reduction in the non-pecuniary damages that
would otherwise be assessed.

[60]        
The onus is on the defendants to prove that the plaintiff could have
avoided all or part of his loss. The defendants must prove that the plaintiff
acted unreasonably by his failure to follow recommended treatment. The
defendants must also prove the extent, if any, to which the plaintiff’s damages
would have been reduced had he acted reasonably. See Chiu v. Chiu, 2002
BCCA 618 at para. 57, citing Janiak v. Ippolito, [1985] 1
S.C.R. 146.

[61]        
Mr. Moini’s evidence was that he took for a time the anti-depressant
medication prescribed for him, but he found that it caused him to be dizzy and
drowsy, and that it affected his ability to concentrate and work. Ms. Tarkeshian’s
impression is that the anti-depressant medication helped, and gave Mr. Moini an
improved ability to get along with work and life. With regard to the
psychological counselling Mr. Moini took in 2014, he testified that he found it
to be completely unhelpful, and he discontinued therapy after six sessions. I acknowledge that there is reason to question the
extent of Mr. Moini’s commitment to the prescribed regime of medication and counselling,
but I am not satisfied that there is clear and cogent evidence that Mr. Moini
has acted unreasonably.

Non-Pecuniary Damages

[62]        
The proper approach to the assessment of non-pecuniary damages is
well-settled and is encapsulated in Stapley v. Hejslet, 2006 BCCA 34 at
paras. 45-46. The factors to be considered include the age of the plaintiff,
the nature of his injuries, the severity and duration his pain, disability,
emotional suffering, loss or impairment of life, impairment of family and
social relationships, impairment of physical and mental abilities, and loss of
lifestyle.

[63]        
While reference to awards made in similar cases can be of assistance in
arriving at a fair award for non-pecuniary damages, each case must be decided
on its own facts. An individualized assessment is called for. It is neither
possible nor desirable to develop a “tariff”. See Lindal v. Lindal,
[1981] 2 S.C.R. 629 at 637; Dilello v. Montgomery, 2005 BCCA 56 at
paras. 39-43.

[64]        
The plaintiff submits that he is entitled to an award in the range of
$150,000 to $180,000 on the basis that he has suffered a combination of chronic
physical injuries and psychological harm that has produced both vocational and
avocational impairment. He cites Alden v. Spooner, 2002 BCCA 592
($200,000); Felix v. Hearne, 2011 BCSC 1236 ($200,000); Zawadzki v.
Calimoso
, 2011 BCSC 45 ($180,000); and Pololos v. Cinnamon-Lopez,
2016 BCSC 81 ($180,000).

[65]        
The defendants submit that the award should fall in the $40,000 to
$70,000 range, and they rely upon Sangha v. Chen, 2012 BCSC 749
($40,000); Litt v. Hansen, 2015 BCSC 1920 ($60,000); and Suthakar v.
Humble
, 2016 BCSC 155 ($70,000).

[66]        
Mr. Moini’s was depressed and in pain before the three accidents. My
finding that the accidents caused a fairly modest degree of aggravation to this
“original position” does not provide a basis for the substantial non-pecuniary
damages award that he seeks. No two plaintiffs’ circumstances are alike but I
found the Sangha and Litt cases to provide some guidance.

[67]        
In Sangha, Madam Justice Boyd found that that the 48 year-old plaintiff’s
depression, which pre-dated the motor vehicle accident, was aggravated by the
accident. Seven years after the accident, the plaintiff had ongoing chronic
pain, rooted in his depression. The non-pecuniary damages award was $40,000.

[68]        
In Litt, the 36 year-old plaintiff was injured in two motor
vehicle accidents. In the first accident, he suffered a mild to moderate soft
tissue injuries to his neck and shoulder plus a lumbo-sacral disk injury. The
second accident caused only a very mild exacerbation. The plaintiff had some
pre-existing lower back pain and headaches. Mr. Justice G.C. Weatherill awarded
$60,000 for non-pecuniary damages.

[69]        
I award $50,000 for non-pecuniary damages.

