Kasic v. Leyh

2009 BCSC 649 Kasic v. Leyh

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Kasic v. Leyh, 2009 BCSC 649 Date: 20090514 Docket: M062815 Registry: Vancouver Between: Milorad Kasic Plaintiff And David Leyh, Louise Phyllis Leyh and WS Leasing Ltd. Defendants Before: The Honourable Madam Justice Morrison Reasons for Judgment Counsel for the Plaintiff Kevin Blair G. Veale Counsel for the Defendants Stephen Herman Date and Place of Trial: December 16-19, 2008 Vancouver, B.C. Authorities Considered: Rosvold v. Dunlop, 2001 BCCA 1 Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.) Pallos v. ICBC (1995), 100 B.C.L.R. (2d) 260 (C.A.) Paller v. Paller, 2004 BCSC 977 Tobin v. Monkman, 2004 BCSC 839 Demedeiros v. Heinrichs and Wu et al, 2001 BCSC 1475 Hicks v. GMAC Leasco Ltd., 2001 BCSC 1091 Menard v. Phillips, [1995] B.C.J. No. 2238 (S.C.) Steward v. Berezan, 2007 BCCA 150 Matheson v. Brow, [1999] B.C.J. No. 2183 (S.C.) McCreight v. Currie, 2007 BCSC 127 Perren v. Lalari, 2008 BCSC 1117 Athey v. Leonati, [1996] 3 S.C.R. 458 [1] This is a claim by the plaintiff, Milorad Kasic, for damages arising out of a motor vehicle accident that occurred on August 23, 2004. Liability is admitted by the defendants. The defendant, David Leyh, was the driver of the motor vehicle that rear ended the vehicle driven by Mr. Kasic. Louise Phyllis Leyh was the lessee of the vehicle, WS Leasing Ltd. was the lessor. [2] Loss of

opportunity with regard to future earnings is in contention in this case, as well as the appropriate amount for non-pecuniary damages. Background [3] The plaintiff, Milorad Kasic, now 50, was born February 18, 1959, in the former country of Yugoslavia. He completed grade 12 there and then worked in payroll accounting and in construction in Germany. In 1997, he and his wife moved to Canada with their two daughters. They had a plan, to give their family, and particularly their children, a better life, opportunity and education. [4] The plaintiff spoke no English, but within 13 days of arriving in Canada, he had a job. From 1997 to 2007, Mr. Kasic worked at a glass company, doing heavy manual work, earning $12 an hour. During that time, in 1999, he took a course and obtained a certificate as a building service worker. Around 2000, he switched to a job with a concrete pre-cast company as a concrete finisher, where he eventually earned $24 an hour. However, in April 2001, he injured his shoulder on the job and was off work for two years, during which time he was retrained by WCB. [5] Mr. Kasic was able to return to work around April 2003, when he began a new job with Laser Ink and Toner refilling and replacing ink cartridges. This job required less heavy manual labour than his previous two jobs, but he was still required to stand at a table for long hours, and the work involved

bending, twisting and leaning over. He had no trouble doing that work. [6] Then this motor vehicle accident occurred on August 23, 2004. While driving his vehicle, Mr. Kasic was stopped at an intersection. His wife was in the front passenger seat. Mr. Kasic testified he was looking to the left, over his left shoulder, twisting from the waist to look backwards. He was rear ended at that time. On impact, his wife was leaning forward, and as a result she suffered a cracked pelvis and two fractured ribs. Mr. Kasic suffered immediate dizziness and nausea, and pain to his neck and upper and lower back. His head, neck and upper back injuries resolved themselves, but his lower back injury never has. [7] Unable to work immediately following the accident, Mr. Kasic went to his family doctor and followed a regime with physiotherapists, exercises, pain medication, and visits to a chiropractor. He returned to work two months later on October 18, 2004 on a part-time basis, working only four hours a day instead of eight. He was advised by his physiotherapist to work only part-time, but that was not a continuing possibility at that particular job. He resigned his job on November 26, 2004 on learning of another job with lighter duties. [8] In December 2004, Mr. and Mrs. Kasic became caretakers employed by Baywest Management at an apartment complex called Carrigan. There were three men and four

women working at the complex, and they would help one another with heavier work. Mr. Kasic was able to work four hours, then take one hour off to rest, and then work the additional four hours each day. He and his wife had moved into the complex. The work included cleaning and light maintenance work. His supervisor was a friend, and Mr. Kasic was able to take breaks when he needed them; he would go to his suite and rest. [9] After a day's work, he would find himself unable to do any activities other than take a shower, rest, and do little else. [10] Mr. Kasic was then referred to KARP Rehabilitation in January 2005, for physiotherapy, rehabilitation, and retraining. It is a six to eight week program, where professionals assess the capabilities of persons who have been injured. He attended two to three times a week, but found that the exercises and program did not help much with his lower back problems. That program ended in March 2005. He also had a CT scan around this time, because of his ongoing symptoms. He was advised he was not a candidate for surgery. [11] In 2006, Mr. Kasic received two injections into the troubled area of his lower back, but found only temporary relief; there was not sufficient success to have the injections continue. By June 2007, he was referred by his doctors for an MRI. He was still not a candidate for any surgery. [12] The plaintiff quit working at

Baywest near the end of October 2007. He was finding the work difficult on his back, and he hoped that a new job with the Coquitlam School Board would be better. He worked for the School Board from November 1, 2007 to May 25, 2008. This was casual, on call, part-time work as a caretaker. He would often work a four hour shift. The work was easier in some ways. But he was still never without pain and the need to take medication. Mr. Kasic also found it difficult to clean all the small low tables in the classrooms. When he got home after work, he would continue his routine of taking a shower, often lying on the floor, and finding himself unable to do anything else. [13] Counsel for both parties referred Mr. Kasic to a number of medical experts, and on April 3, 2008, the plaintiff saw Dr. Robert W. McGraw, an expert in the speciality of orthopaedic surgery, and a Professor Emeritus at the University of British Columbia in the Department of Orthopaedics. Dr. McGraw noted a marked tenderness in the left sacroiliac joint of Mr. Kasic, and in his orthopaedic diagnosis, he found the following: As a result of the motor vehicle accident of August 23, 2004, Mr. Kasic sustained the following injuries: 1. Cervical spine - grade II soft tissue injury not associated with neurological impairment or fracture.

2. Thoracolumbar spine - grade II soft tissue injury not associated with neurological impairment or fracture.

3. Pelvis - possible strain/sprain left sacroiliac joint. [14] In writing about the thoracolumbar spine and left sacroiliac joint, Dr. McGraw made the following observations: Thoracolumbar Spine and Left Sacroiliac Joint Mr. Kasic has ongoing complaints referable to the left low back and left thigh area, for which a clear-cut diagnosis has not been made. Mr. Kasic has been seen by a neurosurgeon, two neurologists, an anesthesiologist specializing in chronic pain, and a physiatrist. There seems to be agreement that there is no neurological component to Mr. Kasic's ongoing complaints. It is the writer's opinion that Mr. Kasic has complaints referable to soft tissue injuries more likely related to the sacroiliac joint than the low back. The writer acknowledges that a diagnostic block was made in the area of the left sacroiliac joint. The writer's preferred diagnostic block would be to instill dye and Marcaine for diagnostic purposes into the left sacroiliac joint. It is the writer's understanding that this diagnostic procedure has not yet been done. The technique for this study is very specific. [15] In assessing the impairment and disability, as well as future treatment for Mr. Kasic, Dr. McGraw noted the following: Impairment and Disability The writer believes that Mr. Kasic has ongoing complaints which may be emanating from the left sacroiliac joints. Spontaneous improvement in

