Stull v. Cunningham

2013 BCSC 1140 Stull v. Cunningham

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Stull v. Cunningham, 2013 BCSC 1140 Date: 20130626 Docket: M62767 Registry: Nanaimo Between: Derek Stull Plaintiff And: Robin Brian Cunningham and Shawn Jason Emerson Weldon Defendants Before: The Honourable Mr. Justice B.D. MacKenzie Reasons for Judgment Counsel for the Plaintiff: J.A. Vanstone Counsel for the Defendants: P.J. Giroday Place and Date of Trial: Nanaimo, B.C. December 11-14, 2012; December 18-20, 2012; and February 14, 2013 Place and Date of Judgment: Nanaimo, B.C. June 26, 2013 [1] This is a claim for damages by Mr. Stull for personal injuries arising out of a motor vehicle accident which occurred on September 18, 2009, in Nanaimo, B.C. [2] Liability has been admitted by the defendants. As a result, the primary issues are the assessment of non-pecuniary damages, past wage loss and loss of future earning capacity. The Accident [3] This was a significant motor vehicle accident. Mr. Stull's work van was struck just behind the driver's door by a speeding vehicle. It was pushed forward a significant distance before coming to rest against a Hydro pole. There was extensive damage to his vehicle. [4] Mr. Stull was transported to hospital by ambulance. He testified that his lower back hurt immediately after the accident. He says this pain increased the next day and has continued to the present time. [5] He also testified

he had neck pain within a few days after the accident. Mr. Stull says his neck pain is constant and is aggravated when he is working for prolonged periods of time. He also had mid-back pain but testified it resolved "after a few months". [6] Mr. Stull further testified that he had significant headaches immediately following the accident. These headaches continue to today whenever he exerts himself at work. He takes pain medication which resolves his headaches within a few hours. [7] Mr. Stull testified that his low back pain "is always there" and is "pretty constant" to this date. Personal Circumstances [8] Mr. Stull is 36 years of age and is married with two children, a boy of six years of age and a girl who is eight years old. [9] Mr. Stull obtained a Grade 10 education but notwithstanding this lack of education, has been a consistently hard worker since he was a young man. When he was 13 and 14, he washed dishes at a local dining establishment. At 15 and 16, while still in high school, he was a warehouse person at a lumber yard. When he left school he drove a truck and worked at a local floor company as a labourer. He also worked at a local tree service company. He obtained other construction and labouring jobs but in due course commenced his own tree business and floor installation company. [10] Mr. Stull eventually scaled back his tree business and since approximately 2005

has focused solely on the flooring company. [11] In the start-up years, Mr. Stull worked primarily on his own, but as business increased he hired Mr. Shane Stocking as an assistant. Both he and Mr. Stocking testified that the business "was growing" and in 2009, before the accident occurred, Mr. Stocking was getting more hours. He said they were "doing quite well for ourselves." Mr. Stull was getting significant work from Slegg Lumber. He was Slegg Lumber's number one floor installer prior to the accident. [12] Mr. Stull testified that at the time of the motor vehicle accident he had other contracts to install flooring in Nanaimo. He was scheduled to complete these contracts in the fall/winter of 2009 and the early part of 2010. Mr. Stull testified that between 2008 and 2009 business was very good. He said there was a "construction boom" in Nanaimo during 2007 even though Mr. Nordin, the vocational evaluator, agreed with defendants' counsel that there was a fairly significant downturn in the economy "at the end of 2007 and into 2008"; however, as elsewhere, a recession hit the Nanaimo area in 2009 and renovation work replaced new construction work. Mr. Stull explained this was because of the government rebate to assist homeowners to renovate their homes in an attempt to spur economic activity. [13] As a result, Mr. Stull testified that immediately before the motor vehicle

accident occurred he was extremely busy. He testified he was working six days a week, 10 to 12 hours a day. Mr. Stocking testified they were working as much as 16 hours a day. Given this testimony, I agree with the defendants when they say Mr. Stull and Mr. Stocking were operating at "full capacity" prior to the motor vehicle accident. [14] After the accident, Mr. Stull was off work completely. He attended the Canadian Back Institute for rehabilitation. He then embarked on a graduated return to work program. He started working in April 2010 and was deemed fit to resume full-time work in June of that year. [15] While it clearly was somewhat of a struggle because of Mr. Stull's work ethic and his reputation as an excellent installer, in 2011 his gross revenue was similar to what he had earned before the accident. [16] However, Mr. Stull testified that his business has slowed down in the last year. He submits this is because he is taking longer to do jobs because of his inability to do a lot of the installation work which, after the motor vehicle accident, he had to delegate to Mr. Stocking. As a result, Mr. Stull has had to revert to a more managerial role. He also sets up the "layouts" rather than doing all of the continuous bending, kneeling, stooping and nailing he did before the accident. [17] Unfortunately, work slowed down to such a degree that he had to lay off Mr.

Stocking in early December 2012. Mr. Stull submits that the reason his business has slowed to this degree is because of the injuries he suffered in the motor vehicle accident, not because of a downturn in the construction and flooring industries in the Nanaimo area as the defendants have argued. As such, he makes substantial claims for past wage loss and loss of future earning capacity. The Plaintiff's Pre-Accident Health [18] This action is complicated somewhat because of Mr. Stull's relatively significant pre-accident medical history. On the one hand, the plaintiff says all of his pre-accident issues had resolved and had not presented any difficulties for approximately eight to nine years prior to the motor vehicle accident. [19] The defendants, on the other hand, submit that the medical evidence supports their submission that Mr. Stull's low back pain would have eventually occurred irrespective of the motor vehicle accident because of his prior medical history, and the stress his particular line of work puts on even a healthy back. [20] This history includes a slip and fall down an embankment in 1991 where Mr. Stull landed on his bottom. He testified it was painful. He had a wedge compression fracture at L1-2 and L4. The recommended treatment was bed rest. This pain resolved in a "couple of months." [21] He had other back complaints in 1992 and 1995 and shoulder soreness in

1997. Rest, ice and Ibuprofen were generally the recommended treatment. [22] In 1999 Mr. Stull, who is a motorcycle enthusiast, fell off a bike and landed on his back. An X-ray was taken. The plaintiff says that Dr. Cameron, an orthopaedic surgeon, in September 1999 found no significant deformity. The defendants say that this accident "may" have resulted in minor compression fractures of T1 and T2 as well as L1-2 and L-2, as well as minor anterior "wedging" in these areas "consistent" with either minimal recent or old anterior compression fractures. [23] The defendants note that Mr. Stull had a condition in his spine known as spinabifida occulta, "a congenital condition which entails the narrowing of the space between his lumbar vertebrae at L4-5." The defendants also point out that Mr. Stull had "an anterior limbus fracture at L4-5" but which was "clearly old." Swimming, stretching and physiotherapy were recommended to deal with these issues. [24] The defendants also point out that on May 3, 2000, Mr. Stull attended Dr. Marback complaining of "long-standing back problems from recurrent injuries." On January 12, 2001, he attended Dr. Dorsey who noted recurrent lumbosacral back strain, "low grade". An X-ray report dated December 10, 2001, "indicates no bone, joint or soft tissue abnormalities." [25] New X‑rays taken after the motor vehicle accident in September 2009 confirmed

