Kholi v. Josan

2020 BCSC 2028 Kohli v. Josan

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Kohli v. Josan, 2020 BCSC 2028 Date: 20201218 Docket: M179699 Registry: New Westminster Between: Darshan Kohli Plaintiff And Jatinder Singh Josan and Nav Sweets and Restaurant Ltd. Defendants -And- Docket: M202610 Registry: New Westminster Between: Darshan Kohli Plaintiff And Tajveer Kaur Besla Defendant Before: The Honourable Justice Shergill Reasons for Judgment Counsel for Plaintiff: C. Lacroix Counsel for Defendants: B. Quinn Place and Date of Trial: New Westminster, B.C. October 13-16, 2020 October 19 & 22, 2020 Place and Date of Judgment: New Westminster, B.C. December 18, 2020 Table of Contents I. Overview.. 3 II. Background. 3 III. Credibility and Reliability. 3 IV. The Collisions. 4 V. The Injuries. 5 A. Treatment and Recovery. 5 B. Expert Evidence. 8 1. Dr. Sharma. 9 2. Dr. Waseem.. 10 3. Dr. Matishak. 12 4. Dr. Giantomaso. 13 C. Current Condition. 14 D. Pre-Existing Health. 16 VI. General Damages. 17 VII. Loss of Domestic Capacity. 20 VIII. Costs of Future Care. 21 IX. Special damages. 23 X. Summary of Damages. 23 XI. Costs. 23 I. Overview [1] The plaintiff, Darshan Kohli, is a realtor. He claims damages for injuries and losses sustained as a result of two motor vehicle collisions which occurred on December 4, 2014 and August 21, 2016 (the "collisions" or "MVCs"). Liability has been admitted in both actions. [2] Left

for my determination is the plaintiff's claim for general damages, impairment of domestic capacity, and costs of future care. The plaintiff has abandoned his in-trust claim, and the parties have settled the plaintiff's claim for out-of-pocket expenses for treatment. II. Background [3] The plaintiff is 71 years old. He was born in India, where he obtained his engineering degree. He was married in 1975, and immigrated to Canada in 1989 with his wife and daughter. Their son was born a few years later. [4] After arriving in Canada, the plaintiff performed various jobs. He started out in the insurance industry, but eventually went into real estate. He has been working as a realtor since the early 1990s. III. Credibility and Reliability [5] For the most part, I considered Mr. Kohli to be a credible witness. Though he had a tendency to over-state his case, there were also a number of instances where he made admissions against his own self-interest. His evidence was generally consistent with the documentation, and corroborated by other witnesses. [6] However, Mr. Kohli was an unreliable witness. He was a poor historian with a faulty memory. As such, I have approached his evidence with caution, and have considered the documentary, expert, and lay witness evidence in arriving at my findings. [7] In addition to the plaintiff, this Court heard from five lay witnesses: the plaintiff's son

Aashish, daughter Divya, wife Rajpal, and two friends, Parampal Singh Jaura and Dilpreet Singh Jaura. As the witnesses share common last names, to avoid confusion, I will refer to them by their first names, intending no disrespect. [8] I found all the lay witnesses to be credible and generally reliable. Though they had personal relationships with the plaintiff, I did not consider their testimony to be biased in favour of Mr. Kohli. Each witness testified only about matters which that witness had personal knowledge of, and were generally unshaken on cross-examination. IV. The Collisions [9] Mr. Kohli had his first MVC on December 4, 2014 at around 5:30 pm. He was driving towards his home in his 2014 Lexus 350 (the "plaintiff's vehicle") along 108 Avenue in Surrey, B.C. Mr. Kohli was wearing his lap-shoulder seatbelt and his headrest was properly adjusted. [10] The plaintiff brought his vehicle to a full stop at the 144 Street intersection. There were several cars stopped in front of him. Without warning, the plaintiff's vehicle was struck from behind by a white van owned by the defendant, Nav Sweets and Restaurant Ltd., and being negligently driven by the defendant, Jatinder Singh Josan. The impact was significant. It caused the plaintiff's vehicle to move forward by about five feet, though Mr. Kohli was able to stop his car before it collided with the vehicle in front of

it. [11] Mr. Kohli does not recall what happened to his body at the time of impact. He recalls feeling confused and being in shock. The plaintiff had a conversation with the other driver, and then waited for his friend, Parampal Singh Jaura, to come pick him up. Mr. Jaura attended the scene of the accident with his wife. Mr. Jaura drove the plaintiff's car home, while his wife drove Mr. Kohli home. [12] Photographs of the two vehicles show substantial damage to the front of the defendant's van, and the rear of the plaintiff's car. It was estimated that Mr. Kohli's vehicle would require about $10,000 in repair costs. [13] Mr. Kohli had his second MVC on August 21, 2016. On that occasion, he and his wife were heading to downtown Vancouver to visit a friend. They were on 1st Avenue when he brought his Lexus to a stop at Rupert Street behind some other vehicles that were also stopped at the red light. Suddenly, his car was hit from behind by a vehicle owned and negligently operated by the defendant, Tajveer Kaur Besla. The force of collision caused the bumper on Mr. Kohli's vehicle to fall off. [14] Emergency vehicles attended the scene. Mr. Kohli was transported by ambulance to Burnaby General Hospital. He was discharged later that same day. V. The Injuries [15] The plaintiff testified that following the first collision, he experienced headaches, and pain in his neck, shoulder,

