Pinch v. Hofstee

2015 BCSC 1888 Pinch v. Hofstee

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Pinch v. Hofstee, 2015 BCSC 1888 Date: 20151016 Docket: M124127 Registry: Vancouver Between: Andrew Pinch Plaintiff And: Hank Hofstee Defendant Corrected Judgment: The text of the judgment was corrected at paragraph 116 on November 9, 2015 Before: The Honourable Mr. Justice Burnyeat Reasons for Judgment Counsel for the Plaintiff: G.J. Kehler Counsel for Defendant: M. Howard Place and Date of Trial: Vancouver, B.C. February 16-20, 24, 26, March 2-3, 2015 Place and Date of Judgment: Vancouver, B.C. October 16, 2015 [1] Mr. Pinch worked as a HandyDART bus driver and a community living support worker. He was injured in two motor vehicle accidents. The first accident occurred on August 20, 2010 ("MVA #1"). At the time of MVA #1, Mr. Pinch was 39 years old. Mr. Pinch was unloading a client in a parking lot in Langley where his HandyDART bus was parked. His client was in a wheelchair. Mr. Pinch and the client were on the lift at the back of the bus and the wheelchair and the client were located on the right side of Mr. Pinch. A vehicle driven by Mr. Hofstee backed up and collided with the right side of the bus. Mr. Pinch states that the impact caused the bus to sway and the wheelchair and the client moved as a result and hit him on the right side of his body. Mr. Pinch estimates that the wheelchair and the client weighed approximately

300 lbs. together. The force caused him to fall sideways with the left side of his body hitting the handle bar on the left side of the lift. [2] On February 27, 2013, Mr. Pinch was involved in a second motor vehicle accident ("MVA #2"). Pursuant to the provisions of the Workers Compensation Act, R.S.B.C. 1996, c. 492 ("Act"), Mr. Pinch is not in a position to commence civil proceedings relating to MVA #2. [3] In addition to determining liability for MVA #1, the damages arising from MVA #1, and an alleged failure by Mr. Pinch to mitigate his damages relating to MVA #1, the submission made by his counsel is that the damages incurred by Mr. Pinch as a result of MVA #2 can be claimed as part of the damages available to Mr. Pinch against Mr. Hofstee because those damages are indivisible from the damages caused by MVA #1.

BACKGROUND [4] Prior to MVA #1, Mr. Pinch had been involved in three other motor vehicle accidents-in 1995 which involved a short period of rehabilitation through the Canadian Back Institute following which he was pain free, in 1996 when the vehicle of Mr. Pinch was rear ended but he was not injured, and in 2001 during a mental health breakdown he drove his car into a ditch but suffered no injury. [5] Mr. Pinch has a past psychiatric history including a breakdown in 2001, which he reported to have been caused by significant stressors in his life. He attempted to deal with these stressors by smoking marijuana and he was subsequently hospitalized for a three week period and was treated with an anti-depressant and an anti-psychotic. In 2004 and again in 2005, Mr. Pinch was finding work stressful. He states that he used poor coping techniques in response to this stress including the use of drugs and he was hospitalized for six weeks as a result of a psychotic episode. Following this hospitalization, Mr. Pinch received a Canada Pension Plan Disability Pension and remained on that pension for about a year until he returned to work. Mr. Pinch was treated with regular psychiatric counselling, the anti‑depressant, Wellbutrin, and regular shots of the anti‑psychotic drug, Floroxine. [6] On March 26, 2006 Mr. Pinch discontinued use of all drugs and alcohol. I find that he has remained

drug and alcohol free since that time. [7] The volunteer activities of Mr. Pinch included Special Olympics, as a member of the Board of Directors of the Family Support Institute, and work through his church. Regarding his recreational activities, Mr. Hofstee stated at Trial that he participated in swimming in the local lake, canoeing, motocross with friends on motorcycles and quads, biking, camping, fishing, cycling in Maple Ridge, golfing, attending Canuck and Giant's games and attending concerts. I accept his evidence that he had no physical restrictions and that he did yard work and construction for others including helping at the new home of his sister. The First Accident [8] After Mr. Pinch freed himself, he exchanged information with Mr. Hofstee, noted the damages to the passenger side of the bus as being at approximately at the middle of the bus and very near the side hazard light, assisted his client into his doctor's office and attempted to carry on with his duties. Mr. Pinch drove from Langley to Aldergrove. Mr. Pinch testified that he was experiencing "burning pain" in his back and was beginning to develop a headache. As the pain had increased to the point that he felt he had to stop work, he drove the bus back to the Cloverdale Depot. Mr. Pinch was picked up by his wife so that he could attend a care clinic. [9] Mr. Pinch gave extensive evidence of the injuries

suffered in MVA #1and their effect on him, including injuries involving his neck, mid-back, low back, right hip and right leg. The pain also included "saddle numbness" involving his groin with periods of fecal incontinence. Mr. Pinch described how the pain would bring about headaches. [10] I accept the evidence of Mr. and Ms. Pinch that MVA #1 caused a substantial change in the daily activities of Mr. Pinch. I find that his relationship with his wife was put under pressure including a significant impact on their physical intimacy. I also find that his ability to assist with home care and child care duties at his previous level was also impacted to a large degree. In this regard, Mr. Pinch had additional homecare and childcare duties as a result of a number of periods of "mental health disability" of Ms. Pinch and their son because has learning disabilities. I find that Mr. Pinch and his family required a much greater level of assistance from friends and family including a neighbour who I find had to assume a "parent‑like" role with the children on many occasions. [11] I also find that Mr. Pinch withdrew from or greatly reduced his previous volunteer activities because of his injuries and no longer volunteered at a daycare centre or remained involved in the Special Olympics program. I record Mr. Pinch as saying that he was involved to a lesser degree to volunteer work, partially

because: "People would ask how I was doing and I didn't want to tell?" Regarding recreational activities, Mr. Pinch has stated that the last time he rode his bike was in the Fall of 2012. [12] On October 6, 2010, Mr. Pinch commenced the Occupational Rehabilitation 1 Program and completed it on November 18, 2010. He commenced a "Gradual Return to Work" program on November 1, 2010. On June 14, 2011, he started the Occupational Rehabilitation 2 program and completed it on August 24, 2011. Mr. Pinch described the OR2 sessions as teaching him "exercises". Mr. Pinch testified that he did these exercises for about 15 minutes in the morning and some of the exercises when he returned to work. I record him as stating in this regard: "Can't say I did them religiously", "Not remembered doing them every day". [13] On August 29, 2011, Mr. Pinch again commenced a Gradual Return to Work program but the program was brought to an end on October 2, 2011 as a result of the pain being experienced by Mr. Pinch. [14] I find that Mr. Pinch was off work between August 20 to October 31, 2010, between January 26 and August 28, 2011 and between October 3, 2011 and January 6, 2012 as a result of MVA #1. I find that the attempts to return to work were unsuccessful. [15] I find that Mr. Pinch collapsed in his home in late December of 2011, was transported to the hospital by ambulance, and was provided with

Cortisone injections. While the initial reaction to the Cortisone injections involved severe pain which again resulted in Mr. Pinch being taken to hospital by ambulance, Mr. Pinch ultimately began to feel much better so that he was in a position to return to work. As a result of MVA #1, I find that Mr. Pinch was not in a position to return to full‑time work between August 20, 2010 and January 6, 2012 when he returned to both of his jobs. [16] I accept the evidence of Mr. Pinch and find that Cortisone injections initially provided substantial symptom relief but that his situation deteriorated steadily with the most notable symptoms being ongoing pain in his low back, right hip and right leg. I find that his situation deteriorated such that, shortly prior to MVA #2, he found it necessary to obtain a prescription for Lyrica pain medication that had been recommended to him. Medical and Other Assessments [17] In addition to receiving treatment from his family doctor, Dr. Warmenhoven, Mr. Pinch was seen by a number of medical, occupational and rehabilitation advisors prior to returning to his two places of work in January of 2012. The following assessments relate to advisors that were referred by Dr. Warmenhoven. (a) January 28, 2011 X‑rays [18] X‑rays of the lumbar spine taken on January 28, 2011 showed some spondylitic changes. An ACT scan of the lumbar spine on February 10, 2011

showed spondylitic changes at L5‑S1, degenerative changes in the facet joints at the same level, minor anterolisthesis of L5 on to S1, and mild narrowing of neuroforamina. No disc herniations were identified. (b) Dr. Alan Kuan (Back in Motion) [19] In a March 28, 2011 "Discharge Report", Dr. Kuan made these statements: Constant right-sided low back pain aggravated by prolonged sitting, driving and coughing. The symptoms are relieved with analgesics and rest. He denies any bowel or bladder dysfunction. He has occasional numbness and achiness in the right lateral thigh and the right lateral foot region. He notices it a couple of times a week, lasting minutes. He denies any fever or night sweating. There is no weakness of his legs. He has no sleep disturbance. Interpretation of Standardized Psychosocial Test Results: ... Mr. Pinch's results on this questionnaire indicate that he is classified as a patient who is "at risk" for developing a pain problem or other psychological difficulties related to their injury or illness. These patients typically have poor coping strategies and are less optimistic about being able to control their pain. Furthermore, there is an increased risk of poor outcome from treatment. [20] The clinical examination and the physiotherapy were described as follows by Dr. Kuan: The symptoms did not improve with physiotherapy. He started an OR1 Program

[Occupational Rehabilitation One]. The symptoms in the neck and upper back resolved. The symptoms in the low back improved. He also was experiencing intermittent occasional symptoms down his right leg. He tried a graduated return to work program but failed. His clinical examination showed slight restricted range of motion of the lumbar spine with equivocal sensory findings of a slight decreased sensation in the right leg. The worker has a larger than average body mass index. [21] The Recommendations of Dr. Kuan were as follows: The worker has persistent low back symptoms. He is overweight and out of shape. He would benefit from enrolment in an Occupational Rehabilitation 2 Program. He will need more supervision to continue with a lumbar stabilization program. He needs to work on improving his core and functional strength. He needs to lose the weight (~10 lbs) that he gained since his injury and work on improving his overall conditioning. This should help to alleviate the back symptoms and prevent future injuries. I have advised the worker to cut down on his analgesic intake. He should only take the Celebrex and extra strength Tylenol if necessary. (c) Golden Ears Orthopaedic and Sports Physiotherapist Corporation Ltd. [22] An assessment of Mr. Pinch was done on June 14, 2011 by one occupational therapist, one physiotherapist, and three kinesiologists. The following "Treatment