Past Loss of Income Earning Capacity

[70]        
In Rowe v. Bobell Express Ltd., 2005 BCCA 141 at paras. 30-31,
the Court explained that a claim for what is often described as “past loss of
income” is actually a claim for past loss of earning capacity, i.e., “a claim
for the loss of the value of the work that the injured plaintiff would have
performed but was unable to perform because of the injury,” and that the value
of the loss may be measured in different ways: for example, by actual earnings
the plaintiff would have received, by a replacement cost evaluation of tasks
that the plaintiff is now unable to do, by an assessment of reduced company
profits, or by shared family income lost. In this case, I think that estimating
the plaintiff’s lost earnings is the best way to assess Mr. Moini’s past loss
of earning capacity.

[71]        
Mr. Moini’s income tax return information is in evidence for the years
2004 through 2014. His income, after removing universal child care benefit
income, was reported by Mr. Moini and assessed by Canada Revenue Agency as
follows:

2004

$11,580

2005

14,678

2006

16,013

2007

14,341

2008

10,500

2009

9,500

2010

2,600

2011

nil

2012

3,100

2013

nil

2014

nil

[72]        
The results from 2011 to 2014 are from his re-engagement in the Flamingo
Carpets business. Income statements for the Port Coquitlam division of the
Flamingo Carpets business for the year ends 2011 through 2014 are in evidence. These
statements were prepared by Mr. Joukar. The gross sales were stated as follows:
for 2011, $42,669; for 2012, $121,370; for 2013, $77,300; for 2014, $76,858. In
2012, the income statement shows a $7000 profit for the venture. In the other
years, it essentially broke even. The income statements show no money being
paid out for management fees other than $3100 in 2012. The 2015 financial
statements have not been prepared; Mr. Joukar testified that he is not able to
say how Mr. Moini’s 2015 results might compare with 2014. Mr. Moini says that
the 2015 results mirror the 2014 figures. Mr. Moini also testified that, unlike
when he worked as a taxi driver, all of the revenue for Flamingo Carpets appears
on the books.

[73]        
Mr. Moini has created difficulty for himself in the prosecution of this
case by filing false income tax returns. Failure
to report income on tax returns does not preclude an award based on actual
income, although it does present the plaintiff with challenges of proof of what
the actual income was: Iannone v. Hoogenraad (1992), 66 B.C.L.R. (2d)
106 (C.A.). Mr. Moini
filed false returns so as to benefit himself
financially. He has the burden of marshalling clear, convincing and cogent
evidence of loss. I have the task of scrutinizing the evidence with care. In
some cases, a claimant’s word on oath is sufficient to discharge the burden of
proof of loss. But when, as here, there is a demonstrated track record over a
number of years of a willingness to lie to the tax authorities for financial
gain, a claimant like Mr. Moini is hard-pressed to clear the hurdle.  

[74]        
Mr. Moini testified that he earned $5000 to $6000 per month driving taxi.
His evidence is that he did not declare his cash revenue. He says that the taxi
trip sheets he prepared only had enough cash shown to make the sheet
“presentable” because the owner of the taxi would be paid based on the trip
sheet. And none of his cash earnings were deposited into banks because, as Mr.
Moini conceded in cross-examination, he did not want to leave a trail for the Canada
Revenue Agency. In the result, there is no evidence to satisfactorily
corroborate Mr. Moini’s bald statements that before the subject motor vehicle
accidents he was working long hours and earning $60,000 to $70,000 per year
driving taxi.   

[75]        
The report of Ms. Sharma, the vocational expert, quotes a 2013 Service
Canada wage report for the Vancouver and Lower Mainland region indicating a
median hourly rate of $16.10 for the taxi and limousine driver occupational
group. On the basis of a 35 or 40 hour work week, this fits with the evidence
in the report of the economist, Mark Szekely, that indicates average employment
income of taxi and limousine drivers at about $25,000. I find it to be more
likely than not that Mr. Moini was earning more than he was declaring to the
income tax authority. I think it likely that if he were earning only what he
declared, he would have spent his time working at Flamingo Carpets. However, I
am not prepared to accept that Mr. Moini was earning more than the amount the evidence
in Mr. Szekely’s report indicates is the average earnings of a taxi driver in
Vancouver and the Lower Mainland: $25,000 per year.  

