Trites v. Penner

2010 BCSC 882 Trites v. Penner

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Trites v. Penner, 2010 BCSC 882 Date: 20100623 Docket: M105817 Registry: New Westminster Between: Matthew Trites Plaintiff And Lorne P. Penner Respondent Before: The Honourable Madam Justice Ker Reasons for Judgment Counsel for Plaintiff: A. Kask K. Gourlay Counsel for Defendant: R. Rogers Place and Date of Trial: New Westminster, B.C. June 8-12, 2009 October 13-15, 2009 Place and Date of Judgment: New Westminster, B.C. June 23, 2010 I. Introduction [1] This is a personal injury action brought by the plaintiff, Matthew Trites, against the defendant, Lorne Penner for damages in relation to injuries and losses sustained in a motor vehicle accident (the "accident") that occurred on May 26, 2005 at an intersection in Chilliwack, British Columbia. Liability for the accident is admitted on behalf of the defendant. [2] Mr. Trites, who was driving his 2000 Chevrolet Cavalier at the time, was stopped behind another vehicle that was waiting to make a left hand turn at a T intersection onto Thomas Road in Chilliwack, B.C. As he waited, Mr. Trites looked in his rear view mirror and noticed a vehicle quickly approaching and that the driver's head was turned to the side. Mr. Trites tried to take evasive action but was forcefully rear ended by Mr. Penner. At the time of the collision, Mr. Trites was leaning forward, looking to the right front

corner of his vehicle, and was trying to navigate his vehicle around the vehicle in front of him and avoid a telephone pole immediately to the right of that other vehicle. The collision was of such magnitude that Mr. Trites' vehicle was pushed across the road, over the entry way to a gravel yard and was forced up onto a dirt berm where it stopped. The force of the impact was so great that when Mr. Trites was thrown backwards into his seat, the backrest of the seat was broken, bent backwards and twisted to the right. The accident resulted in significant damage to Mr. Trites' vehicle which was eventually "written off" due to the cost of repairs. [3] At the time of the accident Mr. Trites was 30 years old. Although single at the time of the accident, Mr. Trites had recently started dating a young woman who has subsequently become his wife. At the time of the accident, Mr. Trites was employed as an apprentice plumber with Britco Structures Ltd. ("Britco"), indentured with them as of November 8, 2004. In addition to a claim for non pecuniary damages for the soft tissue injuries sustained in the accident, the most contentious issues in this claim are whether there should be an award for cost of future care and loss of future earning capacity. II. Position of the Parties [4] The plaintiff, Mr. Trites, now 35 years old, suffered soft tissue injuries to his neck and back in the

accident. It is the plaintiff's position that he continues to experience pain, particularly in his lower back and neck, and headaches related to these injuries from the accident and which persist to a significant degree to the present time. Mr. Trites claims that he is still unable to fully function at work and in other aspects of his life to the level he did prior to the accident. Evidence adduced from other witnesses in the plaintiff's case suggests that Mr. Trites may not be able to continue with the heavy labour demands of being a plumber and that he needs to re-train for some form of employment that does not have such significant physical demands upon him. Re-training as a cabinetmaker has been one suggestion that Mr. Trites may embrace although he has yet to undertake such re-training. [5] In his final submissions, counsel for the plaintiff asked the court to consider an award of $75,000 for non-pecuniary damages, approximately $7,100 for past income loss, approximately $600,000 for loss of future earning capacity, approximately $14,500 for special damages and between $60,000 and $120,000 for cost of future care, in addition to court ordered interest and costs. [6] The position on behalf of the defendant is that although the plaintiff was injured in the accident, he was not injured nearly to the extent he claims. The defendant argues that within 18 months of the accident

Mr. Trites demonstrated a significant improvement in his condition and that any lingering disabilities and pain is attributable to Mr. Trites' failure to follow his exercise program, the increased demands from his continuing employment as a plumber as well as his weight and poor abdominal core strength. Counsel for the defendant also argues that Mr. Trites failed to mitigate his losses when he elected not to purchase a monthly gym pass in early 2007 and continue with the exercise regime that had been assisting in his improvement and recovery from his injuries. Further, counsel for the defendant submits that the plaintiff has not proven loss of future earning capacity arguing that Mr. Trites has continued to work in his capacity as a plumber returning to work in September 2005 and remaining in that trade until he was laid off in March 2009. Insofar as cost of future care is concerned, the defence acknowledges that some items under this head of damages are appropriate but that the overall amount to be awarded should be significantly less than what the plaintiff seeks. III. Issues to be Decided [7] The issues to be decided are: 1. The nature, extent and severity of the injuries sustained by Mr. Trites in the accident and the impact on him, including his lifestyle, ability to work, socialize and participate in recreational pursuits and other forms of physical activity; 2. Whether

the plaintiff failed to mitigate his losses; 3. What is an appropriate amount of damages, if any, payable to the plaintiff for injury or other losses he sustained that may properly be attributed to the accident under the following categories: (a) Non-Pecuniary Damages; (b) Special Damages; (c) Loss of Future Earning Capacity; and; (d) Cost of Future Care. IV. The Trial [8] In this trial, the plaintiff testified and also called Brynne Trites, his former girlfriend and now wife; Dave Heppener, a former co-worker with Ocean Park Mechanical; and Ms. Tel Basi, Mrs. Trites former landlady. He filed the report of his family physician, Dr. Ronald Bull; a report from Dr. Russell O'Connor, a physiatrist, who treated the plaintiff for approximately one-and-one-half years; a report from Ms. Jody Fischer, a functional capacity evaluator; a report from Dr. Colleen P. Quee Newell, a vocational rehabilitation consultant and a report from Douglas Hilderbrandt, an economist. These expert witnesses, with the exception of Mr. Hilderbrandt, also testified as to their dealings, observations and assessment of the plaintiff. [9] Counsel for the defendant cross examined the plaintiff and the witnesses called on his behalf. He also tendered a medical report prepared by Dr. N.K. Reebye, a physician with a speciality in physical medicine and rehabilitation, who conducted an independent medical examination

("IME") on the plaintiff on December 12, 2007. Counsel for the defendant also tendered a medical report prepared by Dr. Bernard Tessler, a physician with a specialty in neurology, who conducted an IME on the plaintiff on March 25, 2009. V. Evidence at Trial A. The Plaintiff's Case [10] The following is a brief summary of the evidence called by plaintiff relevant to his claim and the damages sought, accompanied by the findings of the court as to the reliability, credibility and the significance of the same to the damages sought. It should be noted at the outset that in closing argument counsel for the defendant indicated that the credibility of Mr. Trites was not an issue in this case. Counsel also acknowledged that the evidence of Mrs. Trites was compelling but cautioned the court in its assessment of compensation which is for Mr. Trites, not Mrs. Trites. The Evidence of Matthew Trites - the Plaintiff [11] Mr. Trites described his life prior to the accident on May 26, 2005 as an active one without any significant health problems. More specifically, he said that he was fit and had no problems with his neck or back. Mr. Trites had just turned 30 a month before the accident. [12] Mr. Trites was born and raised in New Brunswick. While in elementary school he was diagnosed with Attention Deficit Disorder, Dyslexia and Dysgraphia. He was prescribed Ritalin at a young age. Despite

these disabilities, which contributed to him repeating a grade in primary school and a grade in high school, Mr. Trites, through his own perseverance and the assistance of his mother, graduated from high school and completed 3 years of a college course obtaining a diploma as a forestry management technician. Mr. Trites worked through high school and for a year at an adventure centre on the Fundy Coast before attending college in Nova Scotia. Mr. Trites has always been an avid outdoorsman and sports enthusiast. His work history prior to moving to British Columbia in July 2004 included being employed as an adventure sports guide; doing tree trimming; and, forestry inspection in the Maritimes. Between April 2001 and April 2002, Mr. Trites worked in the eastern United States inspecting and repairing utility poles and by the time he finished this work he was leading his own crew. [13] When Mr. Trites returned to New Brunswick in the spring of 2002, he noted a significant saturation for employment in the forestry sector and elected to re-train to become a plumber. He was not able to enrol in New Brunswick Community College in St. John in the fall of 2002 but was accepted into the program in the fall of 2003. In the year before returning to college Mr. Trites was employed by Purolator Courier loading, unloading and sorting the freight from the large trucks. [14] After completing his

first year of studies of plumbing in New Brunswick, Mr. Trites moved to British Columbia in July 2004 and transferred his studies to Pacific Vocational College in Burnaby. [15] Part of the reason Mr. Trites moved to British Columbia was to be able to engage in his love of skiing and snowboarding, a passion he acquired during a visit to British Columbia in the winter of 2003. After moving to British Columbia, Mr. Trites became more physically active, taking up skiing and snowboarding in the winter as well as hiking, hunting and camping activities whenever he could on the weekends. [16] Upon moving to British Columbia, Mr. Trites entered into the second year of a four year apprenticeship program to become a journeyman plumber. His second year of studies involved five weeks of classroom work and becoming indentured as an apprentice plumber. On November 8, 2004 he became indentured to Britco, and worked with them until January 26, 2007. By the time Mr. Trites finished his employment with Britco he was earning $19.06 an hour. [17] Mr. Trites' work with Britco involved doing the plumbing installation on modular buildings manufactured in the company's plant. The work included heavy lifting and carrying of toilets and other bathroom fixtures as well as their installation and that of hot water tanks, waste vents, piping and any other features associated with installing the plumbing in a