Plan/Recommendations" was set out: Mr. Pinch is an appropriate candidate for intake into the Occupational Rehabilitation 2 Program... It is anticipated that upon completion of the OR2 program, Mr. Pinch will be fit to return to his pre-injury job, with no limitations. [23] Upon completion of the OR2 program, the specific program recommendations made by Golden Ears for Mr. Pinch included an individualized exercise program which included strengthening, flexibility, aerobic and pool components; work simulation activities to increase his range of motion, strength and endurance; education topics such as soft tissue healing, hurt versus harm; pain theories; pacing; graduated return to work; planning; pain management and relaxation techniques; group psychology and relaxation sessions; regular team meetings to review progress; a job site visit in order to clarify physical job demands and determine return to work options; and the development and implementation and monitoring of a gradual return to work plan as appropriate. (d) Dr. Richard Chan (Neurosurgeon) [24] Dr. Chan saw Mr. Pinch on December 6, 2011. In his report to WorkSafeBC on the same date, Dr. Chan stated: Clinical Impression: This 40 year old gentleman suffered a work related injury with low back pain that radiated to the upper thighs posteriorly. The back pain is worse than the thigh pain. He has subjective numbness in

both thighs. He also has intermittent episode of fecal incontinence after he drives for 15 to 20 minutes. Examination shows significant mechanical components. I am unable to find any clinical localizing nerve root conduction defect. He does have decreased sensation which is patchy and nondermatomal. I did a rectal exam. The rectal tone normal. The buttock sensation is normal. His bladder function is normal as well. The mild fecal incontinence may be second to the subjective numbness. Clinically he has mechanical low back pain. He injured his ligament structures lumbar spine from the accident on August 20, 2010. This has upset the balance and results in tilting of the scales to become symptomatic with subjective numbness and both thighs and the buttocks. This is all referred ligament symptoms. There is no surgical solution for it. The treatment is conservative. This Includes weight loss and exercise. The best exercise would be swimming. I suggested he go swimming at least two to three times per week. The water will help to get the weight off and allow him to do exercises. (e) Dr. Maryana Apel (Physical Medicine and Rehabilitation) [25] Dr. Apel was admitted as an expert to provide an opinion regarding physical medicine and rehabilitation. On October 2, 2012, which was approximately three months prior to when Mr. Pinch returned to full‑time work at his two positions, Dr. Apel

provided her opinion and described the "Chief Current Complaints" as follows: Andrew's pain is reportedly worse on the right side across his sacrum as per pointing upon driving and vibration of his vehicle whether work or personal. Right leg numbness subsequently develops affecting his leg globally from the groin to toes and lasts for the duration of driving. In addition numbness and aching are noted in privates" area, further specified as around the anus and testicles/scrotum, but not penis, lasting for the duration of driving and for 5-6 hours thereafter. There is painful numbness in the upper posterior thigh on the right side where it touches the seat. There is aching pain through the right posterior thigh which eventually can spread to the left buttock and cause left sacral numbness and aching. [26] The "Impression" of Dr. Apel was as follows: There is mechanical low back pain which originally was described as lumbar strain/sprain and still seems to present as this condition, though developed over time as myofascial pain affecting the lower quadrants bilaterally, worse on the right side, with the most specific trigger point affecting the gluteus medius muscle and, upon aggravation, causing myalgia of the right hamstrings. This is likely the reason for the patient's current mechanical back pain. Radiological abnormalities of multilevel thoracolumbar spondylosis which,

according to the latest radiological data in 2011, was the most pronounced at level L5-S1 and described as "advanced for the patient's age" and seemed to affect the anterior and posterior vertebral elements, more so the posterior vertebral elements, with anterolisthesis of L5 on Si due to degenerative changes and pars interarticularis defect. Said abnormality, in the writer's opinion, plays a role in chronicity of the patient's current symptoms and is not related to the trauma in question, but rather aggravated and exacerbated by said. Radiological abnormalities, though, are not consistent with sensory changes per localization provided and consistently seen throughout the years. With all features found there is no evidence that Mr. Pinch had any magnification of symptoms or any features of somatoform disorder/malingering. Mr. Pinch exhibited significantly decreased conditioning and poor fitness, including a large protuberant abdomen, without any meaningful core strength improvement to date, which would have played a role in the patient's symptoms chronicity and severity improvement and better control. [27] Dr. Apel provided the following summary: Indeed, I agree that the accident played a negative role in all of the above, significantly limiting Mr. Pinch's ability to work in his current position as a MVT Canadian Bus/Handicapped Bus Driver until the age of mandatory retirement

at the age of 65 years. In the writer's opinion the patient is more suited to moderate vocational duties with avoidance of heavy lifting, pushing/pulling from floor to waist level, and avoidance of sustained driving. I also perceive these restrictions to be permanent, rather than intermittent, with some improvement of the patient's symptoms control, but a very poor prognosis for the patient's symptoms to be completely resolved at any time. As a matter of fact, with aging his symptoms are likely to progressively get worse, especially if Andrew continues to work at his current occupation. The same rationale applies to Mr. Pinch's ability to pursue his avocational activities and housekeeping activities with avoidance of tasks such as vacuuming, heavy yard work, snow removal, and grass cutting also recommended. [28] The "Recommendations" of Dr. Apel were as follows: I suggest a meaningful exercise program with emphasis on core strengthening. The patient should continue with regular swimming and add weight lifting in order to facilitate weight loss I also suggest that he be seen by a dietician for lifestyle modifications not only to control his weight for the sake of betterment of back pain, but also to decrease his propensity for future metabolic syndrome, cardiovascular difficulties, etc. In addition, Mr. Pinch would be advised, for interventional treatment, to seek epidural

corticosteroid injection diagnostically and therapeutically. Active release likely is beneficial as is chiropractic treatment for cost effective, albeit transient control of the patient's symptoms. (f) OT Consulting/Treatment Services Ltd. (Sarah Ismail) [29] Ms. Ismail is an occupational therapist. She provided an opinion relating to the assessment made by her on December 5, 2012 which was immediately prior to Mr. Pinch returning to work at both of his positions. [30] The results of her testing included the following: (1) "Mr. Pinch did not demonstrate the ability to satisfy the baseline requirement for sedentary-type job titles."; (2) "He did not demonstrate the ability to satisfy the baseline requirement for job titles which requires standing for significant periods of time. "Mr. Pinch demonstrated significant limitations in static standing. "Mr. Pinch indicated that standing aggravated the numbness in his legs, particularly the right leg. As well, he noted experiencing increased levels of low and mid-back pain, the onset of a headache, and radiating saddle numbness."; (c) "Mr. Pinch did not demonstrate limitations in walking."; (d) "Mr. Pinch demonstrated functional limitations in bending. Based on assessment findings, he qualifies for work in job titles that require intermittent and sustained bending (within mild to moderate range of motion) on an occasional basis. He

would be able to bend repetitively (within mild to moderate range) on an infrequent basis only. "He is not well-suited to performing intermittent and sustained bending on a frequent basis." "As a result of bending, Mr. Pinch indicated he would experience increased numbness, throbbing and pain in his right leg and hip, mid-low back pain, bilateral leg pain, as well as the onset of right foot pain."; (e) "He demonstrated significant functional limitations in kneeling or crouching. Based on assessment findings, Mr. Pinch qualifies for work in job titles that require intermittent kneeling or crouching be performed on an infrequent basis only."; (f) "He demonstrated limitations in balancing tasks. Based on assessment findings, Mr. Pinch qualifies for work in job titles with requirements for low-level balance tasks, but only for working on even, level surfaces and changing body positions in a controlled manner. He does not qualify for work in job titles with higher-level balance requirements such as working on raised, uneven, narrow or moving surfaces."; (g) "Mr. Pinch demonstrated limitations with overhead reaching. Based on assessment findings, he qualifies for work in job titles that require intermittent, sustained or repetitive reaching overhead on an occasional basis." "He demonstrated decreased tolerance for reaching above shoulder level including side flexing to avoid neck

extension, shaking his arms out, and turning in the direction of the work sample to decrease cross body reaching." "Mr. Pinch demonstrated mild limitations with extended reach." "Mr. Pinch did not demonstrate limitations with forearm's reaching."; (h) "Mr. Pinch did not demonstrate limitations in the use of his hands for handling/manipulation tasks. He qualifies for work in job titles that require fine or gross motor handling be performed on an occasional or frequent basis. However, his limitations for sitting...may restrict his functioning in some handling tasks." [31] The "Opinion" in the report of Ms. Ismail included the following: From a functional perspective, Mr. Pinch's limited reaching and kneeling/crouching tolerance would affect his ability to clean the bathtub and scrub walls and toilets, retrieve items in lower cupboards and play on the floor with his children. His reduced tolerance for sitting affects his ability to work as a HandyDART driver and to drive after work to run errands and go on road trips as he used to. He is independent in personal care activities, but he has restrictions in his ability to perform heavy house cleaning and yard work as he did prior to the subject motor vehicle accident. My assessment of Mr. Pinch confirms his self-reports of difficulty with prolonged sitting, crouching/kneeling, reaching, standing and walking. As a result, his ability

to engage in his pre-injury roles as a home maintainer, worker, and volunteer has been altered, due to his physical limitations and his symptoms. His leisure activities have been largely reduced, and thus he has suffered a huge change not only in lifestyle but in enjoyment of lifestyle. [32] The opinion of Ms. Ismail regarding the "Vocational Options" available to Mr. Pinch included the following relating to his employment as a bus driver: Vocational Options. With respect to Mr. Pinch's pre-accident and current occupation as a bus driver, this job title is defined by the NOC under the heading "Bus and Streetcar Drivers", #7412.1. The NOC describes positions under this heading as requiring light strength capacity (the ability to handle loads weighing from 5 kilograms/i i pounds to 10 kilograms/22 pounds), the ability to co-ordinate multiple limbs and the ability to work in sitting. Based on the findings of this assessment, Mr. Pinch does not meet the NOC description of his job as a transit bus driver, particularly with respect to sitting, multiple limb coordination, and strength. Mr. Pinch reports that as a transit driver for HandyDart, he has the opportunity to stand about every 15 minutes (the typical distance between stops) which helps him manage his symptoms. He will then assist the passenger on board, before having to resume sitting and driving to the next stop. He does

indicate however, that after a full shift of driving, he struggles to be able to drive to run errands after work and will avoid doing so. He also uses his breaks to manage his pain by standing, stretching and moving about. In order to perform pre-trip inspections, he avoids kneeling or crouching by bending at the waist from a distance to inspect the undercarriage of the vehicle. When he is required to fasten down wheelchairs, he will assume a wide stance and drop into a one-point kneel. He noted that he is only required to kneel for very short periods infrequently throughout the day to tie down wheelchairs. For assisting passengers with their belongings such as walkers, he reported being able to manage small loads, and will refuse to carry heavier loads if he does not feel able to safely carry it. Based on Mr. Pinch's description of the job, and the findings of this assessment, Mr. Pinch is not a good match for his pre-accident job as a bus driver for HandyDart. It is acknowledged that Mr. Pinch is currently working full time in this capacity; however he is not able to do so without limitations and without an increase in his symptoms. As a result his durability in being able to continue preforming his job even with limitations is questionable. [33] The opinion of Ms. Ismail regarding the "Vocational Options" available to Mr. Pinch included the following regarding his second

position as a community and social service worker. With respect to Mr. Pinch's secondary job as a behavioral service worker, this job title is defined by the NOC under the heading "Community and Social Service Workers", #4212. The NOC describes positions under this heading as requiring limited strength capacity (the ability to handle loads weighing up to 5 kilograms/il pounds), and the ability to work in sitting. Mr. Pinch noted that as this job is casual, he typically works a minimum of 8 hours to a maximum of 32 hours per week, depending on his availability and the availability of work. The job involves working with adults with disabilities in either a group home or daycare setting. Based on the findings of this assessment, Mr. Pinch and the NOC description of his job he would not be a good match as a behavioral support worker, particularly with respect to sitting. However, Mr. Pinch is able to change positions in this work setting as needed to manage his symptoms.