the old injuries and, according to the report, showed Mr. Stull had "mild" pre-existing degenerative changes in his lumbar spine, as well as facet osteoarthritis noted on the right side of his lower lumbar spine. [26] However, the plaintiff submits there is no evidence that there had been any progression of any degeneration that might have existed at the time of the 1999 or 2001 X‑rays and points out Dr. Roe described Mr. Stull's past back injuries as "healed". [27] The plaintiff also says the uncontradicted medical evidence supports his submission that he had not seen a medical practitioner for muscle pain or bone problems in his back since 2001 until the accident on September 18, 2009. While I agree with the defendants when they say this prior history is relevant when considering Mr. Stull's "likely future condition," I agree with the plaintiff when he submits that the evidence has established these "distant" back injuries had "healed" well before the 2009 accident. [28] Finally, the plaintiff acknowledged that he had some difficulty sleeping in the past. He testified he initially thought it was in 2007 that he was referred to the Nanaimo Sleep Clinic and underwent a form of therapy. The medical documentation, however, shows that this occurred in early 2009. [29] Mr. Stull testified that it was his opinion that his sleep was interrupted because his children had health

problems at the time and were awake during the night, but as his children now sleep throughout the night, his sleep has improved as well. [30] I accept Mr. Stull's testimony that his sleeping habits were relatively routine some time prior to the motor vehicle accident. Pre-Motor Vehicle Accident Activities [31] Mr. Stull testified that he was "in fine shape" prior to the motor vehicle accident and, in fact, could work seven days a week. He had no neck or back pain, he could cut his own firewood and trim the large cedar hedges on his property. He testified that he used to enjoy dirt biking with his children and Mr. Stocking. He said he was financially "stable" and that his wife was able to stay at home and care for the children, rather than being compelled to enter the work force for financial reasons, as she did after the accident. He testified he and the family used to go camping and boating on a regular basis. He went fishing and dirt bike riding as much as his work schedule would allow, and enjoyed relatively strenuous hikes. [32] Mr. Stull testified he and his wife had a good relationship and were not troubled by significant financial issues. He testified he was "paying my debts and bills," although he naturally would have liked to have earned more income. Post-Motor Vehicle Accident Activities [33] Mr. Stull testified that since the accident his activities around the house

have been curtailed to a reasonably significant degree. One of the primary sources of heat at his home is wood. He used to chop four to five chords a year. Now he can only do part of this work. He needs help from acquaintances or his brother. He testified that as far as his household chores are concerned, he has to plan ahead and limit what work he does so he is able to put in a full day at work the next day. He testified he used to do all the pruning of his large cedar hedges by himself but now has to engage friends who have a bucket truck in order to complete this work. [34] Mr. Stull testified that he has had increased stress and arguments with his wife because of the financial stresses placed on the family after the motor vehicle accident. [35] He also testified that he has not been able to do as much dirt bike riding as he had in the past. Mr. Stocking confirmed the plaintiff could not ride on the more vigorous trails due to his lower back pain. [36] Mr. Stull says his pre-accident weight was 245 pounds but increased to 267 pounds after the accident. He testified that, because of changing his diet and doing exercises, he weighed 260 pounds in June 2012. [37] Conversely, the defendants say the only way the motor vehicle accident has affected Mr. Stull's recreational activities is that he does not ride his dirt bike as vigorously as he did prior to the accident. The

defendants acknowledge that Mr. Stull said he did not use his larger boat for fishing and family boating excursions but note that it was because he was unable to afford the insurance, not because of injuries. On this point the plaintiff states the obvious. He cannot afford the insurance because his income has decreased because of the injuries he suffered in the accident. [38] The defendants point out however that Mr. Stull informed Mr. Vandenboer, an occupational therapist, that he continued to carry out his duties around the house and yard, although they do acknowledge Mr. Stull said he must pace himself to complete these chores. Medical Evidence Dr. Sidky [39] Dr. Sidky saw the plaintiff at the request of the defendants on July 16, 2012. [40] Dr. Sidky's opinion was that "as a result of the motor vehicle accident... Mr. Stull sustained a soft tissue injury to his neck and back." He reported that "this soft tissue injury was superimposed on two prior spine fractures (1991 and 1999) and has resulted in some ongoing symptoms of pain and disability." [41] Dr. Sidky expressed the opinion that these two prior fractures, as well as the work Mr. Stull is engaged in, would likely have resulted in some ongoing "chronic back pain and disability." [42] The plaintiff disputes this on the basis he had no difficulties with his neck and back for several years prior to the motor vehicle

accident. Dr. Sidky also stated: With respect to Mr. Stull's work I feel that he can complete his full duties at work however he may note some limitations and discomfort with specific activities or with heavy lifting. I would not place any restrictions on Mr. Stull's work or recreational abilities. Given the pre-existing spine fractures as well as the pre-existing back pain and the repetitive strains placed on Mr. Stull's spine at work; I would recommend that Mr. Stull attempt to find a line of work that does not involve constant bending and repetitive motions as this will undoubtedly result in ongoing flares of his back pain in the future. [43] Dr. Sidky was not cross-examined at trial. [44] The plaintiff submits that Dr. Sidky formed the opinion that he sustained soft tissue injury to his neck and back in the motor vehicle accident and that the timeframe when the neck pain was first felt by Mr. Stull was consistent with soft tissue injuries suffered in the motor vehicle accident. Dr. Sidky also noted that while he felt Mr. Stull could complete full work duties "he may note some limitation and discomfort with specific activities on heavy lifting." [45] The plaintiff also points out that Dr. Sidky noted that the X-ray report of December 10, 2001, indicated no bone, joint or soft tissue abnormalities. Moreover, there is nothing further from Dr. Sidky with respect to any

complaints or difficulties outlined by Mr. Stull since 2001. In fact, Dr. Sidky noted at p. 4 of his report that the clinical records from Dr. Cameron in September 1999 "noted that Derek is employed as a tree topper and is not having issues with his job." Dr. Martin [46] Dr. Martin is a sports and occupational physician. In his May 31, 2012, report, he stated: His function is now reduced because of his current complaints. Based on the fact that they have been maintained for this length of time, it is unlikely that his clinical presentation will change. Specifically, it is more likely than not that his symptom presentation will continue into the future. Dr. Martin also wrote: It is likely that MMI has been reached, as Mr. Stull has had no progression of his symptoms, yet no relief of his symptoms (and therefore one would consider that his conditions have reached the point of maximum medical improvement). [47] Dr. Martin testified that he diagnosed the plaintiff as having neck pain and low back pain based on Mr. Stull's reporting to him. He acknowledged that there were no objective findings outside of minimal restrictions of range of motion but that Mr. Stull "was fairly consistent throughout his presentation." Dr. Martin confirmed that the X‑ray taken after the motor vehicle accident indicated compression fractures which were "likely old" and that there was "mild to moderate

degenerative disc changes at L3-4 with facet osteoarthritis on the right side of the lower lumbar spine." He described these old fractures as "healed". [48] Dr. Martin also expressed the following observation. He states at p. 4 the following: Mr. Stull has presented with these symptoms now since the point of accident of September 18, 2009. Although I note that he has had prior back complaints and some bony changes to his spinal column since his teenage years, there is no indication that he had any ongoing issues with this in terms of affecting his function. [49] Dr. Martin testified at trial that there is a "possibility" that a person with degenerative changes in their spine will experience back pain over the long term and that this was especially so with people like Mr. Stull who are involved in an occupation involving repetitive and sustained stooping and heavy lifting. Dr. Martin testified, "Yes, eventually it's going to catch up." [50] Finally, the defendants point out that Dr. Martin acknowledged that if Mr. Stull lost more weight, this would assist him in his rehabilitation in alleviating his back symptoms and that a rehabilitation program focussed on improving his strength, endurance and posture would also possibly be helpful. Dr. Roe [51] Dr. Roe is Mr. Stull's family physician. In his report of August 20, 2012, under the heading of "Prognosis", he wrote: It is coming