pre-fabricated home. In addition to lifting and carrying heavy items, the work involved assuming awkward positions such as being hunched around toilets and hot water tanks to install them, crawling under the modules and lying on his back to install piping. Mr. Trites clearly enjoyed this work and expressed pride and satisfaction in being able to complete the job properly. [18] In December 2004 Mr. Trites met his future wife, Brynne, and they started a serious dating relationship that involved them spending most every weekend together. At that time, Mr. Trites lived in Chilliwack and Brynne lived in Delta, B.C. Their weekends were always designed around various recreational activities such as hiking and skiing as well as spending significant amounts of time with the Basi family whom Brynne lived with until she and Mr. Trites purchased a home in Chilliwack in the spring of 2006 and moved in together on July 1, 2006. [19] At the time Mr. Trites moved to British Columbia he had gained some weight due to the months of classes in New Brunswick and weighed approximately 245 pounds. However, he had no back pain or difficulties or limitations with his ability to work or to engage in recreational activities at that time. By May 2005, Mr. Trites' weight had decreased to 215 pounds. He was physically fit and very active due to his increased recreational physical activity as well as the

demanding nature of his work. [20] Before the accident of May 26, 2005, Mr. Trites had been involved in two prior motor vehicle accidents, one in New Brunswick in 2000 where his knees were injured and one in 2004 in Chilliwack, B.C. where he was generally sore for a couple of days after the accident. However, by the time of the accident on May 26, 2005, Mr. Trites had no lasting effects from either accident apart from achy or sore knees when the seasons changed. Prior to the May 26, 2005, accident, Mr. Trites had no difficulties with his back or neck. [21] The evidence establishes, and I accept, that prior to the accident on May 26, 2005, Mr. Trites was a physically active and energetic young man who had no difficulties with the demanding work required of him as an apprentice plumber and specifically had no difficulties with his neck or back. [22] Mr. Trites outlined in his evidence how the accident of May 26, 2005, occurred. On that date he was driving home from work and intended to go into the Royal Bank at the corner of Promontory Road and Vedder Road in Chilliwack, B.C. Mr. Trites was stopped behind a vehicle that was waiting to turn left at the T intersection of Promontory Road onto Thomas Road. Mr. Trites, the only occupant of his 2000 Chevy Cavalier, was wearing his seat belt and had his headrest properly adjusted. He looked in his rear view mirror and saw the

defendant's vehicle rapidly approaching his vehicle and the defendant's head turned to the side. Mr. Trites knew he was going to be hit and endeavoured to take evasive action. He leaned forward in his seat in an effort to get a better view to his right and started to try and manoeuvre his vehicle to the right around the vehicle in front of him. As he let out the clutch, the defendant forcefully rear-ended Mr. Trites' vehicle. The force of the collision was so severe it pushed his vehicle off the road, across the entry way for dump trucks attending at the gravel yard, and up a nearby dirt berm. The force of the collision threw Mr. Trites backward into his seat and was significant enough to break the driver's seat, by bending it back and twisting to the right. The frame of the vehicle was also twisted. The defendant's vehicle, a 1991 Mercury Topaz, was towed from the scene. Mr. Trites was able to drive home but the vehicle was later written off due to the cost of repairs. [23] Mr. Trites immediately felt soreness in his neck but did not start to feel any soreness in his upper back through to his hips or knees until the next day. He provided a statement to ICBC on Friday May 27, 2005, before he had been to see a doctor and before the onset of any significant symptoms. [24] Mr. Trites first experienced significant symptoms on Saturday May 28, 2005 when he woke up in a lot of pain

and felt "stiff as a board." It took him approximately 40 minutes to work and ease his muscles to get out of bed. Mr. Trites went to a walk-in clinic that day and was prescribed Cyclobenzaprine (Flexeril) and extra strength Tylenol to alleviate the pain he was experiencing. [25] Due to nature of the pain he was experiencing, Mr. Trites and his girlfriend, Brynne, had to cancel their weekend hiking plans. The pain was so significant that the couple were unable to be physically intimate that weekend. Prior to the accident they had what they described as an active and healthy sex life. [26] Mr. Trites went to see Dr. Bull, his physician, for the first time on June 2, 2005. He was concerned about how long he would have to be away from his work as an apprentice plumber and recalled being advised by Dr. Bull that he would likely miss four to six weeks of work. At this first visit Dr. Bull advised Mr. Trites to start a regime of physiotherapy and massage therapy, which Mr. Trites followed. Dr. Bull also prescribed Percocet as a pain killer to replace the extra strength Tylenol that was not offering relief for the pain Mr. Trites was experiencing. [27] On June 7, 2005, Mr. Trites was assessed for his suitability in the Work Hardening Program but was unable to fully perform many of the tests administered due to aggravation of neck and back symptoms and was referred back to a two week

course of physiotherapy before he was re-enrolled in the Work Hardening Program. Mr. Trites completed the Work Hardening Program by the end of July 2005, and while in the program he saw a physiotherapist on an almost daily basis. [28] By July 2005 the symptoms Mr. Trites was experiencing were interfering with his sleep and Dr. Bull prescribed Ativan. Due to the level of pain associated with his symptoms during the summer and fall of 2005, Mr. Trites was unable to engage in any of his previous sporting and recreational pursuits. A trip to the annual Celebration of Light Fireworks display in Vancouver in August 2005, proved so physically uncomfortable for him that he was unable to cuddle with his girlfriend and had to simply lie on his back and hold hands with her. [29] Although Mr. Trites completed the Work Hardening Program in late July 2005, he was not ready to return to work immediately. Dr. Bull and Mr. Trites favoured a graduated return to work but, in the end, that arrangement was not feasible with Mr. Trites' employer. In consultation with Dr. Bull, he remained off work until he had to return on a full time basis on September 14, 2005. In total Mr. Trites missed 76 days of work as a result of the injuries sustained in the accident. [30] Shortly after returning to work, on October 19, 2005, Mr. Trites further strained his lower back while tightening some fittings for a

water heater. He could not recall if he specifically advised Dr. Bull of this strain but noted that at his monthly visits with Dr. Bull, he did discuss the issue of the ongoing back pain he experienced as a result of the accident injuries and was told that given his strenuous job he could be at risk of further injury to this area. I find that the quality of the evidence on this point is not so detailed as to demonstrate this strain as being something distinct and different from the injury to Mr. Trites' back as a result of the accident. Indeed, it is more likely than not, and a logical inference from the evidence, that this strain is more consistent with being an example of how Mr. Trites' back was compromised and more susceptible to further strain and injury as a result of the injuries he sustained in the accident. [31] Following his first visit to Dr. Bull and through 2006, Mr. Trites attended for most of his recommended medical treatments at Fraser Valley Physiotherapy and Rehabilitation Center in Chilliwack. His treatments included seeing a physiotherapist on approximately nine occasions between June 2, 2005 and April 11, 2006; a massage therapist on approximately 23 occasions between June 21, 2005 and December 27, 2005 and chiropractors on approximately 45 occasions between November 15, 2005 and September 22, 2006. [32] In addition to attending these various treatment

modalities, Mr. Trites also continued with his gym program attending the local recreational centre on most weekdays in order to continue with his fitness regime. [33] Despite the treatments Mr. Trites was undertaking and his regular attendance at the gym, the symptoms did not abate to any significant degree and Mr. Trites was eventually referred by Dr. Bull to see Dr. O'Connor. He saw Dr. O'Connor for the first time in April 2006. [34] In the spring of 2006, Mr. Trites employer, Britco, instituted longer work hours, (a nine hour day) and mandatory overtime for all employees. The longer hours had a negative impact on Mr. Trites pain levels but he continued to work through the pain. Although he did not consume the prescribed painkillers and muscle relaxants while at work, Mr. Trites would often take them at the end of the work day to ensure that their effect started by the time he returned to his home at the end of the work day. [35] In July 2006 Mr. Trites and his girlfriend moved into their home in Chilliwack. During the move, Mr. Trites could only direct others in the movement of furniture and boxes and was unable to do any heavy lifting himself. In September 2006 Mr. Trites and his girlfriend were married in the Maritimes and returned to B.C. after a brief honeymoon in New Brunswick. [36] Despite longer work hours at Britco, Mr. Trites continued to make gradual progress

through the Fall of 2006, noting gains in a decrease in his symptoms and pain levels and described himself as on "an uphill climb", slowly getting better. By this time Dr. O'Connor was giving Mr. Trites trigger point injections in his neck which helped in abating the intensity and duration of the headaches he was experiencing. By the end of 2006 Mr. Trites began feeling stronger and more confident and was on an upward trajectory for recovery. However, in December 2006, ICBC discontinued funding Mr. Trites' efforts at rehabilitation and refused to pay for any further physical treatments, gym passes, work boots prescribed by Dr. Bull, medications and other related expenses. [37] Mr. Trites' income for 2006, as disclosed from his income tax records, reveals an income of $30,673.92 for his employment with Britco. Given his modest income, other financial obligations and ICBC's decision to discontinue funding his rehabilitation efforts, Mr. Trites found himself unable to finance the cost of all the necessary rehabilitation treatments that had assisted in his recovery and had to discontinue the massage therapy, chiropractic treatments and gym attendance. [38] Although he recognized the value of attending the gym in order to maintain his fitness level, Mr. Trites elected not to purchase monthly gym memberships and instead budgeted to save for an annual gym membership which was more

