Clough-Smith v. Piton

2022 BCSC 953 Clough-Smith v. Piton

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Clough-Smith v. Piton, 2022 BCSC 953 Date: 20220608 Docket: M180958 Registry: Vancouver Between: Brydan Clough-Smith Plaintiff And Matthew Josef Harold Piton Defendant Before: The Honourable Justice Douglas Reasons for Judgment Counsel for the Plaintiff: J. Fisher S. Orstad Counsel for the Defendant: M. Straw F. Lin Place and Date of Trial: Vancouver, B.C. February 22-25 and 28, 2022 March 1-4, 2022 Place and Date of Judgment: Vancouver, B.C. June 8, 2022 Table of Contents I. INTRODUCTION. 4 II. BEFORE THE ACCIDENT. 4 III. THE ACCIDENT. 7 IV. AFTER THE ACCIDENT. 7 A. Injuries. 7 B. Treatment 7 C. Post-Accident Injuries. 8 D. Current Condition. 10 V. CREDIBILITY AND RELIABILITY OF EVIDENCE. 11 VI. MEDICAL EVIDENCE. 12 A. Dr. Peter Eppinga, GP. 12 B. Dr. William Regan, Orthopedic Surgeon. 13 C. Dr. Mitchell Spivak, Psychiatrist 14 D. Jodi Fischer, Occupational Therapist 15 VII. CAUSATION. 17 A. Parties' Positions. 17 B. Legal Framework. 17 C. Evidence. 18 D. Analysis and Conclusion. 19 VIII. GENERAL DAMAGES. 19 A. Parties' Positions. 19 B. Legal Framework. 20 C. Analysis and Conclusion. 20 IX. LOSS OF HOUSEKEEPING CAPACITY. 22 A. Parties' Positions. 22 B. Legal Framework. 22 C. Evidence. 23 D. Analysis and Conclusion. 24 X. SPECIAL DAMAGES. 24 XI. PAST INCOME LOSS. 24 A. Parties' Positions. 24 B. Legal Framework. 25 C. Evidence.

25 D. Analysis and Conclusion. 27 i) Alleged Three-Year Delay in Completion of Apprenticeship. 27 ii) Past Income Loss. 29 XII. FUTURE INCOME LOSS. 31 A. Parties' Positions. 31 B. Legal Framework. 32 C. Evidence. 34 i) Dr. Regan. 34 ii) The FCE. 34 iii) Vocational Consultants. 36 iv) Economist, Christiane Clark. 41 D. Analysis and Conclusion. 42 XIII. FUTURE CARE COSTS. 48 A. Parties' Positions. 48 B. Legal Framework. 48 C. Analysis and Conclusions. 49 i) Physiotherapy and Kinesiology. 49 ii) Gym Pass. 49 iii) Chiropractic Treatment 50 iv) Cognitive Behavioural Therapy. 50 v) Vocational Counselling. 51 vi) Medications. 51 XIV. DISPOSITION. 52 I. INTRODUCTION [1] On July 12, 2016, the plaintiff, Brydan Clough-Smith, was injured in a car accident in Maple Ridge, BC (the "Accident"). The defendant admits liability for the Accident and the trial proceeded on the issue of damages alone. [2] Mr. Clough-Smith seeks to recover non-pecuniary damages, special damages, damages for the loss of housekeeping capacity, past and future income loss, and future care costs. The parties disagree about the impact of Mr. Clough-Smith's Accident-related injuries on his function including, in particular, his ability to work as a plumber. The defendant denies the Accident caused or contributed to all of Mr. Clough-Smith's ongoing symptoms and says that any award for future income loss is appropriately

discounted by 40% to reflect the negative contingency that his pre-existing injuries would have impaired his capacity to work, absent the Accident. II. BEFORE THE ACCIDENT [3] Mr. Clough-Smith was 23 years old at the time of the Accident. He was single, without dependants, and living in Mission, BC with his mother in a house they co-owned. He was then in the process of completing his apprenticeship to become a Red Seal certified journeyman plumber. Shortly before the Accident, he had passed his second year of technical training courses and was working as a third-year plumbing apprentice. [4] Mr. Clough-Smith had three motor vehicle accidents before the Accident. The first one occurred in 2011; he lost control of his car on a corner and the passenger side of his vehicle struck a telephone pole. He said he was sore for a few days thereafter and then felt fine. There is no evidence that he sustained any long-term injuries. He had a second low impact accident shortly thereafter when he backed into another vehicle in a parking lot. There is no evidence that he suffered any injuries. [5] On June 24, 2013, Mr. Clough-Smith injured his left hip and low back in a third motor vehicle accident (the "2013 MVA"). His vehicle was t-boned on the driver's side; thereafter, he had pain in his low back and left hip and pelvis. When confronted in cross-examination with the Mission Hospital

Emergency Admission Record (indicating a diagnosis of neck and back sprain), he admitted that he might also have had neck symptoms. Subsequent x-rays of the pelvis, left hip, and lumbar spine disclosed no bony abnormalities. According to Mr. Clough-Smith, he returned to work within about three months and to his usual recreational and domestic activities within about one year of the 2013 MVA. He treated his injuries with anti-inflammatories and physiotherapy. He stopped going to physiotherapy in 2015 due to financial constraints. [6] In October 2015, Mr. Clough-Smith sought medical attention for persistent left hip and groin pain. He was prescribed pain medication and referred for a left hip x-ray. On April 7, 2016, he had an MRI of the left hip to investigate a possible labral tear; it was negative. In cross-examination, he conceded that he was still having periodic left hip and low back pain before the Accident. [7] Mr. Clough-Smith sustained two workplace injuries before the Accident (collectively, the "WCB Injuries"). On April 30, 2015, while employed as a CNC operator (working on a large computerised cutting machine), a glue pump fell off a wall, struck him in the forehead, and slid down his right shoulder and arm. Thereafter, he experienced headache and right neck and shoulder pain. On May 6, 2015, he reported right neck and shoulder pain after moving a large piece of

wood; he took ten days off work before returning to light duties. By May 20, 2015, he reported ongoing, slowly improving, daily headaches. [8] Following the WCB Injuries, Mr. Clough-Smith entered a WCB return to work program which included treatment at the CBI Health Centre ("CBI"). Physiotherapy notes dated July 6, 2015 in the CBI records reference his complaints of pain with running due to the 2013 MVA. On August 27, 2015, a CBI discharge status questionnaire recorded his responses as follows: a) He was able to look after himself normally but doing so caused extra neck pain; b) He could lift heavy weights but doing so caused extra neck pain; c) He had frequent moderate headaches; d) He was able to participate in all his recreational activities with some neck pain; and e) He had mild sleep disturbance. [9] Mr. Clough-Smith was assessed as able to return to work without limits on August 27, 2015. He was educated about self-management and home exercise to maintain the gains he had made and discharged from the WCB return to work program on August 31, 2015. On September 28, 2015, he returned to CBI with complaints of intermittent right scapular/shoulder pain over the previous two weeks. He admitted in cross-examination that, following the WCB Injuries, and before and after the Accident, he had periodic flares of right neck and shoulder pain, aggravated by overhead work. [10] On

October 10, 2015, Mr. Clough-Smith attended at the Mission Hills Medical Center with complaints of left hip pain and stiffness; he reported having taken some Percocet and to be using a cane. He was sent for a left hip x-ray (which disclosed no bony or joint abnormality, fracture, or dislocation) and prescribed Tramacet. [11] On December 10, 2015, Mr. Clough-Smith twisted his right ankle. At trial, he agreed that, to date, he has occasional flares of right ankle and foot pain which can cause him to limp and slow his pace at work. [12] Mr. Clough-Smith said he was happy, outgoing, and active before the Accident, evidence his mother, Tammy Clough, and long-term friend, Kelly Apostliak, corroborated. He said the WCB Injuries had mostly healed. He denied any sleep issues. He admitted he had some ongoing irritation in his low back/pelvic area but denied it interfered with his daily activities. He has exercise-induced asthma which he agreed can cause dizziness or breathing difficulties with extended physical exertion. While Mr. Clough-Smith was somewhat vague about his pre-Accident weight, Jodie Fischer, the occupational therapist who assessed him in March 2019, agreed (based on his report) that it exceeded healthy guidelines. [13] Mr. Clough-Smith was involved in a variety of recreational and social activities before the Accident including disc golf (akin to golf with discs), airsoft

(similar to paint ball), card, board, and table games, and attending tournaments and Cosplay conventions (for which he made his own costumes). He enjoyed photography, sometimes obtaining free convention passes in exchange for posting online media photos. He liked hiking, dog walking, riding his motorcycle, and playing the guitar. He was teaching himself to play the violin and worked out regularly in his home gym. III. THE ACCIDENT [14] Mr. Clough-Smith's vehicle was rear-ended in the Accident. At the time of impact, he was wearing a seatbelt; his body was turned and he was looking backwards while attempting to merge into traffic. He recalls that his vehicle was struck hard and his body was thrust forward and then backward. An ambulance and fire truck attended the Accident scene as the defendant's vehicle was leaking fluids. Mr. Clough-Smith's vehicle sustained approximately $9,000 in damage and he called for a ride home. IV. AFTER THE ACCIDENT A. Injuries [15] Following the Accident, Mr. Clough-Smith complained of headaches, left-sided neck and shoulder pain, and aggravated left hip and low back pain. B. Treatment [16] Immediately after the Accident, Mr. Clough-Smith drove himself to a walk-in clinic and then to the Mission Hospital for x-rays of his neck and upper back; they were negative for fractures and no obvious vertebral body or disc pathology was seen. He was prescribed

anti-inflammatories and Tramadol or Tylenol 3. The following day, he had constant, increased, stabbing pain in his left neck (from the base of his skull into his left shoulder), throbbing headache pain, and aggravated left hip and low back pain. [17] Mr. Clough-Smith pursued a variety of medical treatments. He saw his family doctor, took over-the-counter and prescription medication (including Tramadol, Diclofenac, and Cyclobenzaprine), used topical anti-inflammatory cream, and attended more than 150 physiotherapy, massage, acupuncture, and chiropractic treatment sessions. His physiotherapy ended once he had exhausted his insurance coverage in September 2017. Thereafter, he had no further physiotherapy for about two years, instead pursuing self-directed exercise. He found IMS (intra-muscular stimulation) provided significant benefit and longer periods of pain relief. Massage therapy was of limited benefit. Since July 2017, he has been prescribed no pain medications and has used over-the-counter drugs and leftover prescription medications, as necessary, to manage his symptoms. [18] Mr. Clough-Smith became more withdrawn and less social after the Accident, evidence his mother and Mr. Apostliak corroborated. His mood worsened and he was more irritable. His GP diagnosed him with anxiety and depression in 2018 and he has been taking antidepressant medication since 2019. He started