up 3 years since the accident. You asked if I agreed with opinion of Dr. Martin that Mr. Stull has reached maximum medical improvement. I do not know if he will get better, I do not know if he'll get worse. His symptoms and work capacity have plateaued. Mr. Stull has shown consistent reduced ability to maintain the level of work required to lay hardwood flooring all day repeatedly. [52] Dr. Roe noted that Mr. Stull reported he had no significant symptoms or restrictions related to his back or neck for many years prior to the accident. He agreed it was reasonable to conclude therefore that all of the musculoskeletal problems that Mr. Stull suffered from before the accident had resolved. [53] The defendants however emphasize that Dr. Roe's diagnosis that Mr. Stull suffered soft tissue injuries in his neck and lower back as a result of the accident are again based on Mr. Stull's subjective presentation. Similarly, when Dr. Roe says Mr. Stull's work capacity has plateaued, this is again based on Mr. Stull's reporting to Dr. Roe. [54] The defendants also note that Dr. Roe confirmed that losing weight would be of assistance to Mr. Stull. He also agreed that a program focussed on improving strength and endurance as well as cardiovascular exercise would improve Mr. Stull's chances for a full recovery. Moreover, Dr. Roe confirmed that the type of work Mr. Stull is engaged in is likely

to cause wear and tear on the lumbar spine over the long run, which is why "we tend not to see older people doing floor laying." Mr. Vandenboer [55] The defendants acknowledge Mr. Stull suffered some soft tissue injuries as a result of the motor vehicle accident. They, however, emphasize the totality of the evidence and especially the May 2011 report of Mr. Fred Vandenboer, the occupational therapist, in support of their submission that Mr. Stull's injuries are relatively modest at this point in time and his future is not as bleak as he suggests. [56] Mr. Vandenboer saw Mr. Stull on May 4 and 5, 2011. His mandate was to determine Mr. Stull's physical tolerances and work capacity. Mr. Vandenboer was aware of Mr. Stull's past medical history, and apart from the sleep and fatigue issues, noted that the last significant issue involving the plaintiff's neck or back pain appeared to end in early 2001. [57] Again, the defendants submit that all of the plaintiff's symptoms are subjective. As a result, they point out the medical practitioners have relied primarily on the accuracy and reliability of Mr. Stull's reporting to them of his pain levels and functional tolerances when providing their opinions and prognosis. [58] The defendants note that Mr. Stull reported to Mr. Vandenboer that his pain level prior to May 2011 was relatively stable and that at that time he believed he had

achieved an overall improvement of approximately 75 percent since the motor vehicle accident. [59] Mr. Vandenboer confirmed that Mr. Stull manages his pain and symptoms by limiting certain activities and postures, by stretching and soaking in his hot tub and by taking Emtec 30 medication and anti-inflammatory medication. [60] Mr. Vandenboer completed significant and detailed testing of Mr. Stull's functional capacity. The defendants understandably emphasize that Mr. Vandenboer concluded that the "overall outcomes of lifting, carrying, pushing and pulling tests indicate Mr. Stull is able to manage activity in the heavy strength category (by NOC standards)." [61] Mr. Vandenboer also noted in his report that Mr. Stull's "functional performance in strength areas was limited by a combination of muscle strength, endurance and symptoms recurring in the lower back region." [62] The defendants say this is significant and submit that if Mr. Stull increases his endurance and strength, it would enhance or improve his overall functioning and get him beyond the "plateau" he says he has reached because of his back problems. [63] Mr. Vandenboer also noted that with respect to body positions, Mr. Stull was fully functional and that his balance and quality control of movement were "excellent". [64] Noting that Mr. Stull has some degenerative disc disease of the lumbar spine, Mr. Vandenboer

testified that, in his experience, people with disc problems and osteoarthritis can have ongoing pain symptoms over the long term, irrespective of any trauma to that part of the body. [65] Perhaps most importantly, the defendants noted that Mr. Vandenboer testified that sustained and repetitive stooping will potentially, over the long term, create wear and tear on any lower spine because this is not an ideal working position. He testified he would not recommend this sustained activity for anyone, whether or not they had a back injury or were a healthy individual. [66] In conclusion, and notwithstanding this caveat, Mr. Vandenboer was of the opinion Mr. Stull was physically capable of continuing in his present occupation as a floor installer but that the physical requirements of this occupation may exceed Mr. Stull's demonstrated activity tolerances "on occasion". [67] Mr. Vandenboer also noted that, even though Mr. Stull has been able to work, albeit in the limited hands-on role, he continues to report some degree of daily discomfort with resulting impact on his non-work activities, although he did testify Mr. Stull told him he was walking, swimming and camping and playing with his children. [68] Nevertheless, Mr. Vandenboer concluded at p. 8: Mr. Stull is likely working at his maximum capacity at the present time (see p. 15) and will likely continue to experience ongoing

events specific and cumulative low back and posterior neck symptoms response in the foreseeable future (in the absence of further improvement). Credibility of Plaintiff [69] As in every case dealing with soft tissue injuries, the credibility of the plaintiff is of paramount importance. [70] In this case, I have carefully considered the testimony of Mr. Stull, observed him in the witness box and compared his testimony at trial with answers he gave at his examination for discovery, as well as his statements to the various medical practitioners he has seen over the years. [71] On this issue, it is helpful to recall the comments of N.H. Smith J. in Carvalho v. Angotti, 2007 BCSC 1760. At para. 15 he states: The attack on the plaintiff's credibility is based, in part, on various contradictions and inconsistencies within her evidence at trial and between that evidence and her discovery evidence, documents she prepared for other purposes, or statements recorded in clinical records. It is a rare case of this kind where such inconsistencies cannot be found. By the time a personal injury case gets to trial, the plaintiff typically will have provided information to a number of people - including doctors, adjusters and disability insurers - on a number of occasions over a period of years. This provides fertile ground for cross-examination precisely because very few people will have perfect

and identical recollection on each of those occasions. [72] On this point, I agree with Smith J. that inconsistencies in what a patient says to a medical practitioner sometime prior to testimony at trial will not, in and of itself, determine the credibility of any particular plaintiff. [73] Similarly, many years ago in Diack v. Bardsley, (1983) 46 B.C.L.R 240, McEachern C.J.S.C., had this to say at para. 30: I wish to say that I place absolutely no reliance upon the minor variations between the Defendant's discovery and his evidence. Lawyers tend to pounce upon these semantical differences but their usefulness is limited [74] Having regard to the totality of the evidence, I am satisfied that Mr. Stull is a credible and reliable witness who was doing his best to outline the injuries he suffered in the motor vehicle accident as well as his ongoing symptoms. [75] I accept his evidence as to the pain and symptoms he has reported since the accident as they pertain to his lower back and neck as well as his headaches. [76] At the same time, it was reasonable for defendants' counsel to point out apparent inconsistencies in Mr. Stull's testimony ̶ for example, what he has said to the various experts and medical personnel about his weight issues, alcohol consumption and ability to complete his home maintenance projects ̶ and to say they should affect Mr. Stull's reliability and the

weight I give to his testimony. [77] In my view, however, the relatively minor discrepancies between Mr. Stull's discovery answers or prior statements and his testimony at trial have been adequately explained by Mr. Stull. [78] When I view his evidence in its totality, I am not satisfied that any inconsistencies in his testimony are of such significance that Mr. Stull's overall credibility or reliability is undermined. Causation [79] The leading case for causation remains Athey v. Leonati, [1996] 3 S.C.R.