cost effective. Mr. Trites was simply not able to afford the medications, treatments and monthly gym pass in the first half of 2007. [39] In January 2007, Mr. Trites left his employment with Britco and joined Ocean Park Mechanical in order to broaden his skill set in his apprenticeship as a plumber. Mr. Trites had reservations about the change as the work would be more physically demanding; however, he also needed the broader experience with a company that did plumbing in the construction of concrete high rise buildings. The change in employment also resulted in an increased wage for Mr. Trites. [40] The nature of the work at Ocean Park Mechanical required Mr. Trites to perform much more physically demanding work, carrying heavier pipe, tools and fixtures up flights of stairs, using heavy drills while standing on ladders and in awkward positions, as well as being exposed to the outdoor elements. The combination of much heavier work, exposure to the elements and the cold of working outdoors, a longer commute to work and the cessation of treatment assistance and gym attendance caused Mr. Trites' pain symptoms to increase. Specific employment activities that aggravated his pain symptoms included having to do work with his arms over his head, carrying heavy items and forward bending. Mr. Trites was not able to tell his foreman about his difficulties fearing it would have a negative

impact on his work assessment and advancement in his apprenticeship. Mr. Trites did his best to carry on but found he had to turn to taking his prescription painkillers while on the job in order to get himself through his work day. [41] Another factor that prevented Mr. Trites from continuing with massage therapy and other treatments as well as going to the gym was the increased costs associated with commuting a much longer distance to work. While working for Ocean Park Mechanical, Mr. Trites had to drive into the Vancouver/Richmond area from Chilliwack. He explained in cross-examination that he had a number of other debts related to the purchase of the couples' home as well as their wedding and that for five weeks in March and April 2007, while attending the course work component of his apprenticeship he was only receiving Employment Insurance benefits, an amount that was only 40 to 50% of his regular wage. [42] In April 2007, Dr. O'Connor reminded Mr. Trites of the need to continue with his gym membership in order to continue a conditioning and strengthening program to reverse the trend of slowly increasing back and neck pain since the discontinuance of funding for treatment and gym memberships. [43] Mr. Trites recalled that when he saw Dr. O'Connor in April 2007 he was doing his five week classroom requirements for his third year level of apprenticeship and thus was not

working at the time. He returned to work in May 2007 and started to save for a gym membership. By July 2007 he had sufficient funds to purchase an annual gym membership and bought one immediately when they went on sale. Mr. Trites returned to attending the gym three times a week at this time, and reinstated the training program developed for him in the Work Hardening Program. [44] In September and October 2007, Mr. Trites returned to the classroom for the seven week level four course work. Mr. Trites noted that his marks had slipped a bit in this session, in part because he was having difficulty concentrating due to pain in his neck and back, and that the seated classroom work aggravated his symptoms. [45] Mr. Trites completed his course work in the last week of October 2007 and returned to work at Ocean Park Mechanical for one and a half weeks. Thereafter he was laid off as the project had concluded. [46] Mr. Trites immediately found employment with Rapid Plumbing, a company involved in the construction of new residential premises in the Chilliwack area, and began working there on November 13, 2007. The work was physically demanding as it involved bringing in services from the street to the residences, and thus required digging trenches, shovelling gravel, installing main sewer lines to drainage systems and related hook ups as well as the installation of the various plumbing

fixtures in the residences. The outdoor work of digging trenches and laying pipe caused Mr. Trites' pain levels to increase and he once again had to resort to using his narcotic pain medication while on the job. Although Mr. Trites was the second most senior person on the four man work crew with Rapid Plumbing, his supervisor told him he needed to pick up his pace as he working too slowly, a first year apprentice was laying more pipe than Mr. Trites. Mr. Trites was laid off from Rapid Plumbing approximately six weeks later. [47] Mr. Trites' income for 2007, as contained in his 2007 Income Tax Notice of Reassessment, increased to $48,150. [48] In January 2008 Mr. Trites was re-hired by Ocean Park Mechanical and worked with them until July 8, 2008. He faced the same challenges that he experienced in his previous period of employment with this company and his difficulties were noticed by a co-worker, Dave Heppner. During this course of employment, Mr. Trites received another trigger point injection from Dr. Bull in February 2008 to assist him with the headaches he was experiencing. [49] Mr. Trites explained that in July 2008 he had to take a couple of days off work to attend the examinations for discovery in this matter. On the following Tuesday, his employment with Ocean Park Mechanical was terminated. [50] Mr. Trites was unemployed, although actively looking for work, until he

found employment with Saxon Mechanical on November 24, 2008. His employment income for 2008, as outlined in his 2008 Notice of Assessment was $34,013.96. He also had employment insurance benefits of $6,525 for a total income of $40,538.96. [51] Mr. Trites worked for Saxon Mechanical as a plumber at one job site in Abbotsford from November 24, 2008 until January 2009. After speaking to his supervisor to request a day off for an appointment with a specialist and having to advise of his difficulties due to the accident, he was transferred to a different job site in New Westminster. He remained on that job site until March 2009 when he was again laid off. [52] In order to achieve certification as a plumber Mr. Trites had to achieve 5620 Workplace hours and was also required to do course work each year - five weeks each in the second and third year of his apprenticeship and seven weeks in the fourth year of his apprenticeship. Mr. Trites achieved the requisite number of hours and had a total of 5800 Workplace hours with three different employers, Britco Structures Ltd., Ocean Park Mechanical and Rapid Plumbing between November 8, 2004 and January 4, 2008. He was certified as a Plumber and received his Plumber Inter-Provincial Red Seal Endorsement on November 5, 2008. [53] As of the continuation of the trial of this matter, Mr. Trites had not yet obtained employment, although he was

actively looking for work, mainly in the field of plumbing. It should be noted that despite the January 2009 functional capacity assessment conducted by Ms. Jodi Fischer, an occupational therapist, that contained an opinion that Mr. Trites was not suited for the heavy labour demands of being a plumber, Mr. Trites continued to work in the field until laid off in March 2009 and continued to look for work in this area, as well as other areas of general labour or construction related activities, even up until the continuation of the trial in October 2009. [54] Ms. Fischer's recommendation of re-training in another field of work that is less physically demanding came as "a heavy blow" to Mr. Trites who explained that he truly loves the plumbing trade and that he was raised not to be a quitter. I accept his evidence on this point. [55] Mr. Trites' evidence establishes his dedicated and strong work ethic that started when he was in school and has continued to the present time. He outlined for the court his pride in his work as a plumber, a profession that he chose because he found it so satisfying. I have no doubt that he is passionate about his chosen profession as demonstrated in his discussion about it in his evidence and as demonstrated by his perseverance to finish his apprenticeship and achieve the status of journeyman plumber notwithstanding the physical difficulties he endured

as a result of the injuries he sustained in the accident. He is distraught at the notion that he may well be unable to continue in his capacity as a plumber indefinitely due to the ongoing difficulties he experiences as a result of the injuries to his back and neck. [56] Insofar as rehabilitation and treatment issues are concerned, Mr. Trites was not in a position to immediately fund his own treatments in early 2007 after ICBC discontinued funding his rehabilitation efforts. He returned to the gym within six months after the funding had been discontinued. In June 2008, Mr. Trites returned to massage therapy on a regular basis. He explained that by this time he had had a couple of raises in pay and he realized it was beneficial in alleviating some of his symptoms. He received some money from his mother to assist with the cost and also discussed the matter with his wife and they agreed to find the money to fund the course of treatment. Between June 2008 and October 2009, Mr. Trites attended for massage therapy treatment on at least a once a month basis, sometime bi-monthly and sometimes weekly. He wanted to also return to chiropractic treatments, Dr. O'Connor recommending as much to him in April 2007, but he could not afford to fund this treatment modality in addition to the massage therapy he had reinstated, the prescription medications he was still heavily dependent upon and

the gym membership he had reinstated. [57] Mr. Trites has been unable to return to any of his pre-accident recreational activities such as hiking, skiing, snowboarding or camping due to the continued pain he experiences from the injuries he sustained in the accident. He tried camping once with friends on the May 2006 long weekend but was unable to tolerate more than one night. [58] Since the accident, Mr. Trites has had difficulty performing various household tasks including vacuuming, cleaning bathrooms, and doing more strenuous yard work tasks like hedge trimming. With his wife's pregnancy in early 2009, Mr. Trites endeavoured to take on more tasks to assist her, but found it took him much longer to do and that some tasks, like cleaning in the bathroom areas, caused an increase in his pain symptoms. Although Mr. Trites tries to cut the lawn and trim the hedges on their property, it takes him much longer to finish the tasks than it would ordinarily without the difficulties with his back. [59] Insofar as post accident gym activities are concerned, when Mr. Trites returned to the gym in July 2007 he reinstituted his training program developed in the Work Hardening Program. This program includes 45 minutes of exercises and weights for all muscle groups. In addition, Mr. Trites has added in about 30 to 45 minutes of a cardio fitness component either through swimming or on a