psychological counselling in 2021. He agreed it has been beneficial and that his mood is improving. He currently attends physiotherapy, chiropractic treatments, and counselling sessions. C. Post-Accident Injuries [19] In December 2018, Mr. Clough-Smith slipped on stairs at work and sprained his right ankle. The January 3, 2019 WorkSafeBC records in evidence indicate he had then been off work for two weeks resting his ankle. His right ankle was noted to be very painful and causing him to limp. X-rays were normal. Mr. Clough-Smith recalls that he was off work for about one month after this injury. He admitted in cross-examination that periodic flares of right ankle and foot pain have occasionally caused him to limp, slowed his place, and adversely affected his work. An October 21, 2021 chiropractic report in evidence references complaints of foot pain in the preceding six months. [20] An ICBC kinesiology report dated October 7, 2021 records Mr. Clough-Smith's subjective complaints of pain as follows: a) Daily constant left-sided neck pain (from the base of the skull to the shoulder), described as a constant ache, rated as 4/10 at baseline, and a stabbing 9/10 with certain movements including, in particular, overhead movements with the arm positioned away from the body; b) Daily constant left shoulder blade pain, rated as 3-4/10 and a sharp 7-8/10 at its worst, described as

feeling "like something is out of place"; c) Daily constant mid-back pain likened to a dull ache, rated 2-3/10, and intensified when other symptoms are worse; d) Daily intermittent pain radiating down the spine from the neck into the low back, rated as 3-4/10, and increased when other symptoms are high; and e) Intermittent left-sided pain in the posterior sacral region, described as patchy and present before the Accident. [21] The same report documents the following assessment findings: a) Severely limited left shoulder active range of motion with extension and abduction (movement away from the body's midline) and moderately limited with horizontal adduction (movement towards the body's midline); b) Severely limited right shoulder active range of motion with extension and moderately limited with abduction and horizontal adduction; c) Moderately limited thoracolumbar active range of motion with right side flexion; d) Moderately limited left hip active range of motion with flexion and straight leg raise; and e) Severely limited right hip active range of motion with straight leg raise and moderately limited with flexion. [22] On November 2, 2021, Mr. Clough-Smith was involved in a single-vehicle accident (the "2021 MVA"). He was wearing a seatbelt when his pick-up truck hit black ice, slid off the road, and rolled about three times down an embankment. His truck was written off and

he was transported to hospital by ambulance. Imaging of the spine was negative for fractures and he was discharged the same day. He took the rest of the week off work and saw a chiropractor on November 6, 2021 with complaints of neck and upper back pain. He returned to work on November 8, 2021 with some residual soreness. D. Current Condition [23] Mr. Clough-Smith complains of constant daily headache pain, aggravated by physical activity and treated, as necessary, with Advil, Aleve, or extra-strength Tylenol. He has ongoing left neck and shoulder pain, worsened with driving, sleeping in the wrong position, physical work, and some mundane daily movements. He is currently scheduled to undergo a diagnostic CT-guided steroid injection to his left shoulder in August 2022. He also has ongoing left hip and low back pain, aggravated by ladder work and driving. [24] Mr. Clough-Smith admits that treatment to date has improved his physical symptoms which has, in turn, improved his mood. He has resumed some of the activities he enjoyed before the Accident, but in a more limited way. He lacks the interest and motivation to participate in the kind of board games and tournaments he played before the Accident and is generally less sociable. However, he conceded that his mood is improving with the benefit of anti-depressant medication and counselling. He has resumed riding his motorcycle but

finds shoulder checking difficult and now takes short trips only. He has attended conventions since the Accident but no longer stays as long. He now finds it necessary to balance his energy needs for work and recreation, saying that work usually prevails. He no longer hikes regularly and is less fit. He is less involved in the kind of renovation projects and domestic chores he shared with his mother before the Accident. V. CREDIBILITY AND RELIABILITY OF EVIDENCE [25] The relevant principles to be applied when assessing the credibility of interested witnesses are discussed in the frequently cited passages of Justice O'Halloran in Faryna v. Chorny (1951), [1952] 2 D.L.R. 354 at 357 (B.C.C.A.), and Justice Dillon in Bradshaw v. Stenner, 2010 BCSC 1398 at para.

186. I have applied those principles here. [26] Mr. Clough-Smith was a straightforward witness who answered questions in a forthright manner. His credibility was not seriously challenged. It was my impression that he did his best to answer questions honestly and to the best of his ability. He did not appear to embellish or overstate his evidence. He made reasonable admissions against interest in cross-examination. [27] However, Mr. Clough-Smith was occasionally a somewhat imprecise historian, an observation shared by vocational consultant, Derek Nordin, in his report. When asked about one of his workplace injuries, he initially said he fell from a ladder; he later said he fell on stairs. Ultimately, he said he had difficulty with both ladders and stairs. By his own admission, he is not good with dates. He was vague about his pre-Accident weight. I conclude that, while a credible witness, Mr. Clough-Smith's uncorroborated evidence was not consistently reliable. [28] Despite their familial relationship, I found Ms. Clough to be a credible and generally reliable witness. Like her son, she gave responsive answers and made reasonable admissions in cross-examination. [29] Mr. Clough-Smith's long-term friend, Mr. Apostliak, testified about the pre-Accident friendship and activities they shared and his observations of Mr. Clough-Smith's post-Accident difficulties. Mr. Apostliak's

limited knowledge of Mr. Clough-Smith's injuries undermined the weight of some of his evidence. [30] Mr. Clough-Smith called two of his former work colleagues as witnesses at trial: Kyle Thompkins and Nicholas Trottier. Both testified about their observations of Mr. Clough-Smith at work and the demands of commercial plumbing in the context of new construction. They were credible, straightforward, and reliable witnesses whose evidence I accept without difficulty. [31] Mr. Clough-Smith called orthopedic surgeon, Dr. William Regan, his family physician, Dr. Peter Eppinga, psychiatrist, Dr. Mitchell Spivak, and occupational therapist, Jodie Fischer. Two vocational consultant experts testified: Mr. Clough-Smith called Mr. Nordin and the defendant called Dr. Colleen Quee-Newell. All are experienced in their respective fields, appropriately confined their evidence to their areas of expertise, gave fair and balanced evidence, made reasonable concessions, and were credible experts. VI. MEDICAL EVIDENCE A. Dr. Peter Eppinga, GP [32] Dr. Eppinga has a medical degree, a bachelor's degree in kinesiology, and a master's degree in public health. He has expertise in the assessment of soft tissue and musculoskeletal injuries and chronic pain. He was qualified as an expert in general family medicine. [33] Dr. Eppinga first assessed Mr. Clough-Smith on June 6, 2017 and authored a report dated May

25, 2018. Mr. Clough-Smith presented with complaints of neck and shoulder pain. Examination findings included a moderate decrease in cervical lordosis (curvature) and severely limited range of motion. Dr. Eppinga recommended continued physiotherapy and offered Mr. Clough-Smith a muscle relaxant. Thereafter, he reassessed Mr. Clough-Smith every two to four weeks. By December 8, 2017, he noted that Mr. Clough-Smith was beginning to experience frequent headaches and, by February 26, 2018, had become depressed. [34] Dr. Eppinga opines in his report that Mr. Clough-Smith suffered a shoulder injury and a significant acceleration-deceleration injury to his cervical and thoracic spine in the Accident. He does not specify whether he refers to the left or right shoulder. Notably, he was then unaware of the 2013 MVA or the WCB Injuries. [35] Dr. Eppinga prescribed an anti-depressant in 2019. While he assessed Mr. Clough-Smith's depression as severe, he agreed it is responding well to medication and that counselling has resulted in further improvement. He confirmed IMS has significantly improved Mr. Clough-Smith's neck and shoulder pain. He has referred Mr. Clough-Smith for the CT-guided steroid injection Dr. Regan recommended and agreed it could significantly improve Mr. Clough-Smith's left shoulder pain. B. Dr. William Regan, Orthopedic Surgeon [36] Dr. William Regan has been an

orthopedic surgeon for about 35 years and has a practice specialised in the management of upper extremity and knee injuries. He is experienced in the evaluation of soft tissue injury, trauma due to motor vehicle and work place accidents, and chronic pain. He was qualified as an expert in the area of orthopedic surgery. [37] Dr. Regan completed two independent medical examinations of Mr. Clough-Smith on November 30, 2018 and June 18, 2021, thereafter authoring reports dated December 10, 2018 and June 22, 2021. He made the following findings on his November 2018 examination of Mr. Clough-Smith: a) A well-preserved range of motion in the cervical spine; b) Pain in the paraspinal muscles of the cervical spine and into the left periscapular muscles; c) No muscle wasting; d) Full range of motion in the left shoulder; and e) No intrinsic pathology referable to the left shoulder. [38] In his first report, Dr. Regan diagnosed two conditions: a) Myofascial pain of the left cervical paraspinal and periscapular muscles; and b) Left sacroiliac joint irritation of the lumbosacral spine. [39] In this report, Dr. Regan opines that Mr. Clough-Smith's prognosis for complete recovery is poor, if he continues to work in a job that requires lifting above shoulder height. In his view, Mr. Clough-Smith is not a surgical candidate. Dr. Regan confirmed that, while activity might aggravate Mr.