458. The plaintiff must prove that the defendant's negligence caused or contributed to her injuries (Athey, para. 16). The test for causation is whether the plaintiff's injuries would not have occurred "but for" the defendant's negligence (Athey, para. 14). Given the totality of the circumstances, I am satisfied that the plaintiff has established that the ongoing pain and discomfort he presently suffers is as a result of the accident in September 2009. I make this finding in light of all of the medical evidence canvassed above and on the basis of the plaintiff's testimony, which I find to be credible, that for several years prior to the accident he was symptom-free, and that his pain and discomfort arose directly after the accident. [80] As Dr. Roe testified at p. 15: He injured his -- he -- he last presented with back pain approximately a decade prior to the motor vehicle accident. And although the pain is indistinguishable, in my mind the fact that he was working, by his report, in his own business, doing flooring 50 hours a week, six days a week. ... and he was able to do that without seeking any attention for back pain, suggests that the source of his back pain after the accident was related to the accident. Non-Pecuniary Damages [81] Factors that the court has to take into account with respect to this head of damages have been set out in the often quoted decision of our

Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34. In that case, the Court of Appeal acknowledged that a non-pecuniary damage award will vary from case to case depending on the specific circumstances of the plaintiff and each case will depend on its own circumstances. [82] The factors that must be considered are set out at para. 46: 46. The inexhaustive list of common factors cited in Boyd that influence an award of non-pecuniary damages includes: (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). Position of the Plaintiff [83] In support of his submission, the plaintiff has provided the court with the following authorities: 1. Szymanski v. Morin, 2010 BCSC 1: 55 year old self-employed hardwood floor installer; out of work for only four weeks but chronic pain and less able to do household chores: $75,000; 2. Grigor v. Johal, 2008 BCSC 1823: 49 year old welder, lower back injury

resulting in nerve root impingement; chronic pain which is aggravated by work activities; "likely" permanent partial disability; $90,000; 3. Peso v. Hollaway, 2012 BCSC 1763: 20 year old employee at Home Depot suffering a back injury at work. Even though there was a pre-existing condition, this did not negatively impact the plaintiff's life, therefore there was no basis to reduce damages; the plaintiff suffered chronic pain disability and loss of recreational amenities until surgery; the court awarded $100,000 in non-pecuniary damages; 4. Slocombe v. Wowchuk, 2009 BCSC 967: 25 year old carpenter with pre-accident disc narrowing caused by wear and tear of the joints. The court found that there was no evidence to indicate that this particular plaintiff had a measurable risk that the pre-existing condition would have had a detrimental effect on him regardless of the accident. There were no grounds to reduce the plaintiff's award. There was a mild traumatic brain injury which seemed to have resolved itself. The court found that there was a soft tissue injury and the prognosis for any "further recovery was poor." The main complaint of the plaintiff was the injury to the lumbosacral spine area. The court concluded the plaintiff was in constant pain and would probably be for the rest of his life and awarded $125,000 in non-pecuniary damages. [84] Counsel for the plaintiff acknowledges

the injuries suffered by Mr. Slocombe were more serious than those suffered by Mr. Stull. [85] Nevertheless, Mr. Stull's low back and neck pain are constant. His accident-related injuries continue to affect his work function and his ability to perform all of his household chores at the same pace as before. His recreational activities have been somewhat curtailed. He and his wife experienced relatively significant marital stress after the accident because of financial problems. Given the authorities and the factors outlined in Stapley v. Hejslet, Mr. Stull submits a reasonable award for non-pecuniary damages would be $110,000. Position of the Defendants [86] The defendants submit that the purpose of an award for non-pecuniary damages "is to compensate the plaintiff for pain and suffering he has experienced to the date of trial as well as any which may be experienced in the future." [87] The defendants also submit that the plaintiff's pre-existing condition in his back, the nature of his occupation and his weight "are all factors which should be taken into account in assessing the 'plaintiff's original position'" for the assessment of damages. I agree with this general proposition. [88] Moreover, the defendants submit that because there were no objective findings from any of the medical practitioners, apart from minimum restrictions in range of motion, and that none of the

experts have recommended that Mr. Stull change his occupation and he has continued to operate his business "at full capacity", a more modest award is appropriate. Additionally, the functional capacity evaluation shows that Mr. Stull was able to exceed all requirements in the strength category. The defendants say these are all relevant factors in determining what is a fair and reasonable award. [89] The defendants also say that Mr. Stull has not suffered a significant loss of his previous recreational activities or lifestyle as he has only had to restrict his dirt biking and boating. Finally, his marital relationship is now good, primarily because he is working full-time and his wife is now working because the children are older. [90] In support of their submission that an appropriate award for non-pecuniary damages would be $50,000, reduced to $40,000 for measurable risk, the defendants cite the following cases as reasonable comparables: 1. Stone v. Kirkwood, 2008 BCSC 1295: 25 year old carpenter and roofer. Previous back complaints related to a rugby injury and moderate heavy work soft tissue injuries. The court awarded $40,000 in non-pecuniary damages; 2. Sidhu v. Liang, 2009 BCSC 1697: Injuries to the neck, back, hips and elbows resulted in chronic persistent pain to a 31 year old longshoreman. The court was convinced that the plaintiff would make a full recovery and ordered

$36,000 for non-pecuniary damages, given the good prognosis for recovery; 3. Hutchinson v. Cozzi, 2009 BCSC 243: The court concluded the plaintiff was not completely recovered and had occasional or sporadic pain which had become chronic. The court concluded this pain was no longer "of significant impact upon his ability to work or his recreational activities." Non-pecuniary damages were assessed at $40,000; 4. Chang v. Feng, 2008 BCSC 49: A 28 year old plaintiff sustained a fractured clavicle, fractures in his foot and soft tissue injuries to his neck and back. The court concluded the plaintiff suffered some serious injuries in the accident but ongoing complaints of shoulder pain were not attributable to the accident. The court awarded $45,000 in non-pecuniary damages. Conclusion on Non-pecuniary Damages [91] Having regard to the totality of the circumstances, I accept the evidence of the plaintiff that he still suffers reasonably moderate neck and back injuries and that this has affected, to a certain degree, his ability to do the same type of work around the house that he once enjoyed, that it has affected his recreational activities to a modest extent, and most significantly, his ability to perform at full capacity in his chosen occupation. [92] I accept that Mr. Stull is permanently partially disabled because of the injuries incurred in this accident and that his pain is

constant and relatively significant. I find that the injuries he suffered in the accident have prevented him from doing all of the installation work he used to be able to do throughout his full work day. [93] I also accept the evidence of both Mr. and Mrs. Stull that the financial impact of the motor vehicle accident caused significant stress and disharmony in their marriage. [94] I also agree with counsel for the plaintiff that, by their very nature soft tissue injuries are not always manifested by objective signs. Complaints of soft tissue pain and headaches are subjective in nature. I do note, however, that Dr. Martin saw Mr. Stull in late May 2012 and noted "a mild decreased range of motion." I accept Mr. Stull's evidence with respect to the ongoing significance of these symptoms and find that they were caused by the accident and are not a result of normal wear and tear on a back that had been traumatized many years before. [95] Given the totality of the circumstances, I am satisfied a fair and reasonable assessment of non-pecuniary damages would be $85,000. Measurable Risk [96] Referring to the Supreme Court of Canada decision in Athey v. Leonati, [1996] 3 S.C.R. 458, [1996] S.C.J. No. 102, at para. 35, the defendants submit that the pre-existing spine fractures, the degenerative changes and osteoarthritis in his lumbar spine and the repetitive strains placed on Mr.