the current complaint is not anticipated. If a diagnostic block of the actual sacroiliac joint proved to be effective, then a subsequent injection of a steroid preparation into the sacroiliac joint might be successful in eliminating Mr. Kasic's complaints. Future Treatment The writer noted that Mr. Kasic was cooperative with the supervised active exercise program at Karp Rehabilitation and there was definite improvement. It is the writer's opinion that Mr. Kasic should be encouraged very strongly to adhere to the exercise program which he learned at Karp Rehabilitation. [16] Mr. Kasic changed jobs once again on May 26, 2008, when he began as a full-time caretaker with the B.C. Housing Corporation. This is an eight hour job that requires no heavy lifting. It pays approximately $40,000 a year, and as of the date of trial, Mr. Kasic had successfully completed the six month probation period. It is a job that consists of lighter work plus benefits. [17] He and his wife also have a rental suite in the subsidized housing complex in which they work. He finds work at this time still painful. His testimony is that the first two or three days of work in a week are painful, and then the fourth and fifth days are worse, "tough". He is able to take rests frequently in his own suite; he uses ice from time to time, lies on the floor, and takes pain medication. [18] The diagnostic block or

injection that Dr. McGraw referred to in his report was administered to Mr. Kasic on October 31, 2008 by Dr. Mark Adrian. Dr. Adrian's report indicates that before the injection, Mr. Kasic had indicated, "With walking, his symptoms today are present at a level of 8/10, with 10 being the worst pain with his condition and 0 being no pain." [19] Unfortunately, the injection did not have the anticipated success. In his evidence at trial, Dr. McGraw was of the opinion that the injection may not have entered the correct area. It was the evidence of Mr. and Mrs. Kasic as well as their 22 year old daughter that Mr. Kasic's pain became significantly and continuously worse after this injection. According to Mr. Kasic, his "pain level has gone up." [20] Mr. Kasic continues to work for B.C. Housing Corporation as a caretaker. He was 45 at the time of the accident and is now 50 years of age. He has testified, "I always look for a better opportunity". His family comes first, especially his children, and their education. He himself would like to go to school more, to find out what he can and cannot do. [21] Mr. Kasic's earnings from employment from 2001 to 2006 are as follows: 2001 $42,515 2002 $34,114 2003 $39,614 2004 $34,174 2005 $39,164 2006 $41,037 [22] In addition, Mr. Kasic also receives an annual pension of $10,500 from WCB with regard to his shoulder injury. [23] The parties are

agreed that special damages amount to $2,914.46, and past loss of income totals $5,441.28. The Evidence at Trial [24] Mr. and Mrs. Kasic testified at the trial, as did their 22 year old daughter, Surjana Kasic. Three doctors testified, Dr. William McGillivray, the family doctor for Mr. Kasic, Dr. Cecil Hershler, a specialist in physical medicine and rehabilitation, and Dr. Robert McGraw. Other experts' reports were agreed upon exhibits. [25] Dr. William McGillivray has been Mr. Kasic's family doctor since June 24, 1998. On June 23, 1998, Mr. Kasic had a previous motor vehicle accident; he was treated by Dr. McGillivray at that time. He had neck and back complaints, and soft tissue injuries; those injuries resolved eventually. It was Dr. McGillivray's evidence that Mr. Kasic had recovered fully from this accident. [26] There was a WCB claim in 1999 that Dr. McGillivray treated Mr. Kasic for, and then there was the shoulder injury at work in April of 2001 which resulted in Mr. Kasic being off work and retrained by WCB. [27] In addition to his testimony, Dr. McGillivray had also prepared a 15 page report dated July 18, 2008. The report summarized Dr. McGillivray's clinic's treatment from the first time Mr. Kasic was at the clinic in June of 1998. There were occasions when Mr. Kasic would see doctors other than Dr. McGillivray, but Dr. McGillivray remained his family doctor. [28]

While Dr. McGillivray testified that Mr. Kasic had fully recovered from the 1998 motor vehicle accident, he was cross-examined on a page of his clinical notes where there was an entry of November 12, 2002. That entry began, "Re MVA = June 23, 1998. Patient isn't currently working, fell April 23/2001 at work. Injured his left arm, his left elbow/shoulder has trouble with heavy lifting or repetitive movements. Now looking for work that is easier on his left arm. Still feels uneasy driving on bridges still." (This was a reference to the 1998 accident which caused the plaintiff ongoing fear of him in his vehicle ending up in the water.) [29] Later on that same page with "MVA" written in the left hand margin, Dr. McGillivray wrote that as a result of the MVA, Mr. Kasic had missed two to three months of work. "Had injured his lower back; still has occasional low back still has difficulty with lateral flexion of lumbar spine, also can only flex forward slowly. Gets discomfort with lower back, lumbar spine, radiates down left hip. He is having nightmares while sleeping..." [30] Under diagnosis on that note of November 12, 2002, Dr. McGillivray has written, "chronic intermittent low back pain. Patient given special back stretching exercises." [31] Dr. McGillivray could not recall that particular visit of Mr. Kasic on November 12, 2002, but confirmed it was his handwriting on that entry,

so he would have seen him then. [32] There are no further notations with regard to any back pain until a day or two after the August 23, 2004 accident. Dr. McGillivray's evidence is that he feels the plaintiff now has a prolonged partial disability, with chronic back pain; he believes the evidence points more to a soft tissue injury, rather than any nerve root impingement, as Dr. Hershler later testified. It is the opinion of Dr. McGillivray that Mr. Kasic will continue to have ongoing and prolonged partial disability. He testified, "We've flipped over all the pebbles, we end up with chronic back pain, not remedial to current measures." [33] In his report of July 18, 2008, Dr. McGillivray agreed with the recommendation of Dr. McGraw, that the procedure with regard to the diagnostic block into the left sacroiliac joint be done. In July 2008, Dr. McGillivray hoped that this procedure might improve or be helpful in alleviating Mr. Kasic's symptoms. [34] On page 15 of that report, Dr. McGillivray wrote: At the present time, without any interventions or further diagnostic exploration, the patient would appear to have a prolonged partial disability. He will likely continue to experience pain and discomfort from time to time with his normal work activities. It is therefore recommended that the above diagnostic procedures and treatment recommendations be carried out. [35] The other

procedures that Dr. McGillivray was referring to were that Mr. Kasic be encouraged to adhere to the exercise program that he had learned at KARP Rehabilitation, and if all other measures fail, that he could even try Dr. Hershler's suggestions for Pulsed Signal Therapy, "Just to make sure that everything has been done to help this patient." [36] Throughout his evidence at trial, Dr. McGillivray commented on at least three occasions on how motivated Mr. Kasic was, to get better, and to get back to work. He referred to Mr. Kasic as "quite a motivated individual actually." [37] In referring to Mr. Kasic as being partially disabled, Dr. McGillivray testified that he could do lifting and twisting before, but he cannot now. If he does any lifting or twisting, it causes the return of back pain and the symptoms persist. He noted that Mr. Kasic was in daily discomfort and stiff, whether he is bending or lifting, sitting or standing for any length of time. This causes a worsening of his symptoms. He would not be able to return to a job like he had with the toner ink company because of the standing and twisting required in that job. [38] When asked, Dr. McGillivray noted that following the November 12, 2002 notation in his clinical notes, Mr. Kasic was not often at the clinic. The next notation after November 12, 2002 was March 25, 2003, for an unrelated matter. [39] Surjana Kasic is the