Clough-Smith's symptoms, it will cause no harm. [40] Dr. Regan re-assessed Mr. Clough-Smith on June 18, 2021. In his June 22, 2021 report, he made one additional diagnosis: possible left scapulothoracic bursitis. He recommended a diagnostic CT-guided injection which, in his view, might offer some transient symptomatic relief of Mr. Clough-Smith's periscapular pain. If there is significant but short-lived benefit from this procedure, he suggested that Mr. Clough-Smith could consider an arthroscopic debridement of the subscapular space as a last resort. He noted Mr. Clough-Smith's left-sided lower lumbar spine pain was improving. His diagnosis of myofascial pain (of the left cervical paraspinal and periscapular muscles) remained unchanged. C. Dr. Mitchell Spivak, Psychiatrist [41] Dr. Mitchell Spivak is a consulting psychiatrist who assessed Mr. Clough-Smith remotely on November 23, 2021, and authored a report dated November 24, 2021. Dr. Spivak has about 20 years of general psychiatry experience in the acute care, hospital, outpatient, and office settings. He currently has a general psychiatry practice in Calgary, Alberta and is licensed to practice psychiatry in BC. He was qualified as an expert in the area of general psychiatry. [42] In Dr. Spivak's opinion, Mr. Clough-Smith's symptoms are compatible with a Major Depressive Disorder ("MDD") and mild to moderate anxiety with

resulting impairment in the mild to moderate range. In his view, the Accident likely caused both conditions. He considers Mr. Clough-Smith's prognosis to be guarded (which he explained means uncertain): it could be poor if nothing changes but it could also improve. In his opinion, Mr. Clough-Smith's psychiatric prognosis correlates strongly with the prognosis for his physical injuries. He confirmed that pain and depression have a synergistic effect: the experience of one influences the other. He conceded in cross-examination that, if Mr. Clough-Smith has begun returning to activities he enjoyed before the Accident, this is a positive sign and could indicate his depression is improving. D. Jodi Fischer, Occupational Therapist [43] Occupational therapist, Jodi Fischer, conducted a functional/work capacity evaluation of Mr. Clough-Smith on March 26, 2019 (the "FCE"). She defined an FCE in her April 2, 2019 report as a systematic method of measuring an individual's ability to perform meaningful tasks safely and dependably. [44] Ms. Fischer has been an occupational therapist for almost 29 years and has been performing work and functional capacity examinations since 1997. She is also a certified Life Care Planner and a Clinical Assistant Professor in the Faculty of Medicine at the University of British Columbia where she teaches functional testing and life care planning to students

in the Occupational Science and Occupational Therapy Master's programs. She was qualified as an expert in the areas of occupational therapy and work and functional evaluations. [45] Mr. Clough-Smith drove two hours from his home in Mission, BC to Ms. Fischer's clinic the day of the FCE. This drive resulted in reports of stiffness in his upper back, left shoulder, and left low back. Her assessment included an interview and functional capacity testing over approximately eight hours, and a review of medical records. Mr. Clough-Smith reported the following ongoing symptoms: a) Constant neck pain; b) Left shoulder, shoulder blade, and upper back pain; c) Left hip and low back pain; d) Daily right foot and ankle pain; e) Daily headaches; and f) Anxiety and depression. [46] Mr. Clough-Smith had received no treatment since September 2018. Apart from occasional Advil, he was taking no medication. Ms. Fischer concluded: a) There were no physical inconsistencies in his presentation; b) He demonstrated signs of competitive test performance; c) He provided a consistently high level of physical effort; d) His estimates of ability and limitations were consistent with objective test findings; e) There was no non-organic component to his presentation; and f) His subjective pain ratings correlated well with his observed function. [47] Accordingly, Ms. Fischer concluded that the FCE test results

provided an accurate representation of Mr. Clough-Smith's physical abilities and limitations. In her view, his reports of pain and disability were reliable and consistent with her objective test findings. She agreed his body mass index exceeded the healthy range. Ultimately, she opined that he is capable of work in the sedentary, light, and medium strength categories but does not meet the full range of physical demands for heavy strength work (which includes plumbing). Specifically, he demonstrated limitations with: a) Prolonged overhead reaching; b) Extended and awkward reaching positions; c) Heavy strength lifting and carrying; d) Prolonged standing including, in particular, static standing; and e) Prolonged static bending. [48] Given Mr. Clough-Smith's functional limitations in his neck, left shoulder girdle, low back, and left hip, Ms. Fischer is not optimistic that he can sustain a long-term career as a plumber. VII. CAUSATION A. Parties' Positions [49] Mr. Clough-Smith submits that the Accident caused him to suffer neck, left shoulder and upper back myofascial pain, daily cervicogenic headaches, ongoing mild to moderate MDD, poor sleep and resulting fatigue, and aggravation of his pre-existing left hip and low back injury. [50] The defendant denies the evidence establishes that the Accident caused Mr. Clough-Smith's alleged headaches. He acknowledges that the Accident

temporarily aggravated Mr. Clough-Smith's pre-existing left hip and low back pain but says those symptoms have now essentially returned to their pre-Accident baseline. B. Legal Framework [51] The plaintiff must establish on a balance of probabilities that the defendant's negligence caused an injury. The defendant's negligence need not be the sole cause of the injury so long as it is part of the cause beyond the de minimus range. Causation need not be determined by scientific precision: Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17 [Athey]; Farrant v. Laktin, 2011 BCCA 336 at para. 9. [52] The primary test for causation asks: but for a defendant's negligence, would the plaintiff have suffered the injury? The "but-for" test recognizes that negligent conduct is only compensable when there is a substantial connection between the injury and the defendant's conduct: Clements v. Clements, 2012 SCC 32 at paras. 20-21. Causation must be established on a balance of probabilities before damages are assessed: Blackwater v. Plint, 2005 SCC 58 at para. 78. [53] The most basic principle of tort law is that the plaintiff must be placed in the same position he would have been but for the defendant's negligence. Tortfeasors must take their victims as they find them, even if the plaintiff's injuries are more severe than they would be for another person. However, a defendant need not

compensate a plaintiff for any debilitating effects of a pre-existing condition that the plaintiff would have experienced anyway: Athey at paras. 32-35. C. Evidence [54] In his first report, Dr. Regan concluded that, despite the fact Mr. Clough-Smith had musculoskeletal injuries involving his neck in 2015, the Accident caused his cervical myofascial pain. This medical opinion is uncontroverted. [55] Dr. Regan acknowledges that Mr. Clough-Smith had sufficiently severe pre-Accident left hip pain to warrant an MRI with gadolinium enhancement. He understood this pain settled in 2015. Ultimately, Dr. Regan concluded that the Accident aggravated, but did not cause, Mr. Clough-Smith's left hip and low back pain. This medical opinion is similarly uncontroverted. [56] Dr. Regan conceded in cross-examination that Mr. Clough-Smith's left hip and low back complaints were initiated by the 2013 MVA. He admitted that, if Mr. Clough-Smith reported ongoing left hip and low back pain before the Accident, the degree to which the Accident aggravated those symptoms would be less. While he agreed that Mr. Clough-Smith might have had ongoing symptoms in those areas, absent the Accident, he also said they might have improved spontaneously. He "more or less" expected Mr. Clough-Smith to have ongoing left hip and low back symptoms, absent the Accident. He assumed that plumbing jobs involving frequent

overhead work, heavy lifting, and ladder use would likely aggravate them. [57] Dr. Regan considered Mr. Clough-Smith's May 6, 2015 workplace injury (when he reported right neck and shoulder pain after moving a piece of wood) to be a "bump in the road" compared to his April 30, 2015 workplace injury (when he was struck in the forehead by a glue pump). He agreed the latter injury might have aggravated Mr. Clough-Smith's right neck and shoulder symptoms. D. Analysis and Conclusion [58] The causation evidence of Dr. Regan is unrefuted and I accept it. Based on the trial evidence, I make the following findings: a) Mr. Clough-Smith sustained soft tissue injuries to his neck/upper back and left shoulder as a result of the Accident; b) The Accident aggravated Mr. Clough-Smith's pre-existing left hip and low back injuries, which are improving; c) The Accident resulted in chronic pain which likely contributed to impaired sleep and resulting fatigue; d) The Accident did not aggravate Mr. Clough-Smith's pre-existing right foot and ankle pain; e) Mr. Clough-Smith has ongoing but improving mild to moderate depression as a result of the Accident; and f) The evidence does not establish on a balance of probabilities that the Accident caused Mr. Clough-Smith's ongoing headache pain. VIII. GENERAL DAMAGES A. Parties' Positions [59] Mr. Clough-Smith seeks general damages of $200,000 and relies on

the following authorities: a) Culver v. Skrypnyk, 2019 BCSC 807 ($175,000); b) Dunn v. Heise, 2021 BCSC 754 ($200,000); c) Bhatti v. Ethier, 2018 BCSC 1779 ($200,000, reduced by 10% to $180,000 for a failure to mitigate); d) Lal v. Singh, 2021 BCSC 2378 ($165,000); and e) Grant v. Ditmarsia Holdings Ltd., 2020 BCSC 1705 ($140,000). [60] The defendant assesses general damages in the range of $70,000 to $90,000 and relies on the following authorities: a) Lambert v. Dong, 2021 BCSC 249 ($60,000); b) Larson v. Bahrami, 2017 BCSC 2308 ($90,000, adjusted for inflation); c) Lewis v. Rubboli, 2018 BCSC 17 ($94,000, adjusted for inflation); and d) Kim v. Baldonero, 2022 BCSC 167 ($90,000). B. Legal Framework [61] A fundamental principle of tort law is that a plaintiff should be placed in the same position he would have been in absent the accident, to the extent a monetary award can do so: Parypa v. Wickware, 1999 BCCA 888 at para. 29. [62] The parties agree the relevant factors to be weighed when assessing general damages are set out in Stapley v. Hejslet, 2006 BCCA 34 at para. 46 [Stapley]. They include the plaintiff's age, the nature of the injury, the severity and duration of pain and suffering, the nature and extent of resulting disability, the degree of emotional suffering, the loss or impairment of life, the impairment of family, marital and social relationships, loss of lifestyle, and physical and mental abilities: Stapley at para. 46. [63] A plaintiff ought not to be penalised for being stoic: Stare v. Whitehouse, 2019 BCSC 1445 at paras. 156 and 167. Ongoing pain can take a toll over time and a person's ability to tolerate chronic pain may diminish with age: Davidge v. Fairholm, 2014 BCSC 1948 at para.