cross-trainer machine as recommended by Dr. O'Connor. Mr. Trites testified that he does core stabilization exercises at home for about 20 to 30 minutes at a time. To do the core stabilization exercises, some of which have been recommended by Dr. O'Connor, Mr. Trites uses a Swiss Ball and appears to employ a number of Pilates style stabilization exercises as well. [60] His evidence establishes that since returning to the gym he has faithfully followed the recommendations made by the Fraser Valley Physiotherapist to initially attend the gym three days a week. In 2008, he increased his attendance, on the recommendation of Dr. O'Connor, and averaged between four and six days a week. In September 2009, Mr. Trites reduced his attendances at the gym to three to four days a week, on the advice of Dr. O'Connor, in order to give his muscles an opportunity to rest. [61] Although he has returned to the gym and uses both gym equipment and the pool for his fitness training, Mr. Trites has not varied his workout program since leaving the Work Hardening Program in the summer of 2005. He would like to be able to use the services of a personal trainer to update his workout program but thus far has not been able to afford to do so. [62] At the continuation of the trial in October 2009, Mr. Trites was attending to massage therapy two times a month, seeing Dr. Bull on a monthly basis and working

out at the gym on a regular basis. Despite all these measures, he still relied upon the prescription medications of Percocet and Flexeril to assist in pain management on a daily basis. Mr. Trites testified that the amount of medication he consumed varied on a daily basis depending on whether he was working or not. [63] When Mr. Trites moved to B.C. he weighed approximately 245 pounds and had no difficulties with his back at that time. Just prior to the accident Mr. Trites' weight had decreased to approximately 215 pounds. Following the accident his weight increased to a high of 244 pounds but by the time of continuation of the trial in October he had decreased his weight, through changing his diet and working out regularly, to about 225 pounds. He finds, however, that this reduction in his weight has made no difference to the lower back pain he continues to experience from his injuries. [64] Mr. Trites outlined in his evidence that as of October 2009 he still deals, on a daily basis, with pain in his lower back. The pain radiates up into his shoulders at times and results in a dead zone of no feeling about five centimetres below the base of his neck. He still suffers from muscle stiffness and pain in his neck and back and still gets headaches. He endeavours to control these symptoms through regular massage therapy, maintaining a fitness regime at the gym, doing core

stabilization exercises at home and consuming prescription medication on a daily basis. [65] Mr. Trites explained in his evidence that before the accident work was not an issue for him, he could go to work, feel great at the end of the day and do what he wanted in the evening and was able to look after the care and maintenance of his apartment. He explained that recreation wise, his weekends were devoted to pretty much any outdoor activity and he really enjoyed the pursuits of hiking, skiing, snowboarding, camping and hunting. Since the accident in May 2005, enjoyment of life for Mr. Trites has diminished significantly. He is no longer able to enjoy or properly do his work as plumber. He is no longer able to pursue his various recreational pursuits. He finds he has to rely upon his wife to do many of the household chores he did for himself. His relationship with his wife can be strained at times when his pain levels are elevated and he finds himself "snapping" at her, a tone of delivery he acknowledges she does not deserve. The Evidence of Brynne Trites - the plaintiff's wife [66] Brynne Trites testified that she had known Mr. Trites for approximately six months before the accident. Although they met once in 2003, through Mr. Trites brother, they had no contact until Mr. Trites moved out to British Columbia in 2004. They re-met in December 2004 and started dating. They married

in September 2006 and their first child was born in July 2009. [67] Mrs. Trites said that before the accident, Mr. Trites was fun loving, adventurous and very active and they frequently went on hikes and were involved in a number of physical activities including skiing on weekends. She outlined for the court, Mr. Trites' extensive rough housing play with her friend, Tel Basi's children before the accident and how he was unable to engage in such play after the accident. [68] Before the accident, Mr. and Mrs Trites would see each other every weekend and endeavoured to spend as much time together as they possibly could and being as physically active as possible. There was never any lack of motivation by Mr. Trites to engage in recreational activities. [69] After the accident, Mr. Trites was unable to engage in their normal recreational activities, even walking the trail along the Vedder River three months after the accident proved to be too difficult for Mr. Trites. Since the accident, they have been unable to do any of their previous hiking, camping, skiing and other outdoor activities. [70] Prior to Mr. Trites' accident, Mrs. Trites described him as very affectionate, he would jump up to meet her when she arrived at his apartment, and that they had a healthy and active intimate relationship. Since the accident, even this aspect of their lives has been adversely affected as a

result of the injuries Mr. Trites sustained in the accident. [71] Mrs. Trites outlined in detail her observations of Mr. Trites two days after the accident and also provided a fairly comprehensive picture of his improvements through 2006, prior to ICBC discontinuing his benefits, and then his seemingly downward spiral, when the benefits were discontinued. The downward spiral impacted all facets of their life in terms of physical symptoms recurring, depressed emotional state and energy level, relationships with friends being compromised as they no longer engaged in the same sort of activities that they did prior to the accident, and a general inability to engage in any sort of physical activity or household and yard work chores, particularly those that required bending. [72] Mrs. Trites was away on business when the accident occurred and did not see Mr. Trites until about two days after the accident. At that time he was sore, hunched over, walking stiffly and taking his time to manoeuvre himself around his apartment. Their weekend plans of hiking were cancelled and they were unable to be physically intimate due to Mr. Trites' back spasms. In the weeks that followed, Mr. Trites' physical symptoms persisted and continued to interfere with his ability to engage in any sort of physical activity. [73] Through the fall and winter of 2005 Mr. Trites' condition did not improve, he

continued to have back pain that caused a grimace on his face, he had difficulty sleeping and had to get up to relax his back. Mrs. Trites explained that Mr. Trites kept a "pain journal" during this time but that his seeming lack of improvement took an emotional toll on him and so he discontinued it. [74] In the first half of 2006, Mrs. Trites did not notice a significant improvement in Mr. Trites condition although he was attending the gym on a regular basis and also engaged in massage therapy and some chiropractic care. [75] In the late spring of 2006 the couple bought their home in Chilliwack, the location in part selected for the planned hiking, camping and other outdoor activities they enjoyed prior to the accident. They moved in to their home on the Canada Day long weekend and Mr. Trites was unable to do lifting of anything but the lightest of objects. [76] Mrs. Trites recalled that from the summer of 2006 onwards, Mr. Trites was involved in physiotherapy, massage therapy, receiving injections in his neck to alleviate the headaches and continued with his gym routine. [77] The couple married in September 2006. Mrs. Trites was aware that at the end of 2006 ICBC discontinued reimbursing Mr. Trites for his various treatments and prescription medications. Up until this occurred, Mr. Trites appeared to be progressing in his recovery, albeit slowly, but the gym as well as the

massage and chiropractic treatments were helping Mr. Trites keep mobile. [78] In 2007, Mr. Trites changed employers, leaving Britco for Ocean Park Mechanical, and although the position was a much better paying job, it was much more physically demanding as it involved plumbing in the commercial construction of high rise buildings. It was also in the Lower Mainland and required Mr. Trites to commute longer distances for work. Upon his return home from work, Mr. Trites would be agitated and need some "down time" to adjust. His back pain increased due to the work and the commute and his usual friendly, cheerful and affectionate demeanour disappeared. [79] Mrs. Trites testified that since 2007 she has not seen any significant improvement in Mr. Trites' symptoms. She explained that both of them have had to "find a new normal" since Mr. Trites injuries and they have to accept that there are many things he is unable to do. In addition to the physical toll the symptoms have had on Mr. Trites and the couple's ability to engage in their pre-accident level of physical activity, there has been an emotional toll as well in Mr. Trites' inability to do what he used to do and how that impacts on his mood. [80] Mrs. Trites testified she was well aware of the physical benefits and gains that Mr. Trites had from attending the gym in 2006. She explained, however, that once ICBC discontinued

coverage for Mr. Trites' treatments, medications and gym membership, the couple had to carefully budget for a gym membership and elected to save and purchase a year-long membership rather than a monthly membership at the gym as that appeared to be a more cost effective way of proceeding. [81] The couple have had to structure and divide household chores to ensure that Mr Trites' symptoms are not triggered. Gardening and yard work are difficult for him and thus Mrs. Trites finds herself having to take on that share of the chores. Even assisting in the training and daily management of the couple's dog has proven to be difficult for Mr. Trites. Mrs. Trites expressed concern for the future in terms of Mr. Trites' abilities to assist with maintenance of the family home, parenting responsibilities and even more fundamental, the ability to provide a consistent reliable income. [82] In addition to all the other physical limitations that Mr. Trites has experienced over the years since the accident, the couple's ability to be physically intimate has been compromised. Not only did the frequency with which the couple was intimate diminish considerably, the quality and spontaneity of that intimacy was also profoundly affected. And, when Mrs. Trites advised her husband that the couple was finally expecting their first child, rather than expressing joy and excitement over this development, Mr.