RETURN TO WORK [34] In January of 2012, Mr. Pinch returned to work as a HandyDART bus driver and as a support worker with the Ridge Meadows Association for Community Living ("RMACL"). Mr. Pinch testified that he initially started with two shifts then expanded to three and then four and then full-time with HandyDART. He testified that he "felt much better" but there was still "some numbness but no pain". He stated that he could do a "full shift without agony". I record him as stating: "pain gave away but not the numbness". [35] Mr. Pinch worked at both of his jobs until February 27, 2013 when MVA #2 occurred. During that period, Mr. Pinch suffered two injuries that resulted in short periods away from work in 2012: an injury to his right ankle in a trip and fall incident and an injury when he was struck in the ankle by a motorized wheelchair. As a result, Mr. Pinch was off work between May 19 and June 4, 2012 and between June 13 and July 27, 2012. [36] As a result of MVA #2, Mr. Pinch experienced an exacerbation of the injuries from MVA #1 and has found it impossible to return to employment or his pre‑MVA #2 activities.

LIABILITY [37] Mr. Hofstee pleads contributory negligence by virtue of the fact that Mr. Pinch was operating the bus contrary to s. 18.01 of the Motor Vehicle Act Regulations 145/64 which states: Except where a bylaw of a municipality provides otherwise, a traffic control device consisting of a curb painted yellow instructs every driver of a vehicle that no person shall stop, park or leave standing any motor vehicle attended or unattended, except where necessary to avoid conflict with other traffic or in compliance with the direction of a peace officer. [38] Mr. Pinch admits that the bus was stopped beside "a curb painted yellow" but states that it was there because that was the only space in the parking lot that would accommodate the bus. The question which arises is whether this violation in any way contributed to causing MVA #1. While the bus was stopped beside a curb painted yellow and should not have been, I cannot conclude that this parking violation in any way contributed to the accident which occurred. First, I cannot conclude that the position of the bus was such that the backing up area required by the Hofstee vehicle was in any way reduced or impeded by the presence of the bus. Second, the bus was there to be seen. I find that the weather conditions were clear and that the bus was notable in size and colour contrast and had the flashing side hazard light engaged. As

well, the bus was already parked and in a position to be seen when Mr. Hofstee approached his own vehicle prior to entering it on the driver's side. I conclude that Mr. Hofstee reversed his vehicle into the parked bus without adequately having checked behind his own vehicle. Accordingly, I find that Mr. Hofstee was 100% at fault for the injuries and damages caused to Mr. Pinch by MVA #1. Mr. Hofstee owed a duty of care to Mr. Pinch. Mr. Pinch has proven on a balance of probabilities that Mr. Hofstee failed to fulfill the duty which was imposed upon him and that he has suffered damages as a result. Was There a Failure to Mitigate? [39] In Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.), Taylor J.A. made this statement on behalf of the court: ... the court must then, if mitigation issues are raised, decide whether the defendant has established that by following advice which the plaintiff received or ought to have obtained, the plaintiff could have overcome the problem, or could in future overcome it. The advice might, for instance, be to eliminate treatment, make "lifestyle changes" or adopt some psychotherapy, physiotherapy or exercise regimen. Where appropriate remedial measures would resolve the problem, damages can, of course, be awarded only in respect of the period up to the date when, in the estimation of the fact-finder, the problem ought to have been resolved,

or ought to be resolved. (at para. 11) [40] In Graham v. Rogers (2001), 90 B.C.L.R. (3d) 69 (C.A.), leave to appeal dismissed, [2001] S.C.C.A. No. 467, Rowles J.A. made this statement: Mitigation goes to limit recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss. A plaintiff in a personal injury action has a positive duty to mitigate but if a defendant's position is that a plaintiff could reasonably have avoided some part of the loss, the defendant bears the onus of proof on that issue. (at para. 35) [41] In March of 2011, Back in Motion recommended Mr. Pinch lose weight and improve his core and functional strength. On December 6, 2011 Dr. Chan (neurosurgeon) stated that there was no surgical solution but that "weight loss and exercise" was advisable. In October of 2012, Dr. Apel observed "significantly decreased conditioning and poor fitness" and "without any meaningful core strength". Dr. Apel recommended a "meaningful exercise program". In her October 20, 2014 report, Dr. Apel stated that "Mr. Pinch continued to exhibit significant deconditioning and poor fitness", as well as that "[u]nfortunately, no improvement in the patient's fitness and conditioning levels has been achieved to date". [42] Counsel for Mr. Hofstee submits that, if Mr. Pinch had been performing the exercise programs that had been provided to him,

he would have provided that information to Dr. Apel when it was requested and that any award of damages should be reduced to reflect the failure of Mr. Pinch to mitigate his damages because he failed to pursue the active exercise programs and failed to lose weight in the face of medical advice to do so. [43] Mr. Pinch provided evidence that he had received a regimen of not only exercises but also stretches to be performed at home for the purpose of strengthening the muscles around his neck and lower back, including core strengthening. He also testified that it would take him approximately ten minutes to complete all of the exercises and stretches that had been recommended. He testified that he performed both the exercises and stretches on a fairly regular basis but only up to October 4, 2010. [44] Other than submissions made by counsel on behalf of Mr. Hofstee and the questions put to Mr. Pinch and others, there was no medical or other expert evidence to allow me to reach the conclusion that what was recommended and may not have been followed would have overcome or resolved in whole or in part the problems of Mr. Pinch. I am satisfied that there is insufficient evidence to allow me to conclude that Mr. Pinch would have overcome the effect of the injuries caused by MVA #1 or that his problems would have resolved in whole or in part if he had followed fully what had been

recommended. [45] Mr. Hofstee has the onus of proving but has not proven that the alleged failure of Mr. Pinch to fully undertake the exercise program that was recommended and to lose weight has produced a failure to mitigate the damages he suffered as a result of MVA #1. I cannot find that there was an unreasonable failure of Mr. Pinch to take reasonable steps to limit his damages. Were the Injuries from the Two Accidents Indivisible? [46] Counsel for Mr. Pinch submits that, if the injuries of Mr. Pinch are indivisible so that it is impossible to determine what was caused by the MVA #1 and what was caused by MVA #2, Mr. Pinch is in a position to recover the full amount of his damages from both accidents from Mr. Hofstee despite the fact that he would not be in position to pursue the driver who caused MVA #2 in civil proceedings. (a) Provisions of the Act [47] Section 10 of the Act provides: (1) The provisions of this Part are in lieu of any right and rights of action, statutory or otherwise, founded on a breach of duty of care or any other cause of action, whether that duty or cause of action is imposed by or arises by reason of law or contract, express or implied, to which a worker, dependant or member of the family of the worker is or may be entitled against the employer of the worker, or against any employer within the scope of this Part, or against any worker, in respect

of any personal injury ... arising out of and in the course of employment and no action in respect of it lies. (2) Where the cause of the injury, disablement or death of a worker is such that an action lies against some other person, other than an employer or worker within the scope of this Part, the worker or dependant may claim compensation or may bring an action. (7) If, in an action brought by a worker or dependant of a worker or by the Board, it is found that the injury, disablement or death, as the case may be, was due partly to a breach of duty of care of one or more employers or workers under this Part, no damages, contributions or indemnity are recoverable for the portion of the loss or damage caused by the negligence of that employer or worker; but the portion of the loss or damage caused by that negligence must be determined although the employer or worker is not a party to the action. (b) Decision in Bradley v. Groves [48] The Court in Bradley v. Groves (2010), 8 B.C.L.R. (5th) 247 (C.A.), leave refused [2010] S.C.C.A. 337 stated: There can be no question that Athey [Athey v. Leonati [1996] 3 S.C.R. 458] requires joint and several liability for indivisible injuries. Once a trial judge has concluded as a fact that an injury is indivisible, then the tortfeasors are jointly liable to the plaintiff. They can still seek apportionment (contribution and indemnity) from

each other, but absent contributory negligence, the plaintiff can claim the entire amount from any of them. The approach to apportionment in Long v. Thiessen [(1968), 65 W.W.R. 577 (S.A.)] is therefore no longer applicable to indivisible injuries. The reason is that Long v. Thiessen pre-supposes divisibility; Long requires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial. Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor. That approach is logically incompatible with the concept of an indivisible injury. If an injury cannot be divided into distinct parts, then joint liability to the plaintiff cannot be apportioned either. It is clear that tortfeasors causing or contributing to a single, indivisible injury are jointly liable to the plaintiff. This in no way restricts the tortfeasors' right to apportionment as between themselves under the Negligence Act, but it is a matter of indifference to the plaintiff, who may claim the entire amount from any defendant. (at paras. 32‑34) We are also unable to accept the appellant's submission that "aggravation" and "indivisibility" are qualitatively different, and require different legal approaches. If a trial judge finds on

the facts of a particular case that subsequent tortious action has merged with prior tortious action to create an injury that is not attributable to one particular tortfeasor, then a finding of indivisibility is inevitable. That one tort made worse what another tort created does not automatically implicate a thin or crumbling skull approach (as in Blackwater) [Blackwater v. Plint, [2005] 3 S.C.R. 3], if the injuries cannot be distinguished from one another on the facts. Those doctrines deal with finding the plaintiff's original position, not with apportioning liability. The first accident remains a cause of the entire indivisible injury suffered by the plaintiff under the "but for" approach to causation endorsed by the Supreme Court of Canada in Hanke v. Resurfice Corp., 2007 SCC 7, [2007] 1 S.C.R. 333 (S.C.C.). As noted by McLachlin C.J.C. in that case, showing that there are multiple causes for an injury will not excuse any particular tortfeasor found to have caused an injury on a "but for" test, as "there is more than one potential cause in virtually all litigated cases of negligence" (at para. 19). It may be that in some cases, earlier injury and later injury to the same region of the body are divisible. While it will lie for the trial judge to decide in the circumstances of each case, it is difficult to see how the worsening of a single injury could be divided up. (at

para. 37) [49] The Court in Bradley distinguished divisible injuries from indivisible injuries as follows: Divisible injuries are those capable of being separated out and having their damages assessed independently. Indivisible injuries are those that cannot be separated or have liability attributed to the constituent causes. (at para. 20) (c) Later Decisions [50] Whether damages are divisible or indivisible for purposes of determining the extent of the liability of multiple tortfeasors is a question of fact in each case, not a question of law: B.P.B. v. M.M.B. (2009) 97 B.C.L.R. (4th) 73, leave to appeal refused ref'd [2010] S.C.C.A. No.