166. While comparable decisions may offer guidance, each case must be decided on its own unique facts. C. Analysis and Conclusion [64] I accept that Mr. Clough-Smith has ongoing pain in his neck, left shoulder, upper back, left hip, and low back pain of variable intensity, aggravated by certain activities including, in particular, sustained or repetitive overhead work. He has corresponding functional limitations, poor sleep, decreased energy, impaired motivation, and mild to moderate MDD. He has become more withdrawn and less social since the Accident, saying he has a diminished sense of joy and is a changed person, evidence his mother and friend corroborated. He conserves his energy for work and has abandoned or curtailed many of the activities he previously enjoyed. [65] I accept that Mr. Clough-Smith has been less involved in recreational activities since the Accident. However, he is now approaching 30 and working full-time. He may have had less free time for all the recreational activities he enjoyed in his early twenties as his full-time work demands increased, absent the Accident. He is gradually reintroducing some of them as his physical and mental health improves. [66] Following a two-year gap between September 2017 and December 2019, Mr. Clough-Smith resumed physiotherapy, including IMS which significantly improved his neck and shoulder pain. Since relocating to

Tappen, BC in July 2021, he has pursued physiotherapy, kinesiology, and chiropractic treatments and noticed a corresponding improvement in his condition. His depression has improved with anti-depressant medication and counselling. He has not filled a prescription for pain medication since July 2017. [67] The medical evidence establishes that Mr. Clough-Smith's pain is now chronic and that his prognosis is guarded if he continues to engage in physically demanding work. He is likely to experience some degree of pain for the rest of his adult life; given his young age, this means most of his lifetime. He is no longer suited to heavy strength plumbing work and his chosen career path is likely unsustainable because of his dominant, left-sided, Accident-related injuries. Driving aggravates his left shoulder and occasionally his neck, left hip and low back pain. His career options are now more limited and he faces substantial vocational uncertainty. I accept that the combined effect of his Accident-related injuries has resulted in a significant permanent partial disability. [68] I have reviewed the authorities cited by counsel. In my view, the cases relied on by Mr. Clough-Smith generally involve higher awards with more significant trauma and more profound impacts on the plaintiffs' function and ability to work. Some involved plaintiffs with more devastating psychological injuries. In

my view, the cases cited by defence counsel generally involve plaintiffs with less serious injuries (including some with no mental health difficulties or no significant psychiatric diagnoses), better recoveries, less functional impact, and more optimistic prognoses. While some of these authorities have obvious parallels with this case, as expected, all are distinguishable on their unique facts. [69] Having regard to the Stapley factors, the authorities cited by counsel, and the trial evidence, including my assessment of Mr. Clough-Smith's original and post-Accident condition, I award general damages of $120,000. IX. LOSS OF HOUSEKEEPING CAPACITY A. Parties' Positions [70] Mr. Clough-Smith seeks a separate award for the loss of past and future housekeeping capacity in the amount of $25,000. Alternatively, he seeks a more robust non-pecuniary award to compensate him for his ongoing difficulties completing domestic chores. [71] The defendant denies Mr. Clough-Smith has established a loss of housekeeping capacity on the trial evidence. He submits that any claim for pain or discomfort caused by doing household tasks is appropriately compensated with an award for non-pecuniary damages. B. Legal Framework [72] The law relating to lost housekeeping capacity has been addressed by the Court of Appeal in two cases: O'Connell v. Yung, 2012 BCCA 57 [O'Connell] and Kim v. Lin, 2018 BCCA 77

[Kim]. In O'Connell, Justice Kirkpatrick, speaking for the Court, said this: [67] As I understand the principle, it is the loss of a capacity - an asset - that is compensated. Accordingly, because the award reflects the loss of a personal capacity, it is not dependent upon whether replacement housekeeping costs are actually incurred. Damages for the cost of future care serve a different purpose from awards for loss of housekeeping capacity. Unlike loss of housekeeping capacity awards, damages for the cost of future care are directly related to the expenses that may reasonably be expected to be required [ ]. [73] In Kim, Chief Justice Bauman, speaking for the Court, stated as follows: [33] Therefore, where a plaintiff suffers an injury which would make a reasonable person in the plaintiff's circumstances unable to perform usual and necessary household work -- i.e., where the plaintiff has suffered a true loss of capacity -- that loss may be compensated by a pecuniary damages award. Where the plaintiff suffers a loss that is more in keeping with a loss of amenities, or increased pain and suffering, that loss may instead be compensated by a non-pecuniary damages award. However, I do not wish to create an inflexible rule for courts addressing these awards, and as this Court said in Liu [Liu v. Bains, 2016 BCCA 374], "it lies in the trial judge's discretion whether to address such a

claim as part of the non-pecuniary loss or as a segregated pecuniary head of damage": at para. 26. [74] When housekeeping services are gratuitously replaced by a family member, damages may be awarded for the past and future loss of housekeeping capacity even though the plaintiff has incurred no expense; the amount of compensation awarded must be commensurate with the plaintiff's loss: Dykeman v. Porohowski, 2010 BCCA 36 at paras. 28-29. C. Evidence [75] Before the Accident, Mr. Clough-Smith and his mother shared household chores, home maintenance, and ongoing renovations, evidence Ms. Clough corroborated. She did the gardening and slightly more of the cooking; he did the heavier work including shovelling snow and cutting grass. They each did their own laundry. Mr. Clough-Smith has been less engaged in household tasks since the Accident. Once he returned to full-time work after the Accident, he said he had less energy to do so, evidence his mother corroborated. [76] In July 2021, Mr. Clough-Smith and his mother re-located to Tappen, BC. They did so for financial reasons unrelated to the Accident. Ms. Clough's boyfriend now lives with them on week-ends. He helps with housework, including shovelling snow, cutting grass, and ongoing home renovations. According to Ms. Clough, her son now does about 35% of housekeeping duties (compared to about 50% before the Accident). Both said he

is better able to assist since he transitioned to a sales job with fewer physical demands in January 2022. [77] Dr. Regan stated in his June 22, 2021 report that household chores remain no significant impediment for Mr. Clough-Smith. While Mr. Clough-Smith agreed that this was true (for the things he was then doing), it appears he did not qualify his statement to Dr. Regan in this manner. D. Analysis and Conclusion [78] In my view, Mr. Clough-Smith's claim for the loss of housekeeping capacity is most appropriately assessed as part of a non-pecuniary award. I have considered his limitations in performing home renovations, yard work, and other domestic chores since the Accident in assessing general damages. I conclude that he remains mostly able to perform these duties, albeit with some limitations and aggravation of his symptoms. X. SPECIAL DAMAGES [79] The parties have agreed on special damages of $3,381.19. XI. PAST INCOME LOSS A. Parties' Positions [80] Mr. Clough-Smith claims damages for net past income loss of $60,534 based on the report of his economist expert, Christiane Clark. He submits that, but for the Accident, he would have been in a position to complete the fourth year of his plumbing apprenticeship in 2018. He had planned to follow the usual practice of accumulating his workplace hours before advancing to the next level of his technical course work; he conceded

in cross-examination that there is no requirement for plumbing apprentices to complete the apprenticeship program in this manner. [81] The defendant assesses net past income loss in the amount of $15,000, representing lost wages due to Accident-related absences from work. B. Legal Framework [82] An award for past loss of earning capacity is based on the value of the work the plaintiff would have performed but for his Accident-related injuries: Sendher v. Wong, 2014 BCSC 140 at para.

158. It therefore involves a consideration of the hypothetical past earnings of the plaintiff without the Accident, and what he actually earned: Ibitson v. Cooper, 2012 BCCA 249 at para.

19. A plaintiff need not prove hypothetical events on a balance of probabilities; rather, the court will account for a hypothetical as long as it is a real and substantial possibility and not mere speculation: Grewal v. Naumann, 2017 BCCA 158 at para. 48 [Grewal]; Rab v. Prescott, 2021 BCCA 345 at para. 28 [Rab]. Any difference in this comparison of earnings must be shown to be as a result of the Accident, and not because of other unrelated reasons: Antignani v. Heaney, 2022 BCSC 228 at para. 89. [83] The award is properly characterised as a loss of earning capacity: Bradley v. Bath, 2010 BCCA 10 at paras. 31-32; Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at para.

153. The assessment is a matter of judgment and not a mathematical calculation: Rosvold v. Dunlop, 2001 BCCA 1 at para.18 [Rosvold]. C. Evidence [84] Mr. Clough-Smith graduated from high school in 2011. He likes physical work and has always been good with his hands. His long-term career goal was to become a journeyman plumber. He enrolled in a one-year plumbing foundation course immediately after completing high school. He did well. By the spring of 2016, he had completed his first and second-year apprenticeship hours and course work; his marks were consistently good. He was then considered a third-year apprentice. [85] Mr. Clough-Smith was off work after the Accident until October 2016, when he made an unsuccessful attempt to return to light duties. Thereafter, he was off work again until January 2017, when he resumed light duties. Eventually, he exhausted the supply of this kind of work and returned to heavier duties. Doing so significantly increased his pain and slowed his pace. He compensated for his aggravated left hip and low back pain by redistributing his weight onto his right side. Overhead and ladder work aggravated his neck and shoulder symptoms. His headaches worsened with mental strain or physical work. [86] From 2017 until his move to Tappen in 2021, Mr. Clough-Smith worked full-time hours, except for absences to attend various treatments and to complete the

course components of his apprenticeship program. While reportedly not happy about Mr. Clough-Smith leaving work early or missing time during the work day for this purpose, his employer accommodated him. He received consistently good performance reviews at work after the Accident. He agreed he was generally meeting expectations, but said he was slower than his peers, evidence Mr. Thompkins and Mr. Trottier corroborated. Mr. Thompkins said that Mr. Clough-Smith struggled at work after the Accident and was frequently reprimanded for being slow; he and Mr. Trottier both said that Mr. Clough-Smith sometimes required assistance with tasks others performed independently. [87] After relocating to Tappen, the nature of Mr. Clough-Smith's plumbing work changed. He began working as a residential plumber, earning $30/hour; this work was generally less repetitive and more manageable than commercial plumbing. Work did not aggravate his symptoms as much as it had previously and he enjoyed more prolonged relief following treatments. Residential plumbing did not involve the same kind of heavy strength tasks as commercial plumbing in new construction (including, for example, drilling overhead on ladders into concrete ceilings). However, it posed different challenges: Mr. Clough-Smith typically worked on his own, had no assistance with heavy lifting (including, for example, toilet installations),