22 year old daughter of the plaintiff. She lives with her mother, father and sister in the Kasics' apartment, and is studying business administration at Capilano College. Surjana Kasic also works 18 to 20 hours a week as a server at an Italian restaurant. Her parents assist both her and her sister with their education costs. [40] Ms. Kasic has observed her father displaying a number of symptoms of his lower back pain. He has trouble driving, unloading a dishwasher, is unable to bend down and pick things up, or vacuum, or do other household chores. "He has a lot of pain with everyday things, so we don't ask him to do anything. I live with him every day." Things that he was able to do before, she testified he could no longer do. He used to play tennis with his daughters, go bowling on Wednesday night with his friends, play soccer with her and her sister, play bocce ball, and go on family picnics. He now does none of these activities. [41] Mr. Kasic had a happy disposition before the accident. His daughter said he was always smiling and laughing. Now he is short with his temper, "Not the same person I knew growing up." [42] When Mr. Kasic suffered his shoulder injury at work, she testified that he eventually bounced back. But that has not occurred this time. She testified that her father is very hardworking, and that both her parents want the two daughters to get a good education

and jobs. [43] Before Mr. Kasic received his injection in October 2008, Ms. Kasic said he seemed to be getting better. But after the injection, he got worse. She said she often would find him lying on the floor. He always has to hang onto something to get up or down and has trouble putting his shoes on. Following that injection, she has noticed that he walks slower, or that he will walk slowly and then have to stop; he sometimes limps. [44] In giving testimony on his own behalf, Mr. Kasic set out his work history, which has already been noted. He also described the many treatments that he has tried, going to KARP Rehabilitation, a chiropractor, physiotherapy, massage therapy, and a fitness and exercise program. He also tried the recommended injections, the two injections in 2006, and the last injection in October 2008. He attempts not to take too much pain medication, because it bothers his stomach, but he continues to need the medication to alleviate pain. [45] Before the October 2008 injection, Mr. Kasic said he was in pain all the time. However, after the injection, the intensity of the pain increased. There were times, as in May of 2007, when he had to take time off from work because of the pain. He testified that on occasion he had to walk a distance, rather than drive, because he could not sit. [46] The plaintiff remains concerned about losing a job if he tells his

employer or supervisor that he has a bad back. He is more inclined to say he has a headache, when he must go and lie down. He uses ice to try and alleviate the pain, and also some Chinese liquid that he rubs on. During his lunch and two coffee breaks during the day, he goes to his apartment and lies down. He tries to do some stretching at home, and he goes to massage therapy when he can. [47] The day before Mr. Kasic gave his evidence, he said, for example, that he had to lie on the floor for half an hour that day. While he does not lie on the floor every day, he still does it regularly. [48] Of his future plans, he testified he is always looking for a better opportunity. He has friends who are longshoremen, but there is no way that he could apply for such a job given his physical condition. He does not know what his health will allow him to do. [49] In his testimony, he said that he tries everything that the doctor suggests, and that the physiotherapist suggests. He has not tried the magnetic therapy that Dr. Hershler recommends, because it costs $2,000 and ICBC is not agreeable to pay for that. It is also a treatment that both Dr. McGillivray and Dr. McGraw have testified lacks peer testing and approval. However, the plaintiff gives the impression that he is willing to try anything, and Dr. McGillivray seems to support him in that attitude. [50] Mr. Kasic takes prescription

pills that cost $40 to $50 a month. Now that he has benefits, he gets coverage for much of this under his benefit plan. He no longer does any sports. After his shoulder injury in 2001, he was able to go back to all of his activities, but that is not the case after his injuries from this motor vehicle accident. Mr. Kasic's plans to buy a house have not been realized, because he says he would not be able to do the ordinary jobs around a house, take care of the grass, the gardening, or move furniture. [51] He has a great deal of trouble sleeping at night. Over the past four and a half years, he testified that he wakes up two to four times a night; that is now every night. He and his wife both testified that their intimate life is not the same as before. Mr. Kasic recognizes that he has undergone a change in disposition, that his mood is different. He says he tries to deal with it himself, but realizes that he now raises his voice with his daughters. Before, he said he was in a good mood always, but not now, with the pain. "Just leave me alone." [52] In the morning, Mr. Kasic says he needs five to ten minutes first to just sit on the bed before getting up. He has difficulty putting on socks and shoes. He uses a long shoehorn and leaves his shoelaces tied up. The apartment he has is in subsidized housing with B.C. Housing; that apartment is free to him, a benefit of his job. [53] In

cross-examination, Mr. Kasic was asked about his visit to Dr. McGillivray's office on November 12, 2002 where the doctor's note indicated chronic low back pain. He testified he does not recall that he complained of back pain at that time, and he stated that he did recover fully from the 1998 motor vehicle accident. He went back to heavy lifting on his job with no problems. Mr. Kasic stated he always tells the truth to his doctor. However, he said that if Dr. McGillivray wrote that on November 12, 2002, it is true. Although he does not recall seeing Dr. McGillivray at that time for such a complaint, he surmised that maybe it was a problem for two or three days. [54] Joka Kasic is the wife of the plaintiff. They have been married for 25 years. She was asked if her husband had ever had back pain prior to that accident. She said that he had, for a period of time, perhaps for two or three months, but she cannot remember the exact time. She said it was a long time ago; she was not sure when. She was asked if it could have been two years after the 1998 motor vehicle accident, but she was not sure. She testified her husband never had serious problems with his back before the 2004 accident. For example, that he never had trouble getting out of a chair or putting on his shoes and socks. [55] At the accident in August 2004, Mrs. Kasic sustained two rib fractures and a crack on her pelvis,

from which she has recovered, although she had to take time off work from August to December 2004. Her testimony is that immediately after the accident, her husband was unable to turn, and felt nauseated. He began vomiting. She drove home, and the next day they went to the doctor. [56] For the next two or three weeks, Mrs. Kasic said that her husband had severe back pain, that he could not move or walk, or go down stairs. He had to lie on the floor to dress. When he returned to work in October 2004, he was a bit better, but not much. [57] During the time that Mr. and Mrs. Kasic worked at Baywest, from December 2004 to October 2007, she observed that her husband was unable to push a garbage container or handle any heavy loads. He always required help. There were seven of them working on the premises, so help was available. At home, he would shower, then lie on the floor and do his exercises. When he was working with the Coquitlam School Board, the same procedure; she said her husband was unable to do anything other than come home after work, shower and lie on the floor. She said he is still lying on the floor. [58] When they are at home, Mrs. Kasic says she always knows if it is a bad day, because she has lived with him for so long. After Mr. Kasic had the injection in October 2008, she observed how difficult it was for him to get up in the morning or even brush his teeth,

trying to find a comfortable position. She said it was "sad to see someone at his age. I am unable to help him." She observed he cannot walk or sit for any length of time. Even when he is doing nothing, "he has pain". She was asked if he complained, and she said, "Not always. He is embarrassed, with other people who can do more than he." Mrs. Kasic said she and her husband hoped for a better life and future in Canada. She stated they have worked hard, and put all their effort into working and being independent, and always looking for something better to improve themselves. [59] Leisure activities have been affected. "He is not the same person." She confirmed that their sexual life was not the same. [60] Mr. Kasic liked to play with the children, and he enjoyed walking and tennis. He no longer does those activities. When asked about sleeping at night, she stated it was better not to talk about it. That her husband gets up many times in the night. She will then say, "If you don't stop this, then I have to go to another room", and she does. [61] In the morning, she observes her husband sitting on the bed, before he is able to stand up. She sees him trying to get a comfortable position in the shower, or trying to brush his teeth, trying to get everything in front of him so that he does not have to twist. He takes pills for his pain, and he does exercises. [62] Mr. Kasic's wife says