90. A number of recent decisions concluded that damages were indivisible in the accidents in issue: Rajan v. Hudon [2014] B.C.J. No. 2250 (S.C.); Sediqi v. Simpson [2015] B.C.J. No. 247 (S.C.); and Larsen v. Moffett, [2015] B.C.J. No. 265 (S.C.). In Rajan, supra the injuries suffered by the plaintiff in a first accident were aggravated by the second accident and were further and more severely aggravated by a third collision. In Sediqi, supra, there was an agreement between the parties that the case involved indivisible damages caused or contributed to by each accident. In Larsen, supra, there was a finding that there was "Slow improvement and that the plaintiff testified that he was 70% recovered by the time of the second accident. Nevertheless, he continued to have neck pain and sometimes bad headaches." (at para 34). (d) Were Damages Indivisible Here? [51] I have concluded that the injuries suffered by Mr. Pinch in MVA #1 and MVA #2 are indivisible. I cannot conclude that injuries in the same region of the body of Mr. Pinch are divisible so that it would be possible to make an independent assessment of those damages. Like what was set out in Bradley, supra, at para. 37, I am satisfied that the injuries suffered by Mr. Pinch in MVA #1 were further and more severely aggravated by the injuries suffered by Mr. Pinch in MVA #2. I find that the injuries suffered in MVA #2 have

"merged" with the prior tortious action of Mr. Hofstee to create: "...an injury that is not attributable to one particular tortfeasor...": (Bradley at para. 37). [52] Even though Mr. Pinch was able to return to employment, I find that the continuing numbness in his legs, low and mid-back pain, headaches, and sleep problems were aggravated by MVA #2. In this regard, I adopt the statement of Major J. from Athey v. Leonati [1996] 3.S.C.R. 458 where he stated on behalf of the Court that divisible injuries are those capable of being separated out and having their damages assessed independently and indivisible injuries were those that cannot be separated or have liability attributed to the constituent causes: The respondents submitted that apportionment is permitted where the injuries caused by two defendants are divisible (for example, one injuring the plaintiff's foot and the other the plaintiff's arm): Fleming, [John G. The Law of Torts, 8th ed. Sydney: Law Book co. 1992] supra, at p.

201. Separation of distinct and divisible injuries is not truly apportionment; it is simply making each defendant liable only for the injury he or she has caused, according to the usual rule. The respondents are correct that separation is also permitted where some of the injuries have tortious causes and some of the injuries have non-tortious causes: Fleming, supra, at p.

202. Again, such cases merely recognize that the defendant is not liable for injuries which were not caused by his or her negligence. (at para 24) (e) Can Mr. Pinch Claim Against Mr. Hofstee for Damages from MVA #2? [53] Having concluded that the injuries suffered were indivisible, the question that arises is whether Mr. Pinch is in a position to claim against Mr. Hofstee for the injuries suffered by him in MVA #2. Despite my conclusion that the injuries suffered by Mr. Pinch in MVA #1 and MVA #2 were indivisible, I nevertheless conclude that Mr. Pinch is not in a position to claim damages against Mr. Hofstee arising out of the injuries that were incurred as a result of MVA #2. I am satisfied that the effect of s. 10 of the Act precludes seeking damages arising from what are said to be indivisible damages. [54] Section 10(1) of the Act makes it clear that the provisions of that Part of the Act are "...in lieu of any right and rights of action, statutory or otherwise, founded on a breach of duty of care or any cause of action..." [emphasis added]. Therefore, s.10(1) refers not only to "rights of action" but "any right...founded on a breach of duty of care or any other cause of action..." I am satisfied that the "right" to claim for recovery for indivisible damages is a right that is precluded by s. 10(1) of the Act, being a right which is separate and distinct from a right to

commence an action. In this regard, s. 10(1) provides not only that the provision of the Part of the Act is in lieu of "any right and rights of action..." founded on the breach of duty of care that Mr. Pinch may have against an employee or an employer but also that "no action in respect of it lies" and that "any right...founded in a breach of duty of care" is precluded. I am satisfied that this precludes any right that Mr. Pinch may have which is founded on a breach of duty of care by Mr. Hofstee. [55] The purpose of this section of the Act is to remove from the jurisdiction of the court the ability to deal with the rights of employees such as Mr. Pinch and the liability of employers when personal injuries are suffered in the course of employment. In this regard see DiCarlo v. DiSimone (1982), 39 O.R. (2d) 445 (H.C.) and Mitrunen v. Anthes Equipment Ltd. (1984) 57 B.C.L.R.

287. In Mitrunen, Gould J. dealt with an action against Dominion Construction Company Limited which was an employer and Anthes Equipment Ltd. that was not. After citing with approval the decision in DiCarlo, supra, in deciding that he was not bound by the unreported decision in Middleton v. Chen (C810663‑October 25, 1982), Gould J. determined that the Act governed and that it relieved the non‑employer defendant for liability for damages caused by the fault of the employer defendant. On appeal, (1985) 17 D.L.R. (4th) 567, Seaton J.A., on behalf of the Court made this statement: Section 10 first, in s-s (1), takes away the plaintiffs right of action against his employer and against co-employees. Subsections (2) to (5) deal with compensation and the bringing of an action against others. Subsection (6) talks about the worker, his dependant or the board bringing an action against some person other than an employer or worker. Subsection (6) thus leads logically to s-s (7) which, in its beginning words, clearly encompasses actions against those not employers or fellow workers. What it then says is that in that action if it is found that the death was due partly to a breach of duty of the employer or worker, then no damages are recoverable for the portion of the loss or damage caused by the negligence of the employer or worker. It does not say no damages are recoverable against the

employer or worker; it is simply no damages are recoverable. On the face of it that must mean against anyone. The subsection, as I have mentioned, deals with an action brought against some person other than an employer or worker and it deals with actions brought by workers, dependants or by the board. It does not appear to deal with actions against employers or workers; they are covered by s-s (1). (at para. 14) [56] The statement of Seaton J.A. is clear - "No damages are recoverable". I am satisfied that the decisions in Mitrunen, supra, relieve a non‑employer defendant such as Mr. Hofstee from liability for damages caused by his or her fault. [57] Section 10(2) reinforces this interpretation as it describes the ability of Mr. Pinch to "claim compensation" or "bring an action". I cannot conclude that the ability to "claim compensation" expands the right of Mr. Pinch to claim against Mr. Hofstee that which he could not claim directly against the driver of the vehicle involved in MVA #2. [58] Section 10(7) of the Act also re-enforces this interpretation of s. 10(1) of the Act as it is clear that "no damages, contributions or indemnity are recoverable for the portion of the loss or damage caused by the negligence of that employer or worker..." If no "damages, contributions or indemnity" are recoverable by Mr. Pinch against the other driver involved in MVA #2, I cannot conclude

that the indivisible damages caused by the negligence of the individual who caused MVA #2 would be recoverable against Mr. Hofstee. [59] Section 10(7) of the Act is broad enough to exclude the ability of the Mr. Hofstee to claim contribution or indemnity against the driver involved in MVA #2: Storey v. Canada Post Corp. (2006) 55 B.C.L.R. (4th) 131 (C.A.) at paras. 42‑45. It could not have been intended by the Legislature that there be an exception to the general rule that no damages were recoverable and that a claim for contribution was not available, but that the full amount of the damages from MVA #1 and MVA #2 would be available against Mr. Hofstee despite the fact that he would not be in a position to look to the driver involved in MVA #2 for contribution. I conclude that the effect of s. 10(7) of the Act was intended by the Legislature to protect not only those who were immune from suit under the scheme created by the Act from exposure to joint liability but also those who were not in a position to call upon another tortfeasor for contribution. [60] I conclude that the Legislature has made it clear that the principles set out in Bradley, supra, do not apply where there is a statutory bar to recovery of what may be found to be indivisible damages. Section 10(1) of the Act is but one example of the inability to recover indivisible damages arising out of a separate breach of

duty of care. A further example might be illustrated by a situation whereby proceedings relating to a first tortious act were not commenced within the limitation period and a second tortious act occurred. In those circumstances, I cannot conclude that damages would be available where an action was not commenced relating to the first act, a subsequent act caused injuries which were found to be indivisible from the first act, and a claim was advanced against the second tortfeasor for damages for the injuries caused both by the first and the second tortious acts. Just as a claim for damages for a second tortious act could not "give life to" recovery of damages for a first act where a limitation period had expired so also s. 10(1) of the Act has taken away "any right and rights of action" available to Mr. Pinch and any recoverable "damages, contributions or indemnity" that might have been available to Mr. Pinch as a result of MVA #2. [61] I propose to deal with the damages suffered by Mr. Pinch as a result of MVA #1 as if MVA #2 had not occurred. However, despite finding that the damages suffered in the two accidents were indivisible, I will then assess separately those damages which I can attribute only to MVA #2. I do so in order to comply with s.10(7) of the Act which requires that I determine "...the portion of the loss or damages caused by...[the negligence of the driver in