and was sometimes required to access tight, awkward crawl spaces (which aggravated his left hip and low back pain). The job also involved more driving (which aggravated his neck, left shoulder, left hip, and low back symptoms). [88] Because his employer in Tappen did not have sufficient plumbing work for him all year, Mr. Clough-Smith began working for a second residential plumbing company. He was unable to meet the owner's expectations and quit. Since mid-January 2022, he has worked as a counter salesman at a wholesale plumbing and HVAC goods store in Salmon Arm, BC, earning $21.40/hour. This job has fewer physical demands than plumbing work. However, the mental demands associated with familiarising himself with this new job have worsened his headaches. D. Analysis and Conclusion i) Alleged Three-Year Delay in Completion of Apprenticeship [89] Before the Accident, Mr. Clough-Smith had planned to complete his plumbing apprenticeship as follows: Level Work Hours Course Work 1 Completed: July 2014 - April 2015 Completed: June 22, 2015 2 Completed: July 2015 - April 2016 Completed: June 24, 2016 3 Planned: July 2016 - April 2017 Planned: May - June, 2017 4 Planned: July 2017 - April 2018 Planned: May - June 2018 [90] He anticipated completing his third-year apprenticeship hours before doing the corresponding two months of technical course work. In cross-examination, he admitted

this was his preference and not a requirement. Mr. Thompkins and Mr. Trottier corroborated this evidence, saying Mr. Clough-Smith's plan was consistent with the usual practice of most plumbing apprentices. Both staggered their work hours with course work in this manner. Ultimately, Mr. Clough-Smith conceded that individuals can tailor the apprenticeship program to suit their preference. [91] After the Accident, Mr. Clough-Smith was off work for about six months (from July 12, 2016 to January 13, 2017). Accordingly, he says there was a corresponding delay in his accumulation of apprenticeship work hours. Instead of applying for his Level 3 courses in December 2016, he continued to work until he had accumulated the hours he wanted before taking the Level 3 technical courses. He completed the Level 3 course in June 2018. When he applied for admission to the Level 4 courses that year, demand was high, no openings were available until 2021, and he was waitlisted. He agreed that COVID-19 exacerbated this delay. Accordingly, he continued to work and accumulate hours, completing the Level 4 courses in September 2021. He submits that, but for the Accident, he would have done so three years earlier, in June 2018. [92] Red Seal certification candidates cannot take their final examination until they have completed all required work hours and technical courses. Mr. Clough-Smith admitted he

could have applied for admission to the Level 3 courses in December 2016, if he had wanted to do so. He agreed there is no guarantee that he would have been admitted to the Level 3 courses earlier, if he had applied in late 2016 or early 2017. He admitted these technical training courses are offered every two months throughout the year and that apprentice wage increases are not tied to completion of them. Ultimately, he decided to apply for the Level 3 courses after he had accumulated the workplace hours he wanted. He had accumulated more debt than expected and had less income (because he was receiving EI and not working after contracting COVID-19 in March 2020). [93] Mr. Clough-Smith required 6,420 hours of work experience to complete his plumbing apprenticeship. By July 2019, he had completed 8,392 workplace hours. Ultimately, he completed his Level 4 technical course work on September 10, 2021 and obtained his Red Seal certification on September 16, 2021. [94] I am not persuaded that the Accident caused a three-year delay in Mr. Clough-Smith's completion of his plumbing apprenticeship. I reach this conclusion for the following reasons: a) He was not required to complete any set number of workplace hours before enrolling in the next level of technical training courses; b) The Accident did not prevent him from registering earlier for his Level 3 or Level 4 technical training

courses; c) There is no guarantee that he would have been able to complete the Level 3 courses in June 2017, if he had applied for earlier enrollment; d) When he applied for the Level 3 courses, they were overbooked and unavailable until the spring 2018, for reasons unrelated to the Accident; e) When he applied for the Level 4 courses, they were overbooked (for reasons unrelated to the Accident and exacerbated by COVID-19) and he was waitlisted until September 2021; and f) He continued to receive wage increases which were not contingent on his completion of the Level 3 and Level 4 technical courses. [95] For these reasons, I conclude that the Accident did not cause Mr. Clough-Smith to suffer a pecuniary loss as a result of an alleged three-year delay in his completion of the Level 3 and 4 plumbing apprenticeship courses. ii) Past Income Loss [96] Based on his filed income tax returns, Mr. Clough-Smith earned T4 income in the years 2013 to 2020 as set out below: Year T4 Income

EI WCB Total 2013 $20,079 $480 $20,559 2014 $27,242 $76 $27,318 2015 $34,984 $1,081 $36,065 2016 $18,340 $3,519 $21,859 2017 $39,556 $1,173 $40,729 2018 $43,991 $2,430 $46,421 2019 $52,109 $2,778 $54,887 2020 $55,211 $3,000 $58,211 [97] He earned T4 income in 2021 of $34,540. [98] The parties agree that Mr. Clough-Smith missed 1,018.5 hours of work after the Accident, as set out below, and that he was entitled to 4% vacation pay, in addition to his hourly wage. Date Range Hours Missed Hourly Rate Lost Pay July 13, 2016 - October 3, 2016 472 $18 $8,496 October 4, 2016 - October 31, 2016 19.5 $20 $390 November 1, 2016 - January 13, 2017 432 $20 $8,640 January 16, 2017 - April 7, 2017 30 $20 $600 April 10, 2017 - September 9, 2017 57 $21 $1,197 March 25, 2019 - April 5, 2019 8 $26 $208 1,018.5 $19,531 4% Vacation Pay $781.24

TOTAL $20,312.24 [99] After the Accident, Mr. Clough-Smith returned to plumbing work on January 13, 2017. Thereafter, he worked full-time hours until he relocated to Tappen in July 2021. He received consistently positive performance reviews and regular wage increases. [100] The parties agree he missed 923 hours of work from July 13, 2016 to January 13, 2017, as a result of the Accident. Based on his corresponding hourly rates of pay, this translates into a gross past income loss of $17,526, plus 4% vacation pay of $701.04, for a combined loss of $18,227.04 (before tax). I award this amount. [101] The defendant denies Mr. Clough-Smith has established on a balance of probabilities that the Accident caused his work absences (of 95 hours) from January 16, 2017 to April 5, 2019. Based on the corresponding wage rates, this equals a past income loss of $2,005 (or $2,085.20, including 4% vacation pay) before tax. I agree. [102] I do not rely on Ms. Clark's estimate of past income loss. She assumed in error that all of Mr. Clough-Smith's pre-trial work absences were due to the Accident. She did not consider the impact of his work absences for other reasons including the WCB Injuries, his attendance at school to complete the technical apprenticeship courses, his absence due to COVID-19 in 2020, or his decision to relocate to Tappen in 2021. She relied on 2016 Census data to estimate

without-Accident earnings. [103] I award damages for past income loss of $18,227 and leave it to counsel to discount this figure for tax. XII. FUTURE INCOME LOSS A. Parties' Positions [104] Mr. Clough-Smith seeks $600,000 for future income loss. This estimate assumes a 35% loss of earning capacity based on the projected average lifetime earnings of a journeyman plumber to age 65 or 70 and the 2016 National Occupation Classification ("NOC") data for BC males with a registered apprenticeship certificate in the occupational group for plumbers, as adjusted by Ms. Clark for average labour market contingencies. The defendant assesses Mr. Clough-Smith's loss of future earning capacity in the range of 0-$120,000 and says this amount is appropriately discounted by 40% to reflect the risk that Mr. Clough-Smith's pre-existing conditions would have impaired his income-earning capacity absent the Accident (thereby reducing this range from 0-$72,000). B. Legal Framework [105] The same essential principles apply to the assessment of both past and future income loss. They are summarised in Reilly v. Lynn, 2003 BCCA 49 at para. 101 as follows: [101] The relevant principles may be briefly summarized. The standard of proof in relation to future events is simple probability, not the balance of probabilities, and hypothetical events are to be given weight according to their relative likelihood: Athey v. Leonati, [1996] 3 S.C.R. 458 at para.

27. A plaintiff is entitled to compensation for real and substantial possibilities of loss, which are to be quantified by estimating the chance of the loss occurring: Athey v. Leonati, supra, at para. 27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.). The valuation of the loss of earning capacity may involve a comparison of what the plaintiff would probably have earned but for the accident with what he will probably earn in his injured condition: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the end of the inquiry; the overall fairness and reasonableness of the award must be considered: Rosvold v. Dunlop (2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task of the Court is to assess the losses, not to calculate them mathematically: Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Finally, since the course of future events is unknown, allowance must be made for the contingency that the assumptions upon which the award is based may prove to be wrong: Milina v. Bartsch, supra, at 79. [ ] [106] The use of economic and statistical evidence does not turn the assessment into a calculation, but can be a helpful tool in determining what is fair and reasonable in the circumstances: Grewal at para. 49, citing Dunbar v. Mendez, 2016 BCCA 211 at para.

21. The central task of the court is to compare the likely future working life of the plaintiff if the Accident had not occurred with his likely future working life after the Accident: Dornan v. Silva, 2021 BCCA 228 at para. 156 [Dornan]. [107] A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation. If the plaintiff establishes a real and substantial possibility, the court must then determine the measure of damages by assessing the likelihood of the event. A loss may be quantified on an earnings approach or on a capital asset approach: Grewal at para. 48; Rab at para. 28. [108] Justice Grauer, writing for the Court in Rab, set out a three-step process for considering claims for the loss of future earning capacity at para. 47: a) Does the evidence disclose a potential future event that could give rise to a loss of capacity? b) Is there a real and substantial possibility that the future event in question will cause a pecuniary loss to the plaintiff? c) What is the value of that possible loss, having regard to the relative likelihood of it occurring? [109] Rab confirms that the first step (i.e. the evidentiary inquiry) gives rise to the four considerations set out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) at para. 8 [Brown], including whether the plaintiff: a) Has been rendered

less capable overall from earning income from all types of employment; b) Is less marketable or attractive as an employee to potential employers; c) Has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and d) Is less valuable to himself as a person capable of earning income in a competitive labour market. [110] Hypothetical events are given weight according to their relative likelihood when considering the second and third steps set out in Rab: Honeybourn v. Aghdasidehaji, 2022 BCSC 258 at para.

132. The final step in the assessment is for the trial judge to determine whether the damage award is fair and reasonable: Lo v. Vos, 2021 BCCA 421 at para. 117. [111] Subjective apprehension about the future alone is insufficient to ground a claim for loss of income earning capacity. It is insufficient for a plaintiff to establish only that he may be less capable of employment, since the word "may" connotes speculation and does not constitute a real possibility: Kim v. Morier, 2014 BCCA 63 at para. 8. [112] When there is a real and substantial possibility of a future loss of income, the court may award damages for loss of future earning capacity either on an earnings approach or a capital asset approach; regardless of the approach, the assessment of such damages is a matter of judgment and not mere calculation: Rosvold at para.