Trites' initial reaction was to express his considerable relief that the couple would no longer have to continue to try to conceive. Mrs. Trites' evidence about this difficulty was a particularly poignant glimpse into how this accident has affected all facets of Mr. Trites' physical and personal circumstances. The Evidence of Ms. Tel Basi [83] Tel Basi was Brynne Trites' landlady in 2004 through to 2006 when Mrs. Trites moved out of their basement suite and into her home with Mr. Trites. Although Ms. Basi was Mrs. Trites' landlady, they were very close friends and considered Mrs. Trites to be part of her family. Ms. Basi met Mr. Trites in late 2004 when he began dating Mrs. Trites. He would frequently spend the weekend visiting Brynne at the Basi home. Ms. Basi described Mr. Trites as friendly, kind, generous and physically active prior to the accident in May 2005. [84] Ms. Basi is the mother of four children who in 2005 were aged 7, 6, 4 and 2 years old. When Mr. Trites was at the Basi home he spent a lot of time playing with her children both in terms of board games while sprawled on the floor and also acting as a human "jungle gym" allowing the children to climb all over him, hang off his arms and flip them as they requested. [85] Prior to the accident, Ms. Basi never saw Mr. Trites decline to play with her children or push them away. Nor had she ever heard Mr. Trites

complain about pain or injuries and did not see him behave in a lethargic manner. [86] After the accident, Mr. Trites' demeanour changed. He did not play with her children in the physical manner he had prior to the accident. And, although he engaged in board games with them on some occasions, they had to be seated at a table rather than playing sprawled on the floor. Ms. Basi observed that in the months immediately after the accident and up until Mrs. Trites moved out of their home in June 2006 that Mr. Trites was slow in his movements, his back bothered him and he continued to take medication. [87] In late June 2006 Mrs. Trites moved out of the Basi home and into the home she had purchased with Mr. Trites in Chilliwack. Ms. Basi and her husband helped Mrs. Trites in moving her furniture and personal belongings onto a truck. Mr. Trites was unable to assist with moving anything due to his sore back and acted as the overseeing organizer for the move. The Evidence of David Heppner [88] In September 2007 David Heppner was working as an apprentice plumber with Ocean Park Mechanical on a five storey condominium development in Richmond. In the spring of 2008 he assisted Mr. Trites in running gas lines to the various suites and the main lines out to the gas meter and lines outside. He described Mr. Trites as a patient supervisor who was meticulous in his work and very specific in how

he wanted Mr. Heppner to complete a job. [89] Mr. Heppner testified that he could not help but notice when Mr. Trites was in pain, that he would wince when doing certain moves such as lifting, going up a ladder or pushing heavier items. He noticed that Mr. Trites would be very methodical in how he picked up heavy tools and equipment. Mr. Heppner described Mr. Trites as starting his day in a fairly "chipper" and ready to go frame of mind but as the day progressed he became less talkative and by the end of the day appeared to be "wrung out". [90] Mr. Heppner's evidence confirmed Mr.Trites evidence as to the demanding physical work required in the installation of gas lines as well as plumbing fixtures such as toilets and bathtubs. The tools used in this line of work are for the most part awkward in size and shape. Heavy lengths of gas line, pipes, tools and fixtures had to be carried up five floors at the project in Richmond. He also described the physical strain involved in such tasks as: i. placing and wrenching black iron pipe; ii. using a threader on pipe; iii. drilling through concrete; iv. placing pipes into fittings; v. hammering a pipe in place; vi. working in cramped spaces like air shafts; and, vii. bodily positions that have to be maintained in cutting pipe, such as reaching overhead with heavy tools or using hammer drills in an overhead position. [91] Mr. Heppner's

evidence leaves me with no doubt as to the physically difficult, demanding and exhausting nature of the work associated with being a plumber and a gas fitter. Findings from the Evidence called by the Plaintiff (other than the medical evidence): [92] I accept the testimony of the plaintiff and those witnesses associated with his personal and work life that the injuries Mr. Trites sustained in the accident on May 26, 2005, incapacitated him as they described. I find that each witness called, including Mr. Trites, gave reliable, honest and straight-forward testimony. What emerges from a compilation of their disparate observations and impressions is a body of evidence that clearly supports the reliability and trustworthiness of Mr. Trites' claims of injury and continued pain and suffering. [93] I found Mr. Trites to be careful and forthright in his evidence. It is worth noting at this juncture that in addition to Mr. Trites' viva voce evidence on his continuing difficulties with pain and muscle stiffness, his demeanour and physical bearing while testifying served to confirm the difficulties he was still experiencing. Mr. Trites could not turn his neck but had to awkwardly turn his whole body when responding to questions. He continually moved between sitting and standing while testifying over the course of three and a half days. He was clearly physically uncomfortable and looked to

be experiencing some physical pain while in the witness stand. When standing, he frequently had to lean on the rail of the witness stand and repeatedly lifted his legs in a stepping motion to move them. I watched Mr. Trites carefully as he testified and he did not appear to be exaggerating or malingering in his physical movements. I accept his evidence on the pain he continues to experience as a result of the injuries he sustained in the accident. [94] Mr. Trites clearly was an active and energetic young man who functioned well in his personal and work life prior to the accident and without any physical impairment. He pursued the sports and other leisure activities he enjoyed without any physical limitations or discomfort. He worked physically demanding hours in his apprenticeship at Britco with real energy and determination and strived to be the best he could be, wanting to advance in his chosen profession. Since the accident he has stoically endeavoured to continue to work as a plumber, in part out of necessity and in part due to his dedication to his craft. It is clear that he would very much like to continue in the career he loves but it is also apparent from his evidence, and indeed the totality of the evidence adduced, that he most likely will not be able to do so without aggravating his current symptoms and relying on painkillers and a variety of therapies to alleviate

and control his symptoms. I was not left with the impression that Mr. Trites was malingering in any respect. It is clear that his first choice would be to continue in his profession as a plumber at the intense physical level the profession demands. It is also clear that he would very much enjoy returning to the various recreational activities and housekeeping activities he did prior to the accident. Thus far, however, he has been unable to do his work as a plumber without significant pain and reliance on prescription pain killer medication. He also has not been able to return to his recreational pursuits. [95] I further accept Mr. Trites' evidence that in December 2006 he was still improving, although not fully recovered, from the various symptoms that plagued him as a result of the injuries from the accident, when ICBC elected to discontinue funding his rehabilitation efforts. Thereafter, I accept and find that he did experience a setback in his recovery. I further accept that he was unable to fund all modalities of treatment plus expensive prescription medication that had previously assisted him in his rehabilitation and pain management and that he had no choice but to discontinue attending massage therapy, chiropractic treatments and the gym given his financial circumstances in the first half of 2007. [96] Starting in July 2007, Mr. Trites returned to the gym and has

maintained a fitness regime since that time in an effort to alleviate and control the symptoms he still experiences. He has worked on reducing and managing his weight since 2007, although his weight loss of 20 to 25 pounds has not assisted in alleviating the symptoms he still experiences. Since 2008 he has returned to massage therapy as well, finding a measure of assistance and relief from his symptoms with that therapy. I accept that Mr. Trites has been doing everything he can in an effort to improve his fitness level and reduce his weight and that despite his efforts he has not returned to the level he was at in his recovery when ICBC discontinued funding his rehabilitation efforts. [97] The testimony of Brynne Trites and Tel Basi substantiated Mr. Trites' evidence as to his inability to engage in the physical activities that he did prior to the accident. The evidence of both witnesses, Mrs. Trites in particular and certainly in more comprehensive and longitudinal detail, points to the real physical limitations of Mr. Trites that were not present prior to the accident but readily apparent afterwards, in all facets of his life, from playing with Ms. Basi's children, engaging in a variety of recreational physical activities with his wife and even in performing various household chores. Mrs. Trites confirmed Mr. Trites' inability to sit comfortably for a considerable period of

time, even cuddling, and watching a movie have been negatively affected. And, their ability to be physically intimate on any sort of spontaneous basis has also been negatively affected. [98] Mrs. Trites was frank in her evidence, testifying that the injuries have affected every single aspect of their lives together. I found Mrs. Trites to be a careful and pragmatic witness, not prone to exaggeration of what she has observed in terms of the impact the injuries have had on her husband, the difficulties he has experienced in working with continuing symptoms and his seeming plateau since 2007. [99] Mr. Heppner's evidence is important from at least two perspectives. His evidence confirms the shear physicality of the work involved in being a plumber, particularly one involved in the construction industry. He also provides objective confirmation as to Mr. Trites diminishing strength and increasing pain throughout the course of the work day as he observed it when working with Mr. Trites at Ocean Park Mechanical in 2008. [100] For these reasons I accept the testimony of Mr. Trites and the other witnesses called on his behalf to establish that he was pain and symptom free prior to the accident, whereas after the accident he has had the physical difficulties that he described and the other witnesses observed. This evidence, in combination with the reports of Dr. Bull and Dr. O'Connor,

establishes that the cause of Mr. Trites' injuries, pain and discomfort, giving rise to the physical limitations thereafter, was the accident. The evidence also establishes and I find that Mr. Trites continues to experience pain and difficulties with his neck and lower back, including headaches, and is still fairly limited in terms of the kind and duration of physical activities, sports, and basic household chores and activities he is able to engage in. Moreover he is limited in his stamina and ability to perform the numerous physical tasks associated with the demanding work of a plumber, including his ability to bend, manoeuvre in confined spaces, and to lift and carry awkward and heavy objects and heavy tools on a continual basis. Until he was laid off in March 2009 by Saxon Mechanical Mr. Trites was relying upon an increasing amount of prescription narcotic painkillers to get himself through the work day, something that is likely injurious to his own physical health and places not only himself but others co-workers in jeopardy of unnecessary work hazards and the potential for employment related accidents. Medical and Expert Evidence adduced on behalf of the Plaintiff The Report and Evidence of the Plaintiff's Family Physician - Dr. Ronald Bull [101] Dr. Ronald Bull, Mr. Trites family physician, prepared a report dated July 7, 2008, that detailed the various attendances of

