Sawires v. Paris

2021 BCSC 240 Sawires v. Paris

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sawires v. Paris, 2021 BCSC 240 Date: 20210217 Docket: M178696 Registry: Vancouver Between: Mark-Anthony Sawires Plaintiff And: Charles Paris Defendant Subject to Rule 15-1 Before: The Honourable Madam Justice Adair Reasons for Judgment Counsel for the Plaintiff: D. Mah Counsel for the Defendant: D. Addison J. Hulstein Place and Date of Trial: Vancouver, B.C. September 28-30 and October 2, 2020 Place and Date of Judgment: Vancouver, B.C. February 17, 2021 1. Introduction. 2 2. Background. 3 3. The accident and life after the accident 5 4. The experts. 12 5. Causation and credibility. 18 6. Findings and conclusions concerning Mr. Sawires' injuries. 23 7. Damages. 25 (a) Non-pecuniary damages. 25 (b) Loss of future earning capacity. 27 (c) Cost of future care. 31 (d) Special damages. 33 8. Summary and disposition. 34 1. Introduction [1] On October 31, 2015, the plaintiff, Mark-Anthony Sawires, was involved in a motor vehicle accident. The defendant has admitted liability. [2] Mr. Sawires says that, as a result of the accident, he sustained soft tissue injuries to his neck, upper back and lower back. Mr. Sawires says that, while matters concerning his neck and upper back have resolved, he continues to experience discomfort and pain in his low back, and also pain shooting into his right leg. Mr. Sawires says that, as a result of

the injuries he sustained, he is no longer able to participate in sports - specifically soccer and hockey - which had been his passion since a young age, and his emotional health has deteriorated. In addition to non-pecuniary damages, Mr. Sawires seeks compensation for loss of future earning capacity, cost of future care and special damages. [3] The defendant accepts that Mr. Sawires sustained injuries in the accident, and is entitled to compensation accordingly. However, the defendant says that the effects of the injuries have been less severe than Mr. Sawires claims, and that he has not demonstrated any loss of future earning capacity.

2. Background [4] Mr. Sawires was born in Etobicoke, Ontario in April 1984, and was 36 as of trial. He has two sisters, one older and one younger. His mother is a real estate agent, and his father, Onssy Sawires ("Mr. Sawires Sr."), is a retired engineer. [5] Mr. Sawires was raised outside of Toronto. He graduated high school in 2002. He then attended York University, and graduated in 2007 with a Bachelor's degree in economics. Mr. Sawires then worked full-time at the National Student Loan Service Centre. In August 2008, he began working for RBC Insurance, and, following completion of courses through Dalhousie University, Mr. Sawires became a licenced insurance advisor for home and automobile insurance. [6] Mr. Sawires' immediate family moved to Vancouver in 2008, and he followed in 2011. As of trial, Mr. Sawires owned and was living in a one-bedroom condominium in the Kitsilano area of Vancouver. Mr. Sawires explained that, in 2012, he fully renovated his condo. As Mr. Sawires explained, his father provided the know-how, while he provided most of the labour. [7] When Mr. Sawires moved to Vancouver, he continued to work for RBC Insurance, handling group benefits and providing support to sale representatives. He left RBC Insurance in 2014 and joined Manulife. Mr. Sawires explained that his work at Manulife was similar to what he had been doing at RBC Insurance. However, his

salary increased, and, at Manulife, he was handling major accounts. Mr. Sawires was working at Manulife at the time of the accident. [8] Before the accident, and from a young age, Mr. Sawires had been very active physically. Mr. Sawires explained (and his father confirmed) that he began playing soccer at age 4, and started hockey at about age 10. He excelled at both. He was a lifeguard when he was a teenager. After he moved to Vancouver, Mr. Sawires played hockey, soccer, volleyball, softball, tennis and dodgeball, and was part of the "Urban Rec" multi-sports league. He regularly cycled to work. Before the accident, Mr. Sawires played soccer two to three times a week with the Burnaby Soccer League, and also played with other local leagues. Mr. Sawires explained that sports were his passion and a way of life for him. His participation in sports took up most of his free time, and, in addition to the physical activity, he also enjoyed the social aspects. [9] Mr. Sawires (together with his immediate family) was also an active member of St. George Catholic Church in Surrey. He explained that he did volunteer work with his church, including youth leadership. [10] At trial, I heard evidence from two of Mr. Sawires' friends, Patrick Rizkallah ("P. Rizkallah") and Matthew Rizkallah ("M. Rizkallah") (who are brothers), and from Mr. Sawires Sr. [11] Patrick Rizkallah is in his early 40s

and lives in Fort Langley. He is the operations manager for a collision repair shop. As of trial, he had known Mr. Sawires for about nine or ten years, through church and through sports. According to P. Rizkallah, before the accident, he saw Mr. Sawires at least once and sometimes twice a week, either in connection with soccer or at church. He described Mr. Sawires as active, very witty, super energetic and very athletic. P. Rizkallah confirmed that Mr. Sawires was involved in many sports, especially hockey and soccer. He and Mr. Sawires played soccer together in the Burnaby Men's League, Division II, which P. Rizkallah described as a level just below a professional league. During the summer, when it was the off-season, he and Mr. Sawires played non-competitive soccer in the Knights League, to keep active. P. Rizkallah described Mr. Sawires as a "super" athlete, the highest scorer and a key player on the team. As P. Rizkallah recalled, before the accident, he would sometimes watch Mr. Sawires play hockey at 8 Rinks in Burnaby, and afterward they would play soccer. [12] P. Rizkallah also described some of Mr. Sawires' activities at their church. According to P. Rizkallah, for a number of years, Mr. Sawires helped prepare meals for the homeless, and he was a leader at youth conferences. [13] Matthew Rizkalla is in his late 30s and lives in Vancouver. As of trial, he was a project

manager for a real estate company. He initially got to know Mr. Sawires through church. They became close friends and have known one another for about 10 years. According to M. Rizkallah, before the accident, he and Mr. Sawires saw one another at least once a week, and they spoke to one another frequently. M. Rizkallah described Mr. Sawires as bubbly and social, very easy-going, fun to be around, witty and quick with a joke. The two of them played soccer together in the Men's League, skied together, and socialized with friends. M. Rizkallah confirmed that Mr. Sawires was a very good soccer player, and one of the more skilled players on the team. M. Rizkallah also described Mr. Sawires as someone who was always close to his family. [14] In 2014 and 2015, before the accident, Mr. Sawires and M. Rizkallah operated a business together, Pyramid Contracting, doing small renovation projects, mostly painting. M. Rizkallah explained that, at the time, he had been laid off from his construction job, and he worked full-time for Pyramid. As M. Rizkallah recalled, the business did not last for a full year, and stopped before the accident. According to M. Rizkallah, while Pyramid was in operation, Mr. Sawires helped to find work and also provided some of the labour after he was finished his normal workday. As M. Rizkallah recalled, Pyramid was not profitable, and he and Mr. Sawires never

discussed resurrecting the business. [15] Mr. Sawires Sr. is now in his mid-70s. He described his son before the accident as happy, easy-going, joking, helpful and kind. They enjoyed activities together, such as swimming, hiking and travel, and, according to Mr. Sawires Sr., the whole family enjoyed watching Mr. Sawires play soccer and hockey. According to Mr. Sawires Sr., Mr. Sawires helped him a great deal around the house, and he described Mr. Sawires as very handy with tools.