18. In Morlan v. Barrett, 2012 BCCA 66 at para. 41, the Court of Appeal endorsed the trial judge's finding that common experience shows that pain can impair a plaintiff's ability to work. C. Evidence i) Dr. Regan [113] In his June 22, 2021 report, Dr. Regan opines that Mr. Clough-Smith's ongoing left periscapular pain limits his ability to lift at and above shoulder height and to engage in repetitive, sustained positioning at that level. Those opinions are supported by Ms. Fischer's findings at the FCE. In Dr. Regan's opinion, Mr. Clough-Smith has sustained a permanent partial disability and may have difficulty continuing to work as a plumber. [114] If Mr. Clough-Smith has a shoulder bursitis, Dr. Regan agreed the diagnostic CT-guided steroid injection he recommended will likely provide some temporary improvement in symptoms for about three to four months. However, he cautioned that this treatment is not a panacea; on his evidence, any improvement is usually limited to better sleep and function in the activities of daily living. ii) The FCE [115] Ms. Fischer agreed in cross-examination that the FCE is a snapshot of a person's capacity at a defined point in time. She was aware of Mr. Clough-Smith's 2015 workplace injury to his neck and right shoulder. Notably, she made no findings of right shoulder limitations at the FCE. She agreed he had some pain in his right foot and ankle.

In her experience, many individuals have varying degrees of pain which does not necessarily impair their ability to work. [116] Mr. Clough-Smith was 222 pounds at the FCE; he reported a weight gain of 20 pounds after the Accident. Based on this information, Ms. Fischer agreed his weight was above healthy guidelines at the time of the Accident, and that excessive weight, combined with asthma, could result in deconditioning. However, his weight was not a factor during the FCE testing; neither was his exercise-induced asthma. Ms. Fischer underscored the importance of maintaining fitness after injury to avoid developing stiffness and functional difficulties. [117] Mr. Clough-Smith drove two hours before the FCE; in Ms. Fischer's view, this replicated the driving he had to do for work. She agreed that Mr. Clough-Smith showed signs of stiffness when he sat for extended periods during the FCE (which subsided when he had a chance to stand and move around). His reported pain level dropped once he had a chance to rest and stretch. It was significant to Ms. Fischer that Mr. Clough-Smith became more reliant on his non-dominant right arm and made accommodations during the Valpar 9 test (which involved transferring an object overhead from eye level) by pulling his left shoulder blade down in an effort to manage his pain. She denied his repeat test scores demonstrated any improvement. [118]

Mr. Clough-Smith reported left hip and low back pain when crouching, kneeling, and transitioning from different positions, aggravated by his use of ladders, stairs, heavy lifting, pushing, and pulling. Ms. Fischer admitted that left hip or low back pain could explain the mild offloading (from his left to right side) she observed. [119] Ms. Fischer described plumbing as a physically demanding job which can involve heavy lifting, assuming upper postures for extended periods, and arduous work including drilling overhead on ladders. In her experience, people who do this kind of work typically become conditioned to it; she would not expect these work demands to be functionally limiting for a healthy person. However, she conceded that the heavy physical demands of plumbing work can take a toll on the body for some people over time; she would not expect many people to be working as plumbers at the age of 75. In her view, most people (if still working) would likely have moved into supervisory or less physically demanding jobs by then. [120] In Ms. Fischer's opinion, Mr. Clough-Smith meets the demands of a medium (but not heavy) strength job. She distinguished the definition of heavy strength work in the NOC from its US counterpart, the DOT (Definition of Occupational Titles). In her view, the former has shortcomings and can be misleading; the NOC does not differentiate occasional from

frequent demands and defines a heavy strength job as one involving lifting more than 44 pounds. Mr. Clough-Smith did not pass this test. By contrast, the DOT definition particularises the strength demands of individual jobs. In her view, it is more applicable to Mr. Clough-Smith's plumbing job which she understands involves lifting substantially more than 44 pounds on a regular basis. iii) Vocational Consultants [121] Mr. Nordin has a Master's degree in Counselling Psychology. He has been a private rehabilitation consultant since 1980 and a certified vocational evaluator since 1985. In this capacity, he assesses the impact of injury on a person's ability to work. He was qualified as an expert in the area of vocational rehabilitation. [122] Mr. Nordin interviewed Mr. Clough-Smith, reviewed documentation provided to him (including the FCE report), conducted a battery of vocational tests, and authored a report dated October 11, 2019. Mr. Clough-Smith reported his main problems as constant neck, shoulder, and low back pain. He also complained of headaches (about twice weekly), medically-managed depression, and some driving-related anxiety. Based on this information and his test results, Mr. Nordin opined as follows: a) Mr. Clough-Smith's best option, on obtaining his Red Seal certification, would be to continue working as a plumber with the same employer, to the extent possible; b)

Given his slower pace and reduced productivity, he now faces a higher risk of losing his job than he did before the Accident; c) If unable to sustain full-time commercial plumbing work, he could transition to part-time or lighter residential plumbing work; d) He could supplement his part-time plumbing work with employment in the plumbing department of Home Depot (or a similar store) but would likely realise lower earnings; e) If he is unable to work as a plumber in any capacity, he could undergo a vocational assessment and retrain for another occupation that involves a mix of standing, sitting, and walking with medium strength demands; and f) He faces some vocational uncertainty and his earning capacity will be affected if he is unable to work full-time as a plumber. [123] In his second report dated December 11, 2019, Mr. Nordin makes retraining recommendations and suggests alternative vocational options for Mr. Clough-Smith, including electronics technician, architectural drafting technician, pest control, and sales positions. He estimated the cost of an electronics technician program to be $7,171 (with a corresponding average annual salary in 2018 of $58,240) and an architectural drafting technician program to be $6,670 (with an estimated average 2018 annual salary of $56,100). Mr. Nordin limited his research to training programs available at the University of Fraser Valley,

based on Mr. Clough-Smith's vocational test results and functional limitations at the FCE. In his view, Mr. Clough-Smith would be best-suited to a relatively short retraining program (i.e., of one year or less) and hands-on employment. [124] Dr. Quee-Newell has been a vocational rehabilitation consultant since 1994. She obtained a doctoral degree in Counselling Psychology in 2005 and has been a registered clinical counsellor since 1998. She was qualified as an expert in the area of vocational consulting and rehabilitation. [125] Dr. Quee-Newell reviewed documents provided to her by defence counsel, interviewed Mr. Clough-Smith, conducted a variety of vocational tests, and authored a report dated December 10, 2019. Based on her November 27, 2019 assessment, she concluded that Mr. Clough-Smith had the following transferrable skills at the time of the Accident: a) Capacity to work as a construction labourer, CNC machine operator, and plumbing apprentice; and b) The ability to do work involving average general learning and numerical ability, average spatial and form perception skills, average motor coordination, finger and manual dexterity skills, and low average clerical perception skills and verbal ability. [126] She opined as follows: a) But for the Accident, Mr. Clough-Smith would likely have completed his plumbing trade qualifications and worked as a journeyman plumber; and b)

Although capable of performing the physical demands of plumbing work, with accommodations, he is not well-suited to long-term employment in this trade given activity-related aggravation of his symptoms. [127] Like Mr. Nordin, Dr. Quee-Newell suggests that Mr. Clough-Smith could apply his training and work experience to alternate employment options including plumbing inspector, construction estimator, or power engineer positions. The training programs for these jobs range from one to two years; she estimated they would attract corresponding median hourly wages in the range of $32.00 - $37.50. [128] Information from WorkBC's online job bank provides information about median salaries for the vocational options Mr. Nordin and Dr. Quee-Newell suggested, as set out below. Vocation Median Salary Plumber $62,568 Architectural Drafting Technician $62,568 Plumbing Inspector $66,739 Construction Estimator $70,180 Electronics Technician $70,910 Power Engineer $79,503 [129] Mr. Nordin noted these median wages are not equivalent to starting wages (which would fall at the low end). [130] Mr. Nordin and Dr. Quee-Newell disagree about whether Mr. Clough-Smith is suited for all of the above-noted jobs. Dr. Quee-Newell denied extensive work experience is required to become a plumbing inspector. She agreed this job involves office and field work (and some driving within the employer's

municipality) and that there are fewer plumbing inspector positions relative to plumbing jobs, and fewer in the Thompson-Okanagan region than in the Lower Mainland. She admitted the job might involve some ladder use, the need to access small or awkward spaces, and some stress associated with permitting deadlines. [131] Mr. Nordin agreed Mr. Clough-Smith's Red Seal certification is an asset and gives him more vocational options, even if he does not resume plumbing work. However, he denied that Mr. Clough-Smith could become a plumbing inspector without additional training, education, and several years of work experience as a plumber. He admitted this job might require accessing tight crawl spaces, using ladders, and considerable driving. In his view, Mr. Clough-Smith would also require substantial work experience before moving into a plumbing foreman or supervisory position. He disagreed that construction and plumbing inspector positions are the same. In his view, Mr. Clough-Smith would require retraining, knowledge of many different trades, years of experience in construction, strong math skills, and the ability to drive for work in order to work as a construction inspector. [132] Dr. Quee-Newell considers construction estimator work to be a possible vocational option for Mr. Clough-Smith. She admitted it would involve inputting numbers into a computer or a calculator but denied

it would require any advanced math skills as all calculations are done by a computer software program. She agreed the job would involve some driving, office and computer work, and significantly fewer physical demands than plumbing. [133] Dr. Quee-Newell conceded that Mr. Clough-Smith does not currently have all the educational requirements necessary to become a power engineer. However, in her view, he does have the requisite math skills. She noted that the entrance requirements for this program include a minimum grade of 50% in any grade 11 math course and that Mr. Clough-Smith would have been required to pass grade 11 math in order to graduate from high school. A power engineer job has four levels: the lower two involve more physical work; the upper two involve more supervisory or managerial work. The physical demands vary depending on the job site and might include some ladder and overhead work. She admitted the job might require a fast response time in an emergency. [134] In Mr. Nordin's opinion, a power engineer position requires good mechanical skills; he is not certain Mr. Clough-Smith could do this work durably with his injuries. He has not seen Mr. Clough-Smith's high school transcript but, in his view, if numeracy skills are a job requirement, Mr. Clough-Smith would likely require upgrading in math. He did not know if Mr. Clough-Smith was right or left hand dominant or