Mr. Trites at his office related to the soft tissue injuries to his neck and back sustained in the accident. The report documents, and Dr. Bull detailed in his evidence, his various observations of Mr. Trites condition as well as the treatments he prescribed following the accident. June 2, 2005 was Mr. Trites first visit to Dr. Bull following the accident. Observations at that time included the following: he was noted to be stiff and sore. He was tender from the base of his neck down his back to the sacroiliac joints of his pelvis. Back muscles were tense and in spasm. He had marked limitations in back mobility. He found bending forward particularly difficult because of spasm in his back. His range of neck movement was compromised by pain. [102] Mr. Trites had been prescribed Flexeril, a muscle relaxant, when he attended a walk-in clinic after the accident. This medication was continued and Percocet was prescribed as a pain killer instead of extra strength Tylenol which was not relieving the pain. Physiotherapy was also prescribed. [103] After this initial visit, Mr. Trites had regular attendances at Dr. Bull's office on 15 occasions for 2005. Mr. Trites experienced difficulties with headaches, insomnia, neck pain and back pain throughout this period. Massage, physiotherapy and chiropractic interventions as well as regular work outs assisted in alleviating the symptoms but not

in eradicating them. In addition, Mr. Trites was prescribed medications of Percocet, Flexeril and Ativan to assist in relieving his continuing pain symptoms and insomnia. [104] Dr. Bull noted that Mr. Trites did progress and improve while in the Work Hardening Program in the summer of 2005. However, despite regular attendances at physiotherapy, massage therapy and completion of the Work Hardening Program by the end of July 2005, Mr. Trites was not ready for a return to work in August 2005. Dr. Bull recommended a gradual return to work but that was not possible with Mr. Trites' employer. Mr. Trites did a full return to work on September 14, 2005. [105] Mr. Trites saw Dr. Bull on 12 occasions in 2006. Due to the chronic nature of Mr. Trites headaches, neck and back pain, Dr. Bull referred Mr. Trites to Dr. O'Connor in the early part of 2006. Over the course of the year there was some improvement in his back and neck symptoms, and the headaches had become more manageable due to Dr. O'Connor starting a course of trigger point injections on Mr. Trites' neck in June 2006. [106] On July 27, 2006, Dr. Bull wrote to the ICBC adjustor handling Mr. Trites claim and advised of Mr. Trites referral to Dr. O'Connor and his opinion that Mr. Trites would improve gradually over the next one to three years but that the progress would be slow due to facet joint irritation at several vertebral

levels in both the cervical and lumbar spine. Mr. Trites was noted to have continuing low back pain. It was reported that he also had lingering neck pain but it had diminished considerably. [107] Dr. Bull testified that ICBC's December 2006 decision to discontinue funding Mr. Trites' various therapies set back his recovery at that time. On March 5, 2007, Dr. Bull wrote a letter for Mr. Trites to give to ICBC outlining the need for him to continue with his gym program overseen by a personal trainer, describing it as an essential part of his ongoing therapy and keeping him at work. [108] Between January 2007 and July 7, 2008, the date of his report, Dr. Bull saw Mr. Trites on 18 occasions in relation to his ongoing symptoms from the accident. After the report was prepared Dr. Bull continued to see Mr. Trites on a regular basis and by the time of the trial noted that Mr. Trites symptoms of neck and low back pain continued to persist. He described Mr. Trites recovery as having reached a plateau. Despite Mr. Trites being out of work in 2009 and still continuing with his regular gym routine he continued to have symptoms of neck and low back pain that limit his movement and ability to work quickly. The persistence of the symptoms continued to interfere with Mr. Trites' ability to do the more physical tasks of yard work and repairs around the home and continued to prevent him from

returning to his various recreational outdoor pursuits. [109] In cross-examination, Dr. Bull agreed that Mr. Trites informed him of a previous motor vehicle accident in 2000 where his knees had been injured and further agreed that Mr. Trites had mentioned his knees were hurt again in the 2005 accident but that the pain did not persist for any significant period of time. [110] In addition to the physical examinations conducted on Mr. Trites, Dr. Bull examined various X-rays of Mr. Trites' spine taken in August 2005 and again in June 2008. The August 2005 X-ray confirmed a thoracic curve in Mr. Trites' spine, and lordosis (pelvic tilt) had been observed by Dr. Bull in his June 2005 examinations. The June 20, 2008 X-ray confirmed that Mr. Trites' L5 vertebrae was sliding forward and that his thoracic spine was curving to the right. It was Dr. Bull's opinion that this was caused by the continuing muscle spasms Mr. Trites experienced as a result of the accident. [111] It was Dr. Bull's prognosis that since the neck and back pain symptoms had plateaued and continued to persist four years post-accident it did not bode well for a complete recovery by Mr. Trites. Dr. Bull hoped that in the future the persistent symptoms Mr. Trites had thus far experienced might ease up with continued treatment through massage, physiotherapy, chiropractic and other treatment modalities as well as regular

gym attendance and continued resort to prescription medications. [112] Insofar as future care of Mr. Trites is concerned, Dr. Bull was of the opinion that it is essential that Mr. Trites continue with his physical program at the gym, he would continue to benefit from intermittent massage therapy treatment and occasional chiropractic manipulation. Dr. Bull further opined that Mr. Trites would require these sorts of activities indefinitely in order to continue with his work as a plumber. Dr. Bull testified that in addition to these modalities of treatment, Mr. Trites would benefit from reviews of his exercise program with a kinesiologist or physiotherapist in order to ensure his posture is correct and that all muscle groups are being used. Dr. Bull noted that at the time of the trial Mr. Trites still required prescriptions for Flexeril as a muscle relaxant and Percocet as a pain reliever, although simpler analgesics may be resorted to at some point in the future. He was unable to place any specific time frame on how long these various treatments might be required noting that "it could be five years it could be twenty years". Finally, Dr. Bull indicated that psychological counselling might well be of benefit to Mr. Trites. Although Dr. Bull had not noted any specific depression, he agreed there was an element of discouragement to Mr. Trites and certainly a risk of depression. The

Report and Evidence of the Plaintiff's Physiatrist - Dr. Russell O'Connor [113] Mr. Trites was referred by his family doctor to Dr. O'Connor, a physician with a specialty in physical medicine and rehabilitation. A detailed report of Dr. O'Connor's findings and prognosis is dated July 29, 2008. [114] Dr. O'Connor first saw Mr. Trites in April 2006 and initially provided treatment advice and management and then trigger point injections. He saw Mr. Trites on ten occasions between April 10, 2006 and July 29, 2008. [115] In April 2006, Dr. O'Connor noted that Mr. Trites was experiencing headaches and neck pain, mainly on the right side although bilateral overall. Upon examination in April 2006 Mr. Trites was tender in the mid back at T3, T4 and T5, more on the right than left side and had similar tenderness over the lower lumbar segments of L4, L5 and S1. This tenderness was worse with extension and with extension and rotation to the right side. [116] In June, July, September and November 2006, Dr. O'Connor conducted a trial course of trigger point injections on Mr. Trites in his suboccipital and neck extensor areas. This course of therapy provided approximately a 70% improvement in alleviating Mr. Trites headaches and neck pain symptoms. Trigger point injections were used, in part, as a tool to increase tolerance for active rehabilitation measures such as regular exercise.