entire back, hip, and right leg. The most significant area of pain was in his low back, radiating to the hip and leg. It was his evidence that he was still suffering from these injuries when the second collision happened. The second collision aggravated all of the injuries from the first collision and also caused him driving anxiety. A. Treatment and Recovery [16] The plaintiff sought treatment from his family physician, Dr. Pankaj Sharma, the day following the first collision. He complained of headaches, body aches, low back pain, a stiff neck, and pain in the occipital region. On examination, he was tender in his entire back. Dr. Sharma referred Mr. Kohli to massage therapy. [17] Mr. Kohli next saw his family physician on December 10, 2014. He continued to complain of pain in his neck and upper back, as well as occipital headaches on the right side. Mr. Kohli reported to Dr. Sharma that he had been taking Combiflam obtained from India, which was helping. Combiflam is a medication which combines ibuprofen and paracetamol, but is not available in Canada. Dr. Sharma prescribed Tylenol 3. [18] In a follow-up visit on December 19, 2014, the plaintiff complained of: pain in his neck, upper back and low back; blurry vision; and difficulty focusing while doing tasks. Mr. Kohli reported that massage therapy was making his pain worse. He was sent for chiropractic treatments. [19] By

the middle of January 2015, Mr. Kohli had not reported much improvement despite continued chiropractic treatment and massage therapy. On examination, he had decreased range of motion in his neck. He was complaining of pain in his low back and right leg. Dr. Sharma thought that Mr. Kohli may be experiencing sciatic nerve impingement. Dr. Sharma advised Mr. Kohli to continue with his chiropractic treatments. [20] Towards the latter part of February 2015, Mr. Kohli reported feeling better, though he continued to experience pain in his neck, upper back, and lower back. At the time, he was still doing chiropractic and massage therapy, and taking medication to control his pain. Dr. Sharma advised Mr. Kohli to continue with his stretching and strengthening, and gave him a prescription for Vimovo. [21] Mr. Kohli's last chiropractic treatment was on February 24, 2015. The following month, Mr. Kohli took a vacation to India. He testified that he was able to tolerate the 16-20 hour long flight by walking up and down the airplane aisles. The trip lasted about one month. [22] Mr. Kohli next saw Dr. Sharma in April 2015 when he complained of ongoing pain and stiffness in his neck, upper back, and low back. Dr. Sharma urged Mr. Kohli to start doing injury rehabilitation. [23] By August 2015, Mr. Kohli was reporting significant improvement. His headaches were better and he reported improved

ambulation. However, he complained of ongoing pain in his low back when shifting from a sitting to standing position. [24] On December 21, 2015, Mr. Kohli reported that his low back pain was much better. He had re-commenced rehabilitation and was now experiencing intermittent low back pain. On examination, he was tender in the right low back and right buttock. [25] By the end of January 2016, Mr. Kohli's low back pain had plateaued. He complained of tingling and numbness in his right leg, which improved shortly after waking up. Dr. Sharma ordered an MRI of the lumbosacral spine. In March 2016, Dr. Sharma referred Mr. Kohli to Dr. Jaworski, a physiatrist. [26] The MRI was taken on July 5, 2016. It revealed that Mr. Kohli had nerve root impingement on the right side of his fifth lumbar spine vertebrae. Mr. Kohli was referred by Dr. Sharma for traction physiotherapy. [27] On August 21, 2016, Mr. Kohli had his second MVC. He sought treatment from Dr. Sharma the following day. Mr. Kohli reported that he had aggravated his neck and low back pain from the first collision. Dr. Sharma noted decreased range of motion and tenderness to his low back. He was advised to use anti-inflammatories and continue with physiotherapy. [28] Two weeks later, Mr. Kohli reported having difficulty sleeping and anxiety about getting into another motor vehicle collision. Dr. Sharma noted decreased range of