MVA #2]...although the...worker is not a party to the action". While it may seem inappropriate to determine the loss or damage caused by the driver involved in MVA #2 where a determination has been made that the damages arising out of MVA #1 and MVA #2 are indivisible, where the driver involved in MVA #2 is not a party to these proceedings, and where there has been no finding of liability for MVA #2, I will nevertheless do so because that is what is required under s. 10(7) of the Act. Non-Pecuniary Damages - MVA #1 [62] In assessing an award of damages as compensation for the pain, suffering, loss of enjoyment of life, and loss of amenities resulting from the negligence of Mr. Hofstee, it is necessary to take into account the injuries and the effect they had on Mr. Pinch. In Stapley v. Hejslet (2006), 263 D.L.R. (4th) 19 (B.C.C.A.), Kirkpatrick J.A. on behalf of the majority set a non-exclusive list of matters to be considered to include: (a) age of the plaintiff; (b) nature of the injury; (c) severity and duration of pain; (d) disability; (e) emotional suffering; and (f) loss or impairment of life; I would add the following factors, although they may arguably be subsumed in the above list: (g) impairment of family, marital and social relationships; (h) impairment of physical and mental abilities; (i) loss of lifestyle; and (j) the plaintiff's stoicism (as a factor that should

not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54). (at para. 46) [63] In submitting that the award for non-pecuniary damages for MVA #1 should be in the neighbourhood of $110,000 to $125,000, counsel for Mr. Pinch relies on the following decisions: (a) Bruno v. Diamzon, [2014] B.C.J. No. 1440 (S.C.): a vulnerable 49-year-old plaintiff. One accident in 2006 resulting in mechanical neck and back pain, fibromyalgia and chronic pain associated with sleep disorder, anxiety and depression, PTSD and panic disorder with the plaintiff not working after August of 2011 ($120,000); and (b) Hosseinzadeh v Leung, [2014] B.C.J. No. 2939 (S.C.): 43-year-old plaintiff. One accident in 2006 resulted in moderately severe mechanical neck and lower back injury, with herniated disc in lower back. Diagnosed with chronic pain/fibromyalgia, with associated impaired sleep and depressed mood. Permanently partially disabled from activities of daily living and not able to work ($125,000). [64] In submitting that the appropriate monetary range for a non-pecuniary award for MVA #1 is between $60,000 and $70,000, counsel for Mr. Hofstee relies on the following decisions: (a) Esau v. Myles, [2010] B.C.J. No. 55 (S.C.) where the plaintiff was 24‑years old, was employed in a physically demanding job, suffered injuries primarily to his neck and low back, the

neck pain resolved but the lower back pain continued, as a result of an anatomical anomaly in the form of spondylosis with spondylolisthesis, his lower back pain continued. There was a finding that the plaintiff had worked through his pain but continued to have chronic pain with flare‑ups of severe pain, subjectively reported as 8‑10/10. There was a finding that he was no longer able to participate in jobs requiring heavy labour ($70,000); (b) Leung v. Foo, [2009] B.C.J. No. 1125 (S.C.), where the 27-year-old plaintiff suffered moderate soft tissue injuries to her neck, upper back, low back and left hand and arm and also suffered from PTSD as a result of the accident. She had not been completely disabled from operating her business, although she had to cope with physical pain and emotional problems after the accident which caused stress and challenges in achieving her business goals and objectives as well in her personal relationship with her partner. It was found that she would make a full recovery within six to 18 months of the trial if she dedicated herself to an exercise program and continued to acquire help from health professionals ($65,000); (c) Papineau v. Dorman, [2008] B.C.J. No. 2038 (S.C.) where the plaintiff suffered injuries to his neck and upper back with pain at various times in the right leg, right buttock, right hip, right thigh and low back. The athletic

37-year-old male had an asymptomatic spinal condition. The pain experienced was more or less constant in varying degrees of intensity until the plaintiff noticed a significant improvement approximately two years after the accident. It was found that, with further recommended treatment, it was likely that his condition would improve, although it was accepted that he would continue to experience permanent residual symptoms in his neck and lower back. The accident affected his psychological health in that he suffered a depressed mood, though no clinical depression, and a loss of self-confidence and self-esteem ($60,000); and (d) Andres v. Leslie & Swackhamer, [2005] B.C.J. No. 1722 (S.C.) where the 23-year-old plaintiff suffered headaches as well as neck, upper back and lower back pain as a result of the accident and testified that the pain interfered with her ability to be intimate with her husband. The symptoms were ongoing at trial which was 3 1/2 years after the accident. It was accepted that the recreational life had been adversely affected and that her general enjoyment of the amenities of life had also been affected. It was found that the pain symptoms were a chronic condition which would be ongoing ($65,000). [65] Dealing with the non‑pecuniary damages associated with MVA #1, I have concluded that the non-pecuniary damages of Mr. Pinch should be assessed at $100,000. While

I conclude that the neck, upper back and mid-back pain of Mr. Pinch had resolved after OR2, I find that the on‑going limitations when he returned to work on January 6, 2012 relating to his ability to stand, bend, kneel or crouch, balancing tasks, and overhead reaching caused by his low back and resulting right leg pain justify an assessment of his damages in that amount. I find that his low back pain was constant initially, somewhat improved after OR1 but that it increased when driving and that, even when he returned to work, the pain progressed to right lateral leg numbness. I am also satisfied that there was continuing numbness in the right leg as a result of prolonged standing even after he returned to his two positions. I also find that there was loss of erection from the pain he was suffering, that he experienced headaches as often as four times a week as late as October of 2012, and that he experienced ongoing fecal incontinence. I also take into account the significant impairment of marital relationship and the ability of Mr. Pinch to contribute what he previously contributed to his family responsibilities. [66] I adopt the "Impression" set out in the October 2, 2012 opinion of Dr. Apel and conclude that the "mechanical low back pain which originally was described as lumbar strain/sprain" developed over time into myofascial pain affecting the lower quadrants bilaterally

of Mr. Pinch although "worse on the right side". Taking into account the disabilities categorized by Ms. Ismail (OT Consulting/Treatment Services Ltd.), the severity and duration of pain, the loss of lifestyle, the impairment of marital relationships and the emotional suffering of Mr. Pinch, I am satisfied that $100,000 is an appropriate award of non-pecuniary damages. Non-Pecuniary Damages - MVA #2 [67] If I am found to be incorrect in concluding that the indivisible injuries relating to MVA #2 cannot be claimed by Mr. Pinch against Mr. Hofstee, I must assess the additional damages suffered by Mr. Pinch as a result of MVA #2. Counsel for Mr. Pinch relies on the following decisions in submitting that the award for non‑pecuniary damages for the combined MVA #1 and MVA #2 should be in the neighbourhood of $110,000 - $125,000: (a) Midgley v. Nguyen, [2013] B.C.J. No. 805 (S.C.): the plaintiff was in two accidents with the injuries indivisible resulting in persistent low back pain, right hip/buttock pain which resulted in chronic pain, anxiety and depression symptoms, mood difficulties and sleep disturbances ($110,000); (b) Dunne v. Sharma, [2014] B.C.J. No. 1255 (S.C.): two low velocity rear-end accidents with the injuries indivisible resulting in chronic neck/back STI, leg pain, TOS, interfering with usual recreational activities and psychological issues (anxiety, depression,

PTSD, panic attacks, chronic pain) ($110,000). Counsel for Mr. Hofstee makes no submissions relating to the additional damages suffered by Mr. Pinch as a result of MVA #2 in order to be consistent with his submissions that the injuries were divisible and that his client is not responsible for any damages suffered as a result of MVA #2. [68] In assessing that the additional non‑pecuniary damages of Mr. Pinch as a result of MVA #2 amounts to $150,000, I rely on a number of opinions prepared at the request of both Mr. Pinch and Mr. Hofstee as well as the testimony of the witnesses at Trial. I am satisfied that MVA #2 exacerbated the complaints that Mr. Pinch had regarding his low back, his right hip, his right leg and with the headaches associated with the pain that he was experiencing. I am also satisfied that the predisposition to depressive moods has resulted in significant impact on the mental well‑being of Mr. Pinch and that considerable anxiety and depressive mood has come as a result of MVA #2. I find that, as a result of MVA #2, Mr. Pinch no longer has the mental fortitude to obtain employment. In coming to these conclusions, I rely on the January 4, 2015 opinion of Dr. Warmenhoven, the October 20, 2014 opinion of Dr. Apel, and the November 5, 2014 opinion of Dr. Rasmusen. The prognosis for Mr. Pinch has been that he is prone to re‑occurring depression. He had a

pre‑existing history of severe depression including depression with psychosis on at least one occasion prior to MVA #1. I am satisfied that the physical pain that Mr. Pinch is experiencing is an ongoing stressor and that there is a real and substantial possibility that the physical pain that he is experiencing will be an ongoing factor which will contribute to further depressive moods and episodes. It was known as early as March of 2011 that Mr. Pinch was "at risk for developing a pain problem or other psychological difficutlies" and, accordingly, this is unfortunately resulted in a complete inability to function in a work environment as a result of the pain and suffering caused by MVA #2. Regarding the effects of MVA #2 on Mr. Pinch, I relied on the following opinions from caregivers: (a) January 4, 2015 Opinion of Dr. Warmenhoven [69] In his January 4, 2015 opinion, Dr. Warmenhoven who was the family physician of Mr. Pinch stated in part: His neck and mid back Injuries improved initially but were easily aggravated along with his lower back as was shown during his accident of 27 February 2013. This would probably set the trend for the future. The accident has so far caused him to miss extended periods of work time and his day to day living and leisure activities has been impacted as well. Of concern is that his chronic pain issues have impacted on his mental wellbeing causing

anxiety and depressed mood. All along since the Initial injury, Mr. Pinch willfully participated with a high attendance rate in all the programs that was offered (with maybe a too strong emphasis to get him back to work, In his case), only to have his symptoms worsen as he got back into employment. In light of his CT and MRI evidence it is still my opinion that he should be retraining for a less physical work and that he should improve his physical abilities and conditioning on his own time. He would benefit from physiotherapy during flare-ups and this may be a costly future treatment. The costs involved is outside my spectrum of expertise. (b) October 20, 2014 Opinion of Dr. Apel [70] In her October 20, 2014 supplemental opinion, Dr. Apel formed the opinion that MVA #2 aggravated the injuries of Mr. Pinch and found that the ongoing clinical signs and symptoms were "consistent and gradually progressive". I accept the opinion of Dr. Apel that MVA #2 aggravated and exacerbated the "lower back pain with related myofascial discomfort and sensory abnormalities". I also accept the opinion that the re‑injuries resulting from MVA #2 make Mr. Pinch "...more vulnerable to further injury and symptoms aggravation whether subject of physical or psychological stress...[and MVA #2] further worsened physical and psychological outcomes of the patient's other subsequent health difficulties

including consequences of...[MVA #2]". (c) November 13, 2014 Opinion of Dr. Rehan Dost [71] Dr. Rehan Dost is a neurologist who saw Mr. Pinch at the request of counsel for Mr. Hofstee. In his November 13, 2014 opinion, he reported Mr. Pinch as complaining about increased symptoms after MVA #2 and cervical pain with radiation into the interscapular region which occurred only after MVA #2. He also records Mr. Pinch as indicating that the headaches which had resolved returned after MVA #2 and occurred five times per week with frontal pressure and pounding with nausea but without light or noise sensitivity. While Dr. Dost was of the view that some of the presentation of Mr. Pinch was "extremely unusual for a routine mechanical back/myofascial pain syndrome", Dr. Dost did agree, under cross‑examination that his special was neurology and that, while he found no neurological explanation for the symptoms, the combination of myofascial pain syndrome and somatoform disorder which he described as an unintentional and unconscious psychiatric disorder combined to explain the symptoms being experienced by Mr. Pinch. Dr. Dost also conceded that he would defer to the opinion of a physiatrist with regard to the issue of a diagnosis of myofascial pain disorder and to a psychiatrist with regard to psychiatric conditions. (d) November 5, 2014 Opinion of Dr. Rasmusen [72] At the request of Mr.