3. The accident and life after the accident [16] The accident occurred at the intersection of Arbutus Street and Broadway in Vancouver. It was a Saturday. Mr. Sawires was driving a car belonging to his then girlfriend (who was a passenger), and was proceeding through the intersection on a green light. Mr. Sawires' car was hit on the front driver's side by the defendant's car. As Mr. Sawires recalled, the airbags in his car did not inflate, and the car was driveable following the collision. No emergency vehicles attended at the scene. [17] As Mr. Sawires recalled, he did not feel any pain immediately after the collision. He and his girlfriend went back to his girlfriend's house. [18] However, as Mr. Sawires recalled, later that evening he started feeling the effects of the collision. He did not go to work the following Monday (November 2). At the time, Mr. Sawires did not have a family doctor, and so he went to see a doctor at the Seymour Health Centre. As Mr. Sawires recalled, he explained to the doctor what had happened and where he was sore: his neck, upper back and lower back. He returned about two weeks later. As Mr. Sawires recalled, at that time, he was experiencing neck and lower back pain. He received a referral for massage therapy and physiotherapy. Mr. Sawires went only twice for massage therapy. He stopped because he did not feel that the therapy was helping. He did

not attend physiotherapy in 2015, although he did so later. Mr. Sawires explained that, at the time, based on his experience playing sports, injuries came and went, and he wanted to see if his pain would resolve on its own. [19] As Mr. Sawires recalled, in November and December 2015, he attempted to play hockey and soccer. However, he described feeling "extremely uncomfortable," and said that his attempts were unsuccessful. According to Mr. Sawires, at this time, there were some days when he struggled to get out of bed. It was more difficult for him to do routine household chores and keep his condo clean. As he recalled, he occasionally needed help putting on socks. [20] P. Rizkallah recalled learning about the accident almost immediately after it happened. As he recalled, Mr. Sawires was reluctant to play soccer. However, P. Rizkallah (and others) pushed him to come and try. As P. Rizkallah recalled, Mr. Sawires came and tried to play for about ten or 15 minutes. However, as P. Rizkallah recalled, Mr. Sawires became frustrated with his aches and pains. He then packed his bags and left. According to P. Rizkallah, this was not like Mr. Sawires. [21] In early 2016, Mr. Sawires continued to visit the Seymour Medical Centre. In January, Mr. Sawires was given a referral for chiropractic treatment. As Mr. Sawires recalled, at the time, he had pain going down his right leg from the

tail bone into his right heel. As Mr. Sawires recalled, he began both chiropractic treatment and physiotherapy in March 2016. He explained that he attended physiotherapy for about six months, but stopped because the therapy was not providing him with any long-term relief. He stopped chiropractic treatment after about nine months, essentially for the same reason. [22] In the spring of 2016, Mr. Sawires and his then girlfriend took a vacation to Guatemala and Belize. Mr. Sawires described this trip as mostly hiking, snorkelling and sight-seeing. He described going on a six-hour hike. He said he was carrying a light pack and was wearing back support, while a porter carried most of his gear. Mr. Sawires described the hike as manageable with many breaks, and something he had discussed in advance with his physiotherapist. [23] By May, Mr. Sawires' right leg pain, which had been intermittent, was now more constant, and he continued to have symptoms into his right leg. His doctor recommended that he be allowed to wear running shoes at work. In June 2016, Mr. Sawires had imaging done of his lumbar spine. The imaging disclosed a disc bulge at L5-S1. According to Mr. Sawires, when he discussed the imaging report with his doctor, he was told that a nerve was being pinched. [24] In August 2016, Mr. Sawires saw Dr. Joy Wee, a physiatrist practicing at the Seymour Health Centre, for the first

time. Over the next several months, Dr. Wee made a number of recommendations, including that an ergonomic assessment of Mr. Sawires' workstation be undertaken. Mr. Sawires also received another referral for massage therapy. According to Mr. Sawires, he was finding it hard to focus at work. He attended about five massage therapy sessions, but stopped because it did not provide him with any long-term relief. [25] During the summer of 2016, Mr. Sawires and his then-girlfriend went hiking in Garibaldi, and in the fall of 2016, Mr. Sawires went on vacation to Thailand. He explained that this trip was similar to the trip to Guatemala, and he spent time exploring the country, travelling from place to place by bus. Mr. Sawires also was able to complete his scuba diving training there, and obtained his licence. [26] As Mr. Sawires recalled, he also attempted returning to team sports. According to Mr. Sawires, his attempt at playing soccer was not successful. As he recalled, he also tried playing hockey a few times. However, Mr. Sawires explained that he was not comfortable and did not feel right. Even skating in a warm-up was difficult for him. As he recalled, he played on a softball team, although, because of his lack of mobility, he played first base. He was still cycling to work and walking. However, as Mr. Sawires recalled, he found doing household chores difficult. [27] An

ergonomic assessment was done for Mr. Sawires at his office in early 2017. As a result of the assessment, he was provided with a sit-stand desk and an anti-fatigue mat, and the position of his computer was modified. Mr. Sawires explained that he was having problems with prolonged sitting and standing, and the new equipment helped. [28] Mr. Sawires continued to see Dr. Wee in 2017. She prescribed a trial of amitriptyline for him, but, according to Mr. Sawires, the medication did not help. On the other hand, in 2016, Mr. Sawires had begun using cannabis periodically. He found it provided good pain relief and helped relieve his feelings of depression and anxiety. [29] Mr. Sawires explained that, as of early 2017, he had some muscle atrophy in his quads and glutes. Dr. Wee provided a referral to kinesiology for strengthening and also to increase his aerobic exercise. Mr. Sawires began regular kinesiology sessions in March, initially three times a week and then twice a week. As Mr. Sawires recalled, the sessions helped him, and he continued with kinesiology through the summer. Among the objectives were to work on core strengthening and posture, as well as to assist Mr. Sawires return to previous activities. According to Mr. Sawires, he again attempted to return to sports - this time, beach volleyball. However, according to Mr. Sawires, he was unable to jump and run, and, once again,

the attempt was unsuccessful. [30] In 2017, Mr. Sawires did some travelling. At the beginning of the year, Mr. Sawires went on a cruise of the Caribbean with his family, leaving from Florida. As Mr. Sawires recalled, he and a friend travelled to Peru. Mr. Sawires described their time in Peru as mostly sightseeing, and they did what Mr. Sawires described as the "short" version (a couple of hours each way) of a hike to Machu Pichu. [31] According to Mr. Sawires, by the fall of 2017, his emotional state was not good, and he described his outlook at that time as bleak. In addition to the physical symptoms he was continuing to experience, and his inability to play sports, Mr. Sawires and his family were dealing with the death of Mr. Sawires' aunt. In late September, Mr. Sawires took a short stress leave from work. [32] As Mr. Sawires recalled, although he had some gradual improvements in his physical symptoms, by 2018, he felt that his recovery had reached a plateau. According to Mr. Sawires, he was still having pain and symptoms in his lower back and right leg. He felt unable to participate in sports, which Mr. Sawires described as "part of my lifeblood." He was feeling depressed, stressed and anxious. As a result, Mr. Sawires sought help and took advantage of psychological counselling offered through his employer. According to Mr. Sawires, he took up the counsellor's suggestion of