Stull's back at work should result in a reduction in the damages that it would be otherwise appropriate to award. [97] As Pearlman J. stated in Bouchard v. Brown Bros. Motor Lease Canada, Ltd., 2011 BCSC 762, at para. 123 (the percentage deduction varied 2012 BCCA 331): In Athey at para. 35, the Supreme Court of Canada held that "if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant's negligence, then this can be taken into account in reducing the overall award." The Court explained that this is consistent with the general rule that the plaintiff must be returned to his original position, with all of its risks, rather than to a better position. [98] Moreover, in T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA 670, at para. 48, Mr. Justice Smith stated: ... Whether manifest or not, a weakness inherent in a plaintiff that might realistically cause or contribute to the loss claimed regardless of the tort is relevant to the assessment of damages. It is a contingency that should be accounted for in the award. Moreover, such a contingency does not have to be proven to a certainty. Rather, it should be given weight according to its relative likelihood. [99] The defendants submit that because the plaintiff should not be put in a better position than his original position, they

should not have to compensate the plaintiff for any damages he would have suffered anyway, regardless of the accident. [100] The defendants say that in this case: ... the plaintiff's pre-existing condition of his lumbar spine, together with the expected deterioration of the plaintiff's low back as a result of the nature of his occupation are inherent in his "original position". [101] The defendants submit that Mr. Stull was, prior to the motor vehicle accident, at risk for future development of back pain because of pre-existing spine fractures, degenerative changes in his lumbar spine, osteoarthritis and the repetitive strains placed on his back because of work, as well as his significant weight. [102] The defendants say that the testimony of Drs. Roe and Martin and Mr. Vandenboer confirm that the plaintiff was at risk for future problems with his back. The defendants note that Dr. Sidky said in his report that his prior fractures, coupled with the repetitive nature of Mr. Stull's work, "would likely have resulted in some ongoing chronic back pain and disability." [103] In response, the plaintiff says the circumstances in this case do not support a reduction in the damage award simply because of the possibility Mr. Stull might have had back problems in the future, absent the accident. The plaintiff submits that Mr. Stull's testimony was that he had no residual pain or

limitations from any previous injuries. He testified that he was working six to seven days a week, 10 to 12 hours per day, at full capacity at the time of the accident. There is no issue with respect to this aspect of his evidence. [104] What is most significant in this analysis is the fact that I have accepted Mr. Stull's testimony as to the lack of any symptomology prior to the accident, that he was symptom-free for a period of approximately eight years, and the fact that his pain and disability occurred at the time of the motor vehicle accident and continue to the present time. [105] I acknowledge that Mr. Vandenboer agreed that repetitive stooping could potentially cause back pain and that Dr. Roe agreed that floor laying is hard on a person's back. But as Dr. Roe testified, because Mr. Stull says his last significant pain was nearly "a decade" earlier and he was able to perform his work without a problem, this supports the conclusion the post-motor vehicle accident pain is attributable to the accident, not to any pre-existing condition. [106] Moreover, I agree with plaintiff's counsel that the medical evidence falls short of demonstrating that any ongoing chronic back pain and disability or any ongoing "flares of his back pain in the future" that might occur even without the accident would be sufficiently serious to render the plaintiff unable to continue as a hardwood

floor installer to the same degree he was working prior to the accident. [107] Given the totality of the circumstances, I am not satisfied the defendants have established that there is a measurable risk that Mr. Stull would have developed pain and disability absent the motor vehicle accident that would have contributed to the losses at issue in this trial, even though as Dr. Martin and Dr. Roe acknowledged, repetitive bending and stooping is hard on any back, even a healthy, non-traumatized back. I am not satisfied this evidence is sufficient to reduce any award that might be made. As plaintiff's counsel has pointed out, in cases such as Bouchard and Sanders v. Janze, 2009 BCSC 1059, there was evidence of significant or severe on-going symptomology (Sanders, paras. 44‑46, 84) "that was already in play" (Bouchard, para. 127) or had manifested itself by the time of trial. Past Income Loss [108] Damages under this heading, like loss of future earning capacity, represent compensation for loss of pre-trial earning capacity. However: ... the loss of the past earning capacity is quantified by the amount of the wages or salary the plaintiff would have earned at the job if his or her capacity had not been impaired by the injuries sustained in the accident. (See Bradley v. Bath, 2010 BCCA 10, para. 33). [109] At the same time, the plaintiff has acknowledged that "[t]he overall fairness

and reasonableness of the award must be considered taking into account all the evidence" (see Rosvold v. Dunlop, 2001 BCCA 1), and further, that "the task of the court is to assess damages not to calculate them on some mathematical formula" (Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248, at para. 43). [110] The plaintiff seeks a significant award of damages under this heading on the basis that, given Mr. Stull's pre-accident annual revenues, it would be reasonable to assume his business would grow "in general accordance with the pattern of growth experienced by the business prior to the accident." [111] The plaintiff says that, utilizing this analysis, it would be reasonable to assume that, but for the accident, Mr. Stull's business would have continued to grow at 12 to 13 percent each year until approximately 2012 and then because he has no desire to grow into a "large enterprise", level off. The plaintiff also says it is reasonable to conclude that net profit would have been 45 percent of revenue based on past financial statements. Mr. Stull says that by using this analysis, a reasonable award for past wage loss would be $110,322. [112] The defendants' position is that Mr. Stull should be compensated on the basis of being off work completely from the date of the accident to April 2010, and then on the basis of working part-time until June. The

defendants therefore say a reasonable award for past loss of income would be approximately $20,000. [113] On this issue, the defendants say the assumption that Mr. Stull's business would have grown by a compounded 13 percent per year is unreasonable and does not bear a relationship with the financial documents that have been provided. The defendants also say this submission fails to recognize the evidence that Mr. Stull and his employee, Mr. Stocking, were working at "maximum" capacity right before the motor vehicle accident occurred. On this point, it is important to recall Mr. Stull's evidence that immediately before the accident he was working 10 to 12 hour days, six days a week. In cross-examination Mr. Stull testified he "was working more than full-time hours." Mr. Stocking testified that in the summer of 2009, he and the plaintiff were working "probably" 12 to 16 hour days. As a result, the defendants submit that, while they concede Mr. Stull lost specific installation contracts he was due to complete in the months following the accident, the court should recognize that these jobs would have precluded Mr. Stull from doing other jobs, such as Slegg Lumber jobs, so as not to overcompensate Mr. Stull under this head of damages. I agree with that general observation. [114] The defendants say the totality of the evidence is such that the court cannot reliably presume there