[76]        
I conclude that but for the three motor vehicle accidents that are the
subject of these proceedings, there is a strong likelihood that Mr. Moini would
have continued to drive taxi for the period up to trial. Using this $25,000
annual earnings figure, it follows that, but for the accidents, he would likely
have earned approximately $185,000 for the entire period from October 2008. From
this must be deducted the amount that he has actually earned. Again, because I
am not prepared to accept Mr. Moini’s evidence at face value, assessing this
amount presents significant difficulties.   

[77]        
I think it likely that when Mr. Moini returned to driving taxi after his
October 2008 MVA and October 2009 MVA, he suffered some reduction in earnings.
It is difficult to accurately assess the quantum of this reduction because of
the absence of records — a
problem which finds its source in Mr. Moini’s approach to documenting his taxi
earnings. Doing the best I can,
I think it likely that for the 18 months or so following the October 2008 MVA,
Mr. Moini earned a total of approximately $30,000 driving taxi.

[78]        
Mr. Moini
testified that all of his revenue in the Port Coquitlam operation of Flamingo
Carpets that he began sometime in 2011 appears on the books. After being taken
through the Flamingo Carpets income statements for the years 2008, 2009, and
2010, Mr. Joukar testified that the income statements accurately reflect the
business’ income and expenses.

[79]        
When Mr. Joukar
prepared the statements for Mr. Moini’s side of the business for the years 2011
through 2014, he would have been relying on information made available to him
by Mr. Moini. And so, when Mr. Moini says that all of his income found its way
onto the 2011-2014 income statements, Mr. Moini’s evidence stands alone. In
light of Mr. Moini’s acknowledged track record in the taxi business of
undeclared earnings, I cannot find that his evidence standing alone is
sufficiently clear, convincing and cogent evidence of the truth of this
assertion.

[80]        
Mr. Moini argues
that it is not open to me to make a finding other than to accept his evidence
that all of the revenues of his division of Flamingo Carpets were on the books
because Mr. Moini was not specifically cross-examined on this evidence. I
understood this argument to rely on the confrontation principle rooted in the
speeches given in Browne v. Dunn (1893), 6 R. 67 (H.L.).  

[81]        
In the matter at
hand, it comes down to whether it is unfair to Mr. Moini for him not to have
been specifically confronted on this evidence, or whether the absence of
confrontation puts at risk the accuracy of the fact-finding process: R. v.
Drydgen
, 2013 BCCA 253 at para. 18. Mr. Moini was cross-examined about his
habit of taking in cash while driving taxi without declaring it to the income
tax authorities, and not depositing this cash in banks so as to avoid being
caught. He was confronted with the suggestion that he has and would lie to
advance his financial interests. In this case, I am not persuaded that the
absence of cross-examination on this point is unfair or compromises the
fact-finding process. 

[82]        
The absence of
cross-examination does not compel me to accept what I think is highly
improbable evidence. It is for Mr. Moini to prove his case, including what his
post-accidents earnings have been. I do not accept what Mr. Moini says at face value
on matters that affect his financial interests. I do not accept that the financial
statements compiled by Mr. Joukar from records kept by Mr. Moini have been
proven to be accurate on a balance of probabilities. I do not accept that Mr.
Moini has made essentially no money for five years. Ms. Tarkeshian, when asked
about Mr. Moini’s Flamingo Carpets income during this 2011-2015 period income,
said his income was “not that much to take care of the family,” from which I
infer that Mr. Moini was bringing home some income albeit not enough to support
the family.  

[83]        
Again, doing the
best I can in the face of the difficulties presented by the quality of the evidence,
I find that Mr. Moini’s income during the five years 2011 through 2015 to be
about $20,000 per year. Adding these earnings to his taxi-driving earnings from
the time of the October 2008 MVA until the spring of 2010 when he began the
Flamingo Carpets venture in Port Coquitlam, I find that Mr. Moini has earned
approximately $130,000 since the October 2008 MVA, leaving a proven loss of $50,000.
If my assessment of his past loss of income earning capacity has understated
Mr. Moini’s loss, then I think it is fair to say that he has only himself to
blame. As Southin J. (as she then was) put it in Le v. Milburn, [1987]
B.C.J. No. 2690 at para. 2:

When a litigant practices to
deceive, whether by deliberate falsehood or gross exaggeration, the court has
much difficulty in disentangling the truth from the web of deceit and
exaggeration. If, in the course of the disentangling of the web, the court
casts aside as untrue something that was indeed true, the litigant has only
himself or herself to blame.