it is most difficult for her to watch her husband try and dress himself. He has to hold on to the night table, to put his pants on. She said, "I always think, how is this going to be? I try and support him and say, maybe tomorrow will be better." [63] Her testimony is that often Mr. Kasic tries to hide his problems from their daughters, but he cannot hide a lot from his wife. She said, "I tell him, 'Don't be embarrassed in front of me, I am never going to leave you.'" [64] Dr. Cecil Hershler is one of the several doctors seen by Mr. Kasic since the accident. Dr. Hershler is an expert in physical medicine and rehabilitation. He has been a clinical associate professor in the School of Rehabilitation Medicine at UBC, and has special expertise in pain management as well. In addition to his testimony at trial, Dr. Hershler prepared a medical legal opinion for the plaintiff dated April 3, 2008, the same date he saw Mr. Kasic. [65] Dr. Hershler's opinion is that Mr. Kasic's back pain is more likely due to irritation of nerve roots. In his prognosis, the doctor writes this in his report: The prognosis for recovery is extremely guarded. Milorad has had constant pain for over 3 1/2 years. The physical findings are very obvious. He has lost range of motion in the low back and this affects functions such as sitting, bending, standing, rotating, etc. Although he is able to work in a lighter

occupation, he does so in pain. He experiences increased pain depending on how much physical activity he does. He has not responded, in any permanent fashion, to massage therapy, physiotherapy or chiropractic treatments. He has lost over 15 lbs. in weight, but has still noticed no change in pain. His sleep pattern has become affected. Milorad has been seen by numerous specialists and has not been considered to be a surgical candidate. Given this scenario, I recommend that he be given the opportunity to undergo alternative treatments for disc healing. One such alternative is Pulsed Signal Therapy or Pulsed Electromagnetic Field Therapy. He would require nine one-hour treatments, the full cost of which is $2,000. Depending on the success of such treatment, pulsed laser heat may be another option. At this stage, and for the foreseeable future, Milorad will continue to experience pain and will have difficulty sitting, standing, bending, lifting, etc. He has a permanent partial disability. [66] In his testimony at trial, Dr. Hershler was asked if he had seen in Dr. McGillivray's clinical records, the notation of November 12, 2002. He had. He regarded it as a single episode that had been chronicled. Dr. Hershler said he accepted what the plaintiff had told him, that he had made a full recovery from the 1998 motor vehicle accident. With regard to Dr. McGillivray's note of November 12,

2002, Dr. Hershler testified that if he sees no other records of pain in the notes, it would not fit his definition of "chronic". He stated, "I see one single entry". He said he saw this entry and he discussed it with the plaintiff. In his view, Mr. Kasic did not have a recurrent history of chronic persistent back pain. [67] It was Dr. Hershler's belief that the August 2004 accident caused the plaintiff's pain, although his diagnosis differs from that of Dr. McGillivray and Dr. McGraw. Dr. Hershler felt that causation was the motor vehicle accident of 2004 as well as previously asymptomatic degenerative changes. The plaintiff was asymptomatic after November 12, 2002. [68] Dr. Hershler is an advocate of Pulsed Signal Therapy, and has had ten years' experience with it. He testified he believed the plaintiff may get some improved management from such therapy. [69] Dr. Robert McGraw, the expert in orthopaedic surgery, has a different opinion from Dr. Hershler and believes that Mr. Kasic's complaints are because of soft tissue injuries related to the sacroiliac joint. He was unaware of Dr. McGillivray's note of November 12, 2002. With regard to the injection of October 2008, Dr. McGraw had a concern that the procedure may not have been performed as he had recommended. He voiced a concern that there was a complaint of severe pain by the plaintiff after the injection. [70] Unlike Dr.

Hershler, Dr. McGraw does not recommend Pulsed Signal Therapy. He does not believe it has proven value. The Position of the Plaintiff [71] The cause of Mr. Kasic's serious back problems and continuous chronic pain was the motor vehicle accident of August 23, 2004, according to counsel for the plaintiff. Mr. Kasic's ability to be a successful breadwinner has been diminished by his injuries, and the plaintiff seeks the equivalent of three years' loss of income, taking in the possibility of early retirement. That loss should be assessed in the range of $100,000 to $150,000. For general damages, the plaintiff seeks $60,000 to $70,000. [72] All the doctors are consistent in the prognosis for the plaintiff. He has a permanent partial disability due to chronic back pain. While Dr. McGraw and Dr. McGillivray believe that it is in the sacroiliac joint, and Dr. Hershler believes that it is a bulging disc that is irritating a nerve, or a combination of that and sacroiliac joint pain, the medical experts agree that Mr. Kasic's symptoms exist and are aggravated by activities. [73] With regard to Dr. McGillivray's note of November 12, 2002, neither Dr. McGillivray nor Mr. Kasic recalls that as a visit of particular note. But there was no indication of any back pain before or after that date, other than after the accident in June 1998. Both Dr. McGillivray and Mr. Kasic are credible

witnesses, and this one entry is not significant when looking at all of the clinical and medical records of the plaintiff. [74] Counsel for the plaintiff contends that Mr. and Mrs. Kasic and their daughter are credible witnesses, who should be believed. Mr. Kasic has remained motivated and compliant throughout, and he has tried every mode of treatment suggested, including physiotherapy, massage therapy, chiropractic treatment, attendance at the KARP Rehabilitation Centre, injections, CT and MRI scans, and exercise programs. [75] Mr. Kasic was retrained by WCB after a workplace injury affecting his left shoulder. There were no back problems at that time. He was able to work at a job that required standing for most of the day, working at a bench that required bending and twisting from side to side. Such work is no longer possible after this accident. [76] Mr. Kasic's injuries have had a significant effect on him personally, on the other members of his family, and on all aspects of his life, physically, mentally, emotionally. His injuries affect his work and leisure activities. He is no longer the main breadwinner and he is concerned about his future. He encounters pain every day, from the moment he gets up in the morning until he tries to sleep at night. [77] The medical reports have concluded that he is not a candidate for surgery, but he is a candidate for prolonged partial

disability because of his chronic pain. [78] Mr. Kasic's ability to do heavy manual labour was curtailed somewhat by his shoulder injury at work some years ago. But now he has the added problem of having to work with continuous pain. His physical abilities are significantly impaired by the back problems, and there are a number of jobs that he is not suited for that would require standing, sitting, bending at the waist or twisting. Even his current job, which allows him to move at his own pace and take frequent rests, causes him concern with regard to his limitations and fear of losing his job at some point. [79] Counsel for the plaintiff contends that Mr. Kasic has suffered a loss of his capacity to earn in the future. That is a loss of a capital asset, in that there is a real possibility that he may have to retire early from a job that has certain physical demands. Further, he will be precluded from many jobs as a result of his disability. He is no longer able to take jobs that require heavier physical work and could pay a better wage and provide a better life for him and his family. He has lost opportunities as a result of the injuries he sustained in the accident. Authorities of the Plaintiff [80] Counsel for the plaintiff has referred to the following authorities: Rosvold v. Dunlop; Palmer v. Goodall; Pallos v. ICBC; Paller v. Paller; Tobin v. Monkman; and Demedeiros v.