getting a dog. After doing do, he found his mood improved, and he felt much better. [33] While Mr. Sawires had not returned to playing soccer or hockey, he remained physically active. He was attending the gym at the Y regularly, where he swam laps and did aquafit. He continued to cycle to work. He was also continuing with his home exercise program. However, according to Mr. Sawires, he was unable to do much housework, especially heavier chores, because of his symptoms. [34] As Mr. Sawires recalled, around this time, he was becoming unhappy at Manulife. He explained that he felt that he was being passed over for some promotions, and he decided to leave. He found a new position at Dehoney Financial (also in the financial services and insurance business) as the account manager for the retirement team, at a higher salary than he was earning at Manulife. Mr. Sawires began working at Dehoney on October 1, 2018. An ergonomic assessment was done there for Mr. Sawires, and he was again provided with a sit-stand desk, an ergonomic chair and anti-fatigue mat. As Mr. Sawires recalled, after the items were installed, he then had a follow-up session to ensure that he was using them properly. According to Mr. Sawires, having these items helped him function at work. [35] According to Mr. Sawires, in 2019, there was no real change in his symptoms, including his pain symptoms. He was also still

feeling down emotionally. The treatments (including injections) that he tried did not work. Although he went on a trip to Europe around the end of May, Mr. Sawires described it as mainly sight-seeing and shopping. He had stopped playing hockey and soccer. According to Mr. Sawires, there was no change in his ability to do housework, and he continued to have pain with heavier lifting and chores such as vacuuming. [36] According to Mr. Sawires, as of trial, he had pain in his lower back, toward the tailbone. He described himself as having constant discomfort. On the other hand, his pain symptoms depend on what he is doing. Mr. Sawires explained that pain shoots from his lower back down his right leg, like a tingling sensation. It is not constant, but Mr. Sawires estimated that he experiences these symptoms about five to seven times a day. He described it as exhausting, and explained that he needs to take naps. [37] According to Mr. Sawires, to manage his symptoms, he stops doing the activity that triggered them. According to Mr. Sawires, walking, sitting and standing for too long aggravate his symptoms. Bending forward, backward and to the right, and any heavy lifting all aggravate his pain symptoms. Mr. Sawires explained that his pain symptoms had improved since the accident, but there had been no improvement since mid-2018. To help manage pain, he uses a massage ball. If he has

pain when sitting, he stands. He uses Tylenol about once a week for pain control, and, for the same reason, also uses cannabis. [38] According to Mr. Sawires, after the accident, he never returned to his pre-accident level of sports. He explained that one of the reasons was that he worried about being injured further, and did not want to jeopardize his ability in the future to lift his children. Instead of playing sports, he was going to the gym (until pandemic measures came into effect in March 2020), exercising at home and walking. His bicycle was stolen a year ago, and he had not replaced it as of trial. His current symptoms have affected his intimate life. Mr. Sawires described his mood as still "down," in large part because he was no longer playing sports, "my passion." However, he has friends and family for support. [39] According to P. Rizkallah, since the accident, he does not see Mr. Sawires as often. He described Mr. Sawires as "absolutely" more reserved. According to P. Rizkallah, before the accident, Mr. Sawires was very involved, always laughing and the life of the party. Now, when P. Rizkallah sees him, Mr. Sawires is quiet and in a corner. He described Mr. Sawires as muted. [40] According to M. Rizkallah, he now sees Mr. Sawires about once a week, and they are in contact almost daily. M. Rizkallah confirmed that Mr. Sawires' participation in sports has changed

since the accident. Now, Mr. Sawires does not play sports and does not want to try playing sports. Moreover, according to M. Rizkallah, Mr. Sawires' personality has changed, and he is more negative. He described Mr. Sawires as frustrated rather than depressed. M. Rizkallah described the biggest change in Mr. Sawires as being not being able to play sports, which M. Rizkallah described as "devastating" for Mr. Sawires. [41] According to Mr. Sawires Sr., he now sees Mr. Sawires about three or four times a week, and Mr. Sawires visits more than he did before the accident. He explained that he has noticed a definite change in Mr. Sawires' personality. Before the accident, he had been easy going, joking. However, now Mr. Sawires Sr. finds his son hard to deal with and argumentative. Mr. Sawires Sr. described his son's condo now as dirty, with dishes in the sink. Mr. Sawires Sr. explained that Mr. Sawires is his only son, and it hurts him very badly to see him the way he now is. Mr. Sawires Sr. is worried about how his son will manage later in life, and how he will manage carrying and playing with children.

4. The experts [42] Mr. Sawires tendered expert medical opinion evidence from Dr. Catherine Paramonoff, and Dr. Shaid Gul. No opinion evidence was tendered by the defendant. [43] Dr. Paramonoff was tendered and qualified (without objection) as an expert in physical medicine and rehabilitation, qualified to give opinion evidence concerning the diagnosis and treatment of musculo-skeletal and neurological injuries and disability caused by trauma, in relation to the injuries sustained by Mr. Sawires in the accident. [44] Dr. Paramonoff carried out an independent medical assessment of Mr. Sawires on May 30, 2017. She provided two reports: the first dated May 4, 2018, which is based on her assessment in May 2017; and the second dated July 2, 2020, following review of additional documents. [45] In Dr. Paramonoff's opinion, as a result of the accident, Mr. Sawires had sustained a mechanical injury at the lumbosacral spine. [46] Dr. Paramonoff noted that, based on the history, the onset of Mr. Sawires' specific right-sided lower back pain occurred within days of the accident, while Mr. Sawires began noting symptoms travelling down his right leg four to five months after the accident. Dr. Paramonoff noted that her examination findings at the time of the assessment no longer showed pain with loading of the left lower back facet joints, but continued to be consistent with right L5-S1 nerve

root irritation. She also noted that this was consistent with Mr. Sawires' report of symptoms having improved over time, to a residual level. Dr. Paramonoff noted that post-accident imaging in June 2016 showed a right-sided disc protrusion superimposed on underlying degenerative changes, "with resultant moderate narrowing of the region where the L5 nerve root exits the bony spinal column, and displacement also of the right S1 nerve root." In Dr. Paramonoff's opinion: Correlating the imaging findings to the course of events- o The clinical presentation is most suggestive of Mr. Sawires likely having sustained injuries at the lumbosacral spine as a result of the MVA, with resultant lower back pain (greater pain on the right-hand side). o There was likely subsequent development of the superimposed disc protrusion and nerve root contact, resulting in symptoms into the right lower extremity. Causation of the superimposed disc protrusion is difficult to determine with certainty: on the balance of probabilities, it is more likely than not that the injury from the MVA contributed to the subsequent disc protrusion, or at minimum unmasked it and rendered it to become symptomatic (altered mechanics of movement/muscle imbalance/deconditioning secondary to musculoskeletal pain); it is, however, possible that the disc protrusion may have occurred absent the MVA, or may have preexisted the