Hofstee, Mr. Pinch was seen by Dr. Rasmusen, certified psychiatrist and neurologist. Dr. Rasmusen provided a November 5, 2014 opinion and provided the following answers to the questions that were put to him by counsel for Mr. Hofstee: 1. What is your diagnosis and prognosis in relation to the injury sustained in the motor vehicle accident, including the significance of each motor vehicle accident to the psychological status of the plaintiff? Because of Mr. Pinch's physical pain and given that he was not improving, he was unable to proceed with his employment in January of 2011. He then went into the process of dealing with WorkSafeBC and he stated that during the process, funds became inadequate at home and, in fact, the family ended up on welfare for a period of time until May or June of 2011. It was during this time that he became depressed. However, in my opinion, this was not a major depressive episode but a normal reaction to life stressors at that time, his financial struggles, his father's health, and physical pain. After the second motor vehicle accident, in February 2013, this is when he became even more stressed and described increasing anxiety, a declining mood and, in fact, was hospitalized for approximately one week at that time. He has had an improvement since that time, however, and does not currently meet the criteria for major depression. The prognosis for Mr.

Pinch is that he is prone to recurring depression. This is due to his pre-existing history of severe depression and, in fact, depression with psychosis on at least one occasion prior to the first motor vehicle accident in August of 2010. With the physical pain that he is experiencing, this is an ongoing stressor and subsequently, this may be a factor that could contribute to further depressive episodes in the future. It is my opinion, however, that the first accident appeared to have less of an impact on his mental state than the second accident did. It also appears that with his current treatment, continuing to see Dr. Mathew, and use of his current medications, that although he is not totally symptom free, he is stable at this time. Although the pain is a factor that could contribute to depression in the future, it is my opinion that his pre-existing depressive episodes are a greater factor than the motor vehicle accidents, either in 2010 or 2013... (e) November 12, 2014 Opinion of Dr. Richardson [73] Dr. Richardson is an orthopaedic surgeon. Dr. Richardson provided an opinion to counsel for Mr. Hofstee on November 12, 2014. Dr. Richardson was of the view that MVA #2 caused a soft tissue injury to the neck and resulted in myofascial symptoms in the neck, resulted in soft tissue injury to the mid‑back which led to ongoing mid‑back symptoms, resulted in soft tissue injury to

the lumbar spine which aggravated the symptoms in the lumbar spine from MVA #2, and the worsening of the right leg symptoms which had started after MVA #1. The "Prognosis" of Dr. Richardson was as follows: 1. Cervical Spine The prognosis for the cervical spine is moderate. There is no increased risk for development of osteoarthritis or surgery being required as a result of soft tissue injury to the neck. Mr. Pinch recovered from one neck injury to sustain a second neck injury in 2013 and is now continuing to have symptoms.

2. Thoracic Spine The prognosis for the thoracic spine is moderate. Mr. Pinch had a soft tissue injury to the thoracic spine with motor vehicle accident #1 which recovered and then had motor vehicle accident #2 causing soft tissue injury to the thoracic spine. He is continuing to have ongoing symptoms in same.

3. Lumbar Spine The prognosis for the lumbar spine is moderate to guarded. Mr. Pinch has had a recurrent injury. He has not had any further investigations to see if there has been any change in the anatomical status of his lumbar spine but he continues to have neuropathic type symptoms without objective neurological loss. The neuropathic symptoms in the right lower extremity should be evaluated by a neurologist, including an EMG if indicated, to determine if there are any objective abnormal neurological findings in the right lower extremity, given Mr. Pinch's history of neuropathic symptoms. Finally, a repeat MRI or CT scan of the lumbar spine may be valuable in determining if there has been any anatomical change in the lumbar spine subsequent to the previous MRI in 2011. (f) October 2 and November 6, 2014 Opinions of D.G. Connell, Radiologist [74] On the basis of what was reported by Dr. Connell in his October 2 and November 6, 2014 opinions and on the basis of the opinions of other specialists, I find that there were long‑standing degenerative changes in the thoracic spine of Mr. Pinch and, although MVA #2 did not produce traumatic bone injuries, the spondylosis was accelerated by MVA #2. Income Loss [75] Mr. Pinch had a history of holding down a variety of jobs and often working at several jobs at once. The following table sets out his annual income from 2005 to

2015: Year T4 Total Income Notes 2005 $31,777 (RMACL) $37,240 $333 (Grenier et al) $4,130 (EI) $1,000 (RRSP) 2006 $10,913 (RMACL) $29,049 $9,846 (CPP) $5,664 (EI) $2,178 (RRSP) $641 (Social Asst) 2007 $30,792 (RMACL) $40,072 * Oct 1, 2007 à start HandyDART *$34,214 income from employment $3,422 (DW Services) $5,858 (CPP) 2008 $21,635 (RMACL) $45,278 *$42,577 income from employment $20,942 (DW Services) $2,701 (RRSP) 2009 $27,016 (MVT Bus) $55,924 *$50,928 income from employment $23,912 (RMACL) $1,387 (DW Services) $1,129 (RRSP) $2,480 (Social Asst) 2010 $26,768 (MVT Bus) $52,379 * August 20, 2010 à THE FIRST ACCIDENT = 34th week $36,720 T4 income / 34 weeks = $1,080 per week average x 52 weeks = $56,160 /annum income from employment average $9,951 (RMACL) $398 (EI) $893 (RRSP) $13,222 (WCB) $1,146 (Social Asst) 2011 $5,029 (MVT Bus) $44,519 *$5,471 income from employment $442 (RMACL) $32,803 (WCB) $6,244 (EI) 2012 $41,670 (MVTBus) $46,838 *Bankruptcy $5,168 (RMACL) $4,027 (WCB) 2013 $11,456 (MVT Bus) $55,078 *Feb 27, 2013 THE SECOND ACCIDENT = 9th week $13,117 / 9 = $1,457 x 52 = $75,764 / annum income from employment average $1,660 (RMACL) $31,373 (WCB) $7,356 (EI) 2014 $1,195 severance from RMACL 2015 $0 *not including benefits [76] Mr. Pinch obtained permanent full‑time employment with HandiDART in June of 2008 and, about the same time, transitioned from being a permanent to

a casual employee with RNACL. (a) Past Income Loss as a Result of MVA #1 [77] Counsel for Mr. Pinch submits that his earnings showed a trajectory from 2005 to 2010 towards increasing income from employment and that, but for MVA #1, Mr. Pinch would likely have earned income of $56,160 from employment in 2010 and 2011. The past income loss claim based on what his earnings would have been but for MVA #1 are submitted as being $70,124 (gross) and that amount is claimed on behalf of Mr. Pinch. The loss of $19,440 in 2010 is said to be the difference between $56,160 and the $36,720 T-4 income of Mr. Pinch. The loss of $50,689 for the year 2011 is said to be the difference between $56,160 less the T-4 income of $5,471 of Mr. Pinch. [78] In her December 4, 2012 report, Ms. Ismail, provided the opinion that Mr. Pinch did not demonstrate the strength required to work in either of his two pre‑MVA #1 positions. While I am satisfied that the report of Ms. Ismail illustrates the loss of capacity experienced by Mr. Pinch as a result of MVA #1, Mr. Pinch returned to both of his pre‑MVA #1 positions five weeks after her December 4, 2012 report. I am satisfied that this is the best evidence that the injuries of Mr. Pinch had resolved sufficiently to allow for there to be no further wage loss attributable to MVA #1. [79] Counsel on behalf of Mr. Hofstee submits that the income tax return of 2009

is the best indicator of what Mr. Pinch would have earned in the years 2010 and 2011 but for MVA #1 and that Mr. Pinch was off work for approximately 12 to 14 months following MVA #1 and that his 2009 T-4 earnings were $52,315 or $4,360 per month (gross). Accordingly, counsel for Mr. Hofstee submits that the wage loss attributable to MVA #1 is between $52,315 and $61,035 (both gross). [80] The medical opinions obtained after MVA #2 re-enforce my finding that there would not have been a wage loss associated with MVA #1 after Mr. Pinch resumed employment in January of 2012. In his November 12, 2014 opinion, Dr. Richardson, provides the opinion that Mr. Pinch "probably would have carried on in the same fashion he had in 2012 if he had not been injured in motor vehicle accident #2". In his November 13, 2014 opinion, Dr. Dost, provides the opinion that "as a result of this motor vehicle accident (referring to the accident of February 27, 2013), he has been off work since and has not returned to work in both professions". [81] I find that it is more than likely that Mr. Pinch would have earned $56,160 a year in income from employment at his two positions but for MVA #1. As a result of MVA #1, his income from employment was reduced to $36,720 in 2010 and $5,471 in 2011. I find that Mr. Pinch has proven on a balance of probabilities that a total of $70,124 (gross) income was lost as a

result of MVA #1. That award is made pursuant to s.10(10)(b) of the Act. A calculation of the necessary adjustments to be made from the gross amount awarded is required. (b) Past Income Loss as a Result of MVA #2 [82] By January 27, 2012, Mr. Pinch had returned to both of his pre-MVA #1 work position and eventually performing the same duties and hours as before MVA #1. He continued to perform his pre-MVA #1 work duties after of January of 2012 except for two work place incidents which resulted in unrelated injuries and approximately eight weeks of medical leave. I cannot conclude that Mr. Pinch would have required time away from work at any point in time after February 27, 2013 if MVA #2 had not occurred. [83] If I am found to be incorrect in arriving at the conclusion that Mr. Pinch is not in a position to claim against Mr. Hofstee for the past income loss associated with MVA #2, then I am satisfied that Mr. Pinch has shown on a balance of probabilities that his past income loss for the period February 27, 2013 through to the date of Trial is made up as follows: (a) $43,043 (being $56,160 less the income that he did receive of $13,117) for 2013; (b) $54,965 (being $56,160 less the severance pay he received from the RMACL for 2014; and (c) $9,720 (being assumed yearly income of $56,160 or $1,080 weekly times nine weeks from January 1, 2015 to the date of Trial). In the circumstances, I am satisfied that the amount of $107,728 (gross) was lost as a result of MVA #2. That award is subject to a calculation of the appropriate adjustments but is also subject to the provisions of s. 10(10)(b) of the Act.