Heinrichs and Wu et al. [81] In Rosvold v. Dunlop, the issue was damages for loss of earning capacity. The trial court awarded $125,000, and the Court of Appeal, in a judgment written by Madam Justice Huddart, increased that award to $300,000. The plaintiff in that case was a self-employed roofer who was used to physically demanding work. As a result of injuries suffered in a motor vehicle accident, he was left with permanent knee and back pain. He had had two surgeries, and had undergone lengthy rehabilitation and conditioning programs. The pain in his knee was unresolved. He could no longer lift heavy materials. [82] The trial judge had calculated the plaintiff's loss of earning capacity as the present value of the difference between his pre-accident annual earning capacity of $37,000 (later assessed at $42,000), and his post-accident annual earning capacity of $25,000. The Court of Appeal found that this was an "excessively mathematical approach" to the assessment of such a loss. In her judgment, Madam Justice Huddart reviewed the principles that guide the assessment of damages for personal injury. Beginning at paragraph 8 of the decision, the court stated: The most basic of those principles is that a plaintiff is entitled to be put into the position he would have been in but for the accident so far as money can do that. An award for loss of earning capacity is based on the

recognition that a plaintiff's capacity to earn income is an asset which has been taken away: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Parypa v. Wickware (1999), 65 B.C.L.R. (3d) 155 (C.A.). Where a plaintiff's permanent injury limits him in his capacity to perform certain activities and consequently impairs his income earning capacity, he is entitled to compensation. What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset. In some cases, projections from past earnings may be a useful factor to consider in valuing the loss but past earnings are not the only factor to consider. Because damage awards are made as lump sums, an award for loss of future earning capacity must deal to some extent with the unknowable. The standard of proof to be applied when evaluating hypothetical events that may affect an award is simple probability, not the balance of probabilities: Athey v. Leonati, [1996] 3 S.C.R.

458. Possibilities and probabilities, chances, opportunities, and risks must all be considered, so long as they are a real and substantial possibility and not mere speculation. These possibilities are to be given weight according to the percentage chance they would have happened or will happen. The trial judge's task is to assess the loss on a judgmental basis, taking into consideration all the relevant factors arising from the evidence: Mazzuca v. Alexakis, [1994] B.C.J. No. 2128 (S.C.) (Q.L.) at para. 121, aff'd [1997] B.C.J. No. 2178 (C.A.) (Q.L.). Guidance as to what factors may be relevant can be found in Parypa v. Wickware, supra, at para. 31; Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 126 (C.A.); and Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J. They include: 1. whether the plaintiff has been rendered less capable overall from earning income from all types of employment; 2. whether the plaintiff is less marketable or attractive as an employee to potential employers; 3. whether the plaintiff 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 4. whether the plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market. The task of the court is to assess damages, not to calculate them according to some mathematical formula:

Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Once impairment of a plaintiff's earning capacity as a capital asset has been established, that impairment must be valued. The valuation may involve a comparison of the likely future of the plaintiff if the accident had not happened with the plaintiff's likely future after the accident has happened. As a starting point, a trial judge may determine the present value of the difference between the amounts earned under those two scenarios. But if this is done, it is not to be the end of the inquiry: Ryder (Guardian ad litem of) v. Jubbal, [1995] B.C.J. No. 644 (C.A.) (Q.L.); Parypa v. Wickware, supra. The overall fairness and reasonableness of the award must be considered taking into account all the evidence. The capital asset Mr. Rosvold has lost is his ability to perform physically demanding work. [83] Even if the plaintiff were able to earn the same amount of income from other employment, the court stated he would still be entitled to compensation for his loss. The court also found (paragraph 16) that the trial judge had failed to factor into his analysis the possibility that the plaintiff's proposed business might fail. [84] Palmer v. Goodall, a decision written by Madam Justice Southin in 1991, was referred to in the Rosvold v. Dunlop decision. The plaintiff in Palmer was 31 years of age and

had been a clerk at Safeway, earning approximately $37,800 in salary and benefits. Following the accident, he was experiencing what one doctor referred to as a pain syndrome, sometimes referred to as fibromyalgia syndrome; in any event, it was classified as a soft tissue pain. As a result, the plaintiff could no longer do heavy work. He began a new job installing stereos. He had been an excellent athlete, and a professional motorcycle racer, activities he could no longer do. [85] The jury had awarded $494,000 for loss of earning capacity, and general damages of $135,000. The Court of Appeal reduced the damages for loss of earning capacity to $150,000. The court, in quoting Dickson J. in the Andrews v. Grand & Toy Alberta Ltd. case stated, "Here, we are not talking of a complete loss of earning capacity but of an impairment of that capital asset." (page 29). On that same page, the court said it was erroneous to conclude that a plaintiff should be entitled to be compensated for the whole of his working life "for the difference between what he would have earned as a clerk in Safeway and what he was going to earn as a stereo installer." This echoes the rejection of the mathematical approach that Madam Justice Huddart had referred to in the Rosvold v. Dunlop decision. [86] A wild house party and out of control gatecrashers caused the injuries in Pallos v. ICBC, a 1995 decision of

our Court of Appeal. The plaintiff in that case suffered a fractured right tibia and fibula, resulting in one leg being shorter than the other and chronic pain in his right knee. He was 34 at the time of the trial, with a grade 11 education, and was used to doing heavy labour throughout his working life. Following his injuries, it was found that he tired more readily than before, in addition to the chronic pain. He was earning more after the injury than before. The court repeated the four factors to be taken into consideration when valuing the lost asset, set out in the above quote from Rosvold v. Dunlop. [87] At para. 29 of Pallos, the court stated: ... The plaintiff's claim in this case, properly considered, is that he has a permanent injury, and permanent pain, which limit him in his capacity to perform certain activities and which, therefore, impair his income earning capacity. The loss of capacity has been suffered even though he is still employed by his pre-accident employer, and may continue to be so employed indefinitely. [88] The court awarded $40,000 damages for future lost income earning capacity. [89] In Paller v. Paller, the wife was a passenger in the vehicle driven by her husband which was involved in a motor vehicle accident. She was 34 at the time, and 38 at the time of trial. The couple had two small children, and she was, in effect, the breadwinner of the

family. The accident left her with chronic pain in her lower back. She had a work history that began when she was a teenager. [90] Although the court found that she had a tendency to exaggerate her evidence, and at times to be "overly dramatic", she was awarded $150,000 for loss of earning capacity. The court accepted that she has had considerable pain, and that the pain "is likely to continue into the future, and that it does reduce her level of energy and limit her activities." (paragraph 13). [91] At paragraph 56, the court had this to say: I consider it probable that Mrs. Paller will earn less over the course of her employment history as a result of the chronic pain in her back than she would have if she had not been injured. I find that there is a substantial risk that she will not be able to find employment as an x-ray technician, or that she will be delayed in finding such employment, if she discloses to a prospective employer, as she should do, that she has a chronic back problem. I also find that there is a substantial risk that she will have to take some time off work and may have to retire early from a physically demanding occupation as a result of the chronic back pain. I thus award $150,000 for loss of earning capacity. [92] Low back pain and the loss of ability to do heavy work was the issue in Tobin v. Monkman. The plaintiff was 24 at the time of the motor