motion in the cervical spine and tenderness throughout the back. Mr. Kohli was advised to continue with physiotherapy. [29] In November 2016, Mr. Kohli was well enough to go on vacation to Florida. He testified that the trip was restful, and he had no restrictions in activities, aside from some minor discomfort while flying. In February 2017, the plaintiff spent 20 days travelling through Europe and India. [30] Mr. Kohli next saw Dr. Sharma at the end of March 2017, at which time he was reporting that his neck and shoulder were acting up. This was the last time that he reported any shoulder and neck pain. [31] Mr. Kohli continued to complain of low back pain throughout the summer of 2017, with reports that it worsened with cold weather. Dr. Sharma referred Mr. Kohli to Dr. Sabir, a retired orthopaedic surgeon. In November 2017, Dr. Sabir injected Mr. Kohli with Depo-Medrol to the L4-L5 space. The injection did not provide long-term relief. [32] In May 2018, Dr. Sharma referred Mr. Kohli to a neurosurgeon. Dr. Sharma also gave Elavil to Mr. Kohli for his pain and sleep issues, and suggested that he see a psychologist for treatment for a "post-traumatic stress reaction to driving in general". Mr. Kohli did not seek psychological treatment, and he reported no further anxiety to Dr. Sharma after this visit. Nor was he prescribed any further medication by Dr. Sharma after May

2018. [33] Mr. Kohli's complaints of low back pain continued, which he managed with rehabilitation, occasional over-the-counter anti-inflammatories, and exercise. In December 2018, he saw Dr. Matishak for a private neurological consultation. Dr. Matishak suggested that Mr. Kohli repeat an MRI of his lumbosacral spine. This was completed on January 9, 2019. The MRI showed "degenerative disc changes to L4 and L5 with mild vertebral canal stenosis and compression of the L5 nerve root bilaterally." [34] Mr. Kohli saw Dr. Sharma for ongoing low back pain in May 2019. Shortly thereafter, he went on a trip to Hawaii. Mr. Kohli continued to see Dr. Sharma regularly for other health concerns over the course of the next year, such as for his diabetes, hypertension, flu symptoms, and left foot pain related to his gout. However, his next visit for pain related to the MVCs did not occur until June 2020, when Mr. Kohli visited Dr. Heran, upon referral by Dr. Sharma in 2018. [35] Mr. Kohli saw Dr. Sharma again in August 2020, to discuss his right arm pain. However, there was no report of any ongoing concerns regarding his MVC injuries. B. Expert Evidence [36] The Court received expert testimony from four healthcare professionals. The medical evidence presented by all four doctors is largely congruent. Where there are discrepancies, I have placed greater weight on the opinion of the expert who specializes in that particular issue. Thus, for example, I have preferred the opinion of Dr. Matishak over that of Dr. Waseem on the question of the neuropathic nature of Mr. Kohli's pain, as this issue more properly falls within Dr. Matishak's area of expertise.

1. Dr. Sharma [37] Dr. Sharma has been the plaintiff's family physician since 2008 and has been his primary care provider for the injuries related to the collisions. He was qualified as an expert in family medicine. Dr. Sharma prepared a medical legal report ("MLR") dated January 28, 2019 based on his treatment of Mr. Kohli. Dr. Sharma's clinical records, which document Mr. Kohli's visits with him, were also received into evidence. [38] According to Dr. Sharma, Mr. Kohli has suffered from the following injuries which are directly attributable to the MVCs: myofascial pain and lumbar spondylosis leading to nerve root impingement at L5, particularly on the right side; upper back and neck discomfort which has mostly improved; chronic low back pain which is ongoing; and anxiety and post-traumatic stress for which Mr. Kohli sought counselling that was mostly helpful. [39] Dr. Sharma opined that these injuries will continue to impact Mr. Kohli in the near future. To control his low back pain, Mr. Kohli will need to "work on his general fitness", and "will require the help of massage therapy and physiotherapy, off and on, in the future." He further opined that Mr. Kohli may require surgical intervention for the nerve root impingement, but deferred to Dr. Matishak for his opinion regarding this. [40] Aside from Dr. Sharma's admission during his cross-examination that he did not know if

the plaintiff had actually obtained treatment from a psychologist for his anxiety or post-traumatic stress, Dr. Sharma's opinion was unshaken in cross-examination. He credibly explained the lack of details in his MLR, noting that the report was intended to summarize his clinical notes, rather than provide a detailed accounting of the same. Dr. Sharma also refuted the notion that his opinion was based on subjective rather than objective findings, noting the numerous objective findings observed during his examination of the plaintiff, such as decreased range of motion. [41] Dr. Sharma confirmed that Mr. Kohli had pre-existing complaints of tingling and numbness in his right arm dating back to 2010. Though Mr. Kohli reported the onset of similar complaints after the collisions, Dr. Sharma did not consider the right arm tingling and numbness to be associated with the collisions. [42] Dr. Sharma was also cross-examined on Mr. Kohli's various health conditions, and the potential impact they could have on his post-collision pain experience. He testified that Mr. Kohli had experienced gout in his hand and toe. The gout condition was chronic, and could impact Mr. Kohli's ability to golf. He also noted that high blood pressure could result in experiences of fatigue if it is not controlled. Similarly, if left untreated, hyperthyroidism could result in experiences of fatigue, increased sensitivity to cold, swelling, and muscle aches. However, under re-direct, Dr. Sharma testified that Mr. Kohli's hyperthyroidism has been well-controlled with medication.