had any difficulties with his dominant hand but noted his dexterity skills (tested with pen and paper) were slow. He agreed the demands of a power engineer vary considerably depending on the job site. [135] While Dr. Quee-Newell agreed that Mr. Clough-Smith has an interest in photography, she noted that the physical demands of this work vary widely depending on the job and can involve a substantial amount of time spent sitting at a computer working on digital images. On her evidence, only about 31% of photographers work full-time. [136] In cross-examination, Dr. Quee-Newell admitted Mr. Clough-Smith faces some vocational uncertainty. She conceded that he prefers hands-on trades work, dislikes office work, and lacks confidence in his math skills. While she admitted his current plumbing wholesale retail sales position likely engages his interest, she denied this direct entry level job represents the best use of his training and education or maximises his potential earning capacity. She fairly conceded, as did Mr. Nordin, that Mr. Clough-Smith might identify other, more suitable, vocational options following a vocational consultation. Both intended the ones they proposed to be illustrative only. iv) Economist, Christiane Clark [137] Ms. Clark obtained a Master's degree in economics in 2000 and has been a partner with Associated Economic Consultants since 2016. She was qualified as

an expert in the area of labour economics. [138] Ms. Clark was asked to assume that completion of Mr. Clough-Smith's plumbing apprenticeship and Red Seal certification was delayed by three years as a result of the Accident. She estimated the total cost of this alleged delay over his working career to be less than $50,000. She estimated future income loss (with and without this alleged delay) based on the average lifetime earnings of a journeyman plumber. Her estimate to age 60 (absent the alleged three-year delay and adjusted for average labour market contingencies) is $1,618,192; her corresponding estimate to age 65 is $1,697,739. I do not accept that the Accident caused a three-year delay in Mr. Clough-Smith's completion of his plumbing apprenticeship. Accordingly, I have not adopted Ms. Clark's estimate of future income loss based on this assumption. D. Analysis and Conclusion [139] The central task in assessing a claim for loss of future earning capacity is to compare the plaintiff's likely future working life with and without the Accident: Dornan at paras. 156 - 157. The first step in assessing future income loss is to determine whether the evidence discloses a potential future event that could give rise to a loss of capacity: Rab at para. 47. [140] I find that Mr. Clough-Smith has suffered a loss of capacity. This conclusion is supported by his own evidence, that of Mr.

Thompkins and Mr. Trottier, the FCE results, and the uncontroverted opinion of Dr. Regan. On the evidence of both Mr. Nordin and Dr. Quee-Newell, Mr. Clough-Smith is no longer suited to heavy strength plumbing work, a conclusion also supported by Ms. Fischer's FCE findings. As she noted, Mr. Clough-Smith has pain and functional limitations in two major areas of his body: his neck and left shoulder girdle, and his left hip and low back. Given his symptoms (which combine to create significant disability), his young age, and the FCE results, Ms. Fischer is not optimistic that his career as a plumber is sustainable long-term. [141] I do not accept that, because Mr. Clough-Smith completed his apprenticeship and has worked mostly full-time since the Accident, he suffered no future loss of earning capacity. The preponderance of trial evidence establishes that, despite his post-Accident difficulties and limitations at work, he persevered in order to realise his long-term dream of becoming a Red Seal plumber. The fact he did so is to his credit. [142] In my view, the evidence supports the conclusion that Mr. Clough-Smith is no longer able to perform heavy strength plumbing work sustainably as a result of his Accident-related injuries. After the Accident, he was slower than his peers, struggled with overhead and ladder work (which exacerbated his neck, shoulder, left hip and low back

symptoms), and required assistance with tasks that his able-bodied colleagues could do independently. According to Mr. Trottier, deadlines are important and production "is king" in construction. He and Mr. Thompkins both confirmed that plumbing work in new construction is physically demanding and takes a toll on the body over time. While I accept that Mr. Clough-Smith was generally meeting job expectations after the Accident, it is clear on the trial evidence that he was being accommodated informally at work and was not performing as well as his peers due to his Accident-related limitations. [143] In my view, there is a real and substantial possibility that a future event will cause Mr. Clough-Smith to suffer a pecuniary loss. The largely uncontested evidence supports this conclusion. On Dr. Regan's evidence, Mr. Clough-Smith sustained a permanent partial disability as a result of his Accident-related injuries. Even if the planned CT-guided steroid injection targets the source of Mr. Clough-Smith's left shoulder pain, Dr. Regan confirms that it will, at best, provide only temporary pain relief. [144] I turn next to assessing the value of this claim, having regard to the relative likelihood of a future event causing a pecuniary loss. Mr. Clough-Smith has chronic pain in his neck, left shoulder, left hip, and low back which impairs his function and renders him unsuitable for

heavy strength plumbing work, particularly in the context of new construction. The defendant points to Mr. Clough-Smith's post-Accident completion of his Red Seal certification and full-time work as a plumber as evidence that he remains capable of full-time plumbing work. In my view, it is probable that heavy-strength commercial plumbing work is no longer sustainable for Mr. Clough-Smith. The preponderance of trial evidence supports this conclusion. Mr. Clough-Smith struggled with this kind of work after the Accident; I conclude it is unlikely he will return to it given his functional limitations. [145] In my view, it is virtually certain that Mr. Clough-Smith would have obtained his Red Seal plumbing certification and continued working as a plumber but for the Accident. Doing so was a longstanding career aspiration; he enjoyed this work and did it well. Accordingly, I conclude that Ms. Clark's estimate of the lifetime earnings of a journeyman plumber provides a useful statistical anchor when assessing Mr. Clough-Smith's future income loss. [146] Mr. Clough-Smith suggested that it was his intention to retire at the age of 65 or 70 before the Accident. In my view, this plan was likely not realistic. He had periodically recurring right neck and shoulder, right ankle and foot, and left hip and low back pain before the Accident. On all the evidence, plumbing is physically demanding

work. Most of the journeyman plumbers who work under Mr. Thompkins are in the 18 to 45-year age group; he knows of only one who is in his 60s. While I accept that Mr. Clough-Smith probably had the ability to become a foreman before the Accident, Mr. Trottier and Mr. Thompkins both confirmed that foremen must perform physical work at the highest level on the job site. They agreed the physical demands of the job usually interfere with a person's ability to work to age 65 or 70. According to the 2018 Government of Canada job bank data, the average retirement age for plumbers is 63. On Ms. Clarke's evidence, it is closer to 61. [147] The trial evidence persuades me there is a moderately likely real and substantial possibility that Mr. Clough-Smith will resume residential plumbing work with his former Tappen employer, if and when opportunity allows. He enjoyed this work, liked his boss, and was generally able to manage the physical demands of residential plumbing, albeit with some aggravation of his symptoms. If he does so on a full-time basis and can continue working in this capacity over the several decades remaining in his career, he will suffer no measurable future income loss. Mr. Clough-Smith earned $30 per hour ($62,400/year) working as a residential plumber in Tappen. However, given his young age, ongoing physical imitations, the need to work independently, and the

challenges of this job (which aggravate his symptoms), I conclude that residential plumbing work is likely unsustainable for Mr. Clough-Smith indefinitely. [148] The defendant submits that, if more work was available in the Tappen area, Mr. Clough-Smith would now be working as a residential plumber. On the trial evidence, there are fewer plumbing and other vocational options available in Tappen than in the Lower Mainland. I agree that, if Mr. Clough-Smith faces a corresponding real and substantial possibility of earning less future income as a result of relocating to Tappen, it is unrelated to the Accident and therefore not compensable: Healey v. Mault, 2021 BCSC 2197 at paras. 118 and 197. [149] Mr. Clough-Smith's current sales position is associated with fewer physical demands but pays a lower hourly wage ($8.60 less per hour than his wage as a journeyman plumber). In my view, there is a relatively high real and substantial possibility that Mr. Clough-Smith will retrain and reposition himself in the marketplace in order to maximise his earning potential. He clearly faces some Accident-related vocational uncertainty. However, on the trial evidence, he retains substantial residual earning capacity. Mr. Nordin and Dr. Quee-Newell both identified multiple possible alternate career options that match his interests, aptitudes, education, and work experience. Most are associated

with median salaries commensurate with, or higher than, those for a journeyman plumber (based on WorkBC's online job data). All would require him to retrain. [150] On all the evidence, Mr. Clough-Smith is an intelligent, capable, and ambitious young man who did well in his technical apprenticeship courses. I have no difficulty concluding that he is capable of learning another trade to complement his existing skills and experience. He has an interest in construction and some general knowledge of other trades. Apart from pest control, he appears receptive to considering most of the vocational options that Mr. Nordin and Dr. Quee-Newell propose. He may identify others following a personalised vocational assessment. [151] While Mr. Clough-Smith expressed a strong interest in photography, both Mr. Nordin and Dr. Quee-Newell agree that interest is only one of several factors to be considered in determining vocational suitability. Based on the 2022 WorkBC website, the median salary for photographers is $26,876. Mr. Clough-Smith did some online media photography before the Accident. I therefore conclude there is a moderately likely real and substantial possibility that he might supplement his income by working as a part-time photographer. [152] Given Mr. Clough-Smith's young age, his limited work history, and the inherent uncertainty in determining his vocational future, I conclude

that the capital asset approach is the preferable means of assessing his future income loss. [153] The defendant submits that Mr. Clough-Smith's left hip and low back pain has essentially returned to its pre-Accident baseline. This conclusion is consistent with the statement in Dr. Quee-Newell's December 10, 2019 report that, while still present, Mr. Clough-Smith reported his low back pain had almost returned to baseline. Two years after the 2013 MVA, his left hip and low back symptoms persisted and prompted him to seek medical treatment. I accept that Mr. Clough-Smith's left hip and low back pain has improved since the Accident and may improve further. Driving for extended periods and accessing tight crawl spaces aggravate these symptoms. I find that, absent the Accident, plumbing work would likely have periodically aggravated Mr. Clough-Smith's left hip and low back pain and will probably continue to do so. I find that the same is likely true of his pre-existing right shoulder, right ankle, and foot pain. [154] The defendant urges me to discount any award for future income loss by 40% to reflect the negative contingency that, absent the Accident, Mr. Clough-Smith's pre-existing injuries would have impaired his ability to work. The medical evidence does not establish that, absent the Accident, Mr. Clough-Smith's right shoulder, right ankle, foot, left hip or low back symptoms