Contemporaneous with this course of treatment was Mr. Trites' regular attendance at the gym and engaging in a strength and conditioning program. By November 2006 Mr. Trites was gaining ground and reporting a 90% improvement in his headaches and a 70% improvement in his neck pain. [117] Dr. O'Connor was aware that ICBC discontinued the benefits of the gym pass, chiropractic treatments, massage therapy and medications in December 2006. When this happened, it was Dr. O'Connor's opinion that Mr. Trites lost his "centre of control" and started a slow, steady decline and regressed in his rehabilitation. Although Mr. Trites returned to the gym in July 2007, by the time of trial Mr. Trites had not returned to the level of recovery he had attained in November 2006. [118] By the time of the last examination and assessment in July 2008, Dr. O'Connor noted that Mr. Trites was still experiencing symptoms of low back pain, neck pain on the right side, headaches several times a week related to the neck pain and mid back pain between the shoulder blades. [119] In July 2008, Mr. Trites reported to Dr. O'Connor that he was consuming on a daily basis two to four tablets each of Percocet and Flexeril to help alleviate the pain symptoms he was experiencing and to allow him to continue with his physical work as a plumber. Dr. O'Connor was of the opinion that this was heavy usage which may have

resulted in developing a tolerance to the narcotics. Dr. O'Connor recommended that there be a gradual reduction to elimination of the narcotics but could not guarantee that non-narcotic medications would sufficiently alleviate the pain, in which case Mr. Trites would have to return to using narcotic medications to address the pain. [120] Physical examination of Mr. Trites at the time of Dr. O'Connor's July 29, 2008 assessment revealed that Mr. Trites still experienced tenderness upon palpation of the C3, C4 and C5 facet joints in his neck, the L4-L5 and S1 segments of the lumbar spine and mild tenderness at the mid thoracic spine area. Strength testing revealed a moderate weakness in Mr. Trites' abdominal core musculature. [121] In cross-examination Dr. O'Connor noted that it was not unusual for patients with back pain to have reduced abdominal strength and indicated that a general fitness program was more important than a program that just concentrated on the abdominal core muscles. [122] Dr. O'Connor also noted that Mr. Trites was overweight in July 2008 and had an elevated blood pressure both of which needed to be watched and addressed. [123] Dr. O'Connor noted in his report under the headings of "Disability" and "Prognosis" the following significant points about Mr. Trites: · the neck pain appeared to be localized to the C3, C4 and C5 level and the lower back pain was

consistently a problem at the L4-L5 and S1 levels; · there was a reduced capacity for twisting and extended positions where he is extending his back and neck, due in part to abdominal core weakness; · rotation, heavy lifting and the work activities required of a plumber aggravate his symptoms on an ongoing and daily basis; · although capable of full time work it is with chronic pain and ongoing use of pain medications; · although still managing heavy lifting at the time of his report, Mr. Trites would be able to tolerate this better if he engaged in a more active strengthening program and lost approximately 30 pounds; · the fact that Mr. Trites' symptoms had not improved or resolved three years after the accident was a poor prognostic sign such that the chronicity of the symptoms after three years made it more likely than not that the symptoms would persist indefinitely; however, levels of physical activity would influence the degree of the symptoms; · it was difficult to determine how well Mr. Trites would tolerate heavy lifting in the future as a plumber, although it was his impression that Mr. Trites would be able to tolerate heavy lifting, bending and twisting less with the passage of time as generally patients with chronic back pain tolerate such activities less as time goes by. [124] Despite the chronic nature of the pain symptoms he was experiencing, Dr. O'Connor was of

the opinion that it was still more likely than not that Mr. Trites would be able to continue to manage in his chosen profession as a plumber particularly if he works on an ongoing strength and conditioning program focusing on his neck, back and abdominal musculature. Dr. O'Connor conceded that his bias was one of active treatment through regular strength training and exercise supplemented by secondary modalities such as massage therapy if it provided relief as well as work with a kinesiologist and a personal trainer to ensure that exercises are being done properly and that the exercise regime is changed on a regular basis. [125] Dr. O'Connor estimated a 25% chance of the "worst case scenario" being that Mr. Trites would not be able to manage a further weight loss program, would not be able to further strengthen his back and would have ongoing chronic pain such that with the passage of time he would be less able to tolerate the heavy aspects of the plumbing trade. Findings in relation to the Plaintiff's Medical Evidence: [126] I found that Dr. O'Connor, a very experienced specialist in physical medicine and rehabilitation, was thorough and careful both in his written opinion and in his evidence. Dr. Bull, a very experienced physician practicing in family medicine and, until 2000, an emergency room physician, was also thorough and careful in his written opinion and in his

evidence. I found both doctors testified in an objective and professional way. Neither doctor was shaken in their overall opinion on cross-examination. I accept Dr. Bull's opinion and the opinion of Dr. O'Connor as to the cause and nature of the injuries sustained by Mr. Trites in this accident and their prognosis for his future recovery. [127] Dr. Bull's report, notes and his testimony support a finding that Mr. Trites sustained moderate soft tissue injuries to his neck, mid back and lower back in the accident. His evidence supports a finding that Mr. Trites was, as of the trial date, four years post-accident, still regularly exhibiting symptoms such that he has yet to completely recover from the accident. Dr. O'Connor's report and evidence support this finding as well. He described the injuries sustained by Mr. Trites in the accident as musculoligamentous strain to the neck and low back with a mixed chronic mysofascial pain involving the neck and back as well as tenderness over noted facet joints of the spine. [128] On the evidence of both Dr. Bull and Dr. O'Connor it is clear that Mr. Trites was making progress in his recovery through November 2006. ICBC's decision in December 2006 to discontinue paying various treatment and gym benefits resulted in Mr. Trites suffering a significant setback as he clearly was unable to fund all modalities of treatment, medication and

exercise regimes. For a period of approximately seven months Mr. Trites did not attend the gym or engage in his exercise regime but by July 2007 he returned to the gym and started to work on improving his fitness level and reducing his weight. [129] From the totality of the medical evidence adduced by the plaintiff, it is clear that although Mr. Trites suffered a setback in the early part of 2007, he nevertheless returned to trying to improve his physical condition. Despite his focus and dedication to improving his condition, rehabilitation and reducing his weight, Mr. Trites continues to suffer neck and lower back pain to such an extent that he still relies, on a daily basis, upon prescribed narcotics to get through his work day. Thus his continuing pain symptoms can properly be described as chronic. [130] The prognosis for a full recovery from these injuries is guarded. Indeed both doctors opine that given the length of time that has elapsed since the accident, the symptoms that have plagued Mr. Trites will, more likely than not, continue indefinitely. Given the chronicity of the symptoms, it is more likely than not that Mr. Trites will continue to experience these pain symptoms, particularly if he continues to work as a plumber as the nature of this work contributes to aggravating the symptoms. Significantly, although Dr. O'Connor expressed the opinion that Mr. Trites could

continue to work as a plumber, he noted that the required heavy lifting and rotational work would aggravate Mr. Trites' back and neck symptoms on an ongoing and daily basis. And, although Mr. Trites could continue to work full time as a plumber, Dr. O'Connor noted that it would be with chronic pain and ongoing use of medications. Over time, Mr. Trites' ability to tolerate heavy lifting, bending and twisting might diminish as he ages. [131] Both doctors were of the opinion that management and reduction of the pain symptoms will be achieved through a continuing exercise regime that improves core stability as well as a variety of other treatment modalities including massage therapy, physiotherapy, chiropractic interventions, use of a kinesiologist and a personal trainer to assist in forming and monitoring a proper exercise regime. [132] I accept the evidence and opinions of these two doctors who were very careful in their evidence but unshaken in their assessments of Mr. Trites' ongoing condition. I find that their evidence establishes that Mr. Trites suffered moderate soft tissue injuries to his neck and back as a result of the accident. I find their evidence, based on their assessment and observations from their repeated physical examinations and treatment of Mr. Trites, establishes that he continues to suffer from pain symptoms particularly in his neck and lower back,

notwithstanding his efforts at weight reduction, improvement of physical fitness through regular exercise programs, and attendances at other treatments such as massage therapy. I find that on the totality of the medical evidence adduced that Mr. Trites continues to suffer from ongoing physical pain and the physical limitations as described by these two doctors and that the prognosis for full recovery in the future, given the length of time the symptoms have remained present, is guarded. The Report and Evidence of the Functional Capacity Evaluator - Ms. Jodi Fischer [133] Ms. Jodi Fischer, a registered occupational therapist, was qualified as an expert in functional work capacity and life care planning. Ms. Fischer conducted a day long Functional Capacity Evaluation of Mr. Trites on January 27, 2009 that included about 8 ½ hours of functional testing. Ms. Fischer prepared a comprehensive report dated January 30, 2009 that outlines her observations from the testing she conducted and contains her opinion as to Mr. Trites' ability to continue in his chosen profession as a plumber. Ms. Fischer also provides a detailed opinion as to various future care options that are necessary to improve and maintain Mr. Trites' overall physical condition since suffering the injuries in this accident. [134] In addition to conducting a battery of physical strength and agility tests over the course

of the day long assessment, Ms. Fischer also reviewed the clinical records and reports of the medical experts called by the plaintiff as well as the clinical records of the physiotherapy centre that Mr. Trites attended and a variety of other records and correspondence materials. [135] The physical testing that Ms. Fischer conducted upon Mr. Trites was wide ranging, comprehensive and contained an element of placebo testing as well to determine intention and exertion capabilities. Ms. Fischer's functional testing measures concentration and physical abilities, including crouching, kneeling, lifting, twisting, rotating, carrying and a variety of tests designed to simulate, as best as she could, a full work day in order to properly assess work tolerance not only at the beginning of the work day but also at the end of it. The following were some of the tests employed by Ms. Fischer in her evaluation of Mr Trities' abilities: i. isometric grip strength testing; ii. cardiovascular measures of effort; iii. active range of motion screening; iv. fitness tests including hamstring/spinal flexibility, body mass index, back flexibility, upper abdominal strength, hip flexor flexibility; v. repetitive movement reaching tests of overhead and forward reaching as well as vertical reaching; vi. Valpar 9 Sustained Reaching tests at various heights; vii. Valpar 202 Assembly and Disassembly tests for