2. Dr. Waseem [43] Dr. Waseem is a physical medicine and rehabilitation specialist who testified on behalf of the plaintiff. He assessed Mr. Kohli on January 25, 2019, and produced his MLR on February 6, 2019. Dr. Waseem also reviewed Mr. Kohli's updated medical records, including the more recent MRI of the lumbosacral spine, and testified that these have not changed his opinion. [44] Dr. Waseem opines that Mr. Kohli is currently suffering from the following: chronic myofascial and facetogenic pain of the cervical spine; chronic myofascial pain of the thoracic spine; chronic discogenic lower back pain; neuropathic pain of the right lower extremity secondary to right L5 radiculitis; and post-traumatic headaches. It is his view that on, a balance of probabilities, these injuries and the presenting physical complaints are all attributable to the MVCs. [45] According to Dr. Waseem, Mr. Kohli's injuries have not disabled the plaintiff from working and are not likely to do so in the future. Nor have they impaired his capacity to earn income. However, he opined that the injuries did impair the plaintiff from performing housekeeping tasks for some time. Though Mr. Kohli has resumed these tasks, it is on a less frequent basis and in an altered and diminished capacity due to pain. Dr. Waseem also supports the plaintiff's claim that he cannot golf because of pain related to the MVCs. [46]

Dr. Waseem makes the following recommendations: a) image guided cervical spine medial branch blocks and/or rhizotomy, depending on his response to medial branch blocks; b) selective right L5 nerve root block in conjunction with an image-guided lumbar epidural steroid injection; and c) continuation with his current medication and self-directed exercise regime. [47] The above recommendations are not a cure, but rather are intended to assist Mr. Kohli in managing his pain and combating symptom exacerbation. While some further improvement is possible with the above treatment recommendations, Mr. Kohli is expected to continue to experience pain from what Dr. Waseem described as "chronic and unremitting and, therefore, permanent" injuries. [48] Dr. Waseem testified that Mr. Kohli's prognosis for a full symptomatic recovery is poor for the following reasons: the long-standing nature of his symptoms which have persisted despite appropriate conservative measures and medical attention; Mr. Kohli continues to exhibit objective physical findings on examination, which suggest that his recovery will probably be refractory to medical management; disturbed sleep; and the potential cumulative toll on his body from the MVCs, thereby stalling his recovery. [49] Dr. Waseem's opinion largely withstood cross-examination. He confirmed that one could have muscle stiffness without experiencing pain,

and one can have trigger points and not be in pain if the trigger points are latent and asymptomatic. Dr. Waseem clarified that his opinion about the injuries being biologically plausible was in relation to whiplash being caused by the forces of acceleration/deceleration. He also confirmed that he considers Mr. Kohli's pain to be continuous despite the fluctuating nature of his symptoms, and that a change or slight improvement in symptoms would not affect his opinion. However, he was not able to support his opinion about the neuropathic nature of Mr. Kohli's pain.

3. Dr. Matishak [50] Dr. Matishak is a neurosurgeon. He testified on behalf of the plaintiff, and prepared an MLR dated February 4, 2019, and an addendum report on March 24, 2020. [51] In his December 4, 2018 examination of Mr. Kohli, Dr. Matishak found him to have: mild mobility restriction in the cervical spine; limited lateral flexion to the left; tenderness in the lumbar spine at L5-S1 with restricted mobility; limited forward and lateral flexion, and no extension beyond neutral; nerve root tension with impaired straight leg while supine; and weak bilateral plantar flexion. According to Dr. Matishak, Mr. Kohli's MRI scan of July 5, 2016 revealed L4-5 disc space narrowing with associated bulging, and attendant facet hypertrophy, resulting in moderate to severe central canal stenosis and bilateral foraminal stenosis. [52] Dr. Matishak provided the following diagnosis for Mr. Kohli's injuries: pre-existing degenerative disc disease of the cervical spine; transitional vertebrae of the L5-S1 (lumbar spine); exacerbation of pre-existing degenerative disc disease in the lumbar spine; and whiplash-associated disorder, grade 2 ("WAD-II"), of the cervical spine. This diagnosis remained unchanged following his review of the January 9, 2019 MRI of the lumbosacral and cervical areas, in which Dr. Matishak notes significant changes to the cervical spine at the C4 to C7 levels, especially

the C5-6 vertebra, and the L4-5 region. Dr. Matishak opined that these injuries are causally related to the MVCs. [53] According to Dr. Matishak, Mr. Kohli suffered a moderate general disability with reduced mobility of the lumbar spine, and impaired strength of plantar flexion. He characterized Mr. Kohli's condition as a partial vocational disability, impairing his ability to do physical work, but permitting him to still work as a realtor. [54] Dr. Matishak provides a guarded prognosis for Mr. Kohli, opining that the only option for the plaintiff is symptom relief through medication, massage therapy, and chiropractic treatments. He does not believe the plaintiff needs surgical intervention for his cervical or lumbar spine abnormalities. Dr. Matishak's opinion was not shaken on cross-examination.