would be a 13 percent increase in revenue each and every year based on the financial figures that have been presented in this case. The defendants say this is especially so when this analysis is based on a 26 percent increase in revenue in 2005 and a 12 percent increase in 2007/2008 with little or no increase in 2006. They say it is important to recall that Mr. Stull himself acknowledged that these were boom times in Nanaimo, especially 2007 to 2008. Moreover, the increase in revenue of 0.21 percent in 2006/2007 highlights the vagaries of the construction industry in general and in Nanaimo in particular. As such, the defendants say the decline in gross revenues in 2012 cannot be attributed to Mr. Stull's reduced capacity to work but rather is because of the downturn in the economy and in the industry. [115] In addition, the defendants say that given that Mr. Stull was able to generate revenue in 2011 similar to revenue in the "boom" year of 2008, the decrease in 2012 was not because of the motor vehicle accident but rather the state of the industry. They say this is especially so when revenue in 2011 was $83,200, higher than any prior year apart from 2009. [116] The defendants also say that Mr. Stull's net profit for 2009 was approximately $21,200, which, when extrapolated over the full year, suggests net income of around $30,000, much less than what the plaintiff says he could

have earned absent the accident. [117] Therefore, the defendants say the assumption that his business would grow at 13 percent each year is not consistent with the reality of the economic climate. The decrease in revenue was simply because the work was not there. On this point the evidence of Mr. Stocking is again significant. He confirmed he was laid off in early December 2012 "because there is really nothing out there now." [118] I accept the defendants' submission on this issue. Given the totality of the circumstances I am unable to conclude that Mr. Stull's past loss of earning capacity can properly be based on a compounding 13 percent increase in projected revenues for the three years from the date of the accident to the date of the trial, before he would have reached maximum earning capacity. [119] I also agree with the defendants that the evidence of Mr. Carson, based on the 2006 Census data which reflects 2005 income for similar occupations throughout British Columbia, is not helpful with respect to a fair determination of damages under this head. Similarly, the vocational expert, Mr. Nordin, agreed that Mr. Stull's actual past earnings would be a "better measurement" tool for future earning estimates than the 2006 Census which would not take into consideration the recession in 2008. [120] I do however accept the plaintiff's submission that it is reasonable, based on

the financial documentation, to conclude that Mr. Stull's average net profit percentage in the past is indicative or a reasonable predictor of what his average net profit percentage would have been after the motor vehicle accident. I accept that a reasonable estimate of Mr. Stull's net profit from year to year would be the 45 percent of his overall revenue as advanced by Mr. Stull's accountant, Ms. Barber. [121] On this point, the defendants have conceded that the plaintiff lost contracts with three contractors when he was injured in the motor vehicle accident. These specific contracts were with Watercress Developments Inc., Saywell Contracting Ltd. and Wingren Floor and Supply Co. Ltd. [122] With respect to these specific contracts, I accept the plaintiff's calculations that Mr. Stull suffered a net profit loss of $18,610 in the year 2009 as a result of not being able to complete these projects. [123] The plaintiff also submits that because the federal Government's home renovation program in 2009 created much work for people such as Mr. Stull, it is reasonable to take into consideration as best as one can, what Mr. Stull might have lost due to his inability to work from September 19, 2009, through to February 1, 2010, when the home renovation program expired. It is however important to remember that Mr. Stull would have been busy with the specific contracts already referred to

as well as any work from Slegg Lumber that might be accounted for. [124] In support of his submission that there should be some compensation for loss of earning capacity during this period of time, Mr. Stull has averaged his revenue from September through to December for the years 2007 to 2011 and, based on a 45 percent average net profit, has calculated that, but for the motor vehicle accident, he lost revenue from September 20 to December 31 in 2009 of $9,504 and for the one month, January 1, 2010, to January 31, 2010, $2,030, for a total of $11,534. [125] Moreover, even though I have accepted the defendants' submission that Mr. Stull and Mr. Stocking were working long days just before the motor vehicle accident, I am of the opinion it is fair and reasonable to take into consideration the difference between the work that Mr. Stull received from Slegg Lumber when he was their number one installer and the work he received after the accident, and to compare that to the work that the new number one installer, Mr. Karl Weir, obtained from Slegg Lumber in the years 2010, 2011 and 2012, with a view to incorporating an assessment of this income loss into the overall award. [126] On this point, I am satisfied that but for the accident Mr. Stull would still have been capable of performing all of the work for Slegg Lumber, even though, as in the past, he would have other work to do at

the same time. I therefore accept the plaintiff's assessment that for 2010 Mr. Stull lost a net profit of $6,336 that would have otherwise come his way pursuant to his relationship with Slegg Lumber. [127] I am also satisfied that for the year 2011 Mr. Stull suffered a loss of net profit because of reduced work from Slegg Lumber of $4,071 and in 2012 suffered a loss of net profit of $8,403. These two amounts total $12,474. From 2010 to 1012, the loss of net profit from Slegg Lumber is $18,811. [128] In conclusion, by considering these calculations along with the past financial statements, I am satisfied that a fair and reasonable assessment of damages for past wage loss would be $50,000. [129] As counsel have requested, my analysis of the evidence suggests that these amounts of past wage loss can be broken down as $29,000 for 2009, $8,500 for 2010; $4,000 for 2011 and $8,500 for 2012. Loss of Future Earning Capacity [130] I now turn to Mr. Stull's claim for loss of future earning capacity. [131] In Wong v. Hemmings, 2012 BCSC 907, at paras. 146-151, Fitch J. summarized the legal principles pertaining to this head of damages: [146] A claim for loss of future earning capacity raises two key questions: 1) has the plaintiff's earning capacity been impaired by his or her injuries; and, if so 2) what compensation should be awarded for the resulting financial harm that will accrue

over time? The appropriate means of assessment will vary from case to case: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); Pallos v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.); Pett v. Pett, 2009 BCCA 232. [147] The assessment of damages is a matter of judgment, not calculation: Rosvold v. Dunlop, 2001 BCCA 1 at para. 18. [148] Insofar as possible, the plaintiff should be put in the position he or she would have been in but for the injuries caused by the defendant's negligence: Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at para.

185. The essential task of the Court is to compare the likely future of the plaintiff's working life if the accident had not happened with the plaintiff's likely future working life after the accident: Gregory v. Insurance Corp. of British Columbia, 2011 BCCA 144 at para. 32. [149] There are two possible approaches to assessing of loss of future earning capacity: the "earnings approach" from Pallos; and the "capital asset approach" in Brown. Both approaches are acceptable. Reliance on the capital asset approach will be more useful where, as in this case, the loss in question is not easily measureable: Perren v. Lalari, 2010 BCCA 140. [150] The earnings approach involves a form of math-oriented methodology such as: (i) postulating a minimum annual income loss for the plaintiff's remaining years of work, multiplying the annual projected loss by the number of remaining years and calculating a present value; or (ii) awarding the plaintiff's entire annual income for a year or two: Pallos; Gilbert v. Bottle, 2011 BCSC 1389 at para. 233. [151] The capital asset approach involves considering factors such as: i) whether the plaintiff has been rendered less capable overall of earning income from all types of employment; ii) is less marketable or attractive as a potential employee; iii) has lost the ability to take advantage of all job opportunities that might otherwise have been open;

and iv) is less valuable to herself as a person capable of earning income in a competitive labour market: Brown; Gilbert at para. 233. [132] In Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 251, the Court said: We must now gaze more deeply into the crystal ball. What sort of a career would the accident victim have had? What were his prospects and potential prior to the accident? It is not loss of earnings but, rather, loss of earning capacity for which compensation must be made: The Queen v. Jennings, [1966] S.C.R. 532, supra. A capital asset has been lost: what was its value? [133] In Reilly v. Lynn, 2003 BCCA 49 at para. 101, the court stated: The standard of proof in relation to future events is simple probability, not the balance of probabilities, and hypothetical events are to be given weight according to their relative likelihood: Athey v. Leonati, [1996] 3 S.C.R. 458 at para.