vehicle accident. He worked for a logging company. He had been an active snowboarder, and after the accident was no longer able to do the more heavy work or his activities such as snowboarding. He suffered a change of mood and disposition. This was a case where it was found not to be a permanent disability, but the trial judge opined that the plaintiff would suffer for many more years. [93] The plaintiff was able to find a new job in radio, with comparable earnings. General damages of $60,000 were assessed and loss of earning capacity damages were assessed at $50,000. [94] The plaintiff in Demedeiros v. Heinrichs, was a 31 year old stone mason at the time when he suffered two separate motor vehicle accidents. As a result of continuous low back pain, he was judged to be partially disabled. This was a plaintiff who was motivated to work, and did go back to work as soon as he could, and also followed rigorous fitness programs as much as he could. [95] His social life was curtailed, where before he had been active, social and involved in sports. That lifestyle changed. The court found that the plaintiff had lost his ability to perform heavy labour as a stone mason. General damages were awarded at $70,000, and the assessment for lost earning capacity was $180,000. The Position of the Defendants [96] The defendants acknowledge the plaintiff had stomach pain and nausea for

approximately ten days after the accident, and neck pain into December 2004, as well as upper back pain until August 2005, one year following the accident. They also accept that the plaintiff sustained an injury to his lower back in the accident, and that he was unable to work at Laser Ink and Toner for a period of time. [97] However, the defendants contend that the plaintiff's present disability, the lower back injury, is a combination of the injury from the August 2004 accident, together with a pre-existing chronic back pain condition from the previous 1998 accident. The defence argues there must be apportionment between the causes in the interest of fairness. [98] Further, counsel for the defence argues that the plaintiff does not and will not, on a balance of probabilities, suffer from a permanent disability or from a disability that would make it substantially possible that he will suffer a loss of income associated with any functional impairment that he may have. [99] That the collision was of a minor nature. The defence contends that the severity of the collision is relative to the probable severity of the symptoms, that the mechanics and forces involved in a collision are relevant to an assessment of the injury sustained. The defence argues that the plaintiff has misrepresented the extent of his injuries in the 1998 accident. They refer to the November 2002 clinical

note of Dr. McGillivray which indicates a chronic back pain condition, which the defence argues is a chronic condition of four and a half years as of November 2002. This fact was not raised by the plaintiff in his discussions with the many doctors that he saw, and therefore was not addressed in the medical opinions of Dr. McGillivray or Dr. McGraw. Accordingly, the defence submits that the court should have concerns about the weight that should be attached to the opinion of Dr. McGillivray. Also, the court should consider that the plaintiff was not accurate in relating his history to Dr. McGraw; this might have changed Dr. McGraw's opinion. [100] Dr. Hershler noted the November 12, 2002 clinical entry, but testified that he disregarded it, as he accepted the history given by the plaintiff. The defence argues that while Dr. McGillivray's records prior to November 12, 2002 indicate that the plaintiff was not seeing his family doctor with regard to back pain, that does not mean that the plaintiff did not have back pain during that time, but simply that he was not going to see his doctor to report it. The defendants argue that the absence of clinical entries regarding back pain immediately predating the 2004 accident would not mean that the plaintiff was free of such pain. Because Dr. Hershler has disregarded this pre-existing disability, that undermines the credibility of his

opinion. [101] The defence contends that the court must allocate a portion of the plaintiff's present disability to his pre-accident condition and reduce the award accordingly. The defence also points to the opinion evidence of the other doctors who all believe that the plaintiff is suffering from soft tissue injury, or a joint injury, while Dr. Hershler is of the opinion that the plaintiff's main source of pain is a nerve root irritation. Thus, if Dr. Hershler is wrong in his diagnosis, and he has recommended Pulsed Signal Magnetic Therapy, treatment not accepted by some members of the medical profession, then the court should question the accuracy or reliability of Dr. Hershler's medical opinion in this case. [102] The defence further argues that if Dr. McGraw is correct, and Mr. Kasic is suffering from a sacroiliac joint injury, the correct administration of the therapeutic block injection could "be successful in eliminating Mr. Kasic's complaints". Then there would be no basis for granting damages for loss of earning capacity as Mr. Kasic would not have a permanent impairment. Dr. McGraw could not be satisfied that the injection had been done "to the gold standard", and Dr. McGraw was unable to say that the potential for the elimination of complaints may still exist. [103] On the issue of what amount may be appropriate for damages for loss of earning capacity, counsel for

the defendants suggests a minimal amount of $10,000, relying on the reasoning of Justice Macaulay in Perren v. Lalari. According to the defence, Mr. Kasic has been able to pursue his goal in coming to Canada, and has progressed from low paying heavy labour jobs to higher paying jobs involving lighter tasks. Each new job has given the plaintiff increased pay and better benefits. [104] In 1999, he trained for the job of building service technician. He is now working in that job, according to the defence, a job that requires no travel, has extensive benefits, union membership, and provides a four bedroom home for $50 a month. That gives him an effective salary of $55,000 or more, plus full benefits, according to the defence. [105] The defence suggests that Mr. Kasic's drive and determination will continue to provide the plaintiff with not only his present job but jobs with better opportunities if he chooses to leave his present employment. [106] Counsel for the defence points out that while the plaintiff has testified to significant limitations on his abilities to carry out his various jobs, the defence notes that his present employer and his last employer were apparently unaware of any back problems, and that Mr. Kasic has not told them of his back injury, nor requested any accommodations on the job. Thus the employers must be satisfied with his work. Authorities of the

Defence [107] In Hicks v. GMAC Leasco Ltd., the plaintiff was a 30 year old schoolteacher with her master's degree in education and six years' teaching experience. She was an extremely active athletic woman, who skied, hiked and ran. Prior to the accident her health was good, but she had a heightened vulnerability to lower back injuries because of a teenage skating accident. [108] There was modest damage done to her car after she was struck from behind. She did not miss work because of the injuries from the accident, which were mainly neck and lower back injuries. She remained extremely active, but her activity increased her lower back pain. At times she would have to lie on the floor for two or three hours, and would ice her back and take pain and anti-inflammatory medication. She could not drive for extended periods of time nor lift heavy objects. [109] The diagnosis was mechanical low back pain and while the doctors could find no objective evidence of the injury, the symptoms of continuing pain were considered to be genuine. The prognosis for further recovery was poor. The plaintiff was found to have been cooperative with regard to rehabilitation. [110] Ross J. found that the plaintiff had suffered an injury due to the accident, and that her recovery appeared to have plateaued. The plaintiff was no longer able to do the high impact sports activities that she preferred, but

she was able to continue her recreational activities. [111] Non-pecuniary damages of $35,000 were awarded. The court found that the plaintiff was continuing to experience symptoms and that her prognosis for further improvement was poor. [112] Damages for loss of earning capacity were awarded in the amount of $10,000. The plaintiff continued her pre-accident employment, and the court found that it may continue indefinitely. Plus the plaintiff had not missed any work due to the accident. But the court found that the symptoms would affect "how she goes about her job." (Paragraph 29). [113] In Menard v. Phillips, a decision of Wilson J., non-pecuniary damages of $40,000 were reduced to $30,000 because of a pre-existing knee condition of the plaintiff. $75,000 was the award for loss of future earning capacity. [114] The plaintiff was a millwright who worked at a sawmill doing heavy labour. He was diagnosed with whiplash and back strain, and experienced headaches, back and neck pain. He was 31 at the time of the accident, and had worked as a millwright for 12 years. He was able to return to work shortly after the accident. However, approximately a year and a half later, the plaintiff experienced serious back pain after swinging a baseball bat. He was diagnosed with a herniated lumbar disc at that time, and had to take time off work. After that, he could only work on a part-time