4. Dr. Giantomaso [55] Dr. Giantomaso testified on behalf of the defence, and was qualified as an expert in physical medicine and rehabilitation. He prepared an MLR dated February 3, 2019, based on his physical assessment of Mr. Kohli a few days earlier. [56] According to Dr. Giantomaso, Mr. Kohli suffered the following from the first collision: post-traumatic cervical sprain/strain injury consistent with WAD-II injury, which is chronic but had mostly resolved prior to the second accident; post-traumatic thoracic sprain/strain injury, grade 1-2, which had mostly resolved prior to the second collision; post-traumatic lumbar strain/sprain, grade 1-2, which was still significantly symptomatic prior to the second collision, and is chronic and ongoing; and post-traumatic right sacroiliac joint dysfunction. [57] Dr. Giantomaso explained the WAD grading system: a grade "1" injury means the patient experiences physical pain with no physical signs; a grade "2" injury refers to physical pain with objective signs; and a grade "3" injury involves neurological findings. Mr. Kohli was not found to have a grade 3 injury. [58] In Dr. Giantomaso's opinion, the second collision caused post-traumatic exacerbation and aggravation of pre-existing cervical and thoracic injuries consistent with WAD-II or grade 1-2 injuries, which are chronic. Mr. Kohli's back pain remained unchanged after the second

collision, and his low back continues to present discomfort and pain. Mr. Kohli may also have suffered from mild post-traumatic driving anxiety. [59] Dr. Giantomaso opined that the injuries he observed were directly causally related to the MVCs and were not otherwise pre-existing. [60] Dr. Giantomaso testified that Mr. Kohli's examination findings were consistent with his history. He did not observe any Waddell signs or other signs of amplification or exaggeration of features. He stated that Mr. Kohli was coping with his pain fairly well and did not need to make any significant work modifications, nor did he require any occupational therapy. He classified Mr. Kohli's impairment to be mild, noting that he can still do most activities, albeit with pain, and he can still work. [61] Regarding future prognosis and treatment, while Mr. Kohli will continue to experience pain from these injuries into the long term, there are options available to help him manage his pain and increase his function. Dr. Giantomaso recommended that Mr. Kohli complete core strengthening exercises at least four times per week, and continue with his yoga and other passive therapies, such as chiropractic treatment, when his symptoms are acute. He also recommended using several medications for his chronic soft tissue pain, such as Lyrica, diclofenac, topical lidocaine, gabapentin, etc. Finally, Dr. Giantomaso

suggested that occasional cortisone injections to his L5-S1 and right sacroiliac joint, and possibly radiofrequency ablation, may also help manage pain. [62] Dr. Giantomaso's opinion was not challenged on cross-examination. C. Current Condition [63] Mr. Kohli's current complaints include ongoing headaches and neck pain, tingling and pain in his arm, low back pain which has decreased in intensity over time, occasional pain radiating into his leg and hip, and anxiety while driving. These affect his ability to drive, stand, and sit for long periods of time, and interfere with his sleep. Though he continues his daily yoga practice, and exercises regularly, these only assist with short-term pain relief. [64] As a result of the injuries from the collisions, Mr. Kohli testified that his social, recreational, and home life have deteriorated. He has trouble sleeping and constantly needs to turn to change positions. He is unable to golf, and struggles to clean, bend, and take out dishes. He has had to hire a tiffin service (Indian food delivery service) for meals. His ability to go the temple has also been affected, as he is no longer able to sit on the floor, and occasionally needs help standing up. He is less social and more irritable with his family. His driving over short and long distances is affected. He experiences pain and anxiety while driving. His ability to travel and fly is

also limited. [65] Much of this evidence was corroborated by Mr. Kohli's lay witnesses. [66] Rajpal testified about changes she has observed in her husband following the collisions, such as decreased energy, difficulty walking up and down the stairs, and difficulty bending. These have restricted his ability to cook, vacuum, attend at the temple, and go on long road trips. He also no longer golfs. Rajpal also observed changes in his personality, such as Mr. Kohli being less patient, more irritable, broody, short-tempered, and argumentative. [67] Divya noted her father's mood changes, and difficulties with household chores. Aashish testified that following the collisions, he has had to assist with chores that his father would normally do, such as cleaning, cutting the grass or vacuuming. [68] Both Dilpreet and Parampal testified that Mr. Kohli was less physically active, slower and less social since the collision. [69] There were some discrepancies between Mr. Kohli's evidence and that of his family, which suggested that Mr. Kohli had a tendency to overstate his case. Mr. Kohli testified that after his wife's recent illness, the family had to hire a tiffin service as he was not able to cook due to his collision-related injuries. While Rajpal and Divya both confirmed the recent use of the tiffin service, it was clear from their evidence that this had little to do with Mr. Kohli's