[84]        
The plaintiff led evidence from himself and Ms. Tarkeshian about the
extent to which the family has had to liquidate assets and borrow from family
to make ends meet since the subject accidents. I think this evidence has only
slight probative value. I do not know very much at all about the revenue and
expenditure patterns of this family before or after the accidents. I am not
prepared to draw the conclusion that the assets liquidated and the money borrowed
represents a reliable measurement of the extent of the past loss. I have found
a past loss, but I have done so without regard to this evidence which I found
unpersuasive.

[85]        
Section 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231,
provides that the plaintiff is entitled to recover only his net income loss. The
usual procedure to be adopted to fix the amount of the deduction for income
taxes is set out in Laxdal v. Robbins, 2010 BCCA 565 at para. 26. However,
in this case the parties agree that I should adopt a rough-and-ready approach
to income tax deduction. The plaintiff contends for a 15% deduction, the
defendant for a 20% deduction. I deduct $8000 to arrive at a net past loss of
capacity award of $42,000.

Future Loss of Income Earning Capacity

[86]        
A plaintiff is required to prove a substantial possibility of a future
event resulting in a loss in order to recover damages for loss of future
earning capacity. If such an event is proven, then it is open to the plaintiff
to quantify his loss according to the earnings that he will lose (the “earnings
approach”), or by the harm that has been caused to his capacity as a capital
asset in the working world (the “capital asset approach”): Perren v. Lalari,
2010 BCCA 140 at para. 32.

[87]        
The principles to be applied in making the assessment under this head of
damages were summarized in Falati v. Smith, 2010 BCSC 465 at para. 41,
aff’d 2011 BCCA 45:

(i) The standard of proof in relation to hypothetical or
future events is simple probability, not the balance of probabilities: Reilly
v. Lynn
, 2003 BCCA 49 at para. 101. Hypothetical events are to be given
weight according to their relative likelihood: [Athey v. Leonati, [1996]
3 S.C.R. 458 at para. 27].

(ii) The court must make allowances for the possibility that
the assumptions upon which an award is based may prove to be wrong: Milina
v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), aff’d (1987), 49
B.C.L.R. (2d) 99 (C.A.). Evidence which supports a contingency must show a
“realistic as opposed to a speculative possibility”: Graham v. Rourke
(1990), 75 O.R. (2d) 622 at 636 (C.A.).

(iii) The court must assess
damages for loss of earning capacity, rather than calculating those damages
with mathematical precision: Mulholland (Guardian ad litem of) v. Riley
Estate
(1995), 12 B.C.L.R. (3d) 248 at para. 43. The assessment is based on
the evidence, taking into account all positive and negative contingencies. The
overall fairness and reasonableness of the award must be considered: Rosvold
v. Dunlop
, 2001 BCCA 1 at para. 11.

[88]        
The earnings approach will be more appropriate when the loss is more
easily measurable: Westbroek v. Brizuela, 2014 BCCA 48 at para. 64.
The matter at hand is not such a case. I conclude that the capital asset
approach is best suited to this assessment.

[89]        
 The capital asset approach calls for an inquiry into the extent to
which the plaintiff’s earning capacity, as a capital asset, has been
diminished. The inquiry focuses on whether the plaintiff: (1) has been rendered
less capable overall of earning income from all types of employment; (2) has
been rendered less marketable or attractive as an employee to future employers;
(3) has lost the ability to take advantage of job opportunities which might
otherwise have been open to him; or (4) is less valuable to himself as a person
capable of earning income in a competitive labour market: Brown v. Golaiy (1985),
26 B.C.L.R. (3d) 353 at para. 8 (S.C.). Although quantification of the
loss under the capital asset approach cannot be a matter of precise
measurement, this does not mean that the assessment is entirely at large —
findings of fact as to the nature and extent of the loss of capacity and its
relation to the plaintiff’s ability to earn income are necessary: Morgan v.
Galbraith
, 2013 BCCA 305 at para. 56.