would have progressed as a result of any underlying pathology. I accept that he may have tolerated this pain less well over time as he aged, regardless of the Accident. The medical evidence does not establish that the 2021 MVA permanently aggravated any of Mr. Clough-Smith's pre-existing injuries. [155] Mr. Clough-Smith performed heavy strength plumbing work before the Accident (except when recovering from acute injury) without apparent difficulty, evidence Mr. Thompkins corroborated. Mr. Thompkins selected him to be his "second in command" on one project. While he agreed that Mr. Clough-Smith had the necessary knowledge to become a foreman before the Accident, he also said that a foreman must demonstrate a working knowledge of the Building Code, perform physical tasks at a high level, and be able to run a job site independently. [156] A pre-existing condition, whether latent or active, is part of a plaintiff's original condition. The evidence must establish the existence of a measurable risk that the pre-existing condition would have resulted in a loss to the plaintiff in the future without the defendant's negligence; only then will that risk of loss be considered in the assessment and reduce the award under certain heads of damages: Dornan at para. 60, citing Clayton v. Barefoot, 2018 BCSC 239 at paras. 96-97. The contingency of a pre-existing condition manifesting on its own

to cause a loss at some point need not be proven as a certainty; it is given weight according to its relative likelihood: Gabor v. Boilard, 2015 BCCA 1724 at para. 545. [157] Unrelated intervening events must be considered the same way as pre-existing conditions: T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA 670 at para. 36 [T.W.N.A.]. If such an event would have affected the plaintiff's original position adversely in any event, the net loss attributable to the tort will not be as great and damages will be reduced proportionately: T.W.N.A. at para. 36. [158] I accept that plumbing is physically arduous work and can take a toll on the body over time. In my view, there is a real and substantial possibility that, absent the Accident, Mr. Clough-Smith would have experienced some pain which would have periodically interfered with his ability to work. On Mr. Clough-Smith's own evidence, he had pain flares in his left hip, low back, and right shoulder, foot and ankle pain those areas before the Accident; I find that this pattern would likely have continued, absent the Accident and periodically interfered with his ability to work. Notably, the Accident caused predominantly left-sided shoulder pain on Mr. Clough-Smith's dominant left side. In my view, a modest discount to reflect the ongoing impact of Mr. Clough-Smith's various non-Accident related injuries on his future

earning capacity is appropriate. [159] I conclude that other applicable negative and positive contingencies effectively cancel each other in this case: Mr. Clough-Smith's condition may improve with further treatment; alternatively, it might not. [160] Recognising that this is an assessment and not a calculation, and doing my best on the available evidence, I assess Mr. Clough-Smith's future loss of earning capacity in the amount of $250,000. This figure is roughly equivalent to a 15 to 20% loss of capacity based on the average lifetime earnings of a journeyman plumber to age 62 (the mid-point between the average retirement age of 61 referenced by Ms. Clarke and that of 63 referenced in the 2018 Government of Canada Job Bank data), less a discount of about 10% to reflect the impact of his non-Accident injuries on his capacity to work. [161] In my view, this award is reasonable and fair to both parties. XIII. FUTURE CARE COSTS A. Parties' Positions [162] Mr. Clough-Smith seeks future care costs of $55,000 (which includes care costs for one year of approximately $10,000, plus the present value of additional costs for the next twenty years in the amount of approximately $45,000). The defendant proposes a global award of $5,000 to compensate Mr. Clough-Smith for his future care costs. B. Legal Framework [163] An award for future care costs is based on what is reasonably necessary on

the medical evidence to preserve and promote the plaintiff's mental and physical health; such costs are justified when they are medically necessary, reasonable, and likely to be incurred: 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.). As noted by the Court of Appeal in Penner v. Insurance Corporation of British Columbia, 2011 BCCA 135 at para. 13, a little common sense should inform claims for future care costs, however much they may be recommended by experts in the field. C. Analysis and Conclusions i) Physiotherapy and Kinesiology [164] Dr. Regan conceded that patients with soft tissue injuries are encouraged to remain active. He suggested that kinesiology support would help Mr. Clough-Smith with proper weight training and active exercises. He agreed in cross-examination that kinesiology is intended to teach patients exercises and allow them to transition to a self-directed program. [165] While Mr. Clough-Smith has had kinesiology support in the past, Ms. Fischer concludes that he would benefit from a refresher to help him re-initiate an exercise program and ensure proper technique. She recommends two physiotherapy sessions, followed by kinesiology supervision (at a cost of $60/session). She estimates the cost of two physiotherapy sessions and six kinesiology sessions to be $480. [166] Mr. Clough-Smith seeks funding for

kinesiology treatments for the next twenty years. While I agree that he could benefit from this kind of support, this claim exceeds what his own experts recommend. I award $480 for physiotherapy and kinesiology sessions, as recommended by Ms. Fischer. Thereafter, I conclude Mr. that Clough-Smith can apply what he has learned on his own. I have not discounted this cost to present value as I assume he will pursue this therapy in 2022. ii) Gym Pass [167] Mr. Clough-Smith would like an annual gym pass to access exercise machines and lose weight. Before relocating to Tappen, he and his mother worked out in their home gym (which had a universal weight machine and other exercise equipment). Ms. Clough confirmed that she and her son had a family pass at the Mission Recreation centre at some point before the Accident. [168] Dr. Regan recommended self-directed exercise (such as Bikram yoga or swimming) to promote a return of Mr. Clough-Smith's left shoulder function. Ms. Fisher agreed with this recommendation and underscored the importance to Mr. Clough-Smith of maintaining a healthy body mass index and improving and maintaining his flexibility and strength to assist with long-term pain management and to reduce the risk of functional deterioration. She admitted that maintaining fitness for work would have been important for him, absent the Accident. In her report, she references the

annual cost of an adult membership at the Mission Leisure Centre (which has a gym and a pool) as $455.13 plus tax. There is no trial evidence or agreement about the comparable cost of a gym pass in Tappen. [169] In my view, Mr. Clough-Smith would benefit from a gym pass in the short term, while he works with a kinesiologist and physiotherapist to establish an exercise program. Given that he and his mother are engaged in ongoing renovations, I conclude that he may return to his former practice of exercising at home. He had a variety of home exercise equipment before the Accident. I award a contingency allowance of $500 to fund a one-year gym membership. iii) Chiropractic Treatment [170] Mr. Clough-Smith seeks funding for two chiropractic treatments/month for the next twenty years (at a cost of $67/session). The only passive treatments that Dr. Regan recommended were IMS and acupuncture. I make no award for future chiropractic sessions. In my view, this treatment is not supported as reasonably necessary on the medical evidence. iv) Cognitive Behavioural Therapy [171] Dr. Spivak endorsed Mr. Clough-Smith's use of antidepressant medication and recommended psychological assistance in the form of 10-20 cognitive behavioural therapy sessions. Dr. Quee-Newell supports this recommendation. [172] Mr. Clough-Smith is currently receiving publicly-funded counselling through the Interior

Health Authority, at no cost to him. However, this treatment is only accessible during regular work hours. He would like to pursue private counselling so that he can avoid missing work. There is no trial evidence about the cost of privately-funded cognitive behavioural therapy in Tappen. In closing submissions, plaintiff's counsel suggested (based on her own internet research) it would range from $124 to $201/session. At trial, defence advised that the defendant would consent to 10 hours of cognitive behavioural therapy, at the low end of this range. [173] I award $1,860 for 15 sessions of privately-funded cognitive behavioural therapy (the mid-point of Dr. Spivak's recommended range at $124/session). I have not discounted this cost to present value as I assume Mr. Clough-Smith will incur it this year. I have made no award for ongoing counselling over the next 20 years. In my view, such an award is speculative and unsupported by the medical evidence. v) Vocational Counselling [174] In Mr. Nordin's opinion, Mr. Clough-Smith will likely require additional career counselling if he is unable to continue working as a plumber. Dr. Quee-Newell agrees this would assist him in exploring career options that are compatible with his aptitudes, abilities, interests, and values. On her evidence, this level of assistance usually involves 8-12 hours of professional time at a rate of

$75-$150/hour in the private sector. Ms. Fischer endorses the recommendation for vocational counselling. [175] In my view, this service is one that Mr. Clough-Smith reasonably requires because of his Accident-related injuries and corresponding vocational uncertainty. I award $1,150 for vocational counselling (or 10 hours at $115/hour, the rough mid-range hourly rate quoted by Dr. Quee-Newell). I have not discounted this figure to present value on the assumption that he will access these services this year. vi) Medications [176] The current annual cost of Mr. Clough-Smith's anti-depressant medication is $269.52. He estimates that he currently spends about $125 annually on over-the-counter medications. He seeks to recover these annual costs for the next 20 years (the present value of which is about $6,450, based on the future multipliers provided by plaintiff's counsel and extracted from Appendix E of the Civil Jury Instructions). [177] On Mr. Clough-Smith's own evidence, he had ongoing complaints from his pre-existing injuries at the time of the Accident. He was also involved in subsequent workplace injuries and the 2021 MVA. I infer from the trial evidence that he would likely have incurred some costs for over-the-counter medications to treat those ongoing symptoms, absent the Accident. [178] The evidence does not establish that Mr. Clough-Smith will require anti-depressant

medication for the next twenty years. Since the implementation of counselling, his mood has improved. Ultimately, it is unknowable whether his mental health will improve further and permit him to discontinue this medication. Doing my best on the available evidence, I award a lifetime contingency fund to cover medications in the amount of $1,300. This is roughly equivalent to the present value annual cost of Mr. Clough-Smith's medications for the next five years. In summary, I award future care costs as follows: a) Kinesiology and Physiotherapy - $480 b) Gym pass - $500 c) Cognitive behavioural therapy - $1,860 d) Vocational counselling - $1,150 e) Medications - $1,300 Total: $5,290 XIV. DISPOSITION [179] I award damages as follows: a) General Damages - $120,000 (including lost housekeeping capacity) b) Special Damages - $3,381.19 c) Past Income Loss - $18,227 (before tax) d) Future Income Loss - $250,000 e) Future Care Costs - $5,290 TOTAL: $396,898.19 [180] Absent information the parties may wish to bring to my attention, Mr. Clough-Smith is entitled to his costs on the ordinary scale. "Douglas J."