injuries. Divya admitted in cross-examination that prior to the first collision, her mother did most of the cooking in the family. [70] Mr. Kohli's testimony about his inability to golf and socialize with his friends following the first collision also suggested an overstatement of the situation. While I accept that the collision related pain likely restricted these activities, it is evident from the testimony of Dilpreet that they had golfed together only a few times prior to the collision. Dilpreet also explained that they did not pursue golfing together after Mr. Kohli's collision as they were both busy. Similarly, while Parampal attributed their less frequent socialization to restrictions following the COVID-19 pandemic and the plaintiff's wife's sickness. [71] Finally, while I accept that Mr. Kohli had driving anxiety for some time following the second collision, the evidence does not support a finding that the condition had any significant impact on his day to day function. There is no evidence that he cancelled road trips, or chose not to drive, because he was anxious of being in another motor vehicle collision. Indeed, he took a lengthy road trip in Europe not long after the first collision. D. Pre-Existing Health [72] Mr. Kohli testified that he was in very good health prior to the first collision. He worked, golfed regularly, and practiced daily yoga. He enjoyed long

road trips with his family and frequently travelled to the United States for vacation. Although he suffered from hypertension, gout, and hypothyroidism, it was his evidence that these did not limit his work, social or recreational pursuits. [73] The medical evidence largely corroborates Mr. Kohli's testimony. Although Mr. Kohli had pre-existing degenerative disc disease affecting his cervical and lumbar spines, and harbored a transitional vertebra at L5-S1 which could lead to degenerative disc disease, these were asymptomatic prior to the first accident. [74] However, the evidence does not support Mr. Kohli's contention that his post-MVC right arm tingling is related to the collisions. According to Mr. Kohli, he had a transient episode of right arm tingling and numbness 10 years prior, which fully resolved after he started sleeping with a pillow on his doctor's advice. However, it was Dr. Sharma's evidence that the current right arm tingling and numbness are un-related to the collisions. [75] There is also evidence that Mr. Kohli's gout has had an impact on his post-MVC health and function. Mr. Kohli's vehement denial that he did not have any gout pain in his hand was contradicted by Dr. Sharma's evidence. Mr. Kohli acknowledged that when his gout symptoms appeared, they were very painful. Gout in his foot made it difficult to walk, and according to Dr. Sharma, gout in his

hands could temporarily affect his ability to golf. Though I accept Dr. Sharma's opinion that gout pain will ordinarily subside after about one week of medication use, it is evident that Mr. Kohli's pain was recurrent, and bothered him throughout the summer of 2015. Further, when Mr. Kohli discontinued the medication use, the gout would return. Medical entries as recent as August 2019, note reports of gout pain in the left foot. [76] There is close proximity of the complaints of gout pain to the periods when Mr. Kohli reports experiencing collision-related functional limitations in his recreational and other pursuits. These lead me to conclude that but-for the collisions, Mr. Kohli would have experienced some temporary restrictions in his ability to walk and golf, during flare-ups of his gout pain. [77] Similarly, I conclude that but-for the collisions, Mr. Kohli would have experienced right arm tingling and numbness which would have had some impact on his ability to drive and use the computer. [78] However, there is no evidence that but-for the collisions, Mr. Kohli's pre-existing degenerative disc disease or transitional vertebra would have impacted Mr. Kohli's post-collision function. VI. General Damages [79] A damage award for non-pecuniary losses is intended to compensate a plaintiff for pain, suffering, loss of enjoyment of life, and loss of amenities. Though restitution

is never possible for these types of losses, the monetary award is intended to provide a substitute for pleasures and amenities to make the life of the plaintiff "more bearable": Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 97 (S.C.), aff'd (1987), 49 B.C.L.R. (2d) 99 (C.A.); and Pololos v. Cinnamon-Lopez, 2016 BCSC 81 at para. 105. [80] In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave to appeal ref'd [2006] S.C.C.A. No. 100, the Court set out a non-exhaustive list of factors to be considered in assessing non-pecuniary damages. These include: the plaintiff's age; nature of the injury; severity and duration of pain; disability; emotional suffering; loss or impairment of life; impairment of family, marital and social relationships; impairment of physical and mental abilities; and loss of lifestyle. The plaintiff's stoicism is a factor that should not, generally speaking, penalize the plaintiff. [81] The award is to be fair to both parties and fairness is measured against awards in comparable cases: Olson v. Farran, 2016 BCSC 1255 at para. 156. [82] At the time of the first collision, the plaintiff was 65 years of age and living with his wife and adult daughter. He was in reasonably good health. Though he had some health conditions, they were generally well managed with medication. Mr. Kohli was still gainfully employed in the real estate industry. In addition to