[90]        
The following findings are pertinent to the assessment of loss of future
earning capacity:

1.     Before the accidents, Mr. Moini had
used his income earning capacity to work as a taxi driver and as a businessman.
His pain and depression probably handicapped him in these lines of work only to
a mild extent before the accidents.

2.    
But for the accidents, I think it highly likely that Mr. Moini would have
continued to work as a taxi driver for an indefinite period. It is certainly
possible, however, that Mr. Moini would have eventually returned to operating a
business. Taxi-driving may have been expedient for him, but his family’s long
history of being in business, his own interest as demonstrated by his course of
business studies, and his operation of Flamingo Carpets and the pawn shops
suggest that he is inclined to business.

3.    
After his forthcoming treatment at the pain clinic and further follow-up
treatment and counselling, I think it likely that Mr. Moini’s depression and
pain will lessen. I think it is likely that he will be back to his “original
position” or better within the next year or so.

[91]        
I conclude that Mr. Moini has proved a substantial possibility of a
future event resulting in loss. In particular, there is the likelihood that for
the next year or perhaps a bit longer, he will continue to be disabled from
driving taxi. Further, I must account for the contingency that the anticipated
return to his original position happens more slowly than I expect or never
occurs.

[92]        
During the time between now and his return to his original position, because
Mr. Moini will remain disabled from driving taxi, he has been rendered less
capable overall of earning income from all types of employment or take
advantage of job opportunities which might otherwise have been open to him. On
the other hand, I have found that Mr. Moini’s capacity to work as a businessman
has not been impacted by the accidents and he may be able to use this capacity to
minimize or eliminate his losses until he returns to his original position.

[93]        
I conclude that one year
of Mr. Moini’s earnings in the period immediately before the accidents — which
I have found to be $25,000 — is an assessment of his capacity loss that is fair
to both Mr. Moini and the defendants. I therefore award $25,000 under this head
of damages.

Cost of Future Care

[94]        
Damages for cost of future care are to compensate for costs expected to
be reasonably incurred to sustain or promote mental or physical health. The
services and items must be proved reasonable in the sense of being medically
required or justified, and in the sense that the plaintiff will be likely to
incur them based on the evidence. See Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.); Krangle
(Guardian ad litem of) v. Brisco
, 2002 SCC 9 at paras. 21-22; Gignac v.
Insurance Corporation of British Columbia
, 2012 BCCA 351 at paras. 28-30;
and O’Connell v. Yung, 2012 BCCA 57 at paras. 55-56.

[95]        
The plaintiff claims for the present value of treatment, counselling,
medications, homemaking services, and equipment. Mr. Padvaiskas, the
occupational therapist retained by the plaintiff, made future care
recommendations and provided ranges of cost estimates that were converted to
present values by Mr. Szekely.  

[96]        
For the reasons that follow, I fix damages under this head at $21,000.
ICBC has committed to pay for the assessment Mr. Moini underwent at an
interdisciplinary chronic pain clinic and have committed to fund his future
treatment at that clinic. The award I make does not include those expenses.  

Treatment and Counselling

[97]        
The claim is for exercise therapy ($1400 to $2000), occupational therapy
($3100 to $5000), psychological counselling ($6000 to $7900), physiotherapy or
massage therapy ($2800 to $9900), and vocational counselling ($2400 to $3300).

[98]        
Mr. Padvaiskas’ evidence is that when he attends the chronic pain
program, Mr. Moini will have access to kinesiology, occupational therapy and
psychological counselling. The recommendation for exercise, occupational and
psychological therapy is essentially for a modest amount of follow-up to ensure
that the gains expected from the pain clinic counselling and treatments are not
lost. I find this to be reasonable.

[99]        
The challenge is to fix a reasonable amount, bearing in mind that the
defendants are obliged to pay only the costs of returning Mr. Moini to his
original position. I think that fairness to all parties will be achieved by
ordering the low end of the range of costs for these items: $1400 for exercise
therapy, $3100 for occupational therapy, and $6000 for psychological
counselling.

[100]     The
allowance for physiotherapy or massage therapy is claimed so that Mr. Moini has
access to treatments in the event of aggravations or setbacks. I think it unlikely,
after attendance at the pain clinic and undertaking the follow-up treatments,
that Mr. Moini will have setbacks that will land him in worse than his original
position. However, the possibility ought to be allowed for and I award $1000 on
this account.  