27. A plaintiff is entitled to compensation for real and substantial possibilities of loss, which are to be quantified by estimating the chance of the loss occurring: Athey v. Leonati. supra, at para. 27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.). [134] The court in Bhadlawala v. Baxter, 2012 BCSC 366, at para. 138, stated: The assessment of loss of future earning capacity is not a mathematical exercise, and must deal to some extent with the unknowable. As Huddart J.A. put it in Rosvold v. Dunlop, 2001 BCCA 1 at para. 9, '[p]ossibilities and probabilities, chances, opportunities, and risks must all be considered, so long as they are a real and substantial possibility and not mere speculation'." [135] Mr. Stull says the evidence has established that there is a real and substantial possibility that he will suffer a loss of future earning capacity as a result of the injuries suffered in the motor vehicle accident. He submits a fair and reasonable assessment in these circumstances would be an award in the neighbourhood of $478,000, this figure being reduced from the original submission that $600,000 would be appropriate. [136] The plaintiff says that it is reasonable to expect that Mr. Stull will achieve only future net income of between $20,000 and $30,000 year over year, as opposed to the $56,000 he would have earned if there had been no accident based on the

2006 Census data for floor layers and a "contractor/manager", the projected 12 to 13 percent increase in annual gross revenue, and that he will retire sometime between ages 65 and 70. The plaintiff therefore submits that: ... a reasonable assessment of Mr. Stull's future income loss is somewhere between the figures of $351,788.80 ($30,000 net income to age 65) and $605,157.60 ($20,000 net income to age 70). The mid-point between these two figures is $478,468.20. [137] The plaintiff says that this amount is reasonable, applying a: math-oriented methodology of postulating a minimal annual income loss of the plaintiff's remaining years of work, multiplying the annual projected loss by the number of remaining years and calculating a present value. [138] As such, the plaintiff submits that using the capital asset approach and simply applying an award based on Mr. Stull's annual income for a year or two is inappropriate on the facts of this case. [139] Conversely, the defendants submit that given the uncertainties in the construction and renovation business in general and hardwood floor installation in particular, the earnings approach is not appropriate. They say the correct approach, if indeed the court is satisfied that there should be an award for loss of future earning capacity, is the capital asset approach. [140] In support of this submission, the defendants say the

plaintiff's loss is not easily measurable. This is because the defendants say Mr. Stull's business is subject to fluctuating gross revenues as well as expenses related to labour and materials. Moreover, his business is susceptible to changing market conditions. Mr. Nordin also noted that during a downturn in the economy, people "tend to put off" flooring and these "kinds of businesses do suffer." [141] Moreover, I have already determined that it is inappropriate to measure Mr. Stall's past income loss based on the assumption that Mr. Stull's revenues would have grown on a compounding basis at 12 to 13 percent per year and then remain fairly constant, or that he will achieve a specific maximum level of income. I make the same determination when considering any loss of future earning capacity if, in fact, the evidence establishes a real and substantial likelihood that Mr. Stull's future earning capacity has been impaired by his accident-related injuries. [142] When considering this question, I am satisfied that the mere fact that Mr. Stull, through stoicism and dedication, has returned to his usual employment is not sufficient to conclude he has failed to establish there is a real and substantial possibility of a future income loss. [143] Given the evidence I have accepted, I am satisfied Mr. Stull has met the initial burden of establishing that there is a real and substantial

possibility of income loss, as required by our Court of Appeal in such cases as Perrin v. Lalari, 2010 BCCA 140. [144] First, I have accepted Mr. Stull's testimony that he has difficulty with respect to the heavier aspects of the floor installation business due to the soft tissue injuries he suffered in the motor vehicle accident. Having accepted Mr. Stull's testimony, I cannot agree with the defendants that he stands to suffer no future losses under this head. Mr. Nordin's opinion at p. 16 is helpful: As a result of his ongoing symptoms Mr. Stull will not be able to access labouring jobs such as construction helper, warehouse man, deck hand, etc. (jobs that would have been potential options for him pre-accident). I believe, therefore, his residual vocational options have been significantly diminished by his ongoing symptoms. [145] While it is true that Mr. Nordin agreed in cross-examination that because Mr. Stull is presently earning a reasonable income, his best option is to continue to operate his flooring business, he did observe that this would require Mr. Stull "to make adaptions." [146] Similarly, Mr. Vandenboer expressed the opinion that Mr. Stull will likely continue to experience ongoing symptomology, depending on any particular activity he might undertake, and that this will focus on his low back and neck. [147] Dr. Martin expressed the opinion that Mr. Stull has

reached maximum medical improvement and that, while he will be able to carry on in his business and improve his symptomology or decrease his pain and discomfort if he moves into more supervisory activities and reduce his heavy labouring, it is only by way of these modifications in his business activities that he will be able to work to full capacity in this occupation. [148] Finally, as I have mentioned, Dr. Sidky expressed the opinion that Mr. Stull should attempt to find a different occupation that does not involve constant bending and stooping and repetitive motions as these activities might result in "ongoing flares" of his back pain in the future. [149] In my view, this latter opinion from Dr. Sidky undermines the defendants' submission that "the plaintiff has not received any medical advice to change his occupation as a result of the injuries he sustained in the accident." [150] Given that I have found that Mr. Stull's present difficulties in his back are a result of the accident, I cannot accept the defendants' submission that Mr. Stull's future earning capacity has not been impaired as a result of the accident. [151] I also accept Mr. Stull's evidence that, while he has not turned down any jobs he is "qualified" to do, he is not as busy now as he was partly because he is taking longer to complete the jobs he has taken on since his return to full-time work, as well as

because of the vagaries of the construction industry. [152] Finally, because of the accident, he is no longer Slegg Lumber's number one installer. [153] Given the totality of the evidence, I am satisfied that Mr. Stull has established that he has been rendered less capable of earning income from all types of employment. He has lost the ability to take advantage of all job opportunities which might have otherwise been open to him had he not been injured and he is now less valuable to himself as a person capable of earning income in a competitive labour market. [154] As a result, Mr. Stull's future earning capacity has been impaired. Even though it would appear Mr. Stull will carry on as best he can in the floor laying business, it would be at reduced efficiency because of the injuries caused by the motor vehicle accident. [155] Having concluded that Mr. Stull has established that there is a real and substantial possibility he will suffer a loss of income earning capacity, I now turn to consider what is the appropriate methodology for determining a fair and reasonable award of damages under this heading. [156] On this point, the multiplier tables utilized by the economist, Mr. Carson, are of some assistance to the court in assessing what would be a fair and reasonable assessment under this heading of damages. They are useful to a certain extent in illustrating "at least in a

broad sense" the claim relating to loss of earning capacity. See Wong v. Hemmings, 2012 BCSC 907, at para. 157. [157] However, given the totality of the circumstances, I agree with the defendants that the capital asset approach is appropriate in these circumstances, notwithstanding the fact that Mr. Stull has been engaged in this business for approximately seven or eight years. [158] At the same time, it is necessary to acknowledge the potential for various positive and negative contingencies occurring over the working life of any plaintiff. Positive contingencies would include potential improvements in health and an expansion of Mr. Stull's business. [159] Conversely, I must take into consideration the negative contingencies that the construction industry could suffer another significant downturn, or that Mr. Stull, even without the accident, might not continue to work as a floor layer to 65 or 70 years of age. On this latter point, I note Mr. Stull's own testimony that his intention, before the accident, was to "retire early." There are also the usual chances and hazards of life. See Trites v. Penner, 2010 BCSC 882, at para. 228. [160] The defence submits that, even if I do conclude that Mr. Stull has a partial disability because of injuries suffered in the accident that affect the heavier aspects of the floor installation work, he would still likely be able to replace any