working, the plaintiff enjoyed golfing, travelling, taking long road trips with his family, and renovating his home. He was active around the house. He also was able to cook, sit, stand, walk, and do home maintenance tasks without any noticeable difficulty. He mowed the lawn and performed other yard work. He also helped with vacuuming, some kitchen work, and occasionally did some cooking. He socialized regularly with a larger group of families. [83] As a result of the first collision, Mr. Kohli suffered injuries to his neck, shoulders, and back, as well as headaches, and pain radiating to his hip and leg. The second collision exacerbated these injuries, and also caused him driving anxiety for a short period of time. He became more irritable, had difficulty sleeping, bending, walking, standing, and sitting. He required the use of various treatment modalities including prescription medication to alleviate his pain symptoms. The driving anxiety resolved completely by 2018, and his other pain concerns have diminished in intensity and frequency. [84] Six years after the first collision, the plaintiff continues to experience pain on a daily basis, which he manages with the use of over-the-counter medication, daily yoga practice, and exercise. Although Mr. Kohli has been able to return to most of his regular tasks of everyday living, such as driving, travelling, and doing household

chores, his tolerance for these tasks is limited and he requires more time to complete them. [85] Mr. Kohli's prognosis for a full recovery is poor, and he is expected to have pain from the collisions into the foreseeable future. [86] The plaintiff seeks $145,000 in non-pecuniary damages. In support, he relies on the following authorities which provide awards ranging from $92,000 to $115,000 after accounting for inflation: Hastings v. Mathew, 2020 BCSC 1418; Grigor v. Johal, 2008 BCSC 1823; Foran v. Nguyen, 2006 BCSC 605; and Dzumhur v. Davoody, 2015 BCSC 2316. The common feature amongst the plaintiffs in these cases is that they have all suffered chronic pain to their back, neck, and/or shoulders. In some cases, the plaintiffs also suffered sleep disruption and leg pain. The distinguishing feature is that the plaintiffs were significantly younger than Mr. Kohli (by about 20 to 40 years by the time of trial) and had more significant injuries. I note also that the non-pecuniary damage award sought by the plaintiff significantly exceeds the range of awards in the case-law submitted by his counsel. [87] The defendants admit that Mr. Kohli suffered injuries in both of the collisions, but dispute the extent to which the injuries impaired his lifestyle. They submit that a more appropriate general damages award is in the range of $55,000 to $60,000, and rely on the following cases:

Earl v. Cindrich, 2020 BCSC 197; Szostakiwskyj v. Launay, 2020 BCSC 653; Butcher v. Vantol, 2013 BCSC 2425; and Coutakis v. Lean, 2012 BCSC 970. Though many of the plaintiffs in these cases were similar in age to Mr. Kohli, I consider their injuries to be less severe than those suffered by Mr. Kohli. [88] Bearing in mind that no two cases are exactly alike, and factoring in the impact of Mr. Kohli's non-MVC related right arm tingling and numbness, as well as the impact of his gout, I find that a fair and reasonable sum to compensate Mr. Kohli for his losses is the sum of $80,000 in general damages. This award recognizes Mr. Kohli's pain and suffering, including impact on his domestic capacity. VII. Loss of Domestic Capacity [89] The plaintiff seeks a loss of domestic capacity award of $35,000 to compensate him for his inability to do chores around the house, his inability to do yard-work, and his inability to do home maintenance repairs. [90] The defendants argue that there should be no separate award for loss of domestic capacity. Rather, as in McTavish v. MacGillivray, 2000 BCCA 164, they submit that the loss of domestic capacity award should be subsumed under the non-pecuniary damage award. In McTavish, the Court suggested that treating loss of housekeeping capacity as non-pecuniary loss may be most appropriate when the plaintiff is still able to perform household tasks with

difficulty or decides they need not be done, while remuneration in pecuniary terms is preferable where family members gratuitously perform the lost services, thereby avoiding necessary replacement costs (paras. 68-69). [91] In Riley v. Ritsco, 2018 BCCA 366 at para. 102, the Court of Appeal cautions that "segregated non-pecuniary awards should be avoided in the absence of special circumstances", meaning that, although courts have discretion on whether to split up the damage assessments, courts should avoid making a separate head of damage if the plaintiff did not hire replacement services or rely on family members. [92] Based on the evidence and the applicable authorities, I conclude that a separate damage award for loss of domestic capacity is not warranted in this case. [93] In arriving at this conclusion, I note that this case is distinguishable from Hastings, where there was significantly more evidence to support a separate head of damages for loss of domestic capacity. In that case, the parties agreed that a loss of domestic capacity award was appropriate, and disagreed only on the amount. [94] While there is evidence that Mr. Kohli's family members assumed some of his household tasks such as yard work, the evidence was rather vague. It did not lead me conclude that the gratuitous assistance was necessitated by Mr. Kohli's injuries, or of such a nature as to warrant a