MVA and have been asymptomatic (however on the balance of probabilities, this is less likely). [47] Dr. Paramonoff was asked about this on cross-examination, particularly in relation to the timing of Mr. Sawires' right leg symptoms. She agreed that, in general terms, that the longer after an event symptoms occurred, the less likely the symptoms were caused by the event. However, she went on to explain that, after an injury, an individual can become deconditioned and have muscle imbalance. This, in turn can cause ongoing symptoms and unmask an underlying pathology. In Mr. Sawires' case, he had right-sided low back pain shortly after the accident. In Dr. Paramonoff's opinion, at a minimum, the accident caused the disc herniation to become symptomatic. Dr. Paramonoff commented that the symptoms from a disc herniation can decrease over time, and, based on her review of Dr. Gul's report, that had happened for Mr. Sawires. When she saw Mr. Sawires, he reported the symptoms at a pain level of four to five, whereas, when he saw Dr. Gul, Mr. Sawires reported his symptoms at level between two and four. [48] In Dr. Paramonoff's opinion, other matters (for example, right L5 spondylolysis) disclosed on imaging were more likely than not unrelated to the accident. [49] In Dr. Paramonoff's opinion: ● Notwithstanding the exercise program, Mr. Sawires' clinical presentation was also consistent

with post-MVA muscle imbalance/deconditioning contributing to the residual symptoms (this includes that there can be other areas of varying soft tissue and associated symptoms, due to altered mechanics of movement/ muscle imbalance/ deconditioning; management of such symptoms is with the independent exercise program). ● The presentation is also suggestive of some confounding factors contributing to the residual symptom presentation and decrease in functioning. Confounding factors (including mood symptoms/ psychological issues, decreased sleep, kinesiophobia) can negatively affect a person's experience of pain, thereby contributing to an ongoing [chronic] pain presentation. [50] Dr. Paramonoff explained that mechanical pain "arises from bones, discs, and/or associated structures, including from injury, degenerative changes, or abnormal use (i.e. altered mechanics)." She explained further that post-accident muscle imbalance or deconditioning can result from a combination of factors subsequent to musculoskeletal injuries, including pain inhibition, altered mechanics of movement, and decreased activity; and can be associated with resultant myofascial sources (i.e. muscle overuse or underuse can result in secondary areas of soft tissue pain such as muscular symptoms and/or inflammatory bursitis, as these additional areas are subjected to abnormal use). [51] Dr. Paramonoff expressed

no opinion concerning Mr. Sawires' mood symptoms, complaints of tinnitus and visual symptoms ("floaters"). Rather, she deferred to others. [52] With respect to prognosis, in Dr. Paramonoff's opinion: [Mr. Sawires] will likely have a prolonged course of recovery, given some contribution from unmasking of pre-existing degenerative changes, post-MVA muscle imbalance/ deconditioning, and confounding factors. Notwithstanding the time elapsed since the MVA, it is my opinion that Mr. Sawires can still have further mild, and possibly up to moderate, symptomatic improvement- ● with continuation and gradual increase in the independent exercise program; ● with management of any confounding factors; ● and possibly with decrease in the disc protrusion over time. [53] Dr. Paramonoff commented relatively briefly on functional limitations. In her opinion, Mr. Sawires had some activity limitations (for example, heavy lifting, and loaded twisting). She noted that some of the limitations related to degenerative changes in Mr. Sawires' spine. However, in Dr. Paramonoff's opinion, Mr. Sawires was unlikely to have had the extent of symptoms he now experienced, absent the injuries and sequelae from the accident. Dr. Paramonoff also noted limitations caused by pain. Dr. Paramonoff noted that adaptions could include: taking micro-breaks when required; pacing and prioritizing activities; ensuring

optimal ergonomics and mechanics of movement; continuing to build strength; and maintaining strength and conditioning over the long term. [54] In Dr. Paramonoff's opinion, it was reasonable for Mr. Sawires to carry out regular homemaking activities, with strengthening and conditioning, and with activity adaptations. She considered that it would be reasonable for Mr. Sawires to have some assistance with heavier seasonal cleaning over the long term. With respect to recreational activities, Dr. Paramonoff considered that, once Mr. Sawires established an optimal baseline of strengthening and conditioning with an independent exercise program, "he will still need to gradually build up to doing new physical activities or activities that he is no longer accustomed to doing, in order to improve his tolerance for such activities." [55] With respect to future care, Dr. Paramonoff recommended that Mr. Sawires continued to participate in a regular, independent exercise program, "working on strengthening (including spinal stabilizing, core and lumbopelvic musculature exercises), and conditioning." Given the time that had passed since the accident, Dr. Paramonoff did not recommend reliance on passive treatments. However, to address possible "flares" of pain, Dr. Paramonoff recommended that Mr. Sawires have access to occasional treatment (physiotherapy or massage therapy) for pain management,

"on a time-limited basis." Dr. Paramonoff recommended "up to" six treatments per year for the next two years. Based on the assessment in May 2017, this recommendation did not go beyond 2019. [56] As of Dr. Paramonoff's examination of Mr. Sawires, he was not taking any prescribed medication. Dr. Paramonoff considered that he might benefit from a short course of a medication such as nortriptyline (or other medication within that family). In Dr. Paramonoff's opinion, it was reasonable for Mr. Sawires to use over-the-counter medication from time to time for flares of pain. [57] Dr. Paramonoff's second report was based on her review of additional documents. These included Dr. Gul's report. Dr. Paramonoff said that there was no substantial change to the opinions expressed in her first report. [58] Dr. Gul was tendered and qualified (again, without objection) as an expert in neurosurgery, qualified to give opinion evidence concerning the diagnosis and treatment of neurological and musculo-skeletal injuries caused by trauma. Dr. Gul carried out an independent medical assessment of Mr. Sawires on January 23, 2019. [59] Dr. Gul diagnosed Mr. Sawires with two separate areas of injury respecting Mr. Sawires' lower back. The first was a soft tissue injury to the lower back, which, in Dr. Gul's opinion, was caused as a result of the accident. Dr. Gul commented that, at the time of the

assessment, Mr. Sawires was continuing to experience lower back pain "secondary to the lower back soft tissue injury." Dr. Gul also diagnosed Mr. Sawires with right lumbar radiculopathy secondary to a disc herniation at L5-S1, with symptoms ongoing. Dr. Gul commented: This would in significant part account for Mr. Sawires's right lower extremity pain/symptoms (commonly referred to as sciatica pain) that he experienced following the October 31, 2015 accident. At the time of the assessment, Mr. Sawires was continuing to experience right lower extremity symptoms (aching, numbness, paresthesia) secondary to nerve root irritation. It is more likely than not that the persistent lower back pain secondary to the soft tissue injury . . . resulted in the eventual development of a right L5-S1 disc herniation and the resultant associated irritation/compression of the traversing root at the L5-S1 level, manifesting as right sided sciatica pain. . . . [60] In his oral evidence, and with respect to the development of the disc herniation, Dr. Gul explained that the back muscles shield discs from injury. If those muscles are not functioning well (because of a soft tissue injury), then there is less structural support for the disc. [61] In his report, Dr. Gul noted Mr. Sawires' report of some improvement in his right lower nerve root symptoms, and said that "this improvement would be in keeping

with the anticipated natural history of most lumbar disc herniations." In his oral evidence, Dr. Gul also noted improvements between Dr. Paramonoff's assessment and his assessment, for example in Mr. Sawires' straight leg raising and response to pin-prick testing. Dr. Gul said that this is what he would expect with a disc-type injury, although not all patients heal. In Dr. Gul's opinion, Mr. Sawires would "potentially" benefit from ongoing physiotherapy-based core strengthening and flexibility exercises. He commented that, although physiotherapy is designed to help a patient improve, sometimes symptoms linger. Dr. Gul noted that, in Mr. Sawires' case, there is also the matter of the injury to the disc. Dr. Gul explained that the firm cover of the disc is a ligament. He went on to explain that ligaments tend not to heal to their original strength, and, for a patient with a disc herniation, this can be a problem. [62] In Dr. Gul's opinion, Mr. Sawires had also sustained a soft tissue injury to his neck as a result of the accident. However, as of the date of Dr. Gul's assessment, this injury had healed, without any ongoing symptoms. [63] With respect to the prognosis for Mr. Sawires, Dr. Gul said that, in his experience, most spine-associated soft-tissue injuries secondary to trauma from a motor vehicle accident resolve within 18 months from the time of injury, and pain that