[101]     I turn to
vocational counselling. Mr. Moini was a businessman who was driving taxi as a
matter of expediency. The evidence does not satisfy me that a monitored
volunteer placement is a reasonable expense. Mr. Moini seems disinclined and is
probably not well suited to continue his training to become a realtor. A short
course of vocational counselling focused on Mr. Moini exploring options that
could put to use his considerable intelligence, education, and business experience
is reasonable. I allow $1000 on this account.

[102]     The
sub-total for treatment and counselling comes to $12,500.

Medication

[103]     The claim
is that Mr. Moini will require an indefinite prescription of anti-depressant
medication ($14,500 to $33,000), Tylenol with codeine ($2900), and Advil
($1900). The claim does not make allowance for the fact that Mr. Moini was
being prescribed anti-depressant medication and Tylenol with codeine before the
subject accidents. A medication allowance of $5000 is in my opinion a reasonable
amount to return him to his original position, and to account for the chance
that treatment may not return him to his original position.

Homemaking Services

[104]     Mr. Moini
claims for two hours per week of homemaking support for the first year. With
gains anticipated by Mr. Padvaiskas as a result of treatment during the next
year, the ongoing recommendation thereafter is one hour per week until age 80.
The present value cost is estimated at $19,400 to $22,000.

[105]     Because I
expect that Mr. Moini will be returned to his original position after treatment,
I award $3000 for homemaking services —
the approximate midpoint of the range of cost for two hours of services per
week for one year, with a small additional contingency allowance to account for
the chance that
treatment may not return him to his original position.

Equipment

[106]     The
plaintiff claims the cost of a low back support, specialized pillows and pillow
tops, a wheeled cart and a low-wheeled stool. The present value of these items
totals $2200 to $4400. I am not satisfied that the plaintiff has demonstrated
how the aggravation or worsening of his original position gives rise to the
need for these items.

[107]    
The plaintiff also claims for a “SAD Light” ($600-$2000) recommended by
Dr. Robertson to treat his depression. I accept that a portion of this expense
(so as to return him to his original position) is reasonable and award $500.   

Special Damages

[108]     The
plaintiff claims $13,650 as reimbursement for expenses he has incurred for
various physical and psychological therapies, prescription medication, and
housecleaning. The defendants submit that $12,000 is the appropriate award.
They take issue with the cost of psychological therapy and a portion of the
housecleaning expenses.

[109]    
The defendants argued with some vigour that Mr. Moini ought to have more
enthusiastically pursued treatment for his depression, and the argument against
the psychological therapy expenses is not a good fit with those submissions. There
is, however, merit in the housecleaning expense point: some of this expense was
to carry out housework customarily done by Ms. Tarkeshian. I award $13,000 for
special damages.      

Summary

[110]     The
plaintiff had pre-existing pain and depression. His “original position” only
mildly affected his earning capacity. The accidents caused some aggravation of
these conditions. His pain increased to the point that he reasonably chose to
leave taxi driving and return to business. The aggravation of his depression
did not impact on his earning capacity as a businessman. I anticipate that as a
result of his attendance at a pain clinic and some follow-up treatment, the
plaintiff will return to his original position within a year or so.

[111]     The
plaintiff is entitled to an award for non-pecuniary damages to compensate him
for his pain and suffering, loss of enjoyment of life, and loss of amenities
associated with the aggravation of his pre-existing conditions. The plaintiff
has suffered a modest degree of loss of earning capacity, both past and future.
He has reasonably incurred treatment costs, and there will be some cost of
future care required to return him to his original position and compensate him
for contingencies. The plaintiff has not failed to mitigate his damages.

[112]     I award the
following amounts:

Non-pecuniary Damages

$  50,000

Past Loss of Earning Capacity

$  42,000

Future Loss of Earning Capacity

$  25,000

Cost of Future Care

$  21,000

Special Damages

$  13,000

TOTAL

$151,000

 

[113]     The
plaintiff is also entitled to court order interest, and, absent considerations
that I am unaware of, his costs on Scale B.

“Thompson
J.”