separate domestic capacity award. There is also no evidence that the plaintiff would have hired replacement costs for the yard work, without his son's gratuitous assistance. In my view, it is more appropriate to subsume Mr. Kohli's loss of domestic capacity award under the non-pecuniary damage award, which I have done. VIII. Costs of Future Care [95] When determining a cost of future care award, the court should try to restore the plaintiff, as best as possible with a monetary award, to the position he would have been in had the accident not occurred. The award is based on what is reasonably necessary on the medical evidence to promote the mental and physical health of the plaintiff: Gignac v. Rozylo, 2012 BCCA 351 at paras. 29-30. [96] A claim for future care is established if there is medical justification for the claim, the claim is reasonable, and the expense is likely to be incurred by the plaintiff: Audet v. Chan, 2018 BCSC 1123 at paras. 113-115, citing Milina at 83; Hardychuk v. Johnstone, 2012 BCSC 1359 at paras. 210-212. [97] Once established, to assess costs of future care, the court requires evidence of the amounts claimed: Manky v. Scheepers, 2017 BCSC 1870 at para. 154; Patterson v. Gauthier, 2019 BCSC 633 at para.

98. Notably, a cost of future care award assessment is subject to a discount rate of 2%: Pearson v. Savage, 2020 BCCA 133 at para. 104. [98] The plaintiff seeks an award of $40,000 under this head of damages, for: physiotherapy; massages; chiropractic treatments; acupuncture; counseling and/or cognitive behaviour therapy for driving anxiety; medial branch blocks and/or rhizotomy; selective right L5 nerve root block with epidural steroid injections; and medications. [99] There is some medical justification for a future care costs award. Dr. Sharma recommends physiotherapy and massage therapy to help manage Mr. Kohli's pain into the future. Dr. Waseem recommends image-guided cervical spine medial branch blocks and/or rhizotomy; as well as a selective right L5 nerve root block in conjunction with an image-guided lumbar epidural steroid injection; and the ongoing use of medications as per his current regimen and self-directed exercises. Dr. Matishak recommends that the plaintiff deal with symptom relief through medication, massage therapy, and chiropractic treatments. [100] However, there is a notable lack of evidence as to the reasonableness of the $40,000 award sought by the plaintiff. No expert or lay witness evidence was elicited to support this figure, or any figure, for a future care costs award. Instead, counsel simply directed the Court to rely on the common-law and Mr.

Kohli's agreed special expenses of "$3,000", to estimate the future care cost award in this case. [101] The plaintiff also cites Riley for the proposition that expert reports are not required to prove costs of future care award. I do not read Riley as dispensing with this requirement, but rather as allowing claims for psychological injuries for the purposes of non-pecuniary damages awards to "be made out in the absence of expert opinion evidence establishing that the claimant suffered from a recognized psychiatric illness" (para. 49). These are not the circumstances here. [102] Nonetheless, I agree that a future cost of care award can be justified without the need for expert reports. In Moges v. Sanderson, 2020 BCSC 1511, citing MacGregor v. Bergen, 2019 BCSC 315, the Court found that it "can, and has, made substantial damage awards" in the absence of expert reports. [103] However, the court still requires some evidence, even from a non-expert, to support the quantum being sought. Such evidence is completely lacking in this case. [104] I also find that the plaintiff has failed to establish that the recommended treatments are likely to be attempted. While Mr. Kohli does have a history of using various therapies to help manage his pain, he has not done so since January 2019. Aside from over-the-counter medication, the current frequency or cost of which is unknown, Mr. Kohli

relies on exercise and yoga for ongoing pain management. [105] Importantly, no testimony was elicited from Mr. Kohli as to whether any of these treatments are likely to be incurred. Rather, Mr. Kohli admitted that he has not pursued therapeutic modalities because he found them ineffective and/or exacerbating of his pain. As such, even if the costs claimed were reasonable, I am unable to conclude that Mr. Kohli is likely to incur those costs to pursue the therapies recommended by the various experts. [106] The plaintiff has failed to establish entitlement to an award for costs of future care. IX. Special damages [107] Both parties have agreed to special damages in the amount of $3,193.80. X. Summary of Damages [108] The plaintiff's damages are assessed as follows: Non-Pecuniary Damages: $80,000.00 Special Damages: $3,193.80 Total Loss: $83,193.80 [109] The plaintiff is entitled to interest in accordance with the Court Order Interest Act, R.S.B.C. 1996, c.

79. XI. Costs [110] The plaintiff is entitled to his costs at Scale B, subject to any offers or other matters that I have not been made aware of. "Shergill J."