persists beyond that point is likely to be chronic. Dr. Gul considered it more likely than not that Mr. Sawires would continue to experience low back pain caused by the accident for the foreseeable future. Further, in Dr. Gul's opinion, Mr. Sawires would likely continue to experience physical limitations with work, hobbies and household chores as a result of his low back symptoms. [64] Dr. Gul said: Mr. Sawires will need to continue to be careful in regard to minimizing mechanical strain to his lower back; so as to reduce the potential for lower back associated aggravation. In this regard, he will need to be particularly cautious with activities that include, but are not limited to, heavy or awkward lifting; impact, jarring or compressions; strenuous lower back bending or twisting; and/or prolonged sitting or standing. [65] In Dr. Gul's opinion, as of the date of the assessment, in the absence of severe sciatica pain or associated neurological worsening, and balancing risks versus benefits, there were no indications to suggest the need for surgical decompression, such as microdiscectomy, for Mr. Sawires' lumbar spine. In Dr. Gul's opinion, such surgery would not be expected to assist him with lower back pain. If there were concerns related to lumbar discogenic worsening in the future, Dr. Gul considered that Mr. Sawires would potentially benefit from repeat imaging of his

lumbar spine. In Dr. Gul's opinion, it was possible that in the future Mr. Sawires might require microdiscectomy, should he experience recurrent and/or worsened L5-S1 discogenic radiculopathy. In Dr. Gul's opinion, such surgery would be intended to alleviate lower extremity nerve root pain and/or neurological worsening attributable to nerve root compression, but would not be expected to help alleviate lower back pain. [66] That, before the accident, Mr. Sawires had a pre-existing asymptomatic disc herniation that was unmasked as a result of the accident was put to Dr. Gul on cross-examination. Dr. Gul agreed it was possible, although he noted that, before the accident, there was nothing to suggest any disc-related symptoms.

5. Causation and credibility [67] I will comment relatively briefly on these issues, beginning with causation. [68] One of the causation issues in this case concerns the disc bulge or disc herniation. In closing submissions, the defence argued that the causation of the disc bulge and Mr. Sawires' right leg symptoms was "very much in issue." However, the defendant also acknowledged that, putting the defence case at its highest, Mr. Sawires' disc herniation was pre-existing and asymptomatic, and became symptomatic - or was "unmasked" - as a result of the accident. [69] The legal principles concerning causation are not in dispute. [70] The basic principle of tort law is that the defendant must put the plaintiff back in the position the plaintiff would have been in had the defendant's tortious act not occurred. The test for causation is the "but for" test, meaning the plaintiff bears the onus of proving, on a balance of probabilities, that "but for" the defendant's negligence, the plaintiff's injuries would not have occurred. If, without the defendant's tortious act, the injury would have resulted in any event, the defendant is not liable for the injury or the losses flowing from it. However, if the injury would not have resulted but for the defendant's tortious act, the defendant is liable to the plaintiff for the whole of the losses flowing from the injury. A plaintiff must

establish causation for both injury and loss. The losses "flowing" from an injury are those losses that the plaintiff proves, on a balance of probabilities, would not have occurred "but for" the defendant's negligent act. A defendant is not liable for injuries or losses that were not caused by the defendant's negligence. See: Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 17, 19-20, 24 and 34-35; and Blackwater v. Plint, 2005 SCC 58, at para. 78. [71] Mr. Sawires, as the plaintiff, bears the onus of proving the defendant's negligence caused both his injuries and the resulting losses. [72] Both Dr. Gul and Dr. Paramonoff agree that Mr. Sawires' right leg symptoms are a result of the disc herniation. The defendant argues that it is possible that, if Mr. Sawires had a pre-existing disc herniation, it could possibly have become symptomatic in any event, even without the accident. In support of his position, the defendant relies most heavily on Dr. Paramonoff's evidence to that effect given on cross-examination. [73] However, in my opinion, this does not assist the defendant. [74] Both Dr. Gul and Dr. Paramonoff explained, from a medical perspective, how Mr. Sawires' right low back pain secondary to the soft tissue injury Mr. Sawires sustained in the accident, would result - and in Mr. Sawires' case - has resulted in the development of right L5-S1 disc herniation, with the

consequent compression of the root at that level, resulting in the symptoms Mr. Sawires described. Indeed, Dr. Gul stated his opinion on this point expressly in his report. There is a medical explanation for the delay in Mr. Sawires' right leg symptoms caused by the disc herniation. Both Dr. Gul and Dr. Paramonoff explained how, if muscles in the lower back were not functioning well, there was then less support for the disc, creating the conditions for the development of the disc herniation in Mr. Sawires' case. Dr. Paramonoff explained that, after an injury, an individual can become deconditioned and have muscle imbalance, which, in turn, can cause ongoing symptoms and unmask an underlying pathology. In explaining her conclusion that there was "likely subsequent development of the superimposed disc protrusion and nerve root contact," resulting in Mr. Sawires' symptoms into his lower leg, Dr. Paramonoff specifically mentioned "altered mechanics of movement/muscle imbalance/deconditioning secondary to musculoskeletal pain" from Mr. Sawires' soft tissue injuries to his low back. Mr. Sawires' evidence supports the conclusion that, after the accident, he was in fact deconditioned and had reduced his level of activity. In particular, he was no longer playing high-level soccer, hockey and other sports as he had done pre-accident. There is, therefore, factual support for the medical

opinions and explanations given by Dr. Paramonoff and Dr. Gul on the point. [75] Dr. Paramonoff, in her report and her oral evidence, recognized the possibility that something else might have happened absent the accident. However, in her opinion, the accident, and the injuries Mr. Sawires sustained to his low back were more likely the cause of the disc bulge and associated symptoms. [76] The defendant presented no medical opinion evidence to counter the opinion evidence from Dr. Paramonoff and Dr. Gul on causation. [77] In my opinion, looking at the medical opinion evidence as a whole, the hypothesis advanced by the defendant, to the effect that there was a real possibility that Mr. Sawires would have developed symptoms from a disc herniation in the absence of the accident, must be rejected as speculative. In my view, Mr. Sawires has established that, as a result of the soft tissue injuries he sustained to his lower back in the accident and the associated pain, he developed a right L5-S1 disc herniation, and the associated irritation of the nerve at L5-S1 has resulted in his right leg symptoms. These are described and diagnosed by Dr. Gul as right lumbar radiculopathy, secondary to the L5-S1 disc herniation, and, as of trial, Mr. Sawires' symptoms were ongoing. [78] In my opinion, Mr. Sawires has satisfied his burden to prove that the injuries he sustained in the accident are

the cause of his current symptoms. Of course, he continues to have the burden to show that all of the losses he claims flow from the injuries. [79] I turn then to credibility. [80] Mr. Sawires' credibility is, of course, important, although there is objective evidence (the disc bulge) that supports at least some of his complaints of continuing symptoms, discomfort and pain. [81] The defendant argues that I must treat Mr. Sawires' evidence with considerable caution. The defendant says that there were occasions when his evidence during his examination-in-chief concerning his physical abilities post-accident was inconsistent with his evidence on cross-examination and at his examination for discovery. The defendant also says that there were occasions during his cross-examination when Mr. Sawires refused to agree with reasonable propositions (for example, about his activities in Guatemala and Peru, and that he had more time to spend with family and in other activities now that he was not so involved in sports), with a view to bolstering his claim. The defendant argues that Mr. Sawires' evidence concerning his post-accident travel and activities while on vacation is inconsistent with his assertions of pain, discomfort and disability. [82] With respect to inconsistencies between Mr. Sawires' evidence at trial compared with evidence given on his examination for discovery, the defendant