LOSS OF CAPACITY [84] An award under this head of damages is to be made if there is a real and substantial possibility that the injuries suffered in an accident will result in decreased income in the future or that an occupation that would have otherwise been available is no longer open to a plaintiff. In Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), Finch J., as he then was, made this statement: "Some of the considerations to take into account" in assessing the claim for loss of ability to earn income include whether: (a) the plaintiff has been rendered less capable overall from earning income from all types of employment; (b) the plaintiff is less marketable or attractive as an employee to potential employers; (c) 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 (d) the plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market. (at para. 8) [85] In Perren v. Lalari (2010), 3 B.C.L.R. (5th) 303 (C.A.), Garson J.A. on behalf of the Court made this statement regarding loss of capacity: A plaintiff must always prove, as was noted by Donald J.A. in Chang [Steward v. Berezan (2007), 64 B.C.L.R. (4th) 152 (C.A.)] by Bauman J. in [Chang v. Feng, 2008 BCSC 49] and by Tysoe J.A. in Romanchych [Romanchych v. Vallinatos, 2010 BCCA

20] that there is a real and substantial possibility of a future event leading to an income loss. If the plaintiff discharges that burden of proof, then depending upon the facts of the case, the plaintiff may prove the quantification of that loss of earning capacity, either on an earnings approach, as in Steenblok [Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 (C.A.)], or a capital asset approach, as in Brown. The former approach will be more useful when the loss is more easily measurable, as it was in Steenblok. The latter approach will be more useful when the loss is not as easily measurable, as in Pallos [Pallos v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260, 53 B.C.A.C. 310] and Romanchych. A plaintiff may indeed be able to prove that there is a substantial possibility of a future loss of income despite having returned to his or her usual employment. (at para. 32) [86] In her October 20, 2012 report, Dr. Apel provided the opinion that Mr. Pinch was restricted and limited in employment due to MVA #1. His restriction was said "to include permanent modified duties of avoidance of heavy lifting, pushing, and pulling". Dr. Apel concluded by saying that injuries "significantly limit[ed] Mr. Pinch's ability to work in his current position as a MVT Canadian Bus/Handicapped Bus Driver until the age of mandatory retirement" and that Mr. Pinch was more suited to

moderate vocational duties. Dr. Apel was of the opinion that these vocational restrictions were permanent and concluded by stating that the prognosis for Mr. Pinch is "very poor" and, in fact, "likely to progressively get worse, especially if [he] continues to work at his current occupation". [87] The December 4, 2012 physical capacity evaluation of Ms. Ismail revealed that Mr. Pinch had reduced neck range of motion, limiting sitting tolerance and limited standing tolerance, bending, kneeling and crouching limits and limits in overhead reaching. Ms. Ismail found that Mr. Pinch would only meet the requirements for light strength work on a part-time basis and that he would not have the physical capacity to be able to access a number of jobs that were previously open to him. Ms. Ismail concluded that Mr. Pinch did not meet the requirements of a transit bus driver or a behavioral support worker. [88] Counsel for Mr. Pinch submits that, as a result of MVA #1, Mr. Pinch would only be able to find some employment in an area of behavioral support work. His best year's earnings ever as a behavioral support worker was $30,792 in 2007 with the next best being $23,912 in 2009, the year before MVA #1. It is submitted on behalf of Mr. Pinch that, as a result of MVA #1, Mr. Pinch had a residual earning capacity of no more than $20,000 a year. Before MVA #1, Mr. Pinch was earning approximately

$56,160. Counsel for Mr. Pinch submits that this creates an approximate annual capacity loss of $41,776 in present dollars so that, applying the income loss multiplier of $13,444 per $1,000 given by Mark Gosling in his expert report to the loss of $41,776, this produces a loss of capacity figure of $561,636.54. It is this amount which is claimed on behalf of Mr. Pinch for loss of capacity. [89] Counsel on behalf of Mr. Hofstee submits that Mr. Pinch has not proven the loss of ability to earn income on the basis that there is a real and substantial possibility of income loss and that, taking into account that Mr. Pinch resumed his full time work with two employers 17 months after MVA #1, no award should be made for loss of capacity. [90] As a result of MVA #1, I find that Mr. Pinch was rendered less capable overall from earning income from all types of employment, was less marketable as an employee to potential employers, was less able to take advantage of all job opportunities that might otherwise have been opened to him, and was less valuable as a person capable of earning income in a competitive labour market. I make that finding that there was a substantial possibility of future loss of income despite the fact that Mr. Pinch returned to his usual employment, per Perren, supra, at para. 32. [91] Mr. Pinch has proven that there is a real and substantial possibility of income

loss as a result of MVA #1. Despite the fact that Mr. Pinch was able to return to his usual employment, I accept and adopt the opinions of Dr. Apel and Ms. Ismail to reach the conclusion that a number of jobs that were previously open to Mr. Pinch were no longer available to him, that his vocational restrictions were permanent, and that it was likely that his prognosis would get progressively worse. I am satisfied that the capital asset approach taken in Brown, supra, it is more appropriate here as I cannot be satisfied that the loss is easily measurable. I assess the annual capacity loss at $335,000 representing the rough equivalent of an annual loss of capacity of $25,000. [92] If I am found to be incorrect in coming to the conclusion that Mr. Pinch is not in a position to make a claim for damages resulting from MVA #2, then I would have found that the approximate annual capacity loss was $50,000 and, applying the income loss multiplier of $13,444 for each $1,000, the loss of capacity assessment would be $678,200. I would have come to this conclusion as I am satisfied that the additional incapacity as a result of the injuries suffered in MVA #2 has resulted in the virtual inability of Mr. Pinch to be gainfully employed by virtue of the physical and psychological injuries flowing from MVA #2 and as a result of the pre‑disposition of Mr. Pinch to suffer depression. I am satisfied that Mr. Pinch has met the onus of establishing a real and substantial possibility of almost complete loss of capacity.

FUTURE COST OF CARE [93] In the December 5, 2012 report from OT Consulting/Treatment Services relating to the cost of future care assessment, Ms. Ismail recommended the following services at the following costs and durations relating to MVA #1: Service Replacement Time Cost Pain management program Transportation Once $1,750 - $12,100 $585 Occupational therapy Once $1,925 Psychologist (Initial Assessment) Follow-up sessions (unknown) Once $350 - $700 Unknown Vocational assessment Once $650 - $1,700 Massage therapy Annually $344 - $2,232 Chiropractor (Initial session) Subsequent cost per session (unknown) Once $55 - $98 $40 - $45 Total $14,405 - $33,637 [94] Ms. Ismail also provided a January 15, 2013 opinion relating to "recommendations for future care". In addition to the recommendations contained in her previous report relating to a "multi-disciplinary pain management programme" and transportation costs, occupational therapy services, initial assessment by a psychologist, a vocational assessment, and an initial visit and treatment sessions with a chiropractor, Ms. Ismail recommended that a vocational assessment include vocational counselling, job search and a clinical counselling at a rate of $100/hour and $90/hour for resume and cover letter preparation. [95] Ms. Ismail also made recommendations regarding equipment being available to Mr. Pinch to include grab bars, assistive

devices kit, Obus-Forme seat, supportive seat back, supportive footwear, heat/ice packs, pillows, mattress overlay, and an ergonomic chair for a total cost of about $1,100 a year. Under the heading of "supplies", Ms. Ismail estimated that the yearly cost for non-prescription medication would range between $135.33 to $257.52. Regarding "prescription medications", the yearly cost was calculated as being $1,000.52. [96] Mark Gosling of Columbia Pacific Consulting provided a December 14, 2014 opinion estimating the present cost of future care for any constant annual expenses. He provided estimates of the present value of future care expenses based on " my multipliers and the recommendations in the January 15, 2013 report of Ms. Sarah Ismail". Mr. Gosling considered Ms. Ismail's future care assessment report and provided a range of between $280,701 and $475,658, with the lower end of the range based on the lower cost and infrequent replacement of items and the higher end being the higher cost and more frequent replacement. In accordance with the provisions of the Law and Equity Act, R.S.B.C. 1996, c. 253, Mr. Gosling used a discount rate of 2% per annum in calculating that the present value of each $1,000 cost is $26,110. [97] Counsel for Mr. Pinch submits that Mr. Pinch is well motivated to do all he can to lessen the effects of the injuries upon him and an award at the higher end

of that range is warranted. Mr. Pinch seeks $450,000 for future care, plus a tax gross up award, to be assessed. Counsel for Mr. Hofstee made no submissions regarding the question. [98] In Sunner v. Rana, 2015 BCCA 406 on behalf of the Court, Chaisson J.A. made these statements regarding the issue of establishing the cost of future care: The appellants contend that the trial judge's reasons provide no indication of why he awarded the respondent $20,000 for the cost of future care. He claimed $36,000 which the judge described as "25% of the higher amount estimated by Mr. Teasley". This Court addressed the issue in Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144; Gignac v. Insurance Corporation of British Columbia, 2012 BCCA 351; and Johal v. Meyede, 2014 BCCA 509. In Johal, this Court stated: The difficulties posed by these reasons are three-fold: (1) The judge did not analyze each item of care to determine whether there was an evidentiary link between the caregiver's assessment of pain or disability and the recommended care; (2) it is not apparent that the judge had regard for the real and substantial possibility that the expense will be incurred or that he made an allowance for the contingency that the cost may not be incurred. It may be that he accepted Ms. Johal's submission as to the appropriate negative contingency, but it is not apparent from the

reasons; and (3) the judge did not identify the specific amount awarded for each item claimed. Thus, as the appellants note, there cannot be a proper mandatory deduction pursuant to s. 83 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 because one needs to first determine whether the item is a mandatory or discretionary benefit under s. 88 of Part 7 of the Insurance (Vehicle Act) Regulation, B.C. Reg. 447/83. It may be, as Ms. Johal suggests, that the bulk of the claimed future care costs were supported by the evidence. For example, it may be possible to infer what amounts the judge specifically awarded for the Botox injections, and the seasonal cleaning and gardening assistance. The insurmountable difficulty in determining this issue on appeal lies in discerning from the reasons precisely which costs were allowed, in what amounts, and for what reason. In other words, the road map for the award was not developed in the reasons for judgment: there are individual items that were claimed by Ms. Johal that were neither accepted nor rejected by the judge. That being so, that part of the award must be set aside and a fresh determination made. Thus, I would remit the matter to the judge for a fresh determination of the future care costs. In Gignac, this Court declined to remit the matter to the Supreme Court because the judge had retired, but stated: [32] The failure of the

trial judge to perform an analysis of each item sought by the plaintiff with respect to whether there was "some evidentiary link between the physician's assessment of pain, disability and recommended treatment and the care recommended by a qualified health professional" was a legal error. (at paras 43-45 and 47) [99] In attempting to determine whether Mr. Pinch has met the onus of establishing that there is a real and substantial possibility that the expenses outlined by Ms. Ismail will be incurred, I am met with the following questions: (a) Is there an evidentiary link between what is recommended and an assessment by the caregivers of Mr. Pinch that what is recommended will be of assistance in managing pain and lessening the disabilities of Mr. Pinch? (b) Will the expense of what is recommended by Ms. Ismail be incurred? [100] In this latter regard, the recommendations made by Ms. Ismail were made on January 15, 2013, which is approximately two years prior to the Trial. There is no indication that the expenses were actually incurred. [101] However, I find that there is an evidentiary link between some of the one‑time expenses recommended. Accordingly, I find that Mr. Pinch has proven that there is a real and substantial possibility that the following one‑time expenses will be incurred: (a) Occupational therapy ($1,925); (b) Initial assessment by a psychologist ($700); (c) A