basis, and was eventually laid off. [115] The court found the plaintiff sustained an injury to his lumbar spine at the time of the accident. Wilson J. accepted medical evidence that the lumbar disc protrusion was causally related to the injuries that the plaintiff received at the time of the motor vehicle accident. At paragraph 29, Wilson J. stated, "I accept that, if Mr. Menard had not sustained the injury in the motor vehicle accident, he would not have had a herniated lumbar disc as a result of swinging a bat in batting practice in April, 1992." [116] However, the court found that the plaintiff's condition was subject to treatment, and would likely improve with treatment. [117] Before the accident, the plaintiff had a pre-existing knee injury. The court apportioned 25% of the non-pecuniary damages to the pre-existing knee condition. [118] On the issue of loss of future earning capacity, the court ruled that while the plaintiff was not able to do heavy work at the time of the trial, there was a reasonable possibility he would be able to return to his work as a millwright, which would involve heavy labour. The court took into account an apportionment for the pre-existing disability as well as contingencies, and assessed the value of the loss of earning capacity at $75,000. [119] No damages were awarded for loss of earning capacity in Steward v. Berezan. At the time of the

accident, the plaintiff was a successful realtor, having left his former occupation as a carpenter 20 years before the trial. The award of $90,000 for non-pecuniary damages was not in issue on the appeal. The court found no basis for awarding any compensation to the plaintiff for diminished earning capacity. The defendant was successful in arguing that the claim for loss of future earnings should fail. [120] In the next case, the plaintiff was also unsuccessful in a claim for loss of income earning capacity. Matheson v. Brow, is a decision of Boyd J. At the time of the accident, the plaintiff was a full-time cashier at Save-On-Foods. She suffered soft tissue injuries to her neck and shoulder, and was off work on a periodic basis for a few months. Seven months after the accident, she moved to a different department. The court found (paragraph 24) that the plaintiff was able to perform her job to her employer's satisfaction, that she was well paid, and intended to continue working at Save-On-Foods in the future. The court stated, "... it is highly unlikely she will suffer any future income loss. I award no damages under this head." [121] In Matheson v. Brow, the court found little medical evidence to confirm the plaintiff's disabilities. Boyd J. stated the belief that the plaintiff's condition was not as serious as she and her friends had contended. $25,000 was awarded for

non-pecuniary damages. [122] The court in McCreight v. Currie, awarded $40,000 for non-pecuniary damages and $20,000 for loss of earning capacity. Prior to the motor vehicle accident, the plaintiff was suffering from ongoing problems with pain and depression, arising from post-traumatic stress disorder after a criminal stalking episode in which she was the victim. Injuries from the accident were to her neck, shoulder, back and hips, plus aggravation to her pre-existing conditions. The court concluded that her injuries were serious and had not resolved, but the exacerbation of her mental problems had resolved. Her prospects of improvement were assessed as reasonable. [123] The plaintiff had been out of the workforce for much of the period from 1994 to May 2004, the date of the accident. Prior to the accident, the plaintiff had a history of chronic low back and neck pain. There had been medical intervention including hospitalization, as well as massage therapy and medication throughout the period from 1996 to 2004. At paragraph 57, the court stated, "... it is clear from the totality of the evidence that, prior to the motor vehicle accident, Ms. McCreight had musculoskeletal problems requiring medical intervention at the specific sites that were problematic after the accident." [124] In finding that there was a reasonable prospect of continued improvement for the plaintiff, the

court also acknowledged that the prognosis for complete recovery was guarded, and that the plaintiff would continue to experience pain. Non-pecuniary damages were awarded in the amount of $40,000, taking into account the plaintiff's pre-accident condition. [125] Damages for loss of earning capacity were awarded in the amount of $20,000. At paragraph 133, the court acknowledged the plaintiff's capacity to earn income was impaired, but found that the accident "made only a relatively small contribution to any ongoing impairment of earning capacity." [126] In a more recent case involving a provincial government management employee, non-pecuniary damages of $50,000 were awarded, and $10,000 for loss of future earning capacity. In Perren v. Lalari, following a motor vehicle accident, the plaintiff was diagnosed with a moderate strain of the cervical spine, and a lower back sprain. The accident occurred in mid-November of 2004, and by February, the plaintiff was working full-time again, with modifications at work to avoid problems with her soft tissue injuries. Her lower thoracic back pain continued, in spite of ongoing chiropractic treatments and massage therapy. Those had helped the plaintiff with pain management. [127] The court accepted a medical opinion that the plaintiff was at risk for premature arthritis in her cervical spine and left shoulder. The court concluded she had

chronic pain with regard to her soft tissue injuries and that that pain will continue indefinitely. There was an award of $50,000 for non-pecuniary damages. [128] In observing that the plaintiff's aptitude and interest had always been in office work, the court also noted that her employment as an office manager did not require her to do any work that was heavy or required repetitive lifting, work that would cause problems because of her injuries. [129] At paragraphs 48 and 49, Macaulay J. acknowledged that while the plaintiff may be less marketable than she was before the accident, it was not in such a way that would mean she would suffer an associated loss. The court concluded that she would likely earn more as a manager than in a position requiring physical work. In finding that the impairment on the plaintiff's future earning capacity was slight, but nevertheless there was a degree of impairment, the court considered $10,000 to be an appropriate award for loss of earning capacity. Conclusions Credibility [130] Mr. Kasic was in the witness stand for some time, and was cross-examined thoroughly. I found him to be truthful, impressive, and not given to exaggeration in any way. He was responsive to questions in a quiet and dignified manner. Both Mr. and Mrs. Kasic are hardworking, intelligent and proud. They were both clear in their ambition for themselves and for their two

daughters. Their daughter, Surjana, was a bright and descriptive witness. There was a sadness in their evidence. There was also credibility. [131] The defence has made much of the November 12, 2002 clinical note of Dr. McGillivray. Both Dr. McGillivray and Mr. Kasic have no specific recall of that visit. They do not dispute that the visit to the clinic took place. They do dispute that Mr. Kasic had a chronic back pain condition that began with the previous motor vehicle accident that occurred in June of 1998; and they dispute that such a chronic condition persisted from June of 1998 up to November 2002 and continued up to the time of the accident in August 2004. Other than the notes immediately after the June 1998 accident, there was only that one entry in the clinical records of Dr. McGillivray that the defence relies upon. There are no other entries or evidence to support the position of the defence. [132] Nor is there any other evidence to suggest that Mr. Kasic was anything but a truthful and accurate historian when he saw the various doctors, and gave them his history. Dr. McGillivray, his family physician from June of 1998 until the present time found him to be motivated. There is no suggestion of malingering, exaggerated symptoms, or any misleading accounts by the plaintiff to either the court or to the doctors who saw him. [133] There is evidence from Mr. Kasic, and