lost income, and perhaps earn more, by taking on more of a managerial role, or that he might be able to find other jobs that do not require as much stooping, bending over and heavy lifting, "although he tested readily capable of that." [161] As a result, the defendants say that, because the overriding principle is the fairness and reasonableness of the award to both the plaintiff and the defendants, the award under this head of damages should be $30,000 to $60,000. This award would approximate one or two years of Mr. Stull's average annual net income. [162] In my opinion, such an award is unduly low, but at the same time the amount suggested by the plaintiff is not supportable having regard to the totality of the evidence. [163] However, Mr. Stull is a relatively young man and can reasonably expect to remain in the workforce for many years. Given his occupation as a floor layer, one of his most valuable assets was the resilience and ability of his body to do physical labour. The motor vehicle accident has affected that asset and Mr. Stull should be compensated. Given all of the evidence and taking into consideration the various contingencies I have referred to, I am satisfied a fair and reasonable award for loss of future earning capacity is $150,000. Mitigation [164] The defendants say that Mr. Stull's damage award should be reduced because of a failure to mitigate his losses.

The Supreme Court of Canada in Janiak v. Ippolito, [1985] 1 S.C.R. 146, spoke about the burden of proof as it pertains to mitigation. The court there stated: 32. While a plaintiff has the burden of proving both the fact that he has suffered damage and the quantum of that damage, the burden of proof moves to the defendant if he alleges that the plaintiff could have and should have mitigated his loss. The court also said: 36. Turning now to the implication of a finding of unreasonableness for the plaintiff's recovery, it is clear that the so-called "duty to mitigate" derives from the general proposition that a plaintiff cannot recover from the defendant damages which he himself could have avoided by the taking of reasonable steps. [165] The defendants say that in the circumstances of this case, primarily because Mr. Stull has not embarked upon a rehabilitation program as recommended by Ms. Carrie Wright, an occupational therapist, the court should find that he has failed to take reasonable steps to mitigate his damages, and that his award should be reduced accordingly. [166] The plaintiff says that the evidence does not establish he failed to mitigate his losses, given that he engaged in a strenuous rehabilitation program with the Canadian Back Institute that resulted in him eventually participating in the "Graduated Return to Work Program" and that he returned to the work force,

albeit in a limited capacity, by April 2010. [167] On this point I note that Dr. Martin concluded: Mr. Stull has had the benefit of multidisciplinary rehabilitation programs, and at this point, in my opinion, he would not benefit from further attendance. [168] On this issue, both counsel have referred to the decision of our Court of Appeal in Chiu v. Chiu, 2002 BCCA 618, where Low J.A. set out the following tests with respect to the issue of a duty to mitigate: 57. The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss. In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff's damages would have been reduced had he acted reasonably. These principles are found in Janiak v. Ippolito, [1985] 1 S.C.R. 146. [169] Moreover, the defendants cite Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51, a recent decision of the Supreme Court of Canada that states the correct test is whether mitigation was possible, not probable. [170] At paragraph 24, the court stated: As a general rule, a plaintiff will not be able to recover for those losses which he could have avoided by taking

reasonable steps. Where it is alleged that the plaintiff has failed to mitigate, the burden of proof is on the defendant, who needs to prove both that the plaintiff has failed to make reasonable efforts to mitigate and that mitigation was possible (Red Deer College v. Michaels, [1976] 2 S.C.R. 324). At paragraph 25, the court concluded by stating: Mitigation is a doctrine based on fairness and common sense, which seeks to do justice between the parties in the particular circumstances of the case. [171] The primary basis for the defendants' submission is that Mr. Stull attended Ms. Wright for the "express purpose of assessment of his rehabilitation needs." Ms. Wright made recommendations for an exercise program with a kinesiologist, as well as other pain management strategies. The defendants submit that Mr. Stull has acknowledged that he did not follow the specific recommendations advanced by Ms. Wright, and when combined with the evidence of Drs. Roe and Martin, and Mr. Vandenboer, Mr. Stull's chances of improvement would increase if he were to undertake the recommendations for improving his strength, endurance and posture. Indeed, all the medical witnesses agreed that exercise and weight loss would assist in improving Mr. Stull's chances of relieving his back pain in the future. [172] Conversely, the plaintiff says he has not failed to mitigate his damages given that he

participated in the CBI Rehabilitation Program and has continued to engage in an independent exercise program, albeit not supervised by an independent kinesiologist. Once again I find Mr. Stull a credible witness when he says he is embarking upon a reasonable exercise program in an attempt to increase his strength and endurance in order to allow him to deal with the heavier aspects of his work. I accept his evidence when he says he follows the recommendations he has received from other physiotherapy personnel and has increased his core strengthening exercise program from three times a week to every day. [173] In these circumstances, and while a more stringent rehabilitation regime probably would assist Mr. Stull in his rehabilitation, I am not satisfied that the defendants have established that Mr. Stull was acting unreasonably by not addressing the specific recommendations made by Ms. Wright or that the defendants have established that Mr. Stull's damages would have been reduced had he in fact done so. I am satisfied he has taken reasonable steps to mitigate by embarking upon the comprehensive CBI Program, by returning to work and working as hard as he can, given his limitations, by attempting to reduce his weight by dieting and by stepping up his home exercise program. [174] I am therefore not satisfied that the defendants have established Mr. Stull has failed to mitigate his

loss. There will be no reduction in damages on the basis of a failure to mitigate. Special Damages [175] I am satisfied that the amount claimed by the plaintiff for special damages were reasonably incurred as a result of the accident. There will be an award for special damages in the amount of $2,123.57. Cost of Future Care [176] As the defendants submit, any award for future care is based on what is reasonably necessary on the medical evidence to promote the mental and physical health of the plaintiff. Moreover, there must be a medical justification for claims for cost of future care and the claims must be reasonable: Milina v. Bartsch, [1985] 49 B.C.L.R. (2nd) 33 at 78 (B.C.S.C.), aff'd [1987] 49 B.C.L.R. (2nd) 99, paras. 184 and 211 (B.C.C.A.). On this point, the plaintiff submits that an amount of $5,000 would be reasonable for the cost of future care on the basis that there is medical evidence to suggest that some physiotherapy and massage would be of assistance to Mr. Stull in the future irrespective of whether he has actively participated in such physiotherapy in the past. Dr. Martin stated that Mr. Stull would benefit from periodic chiropractic or massage therapy. Dr. Roe agreed with Dr. Martin's recommendations. [177] The plaintiff acknowledges that this is a purely arbitrary figure. Even though the plaintiff did not provide any specific evidence about the actual cost of massage treatment or physiotherapy, I am satisfied a reasonable award for the cost of this future care would be $1,000. Summary [178] The award will be as follows: Non-pecuniary damages $85,000.00 Past income loss $50,000.00 Loss of future earning capacity $150,000.00 Special damages $2,123.57 Future care $1,000.00

TOTAL $288,123.57 Costs [179] Unless there are facts unknown to me which could reasonably affect the issue of costs, I am satisfied the plaintiff is entitled to his costs at Scale B. "B.D. MacKenzie, J." The Honourable Mr. Justice B.D. MacKenzie