vocational assessment ($1,700); and (d) The equipment recommended by Ms. Ismail ($1,100). [102] Regarding the yearly expenses estimated by Ms. Ismail, I find that Mr. Pinch has not shown that there is a real and substantial possibility that the non‑prescription medication, the prescription medication, and equipment such as grab bars, assistive devices kit, Obus‑Forme seat, supportive back seat, supportive foot wear, pillows, mattress overlay and an ergonomic chair will result in yearly expenses. Regarding the possibility of acupuncture treatments, Mr. Pinch testified that: "I would like to try acupuncture". However, there is no indication that acupuncture was recommended by any caregiver. Regarding massage therapy, Mr. Pinch stated that he had massage therapy in August of 2012 but that it did not assist him in pain reduction. As well, there was nothing in evidence which would allow me to conclude that massage therapy was recommended by a care giver or that the number of treatments were warranted. While I am satisfied that Mr. Pinch will be greatly assisted with both his suffering and his disability by treatment by a psychologist, the yearly cost of the same is stated by Ms. Ismail as being "Unknown". Loss of Housekeeping Capacity [103] Counsel for Mr. Pinch claims for past and future loss of housekeeping capacity for those services he cannot perform because of his injuries and,

in this regard, relies on the decision in McTavish v. MacGillivray (2000), 74 B.C.L.R. (3d) 281 (C.A.), where Saunders J.A. made these statements: This Court, in Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652; (1995) 4 B.C.L.R. (3d) 178; [1995] 6 W.W.R. 5 (C.A.) recognized that damages for past and future loss of housekeeping capacity may be awarded by a trial judge, even though housekeeping services were gratuitously replaced by a family member. Further, it recognized that, depending on the facts, this compensation may be by pecuniary or non-pecuniary damages, and if non‑pecuniary, that there was no reason these damages could not be segregated. On past loss, this trial judge elected to rely upon the value of replacement costs, even though monies had not been expended by the plaintiff to replace the services she could not provide, and even though she had elected to accept and rely upon housekeeping services from her family in replacement of work she formerly performed. In doing so he said at para. 25: It is clear, however, that the plaintiff must show that the work done by her family caused them direct economic loss or that the work replaced expenses which would have to have been incurred if the work had not been done by the spouse. He found that the work of the family members "did replace expenses which would have been incurred if they had not been available" (para. 25). In

these circumstances, and on the authorities, it was open to this trial judge to use the replacement cost method of valuation, thus recognizing the real economic loss to the plaintiff in this area, but mindful of the need discussed in Kroeker for restraint. Further, in this case it mattered not whether these damages are labeled pecuniary or segregated non-pecuniary, for even if they are non-pecuniary damages, the combined total is not wholly disproportionate to the loss, and thus they are beyond review. Nor does the award engage the issues which will arise in case of catastrophic loss. Likewise, in my view, it was open to the trial judge to assess damages for future loss of housekeeping capacity on a replacement cost basis. The decision he made was open to him on the evidence. The appellants contended that the trial judge should have deducted for the negative contingency that the respondent may not purchase replacement services. I concur with Madam Justice Huddart that the possibility that the respondent may not hire replacement help is not analogous to the contingencies for which the court usually adjusts the award, and is not a contingency which must be taken into account. The respondent further contended that the damages for future loss of housekeeping capacity should have been based on a reducing need for replacement services, not a level need, for nine years. This

assessment, again in my view, is one within the proper purview of the trial judge and not this Court. It was open to the trial judge to conclude, for example, that a level need was the proper balance between the likelihood of a diminishing need and an increasing need. (at paras. 73-77) [104] It is apparent that undertaking even the most "mundane" of tasks now causes Mr. Pinch considerable pain. For instance, the changing of light bulbs is done by other members because lifting his arms increases the pain being suffered by Mr. Pinch. I find that, as a result of MVA #1, Mr. Pinch found it necessary to rely primarily on others to undertake household duties he previously undertook including the cutting of grass, the cleaning of the bathtub, the scrubbing of walls and toilets, the retrieving of items in lower cupboards, and any heavy housecleaning and yard work. I accept the evidence of Ms. Pinch that Mr. Pinch "couldn't do what he did before". [105] In her January 15, 2013 report relating to "homemaking" services, Ms. Ismail recommenced provision of services for 6 to 8 hours per week of services to include light housekeeping, meal preparation, grocery shopping and laundry assistance. On an annual basis, the cost of these services ranges from $6,786 to $10,816. Regarding "home and yard maintenance", Ms. Ismail estimated the annual cost for home and yard maintenance would range from

$1,920 to $3,136 and would include interior and exterior maintenance and repair, vehicle maintenance, and other home improvements, gardening-grounds maintenance, and other tasks such as pet care, household administration, stacking firewood, etc. [106] Counsel for Mr. Pinch submits that the appropriate value to place on the lost housekeeping capacity services amounts to between $6,786 - $10,816 for homemaking and $1,920 - $3,136 for home and yard maintenance per year. The average of those sums is $11,329 which, over the 4.5 years since the MVA #1 would total $50,980.50. Counsel for Mr. Pinch submits that this is a reasonable valuation of the homemaking ability that has been lost. [107] I agree that this is an appropriate assessment of the loss of capacity of Mr. Pinch to perform housekeeping services including "homemaking" and "home and yard maintenance". I am satisfied that there were unique circumstances in the Pinch household which required Mr. Pinch to perform by himself many of the homemaking services that might ordinarily be shared by spouses. The problems of Ms. Pinch required more than an equal sharing by Mr. Pinch. I find that many of the services noted above could no longer be provided by Ms. Pinch prior to MVA #1 and that the household services that Mr. Pinch was expected to provide could not always be provided by him. In assessing past loss of housekeeping capacity

at $50,980.50 as a result of MVA #1, I adopt the estimate of value of replacement costs provided by Ms. Ismail. I do so despite the fact that I cannot be satisfied that monies have been expended by Mr. Pinch to replace the services he could not provide even though he elected to accept and rely on services from family members and neighbours. [108] I assess damages for future loss of housekeeping capacity on a replacement costs basis as well. I am satisfied that Mr. Pinch has proven that there is a real and substantial possibility that the services will continue to be required in the Pinch household and that an assessment of those damages, on a replacement cost basis, is warranted. Using the present value opinion provided by Mark Gosling and applying the loss multiplier of $13,444 for each $1,000 against the $11,329 which I find to be the yearly cost, I assess the future loss of housekeeping capacity relating to MVA #1 at $152,307.07. [109] If I am found to be incorrect in arriving at the conclusion that Mr. Pinch is not in a position to claim against Mr. Hofstee for the damages associated with MVA #2, then I am satisfied that Mr. Pinch has shown on a balance of probabilities that there is a real and substantial possibility that housekeeping capacity was diminished as a result of MVA #2. Accordingly, I am satisfied that it is appropriate to use the higher of the yearly estimates

made by Ms. Ismail in her January 15, 2013 report. Applying a loss multiplier of $13,444 for each $1,000 against yearly homemaking, home and yard maintenance costs of $13,952, I would have assessed the future loss of housekeeping capacity of $149,658.30 or $42,351.23 in excess of future loss of housekeeping capacity that I have assessed relating to MVA #1. Special Damages [110] In any claim for special damage, s.10(10)(a) of the Workers Compensation Act must be considered: "In an action brought under this section, an award for damages is to include: (a) health care provided under this Part". To date WorkSafeBC has provided Mr. Pinch with $16,984.79 under the claim he made after MVA #1. Counsel for Mr. Pinch submits that the $16,984.79 is captured and payable by virtue of s. 10(10)(a) of the Act. [111] The total of payments made by WorkSafeBC during the period are as follows: Period Health Care MSP Payment August 20, 2010 to December 4, 2011 September 6, 2010 to January 4, 2012 11,030.40 August 20, 2010 to February 7, 2013 5,954.39 [112] Counsel for Mr. Hofstee submits that his client is only liable for special damages attributable to MVA #1 and that a number of the special damages were not proven in Court as Mr. Pinch has failed to show that the costs sought to be awarded are justifiable, i.e. expended on reasonable treatment and that the price spent was reasonable. Counsel for

Mr. Hofstee submits that there was no evidence led that the Physical Therapy, Occupational Rehabilitation 1 program, or the Occupational Rehabilitation 2 program were medically recommended, necessary or reasonably priced. In addition, although Mr. Pinch admitted to receiving massage therapy in 2011, counsel for Mr. Hofstee submits that there was no evidence led that massage therapy was recommended by a physician or that the number of treatments was justifiable. As well, counsel points out that Mr. Pinch admitted that the massage therapy received did not help with his pain symptoms and that there was no evidence which spoke to the purpose of orthotics and/or footwear. [113] After reviewing the evidence relating to the medical and other advisors of Mr. Pinch, I am satisfied that the disbursements totaling $16,984.79 were justified, that the amounts were reasonable, and that the sums were expended on reasonable treatment recommended by the advisors of Mr. Pinch. I am satisfied that there is an evidentiary link between the assessment of the various caretakers of the pain or disability suffered by Mr. Pinch as a result of MVA #1 and the recommended care represented by the special costs claimed. Accordingly, the sum of $16,984.72 is allowed as special damages. [114] If I am found to be incorrect in coming to the conclusion that Mr. Pinch is not in a position to make a claim for

damages resulting from MVA #2, then I would award the Special Damages that must be set pursuant to s. 10(10)(a) of the Workers Compensation Act by taking into account the following: Period Health Care MSP Payment April 5, 2013 to January 12, 2014 January 16, 2014 to January 7, 2015 April 8, 2013 to February 3, 2015 26,505.07 March 14, 2013 to February 8, 2015 32,835.26 [115] Accordingly, I would include in the special damages to be awarded to Mr. Pinch, a total of $59,340.33 as noted above with those amounts relating to a provision of "health care" provided under the Act and pursuant to s.10(10)(a) of the Act. I am satisfied that it has been shown there is an evidentiary link between the assessment of pain and disability and the expenditures that have been undertaken.

SUMMARY [116] For the damages flowing solely from MVA #1 caused by Mr. Hofstee, I find that Mr. Pinch is entitled to damages totaling $730,821.29 made up of the following: (a) Non-pecuniary damages - $100,000; (b) Past loss of income - $70,124 (gross); (c) Loss of capacity - $335,000; (d) Past Loss of Housekeeping Capacity - $50,980.50; (e) Future Loss of Housekeeping Capacity - $152,307.07; (f) Future cost of care - $5,425 (one‑time expense); and (g) Special damages - $16,984.72. [117] If I am found to be incorrect in arriving at the conclusion that Mr. Pinch is not in a position to claim against Mr. Hofstee for damages associated with MVA #1 and MVA #2, I find that Mr. Pinch is entitled to the following damages attributable to MVA #2: (a) Non-Pecuniary Damages - $150,000; (b) Past Income Loss - $107,728 (Gross); (c) Loss of Capacity - $678,200; (d) Loss of Future Housekeeping Capacity - $42,351.23 and (e) Special Damages - $59,340.33. [118] The parties will be at liberty to speak to the question of costs, the appropriate statutory deductions on past income loss, and necessary tax gross‑ups. "Burnyeat J."