relies on Mr. Sawires' failure to mention his mood symptoms in response to questions at his discovery about "other injuries." In my opinion, the questions on discovery about "injuries" imply physical injuries. If there is any inconsistency (which I view as doubtful), it is inconsequential. [83] On the other hand, my impression was that, on cross-examination, Mr. Sawires occasionally became evasive in his answers, especially in response to questions about his physical activities and travel. His memory was, generally speaking, good for matters that were helpful to his case, but quite poor when they were unlikely to be so. I also note that, during his examination-in-chief, he occasionally responded to questions almost by rote (the leading nature of these questions did not help). This was illustrated by his answer concerning a prescription for hydrocortisone, where he said that it did not help, implying that it was one more medication prescribed for him to address his injuries and pain symptoms that did not help him. However, during Mr. Sawires' cross-examination, it was disclosed that this prescription had nothing to do with any injuries Mr. Sawires had sustained in the accident, and was for a completely unrelated condition. [84] Generally, I do not give a great deal of weight to the defendant's attack on Mr. Sawires' credibility and reliability. His evidence about sports and

their importance in his life was supported by the evidence of P. Rizkallah and M. Rizkallah, as well as Mr. Sawires Sr. These witnesses also supported Mr. Sawires' evidence concerning the emotional effect of no longer being or feeling capable of participating in sports at his pre-accident level as a result of the effects of his injuries. Being injured, and having to manage the effects of the injuries, does not mean that a person who, pre-accident, enjoyed travel, will stop altogether. Mr. Sawires did not claim to be so disabled.

6. Findings and conclusions concerning Mr. Sawires' injuries [85] I find that, as a result of the accident, Mr. Sawires sustained soft tissue injuries to his neck and upper back. These injuries healed relatively quickly and uneventfully. [86] I find further that, as a result of the accident, Mr. Sawires sustained soft tissue injuries to his low back. These have resulted in ongoing right-sided low back pain, which is now chronic, and discomfort. I find further that, as a result of the soft tissue injuries and resulting pain, Mr. Sawires developed a right disc herniation at L5-S1. I accept the opinion evidence of Dr. Gul on this point. As of May 2016, the disc herniation was irritating and compressing the nerve root at L5-S1, resulting in pain and tingling shooting into Mr. Sawires' right leg. [87] Mr. Sawires was diligent in attending the rehabilitation recommended for him, although he found that, often, treatments (for example, chiropractic treatment and massage therapy) provided little long-term relief. On the other hand, he attended kinesiology for an extended period and found it helpful. [88] Over several years, Mr. Sawires' physical symptoms improved. There was notable improvement in his reported pain symptoms between his assessment by Dr. Paramonoff in May 2017 and his assessment by Dr. Gul in January 2019. However, by 2018, Mr. Sawires had essentially reached a plateau in

terms of his physical symptoms. As of his assessment by Dr. Gul, Mr. Sawires had developed chronic low back pain, and had recurring symptoms, triggered by movement, into his right leg as a result of the disc bulge. Activities such as household chores and renovations that he had been able to do with ease before the accident are now more difficult, especially those involving heavy lifting, bending and twisting. While Mr. Sawires is not in constant pain, management of his pain and discomfort has required and requires energy and attention. Based on the medical opinion evidence, there is some prospect for improvement in Mr. Sawires' symptoms. However, he will likely continue to experience low back pain caused by the accident for the foreseeable future. The prognosis for complete recovery is poor. [89] By the end of 2016, and as a result of his physical symptoms, Mr. Sawires had essentially ceased his participation in team sports. His attempts to play soccer, hockey and other sports had been unsuccessful. Although participation in sports (including the social aspect that came with being a member of a team) was very important to the quality of his life, Mr. Sawires was concerned not only about making his symptoms worse but also with injuring himself further. However, Mr. Sawires continued to be physically active. He attended a gym regularly, where he swam laps and did aquafit. Until

his bicycle was stolen, he regularly cycled to work. [90] I find further that, as a result of pain and other symptoms resulting from his soft tissue injuries, Mr. Sawires' emotional health has suffered. There is no formal medical psychiatric diagnosis. However, based on the evidence from Mr. Sawires, his friends P. Rizkallah and M. Rizkallah and his father, I find that Mr. Sawires is no longer the easy-going, good-natured life of the party. Rather, he is more moody, negative, depressed and frustrated. He is argumentative with those close to him. That Mr. Sawires was no longer physically capable of playing his two most important sports - hockey and soccer - has been a major blow, and significantly contributed to his worsening emotional health. [91] Mr. Sawires asserts that, as a result of the accident, he suffered tinnitus and eye "floaters." Both are medical conditions. Dr. Paramonoff specifically deferred to other medical specialists with respect to these conditions. There was no medical opinion evidence confirming a diagnosis of either condition, and Mr. Sawires cannot provide his own medical diagnosis. Identifying and diagnosing a condition such as tinnitus and its causes are not, as Mr. Mah asserted in argument, simply matters of common sense. Even if there was a note in a clinical record, or a medical doctor had informed Mr. Sawires at some point that symptoms he was describing were tinnitus, for example, that would be insufficient to prove the diagnosis in this trial: see Edmondson v. Payer, 2011 BCSC 118, at para.

38. In addition to having no medical diagnosis in evidence, there was no medical opinion evidence that either condition was (or even might have been) caused as a result of the accident. At best, there was Mr. Sawires' evidence of some temporal relationship: the accident happened, and afterward he experienced what he described as tinnitus and eye floaters. This is unpersuasive and insufficient. [92] In that light, I am unable to conclude that Mr. Sawires has proved he suffered tinnitus or eye floaters as a result of the accident.

7. Damages (a) Non-pecuniary damages [93] On behalf of Mr. Sawires, Mr. Mah submits that an award of $175,000 in non-pecuniary damages is justified in Mr. Sawires' case (to include compensation for loss of housekeeping capacity). In support of an award at this level, Mr. Mah cites: Pololos v. Cinnamon-Lopez, 2016 BCSC 81; Cumpf v. Barbuta, 2014 BCSC 1898; and Cantin v. Petersen, 2012 BCSC 549. Mr. Mah says that the case law establishes a range of between $86,000 and $191,000 for non-pecuniary damages for injuries that cause chronic pain and mood changes, with a poor prognosis for improvement. [94] In Mr. Mah's submission, Mr. Sawires' physical and psychological injuries have significantly affected all aspects of his life - work, friends, family and home - for years, and will continue to do so. Mr. Mah submits that, before the accident, Mr. Sawires' lifestyle revolved around sports, where he excelled, and he was very active. Since the accident, Mr. Sawires has participated very little in sports - indeed he has essentially stopped altogether. Mr. Sawires' mood has deteriorated and his social life is much more restricted. In Mr. Mah's submission, Mr. Sawires' circumstances justify an award at the upper end of the range of damages where there is chronic pain, mood changes and a poor prognosis. [95] On behalf of the defendant, Mr. Addison submits that a reasonable award for