more particularly from Mrs. Kasic, that there was a period prior to the accident when Mr. Kasic did have some back pain, but that resolved. It is the evidence of both Mr. and Mrs. Kasic as well as Dr. McGillivray that any injuries or problems arising from the accident in 1998 resolved within a few months. [134] I accept the evidence of Dr. McGillivray that the plaintiff has a prolonged partial disability. It would be inappropriate to take one cherry picked entry in clinical records that date back to June of 1998 to discredit the evidence called by the plaintiff. The position of the defence is not supported by the whole of the evidence. Causation [135] At paragraph 112 of the McCreight v. Currie decision, Madam Justice Ross summarized the principles that were articulated in Athey v. Leonati: The principles to be applied were articulated in Athey v. Leonati, [1996] 3 S.C.R. 458 at 466-468. I summarize those principles as follows: (a) causation is established where the plaintiff proves, to the civil standard of a balance of probabilities, that the defendant caused or contributed to the injury; (b) the "but for" test is the general test for causation. Where this test is unworkable, causation is established where the defendant's negligence materially contributed to the occurrence of the injury; (c) the defendant's negligence need not be the sole cause of injury; so long as it is a

material cause, the defendant will be liable; (d) there is no apportionment between tortuous and non-tortuous causes; (e) the plaintiff is to be restored to the position she would have been in absent the defendant's negligence. Therefore, the defendant need not compensate the plaintiff for the debilitating effects of pre-existing conditions which the plaintiff would have experienced anyway; and (f) if there is a measurable risk that a pre-existing condition would have detrimentally affected the plaintiff in the future, that must be taken into account and the award reduced accordingly. [136] I have accepted the plaintiff's evidence that he did not have a pre-existing chronic back condition, such that would impact on the injuries that he received in the motor vehicle accident of August 2004. There was the previous accident in June of 1998, and on a balance of probabilities, I accept the evidence that the injuries from that accident were resolved years before this present accident. [137] In view of all the evidence, on a balance of probabilities, it is my view that the defendants caused the injuries of which the plaintiff now complains. Before the accident, the plaintiff was in a much different position, physically, mentally and emotionally. He was in a much different position as far as his work and future were concerned. Had it not been for the accident, the life of Mr. Kasic

would be quite different today. In my view, there is no evidence to establish a pre-existing condition that would have affected Mr. Kasic in the future in a detrimental way. Injuries [138] Mr. Kasic's headaches and neck pain which he suffered immediately after the accident resolved within a fairly short time. However his lower back pain has not. Ever since the accident, he has had serious and chronic pain. That continues to this day. He has been motivated and compliant with regard to all treatments suggested, with the exception of the Pulsed Signal Magnetic Therapy. [139] The medical evidence is not in complete agreement as to the exact diagnosis that is causing the pain in the lower back; Dr. McGraw believes that it is the sacroiliac joint, Dr. Hershler is of the opinion that it is a bulging disc irritating a nerve, or a combination of that and the sacroiliac joint. But there is agreement that Mr. Kasic's symptoms are aggravated by his activities. And there is certainly agreement from all the evidence tendered that Mr. Kasic is in continuous and serious pain. [140] Will it be a permanent disability? Dr. Hershler holds out hope that there could be a significant improvement if Pulsed Signal Magnetic Therapy were pursued. But this is not a form of treatment widely recognized by the medical profession, and certainly not by Dr. McGraw. Dr. McGraw seemed to hold out hope that if

there were a correct administration of the injection of the therapeutic block, that this could eliminate some or much of Mr. Kasic's pain. Certainly the one injection in October 2008 in that area worsened Mr. Kasic's condition. [141] Whether either or both of these suggested treatments are to be tried will be a matter between Mr. Kasic and his medical advisors. But at the present time, the evidence remains that Mr. Kasic is suffering continuous and debilitating pain, and it has been chronic pain since the date of the accident. It has changed him physically, mentally and emotionally. [142] The changes to Mr. Kasic's life as a result of his injuries are many. He continues to need pain medication. His previous activities of bowling, tennis, soccer, bocce ball, baseball and picnics are no longer activities in which he can participate. He can help very little around the house, whether it is vacuuming, loading or unloading the dishwasher, moving furniture, or doing yard work. [143] He cannot plan to buy his own home, as he can no longer do the jobs and the outside work that he would normally have done. His leisure activities with his wife and children have been diminished dramatically, as has his intimate and sexual life with his wife. He has continuous problems sleeping, and his wife often sleeps in another room. Mr. Kasic's mood, disposition and temper have changed significantly.

He cannot do the most simple things such as dressing himself, taking a shower or brushing his teeth without unusual discomfort, positioning and pain. [144] An undisputed hard worker, Mr. Kasic stated, "I like to work hard to make more money for my family." His work history has indicated that, both before and after the accident. [145] Mr. Kasic's ability to earn in the future has been compromised. It is an asset he has, in part, lost. His injuries have rendered him less capable overall from earning income from all types of employment, particularly those that require twisting, bending, standing, sitting for any length of time, or involve any kind of heavy work. He is less marketable or attractive as an employee to potential employers. [146] One presumably has an obligation to advise a future employer if there are concerns such as chronic back problems. This plaintiff has lost the ability to take advantage of job opportunities which he might otherwise have had. [147] Mr. Kasic appears to consider himself less capable and less valuable as a person, because of his condition. He was 45 when this accident occurred. He is 50 years of age now. The real probabilities he faces are fewer jobs available to him, the chance of losing a job or jobs, and possibly having to retire early. His reduced level of energy and inability to sustain work are factors to be considered. Damages [148] On the

issue of non-pecuniary damages, there is no question that Mr. Kasic's quality and enjoyment of life have been seriously affected. His permanent partial disability is going to affect the rest of his life, at work, within his family and his leisure activities. At the present time he is looking at continuous and unrelenting back pain. [149] General damages are awarded in the amount of $70,000. [150] Special damages are agreed to in the amount of $2,914.46. [151] Damages for past loss of income total $5,441.28, by agreement between the parties. [152] On the issue of loss of earning capacity, clear guidance can be found in the judgment of Huddart J.A. in Rosvold v. Dunlop. Mr. Kasic's capacity to earn income is an asset which has been, in part, taken away from him. I have found that he has a permanent partial disability, and that limits his work in a number of areas, which in turn impairs his earning capacity. [153] The defence seems to suggest that Mr. Kasic has reached his goal upon coming to Canada, that his work as a caretaker together with a rental apartment in subsidized housing suggests that he has reached his earning capacity and goals. They point to his past earnings, and note that he has steadily increased his earnings, which is true. But as the courts have reminded us, past earnings are only one factor to consider. [154] The standard of proof to be applied in making an

appropriate damage award under this category is simple probability, not the balance of probabilities. And the Athey case reminds us that possibilities and probabilities, chances, opportunities and risks all have to be considered, as long as they do not amount to mere speculation. [155] Counsel for the plaintiff suggests that there is the possibility that Mr. Kasic will have to retire early, and I agree that this is a possibility. Counsel argues that even if he had to retire just three years early, this would be a loss equivalent to $150,000. This is based on Mr. Kasic's earnings in 2007 of just over $40,000, and both counsel have factored in an additional $10,000 because of the generous housing allowance and benefits. This would amount to a real loss of $50,000 a year or $150,000 if Mr. Kasic retired three years early. [156] Taking into account negative as well as positive contingencies, in my view an appropriate damage award for loss of earning capacity would be $100,000, and I award that amount. In my view, the position taken by the defence with regard to this issue has been unrealistic, and their suggested figure of $10,000 under this category of damages does not meet the test of fairness and reasonableness. [157] In summary: (a) Non-pecuniary damages $70,000.00 (b) Special damages $2,914.00 (c) Past loss of income $5,441.00 (d) Loss of earning capacity $100,000.00 (e) Total $178,355.00̳ [158] Costs are awarded to the plaintiff. "Morrison J."