non-pecuniary damages in Mr. Sawires' case is between $50,000 and $70,000. In support, Mr. Addison cites: Morrison v. Gauthier, 2009 BCSC 1271; Litt v. Hassan, 2015 BCSC 1920; Leung v. Foo, 2009 BCSC 747; and Liu v. Conn, 2020 BCSC 1195. In Mr. Addison's submission, while Mr. Sawires may no longer be able to play sports, he continues to work full-time and continues to lead an active life. Mr. Addison points out that, since the accident, Mr. Sawires continued to travel, participate in church functions, socialize with his family and friends, and has replaced soccer and hockey with swimming as his main form of exercise. [96] It is well-established that the purpose of non-pecuniary damages is to compensate the plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities. The factors to be taken into account include: the plaintiff's age; the nature of the injury; the severity and duration of pain; disability; emotional suffering; impairment of life; impairment of family, marital and social relationships; impairment of physical and mental abilities; loss of lifestyle; and the plaintiff's stoicism (a factor that should not, generally speaking, penalize the plaintiff). See Stapley v. Hejslet, 2006 BCCA 34, at paras. 45-46. An award of non-pecuniary damages must be fair and reasonable to both parties. [97] It is also well established that each case must be decided on

its own facts, and prior cases are useful as a guide - but only a guide - in the assessment of non-pecuniary damages. [98] In my opinion, a case such as Pololos is not a useful guide. On the facts in Pololos, the plaintiff's life (driven largely by his self-perception) was devastated by the accident. In addition to physical problems, the plaintiff had very significant psychological problems. As of trial, his life and activities were consumed by attending to his perception of his injuries, and had little content or purpose otherwise. Those are not the facts here. Mr. Sawires has maintained his career. He remains very close with his family, and maintained contact with close friends. He continues to be active in his church. Getting a dog has added to Mr. Sawires' enjoyment of life and improved his mental outlook. He was going to the gym regularly for exercise. He has been able to travel and enjoy what travel offers, even if it is not in the same way that he would have before the accident. [99] On the other hand, in my view, an award at the level proposed by Mr. Addison fails fully to take into account my findings above, and especially the loss of the lifestyle associated with sports that Mr. Sawires enjoyed pre-accident, and which he described as his "passion" and "life-blood." [100] Having regard to the Stapley factors, the cases cited to me in argument, and my findings, I

conclude that a fair and reasonable award for non-pecuniary damages for Mr. Sawires is $110,000. (b) Loss of future earning capacity [101] Mr. Sawires does not seek compensation for loss of earning capacity in the period up to trial. Indeed, the only reasonable conclusion based on the evidence is that he suffered no loss. He missed 6.5 days from work, and he was paid for this time off. However, Mr. Sawires is seeking compensation for loss of future earning capacity. [102] Mr. Sawires' work history is relevant to his claim for compensation for loss of future earning capacity. Since graduating from university, Mr. Sawires has spent virtually all of his work-life in the financial services and insurance industry, and he has specialized training respecting insurance. Although Mr. Sawires and M. Rizkallah formed and carried on business as Pyramid Contracting, working in construction was never going to be an alternative career path for Mr. Sawires. Mr. Sawires was not going to be giving up an office occupation in financial services for physical labour and construction. In my opinion, Mr. Sawires has not demonstrated any other realistic alternative occupations, other than his current occupation and career. Accordingly, in my opinion, Mr. Sawires' claim for compensation for loss of future earning capacity must be assessed on the basis that, but for the accident, he would continue

working in an office, in financial services and insurance (or something similar). [103] At Dehoney, Mr. Sawires received a salary of $78,000 and was entitled to a 10% performance bonus. Indeed, in 2019, Mr. Sawires received a performance bonus. Shortly before trial, Mr. Sawires was laid off at Dehoney, as a result of the termination of his position. There was no evidence Mr. Sawires' termination had any connection with any injuries he sustained in the accident, and there was no evidence that the termination was connected in any way with job performance. [104] As of trial, Mr. Sawires was in the midst of interviews for another position in the insurance industry, and had a second interview scheduled with a well-known company in that industry. He had not told any of his perspective employers either about his injuries or about the ergonomic equipment he was likely to need (and that had been provided to him at both Manulife and Dehoney). When asked during his evidence-in-chief, Mr. Sawires said that he believed that the injuries he sustained in the accident have affected his ability to do his job. He explained that he finds it hard to remain focussed, and he needs to take micro-breaks. [105] Mr. Mah submits that Mr. Sawires has demonstrated a real and substantial possibility that his future earning capacity has been impaired and will result in a pecuniary loss, and therefore has

established an entitlement to compensation. Mr. Mah argues that Mr. Sawires has required accommodations in positions at Manulife and Dehoney, including micro-breaks and ergonomic equipment. Mr. Mah points to Mr. Sawires' evidence concerning difficulty maintaining focus and concentration. Mr. Mah also says that, in determining whether Mr. Sawires has established entitlement to compensation, I can consider the effects of constant and continuous pain. In support, he cites the observation of Frankel J.A. in Morlan v. Barrett, 2012 BCCA 66, at para. 41, to the effect that, essentially as a matter of common sense, constant and continuous pain takes its toll and that, over time, such pain will have a detrimental effect on a person's ability to work, regardless of what accommodations an employer is prepared to make. I note that the plaintiff in Morlan had been diagnosed with fibromyalgia, and there was no dispute respecting that diagnosis. [106] With respect to assessment, Mr. Mah argues that Mr. Sawires' loss should be assessed using the capital asset approach, and an appropriate award would be $150,000, or roughly twice Mr. Sawires' annual salary at Dehoney. [107] On the other hand, Mr. Addison argues that Mr. Sawires has failed to show any entitlement to compensation. He submits that the preponderance of evidence supports the conclusion that, with minimal accommodations, Mr. Sawires

remains competitively employable in the insurance industry. Citing Kim v. Morier, 2014 BCCA 63, at para. 8, Mr. Addison argues that it is not sufficient to show that a plaintiff "may" be less capable of certain aspects of the plaintiff's employment, and it is an error to equate the loss of a capital asset with the plaintiff's own perception. Rather, a plaintiff must show that it is a realistic possibility that the plaintiff will be less able to compete in the marketplace, with economic consequences. [108] The applicable legal principles are well-settled. [109] There are two stages in assessing a claim for damages for loss of earning capacity (in this case, loss of future earning capacity): Gillespie v. Yellow Cab Company Ltd., 2015 BCCA 450, at para.

34. The first stage is entitlement. A plaintiff must prove that the injuries suffered in the accident and the resulting symptoms have impaired the plaintiff's ability to earn income and that there is a real and substantial possibility that the plaintiff's diminished earning capacity will result in a pecuniary loss. A plaintiff may be able to prove that there is a substantial possibility of a future loss despite having returned to his or her usual employment. However, an inability to perform an occupation that is not a realistic alternative occupation is not proof of a future loss. If the plaintiff satisfies that burden, and therefore establishes an entitlement to compensation, then the second stage requires an assessment of the loss. A plaintiff may prove the quantification of that loss either on an earnings approach or a capital asset approach. Both are correct. The capital asset approach is often more appropriate where the pecuniary loss is not easily measured. See generally Perren v. Lalari, 2010 BCCA 140, at paras. 21 and 32. Either way, the court must endeavour to quantify the financial harm accruing to the plaintiff over the course of the plaintiff's working career, taking into account relevant and realistic negative and positive contingencies. [110] In my opinion, Mr. Sawires has failed to demonstrate that, as a consequence of the injuries he sustained in the accident

and the resulting symptoms, his earning capacity has been impaired, and he has failed to demonstrate that there is a real and substantial possibility of any pecuniary loss. I am not persuaded that the accommodations that Mr. Sawires described in his evidence and that Mr. Mah pointed to in argument are ones that create a real and substantial possibility of any future loss. Based on the evidence, the ergonomic equipment was provided to Mr. Sawires by two employers without protest or comment. Dr. Paramonoff commented in her evidence that sit-stand work stations were, in any event, becoming more common in office settings. I am not persuaded that needing in the future to take micro-breaks is something that could not be accommodated in Mr. Sawires' workplace. Indeed, at both Manulife and Dehoney, it was. There was no independent evidence from either of Mr. Sawires' employers that the type of accommodations Mr. Sawires needs and will need affected in any way his ability to do his job or made him less attractive as an employee. [111] Mr. Sawires' perception that he may be less capable or less employable is insufficient. He must show that there is a real and substantial possibility that, as a result of the accident, he will be less able to compete in the marketplace, with economic consequences. In my opinion, he has failed to do this. The observations of Frankel J.A. in Morlan (given

the facts in that case) do not, in my view, make up for the lack of evidence to demonstrate that, in Mr. Sawires' circumstances, there is a real and substantial possibility of a hypothetical future event which he can no longer realize that results in a loss of income. [112] As a result, I find that Mr. Sawires has failed to prove a claim for compensation for loss of future earning capacity. (c) Cost of future care [113] Mr. Sawires seeks an award of $110,000 for costs of future care. He says that he expects to manage his pain with massage therapy, attending the gym and seeing a kinesiologist, along with using Tylenol and medical marijuana as needed. He estimates that the gym will cost $60 per month and massage therapy will be $240 per month (two treatments). Mr. Sawires estimates that kinesiology will cost $55 per month (with one treatment every two months), while pain medication (extra strength Tylenol and cannabis) will be $65 per month. Mr. Sawires says that he expects to need this therapy for as long as he has pain. He also says that by age 65, he may have needed some of this care in any event as a result of normal aging, and therefore is seeking cost of future care to age 65. The annual cost ($5,000) over the next 29 years (until Mr. Sawires turns 65) totals $145,000. Applying the appropriate discount rate, the present value of this sum is about $110,000. [114] The

defendant says that, on the evidence, no award for the costs of passive treatment such as massage therapy has been justified. On the other hand, the defendant accepts that, based on the recommendations of Dr. Paramonoff and Dr. Gul, a modest award to assist Mr. Sawires with a self-directed exercise program has been justified and would be reasonable. [115] The defendant says that the evidence does not support any award for the cost of either Tylenol or cannabis. Mr. Sawires acknowledged that none of his treating doctors has recommended cannabis for pain control. Neither Dr. Paramonoff nor Dr. Gul made any such recommendation. [116] The legal principles that apply are well-settled. [117] An award for cost of future care is based on what is reasonably necessary, on medical evidence, to promote the mental and physical health of the claimant. The award must (1) have medical justification, and (2) be reasonable. The medical necessity of future care costs may be established by a health care professional other than a physician, such as an occupational therapist, if there is a link between a physician's assessment of pain, disability and recommended treatment, and the health care professional's recommended care item. See Gao v. Dietrich, 2018 BCCA 372, at paras. 69-70. [118] A little common sense should inform claims for costs of future care, however much costs may be recommended by experts in the field: Penner v. Insurance Corporation of British Columbia, 2011 BCCA 135, at para.

13. No award is appropriate for costs that a plaintiff would have incurred in any event: Shapiro v. Dailey, 2012 BCCA 128, at paras. 51-55. Moreover, future care costs must be likely to be incurred by the plaintiff. The onus is on the plaintiff to show that there is a reasonable likelihood that the plaintiff will use the suggested services: see Lo v. Matsumoto, 2015 BCCA 84, at para. 20. [119] I will first address the costs of Tylenol and cannabis. [120] Many homes as a matter of routine first aid and the need for occasional pain control have a supply of Tylenol on hand. I consider this is a cost that would have been incurred in any event. I award nothing for this item. [121] Mr. Sawires has presented no evidence that ongoing long-term use of cannabis is medically justified. Although Mr. Sawires was using cannabis for pain control when he saw both Dr. Paramonoff and Dr. Gul, neither physician recommended its use. As Wilson J. observed in Jacobi v. Monteith, 2020 BCSC 218, at para. 37: [37] There is no medical evidence before the court to confirm either the medical efficacy of cannabinoid cream, nor that it is medically necessary in this case. While the court may be able to take judicial notice of the likely benefits of certain traditional medications (e.g. ibuprofen), it would not be appropriate to take judicial notice of the medical benefits of a cannabinoid cream. [122] In my

opinion, Mr. Sawires' evidence that he finds marijuana helpful for pain control is not enough to overcome the lack of medical evidence concerning its future benefits. [123] If Mr. Sawires wishes to continue to use cannabis for pain control and to make himself more comfortable, the costs should be financed out of his award for non-pecuniary damages, not through an award for cost of future care. I award nothing for this item. [124] I reach the same conclusion concerning massage therapy, and I agree with the defendant's submissions on this point. [125] On the other hand, based on the opinion evidence from Dr. Paramonoff and Dr. Gul, some award is justified for a gym pass and the assistance from time to time of a kinesiologist. These are services that Mr. Sawires has used in the past, since the accident, and, in my view, he is likely to continue to use in the future. However, I am not persuaded the evidence supports the cost of a kinesiologist to age 65. [126] In the result, I award $15,000 in total for cost of future care. This is roughly the present value of an annual expense of $1,000 until Mr. Sawires reaches age 65, after applying what I consider to be an appropriate contingency discount. (d) Special damages [127] For each item of expense claimed as special damages, a plaintiff must prove, on a balance of probabilities, both the amount claimed and the fact that the expenditure

is causally connected to the injuries sustained in the accident. Generally speaking, claims for special damages are subject only to the standard of reasonableness. However, as with claims for the cost of future care, when a claimed expense has been incurred in relation to treatment aimed at promotion of a plaintiff's physical or mental well-being, evidence of the medical justification for the expense is a factor in determining reasonableness: see Redl v. Sellin, 2013 BCSC 581, at para. 55. [128] Mr. Sawires claims $7,840.13 in special damages. There is no issue that the expenses were incurred. [129] The only amounts disputed by the defendant are the expenses for medical marijuana. The individual costs are listed in Tab 24 of Exhibit 2; however, no one provided me with a total for this item. [130] I reject Mr. Sawires' claim for the cost of cannabis, for the same reasons that I have rejected his claim for this item as a cost of future care. While I can accept Mr. Sawires' evidence that cannabis has been helpful in providing him with pain relief, the fact is that he has not provided any evidence of a medical justification for the expense. In my opinion, the note from a non-treating nurse-practitioner from Ontario is insufficient. [131] I will leave counsel to do the final calculation of the special damages allowed.

8. Summary and disposition [132] In summary, I award damages to Mr. Sawires as follows: (a) non-pecuniary damages in the sum of $110,000; (b) for cost of future care, $15,000; and (c) special damages as above. [133] For the reasons set out above, I have concluded that Mr. Sawires has not proved a claim for compensation for loss of future earning capacity. [134] There will be pre-judgment interest in accordance with the Court Order Interest Act, R.S.B.C. 1996, c. 79. [135] Subject to any submissions the parties may wish to make concerning costs, Mr. Sawires is entitled to his costs in accordance with Rule 15-1(15). If the parties wish to make submissions on costs, they may do so in writing, provided that any submissions must be filed within 30 days of the date of these Reasons. Any written submissions must be no more than 10 pages double-spaced (except for quotations) using a font size no smaller than 12 point (except for quotations). I will leave counsel to agree on a suitable schedule for the exchange of submissions. "Adair J."