light strength handling; viii. the Complete Minnesota Dexterity Test; ix. a variety of body dexterity and lower limb co-ordination tests including a 50-Foot Walk Test, stair and ladder climbing, balance, stooping and bending, kneeling, crouching and crawling; x. a variety of strength tests to measure lifting, carrying, pushing and pulling ability; and, xi. sitting and standing tolerance observations. [136] Ms. Fischer reported that overall, Mr. Trites showed a significant deterioration in his back function in the latter stages of his testing day. At the conclusion of his testing he had to take medication consisting of two Flexeril and one Percocet pill. He repeated this dosage when he arrived home in the evening and again the next morning, as reported to Ms. Fischer, in order to cope with increased spinal symptoms. [137] Based upon her interview findings, the clinical results of functional testing, her clinical observations during the testing and her experience as an occupational therapist Ms. Fischer noted that Mr. Trites put in a full level of physical effort during the assessment. The objective test findings confirmed Mr. Trites' reports of difficulty with his work demands and slow working speed. Essentially, Ms. Fischer's testing confirmed a notable decrease in Mr. Trites functional capacity or ability to work as the day progressed. Although initial testing results at the

start of the day demonstrated an ability to perform various tasks, as the day progressed and the tests were repeated, a decline in physical capabilities was evident. [138] Although able to perform moderate periods of reaching and handling activity throughout the day, Mr. Trites was not able to work at a sustained level with long and repeated intervals of static reaching at eye level or overhead or reaching below mid thigh level which required bending his torso. In terms of static trunk bending, Mr. Trites was capable of moderate periods of static mild-moderate trunk bending and limited to short intervals of more extreme bending (45 degree angle at the waist or greater). Ms. Fischer concluded that Mr. Trites was not well suited to jobs that require him to assume static bending postures for long or repeated intervals throughout the day. In the latter stages of the assessment, Mr. Trites had difficulty tolerating static bending postures and worked at a slow pace. [139] Although capable of assuming basic crouching and kneeling positions, it was Ms. Fischer's opinion that he was not well suited for employment that requires working in such positions for long intervals throughout the day. Insofar as crawling was concerned, Mr. Trites is limited to occasional crawling only. [140] On the strength testing component of the assessment, Ms. Fischer concluded as follows: While Mr. Trites

demonstrated the ability to perform strength activity in the entry level Heavy strength category, this was with significant neck and back pain and late day functional decline. .... Involvement in Heavy work will only serve to increase his symptoms. [141] Ms. Fischer recommended that Mr. Trites limit himself to employment in sedentary, light and medium strength categories. She provided a caveat with respect to medium strength category work as maintaining heavier weights below shoulder level, maintaining loads close to his body, avoiding trunk twisting, and avoiding long intervals of repetitive lifting. [142] Ms. Fischer outlined in her report the physical demands required of a plumber as outlined in both the National Occupational Classification system and the Dictionary of Occupational Titles. In essence, Mr. Trites' own occupation, and indeed his description to Ms. Fischer and his testimony in court, establish that he is required to perform critical physical demands as a plumber including prolonged overhead reaching (often requiring him to use force with a heavy drill or wrench), static bending, crouching, static standing on a ladder, heavy lifting and carrying of pipes, tools, hot water tanks, bath tubs and toilets. [143] Ms. Fischer noted that Mr. Trites' Body Mass Index was heavier than the healthy range, he was about 20 pounds heavier than his pre-accident weight and

exhibited symptoms of cardiovascular de-conditioning. In cross-examination she noted that a 10% weight gain was not significant for Mr. Trites although she agreed that weight loss can assist in reducing pain symptoms. She noted that Mr. Trites had lost some weight and that he appeared to be making a concerted effort to continue to do so. Insofar as cardiovascular de-conditioning exhibited by Mr. Trites was concerned, Ms. Fischer testified that this did not indicate he was unable to handle the cardiovascular requirements of his job, rather it was simply indicative of room for improvement. Ms. Fischer indicated that notwithstanding working out on a regular basis, if pain interferes or limits the abilities of a person in their work out, they may not be able to raise their target heart rate on a sustained basis and thereby not improve their cardiovascular conditioning and health. [144] Ms. Fischer noted that Mr. Trites' upper abdominal strength was only "fair" but also testified that this component of the testing is difficult for a large number of people who only attain a "poor" result. Mr. Trites' score of fair was consistent with his maintaining an exercise regime at home that involved the use of a core stability ball. [145] Ms. Fischer provided the following opinion of Mr. Trites' abilities to continue in his chosen profession: Mr. Trites is clearly performing work as a Plumber

out of financial necessity and lack of any other career options, rather than full physical suitability. During his Work Capacity Evaluation, he presented with reduced tolerance for prolonged eye/overhead reaching and static bending, which are the primary critical physical demands associated with this line of work. He also did not demonstrate the ability to meet the Heavy strength demands of his occupation. In addition, after multiple hours of involvement in work simulation testing activity, he showed a decline in his level of function. He could not maintain a productive work rate throughout the day, particularly when required to work in a static bending posture. His walking speed was also slower at the end of the day and his trunk range of motion had significantly declined due to increased low back pain. [146] Ms. Fischer also noted that Mr. Trites' heavy strength testing was not well tolerated. She recommended that Mr. Trites re-train to a more physically suitable occupation and pursue less physically demanding employment in an effort to manage his pain symptoms. She opined that Mr. Trites' overall situation would likely improve if performing a less physically demanding job. Ms. Fischer noted that Mr. Trites' difficulties in his current vocation also compromise his functional abilities in all other aspects of his life as his work as a plumber continually aggravates his neck

and back. [147] In respect of future care requirements, Ms. Fischer recommended that Mr. Trites be provided the following modalities of treatment and intervention, most on an indefinite basis: i. an annual gym membership; ii. eight personal training sessions a year to develop, review, and adjust a physical training program and maintain Mr. Trites' motivation and training at the gym; iii. three sessions with a kinesiologist to ensure that Mr. Trites is exercising as effectively as possible; iv. 8 to 12 sessions of psychological counselling; v. massage therapy either on a weekly basis if he continues to work as a plumber or every other week if employed in a less demanding vocation; vi. ongoing funding for prescription pain and anti-inflammatory medication as required and prescribed by his physician; and, vii. vocational rehabilitation counselling to identify alternate career options. [148] I find that Ms. Fischer's opinion and observations from her comprehensive assessment of Mr. Trites in January 2009, which I accept, serves to reinforce and underscore the opinion of Dr. Bull and Dr. O'Connor insofar as Mr. Trites' ability to work as a plumber is concerned. Continuing in this capacity, although perhaps doable for the short term will likely require significant amounts of therapy and medication and over the long term may not be sustainable. The Report and Evidence of the

Vocational Consultant - Dr. Quee Newell [149] Dr. Colleen P. Quee Newell, a vocational consultant and counselling psychologist, conducted a vocational assessment of Mr. Trites on February 4, 2009. Her observations and opinions from that assessment are contained in her March 16, 2009 report. [150] Prior to meeting with Mr. Trites, Dr. Quee Newell undertook an extensive file review to obtain an understanding of the medical information and his functional capacity. Mr. Trites was then interviewed and also completed a variety of vocational assessment and aptitude tests. The testing process assists in assessing, among other things, the client's occupational aptitude, academic abilities and non-verbal intellectual functioning. In addition to the tests, file review and interview, Dr. Quee Newell conducted independent occupational research to determine what skills were transferrable and also market research as to employment potential. [151] It should be noted that Mr. Trites is a relatively young man with many working years still ahead. Based on her overall assessment, Dr. Quee Newell noted that Mr. Trites works best at his own pace and with verbal direction as opposed to written direction. Due to his diagnosed conditions of dysgraphia and dyslexia, Mr. Trites is not suited for positions that involve reading and paperwork and thus clerical work is not an appropriate line to pursue. This

limitation narrows Mr. Trites' vocational scope, limiting fields he could potentially transfer into from his current occupation as a journeyman plumber. [152] Dr. Quee Newell concluded that the results of vocational testing suggest that Mr. Trites is likely best suited to unskilled or semi-skilled occupations that can be accessed on a direct-entry basis or following a short, practically oriented training program. [153] Dr. Quee Newell was of the opinion that the best vocational scenario, with continuing participation in an exercise programme, would be for Mr. Trites to continue working as a plumber. However, she noted that as Mr. Trites was still experiencing ongoing pain symptoms nearly four years post accident, his ability to continue working in commercial and residential plumbing was likely compromised and, if he could not continue in this capacity, it would represent a significant vocational loss. [154] Dr. Quee Newell suggested that Mr. Trites might be able to do less physically demanding work within the plumbing trade by restricting himself to employment as a residential service plumber on an on call basis or as a maintenance plumber maintaining and repairing systems for schools or hospitals or factories. However, restricting his work to a specific field of specialization within the plumbing trade would have the effect of narrowing the range of employment options for Mr.

Trites and thereby decreasing his employment potential within the trade. [155] Dr. Quee Newell also recommended that as Mr. Trites has his gas fitter's B licence, he might be able to compete for work within this "small, medium strength occupation". However, Dr. Quee Newell was concerned that Mr. Trites might not be able to manage the body dexterity requirements for this line of work. [156] Dr. Quee Newell concluded that Mr. Trites' career options were limited to careers that did not involve a lot of paperwork and that he may have to re-train in a different trade that does not require heavy physical exertion. Based on her research and overall assessment of Mr. Trites' aptitude and ability, she suggested that Mr. Trites could consider employment as a cabinetmaker because this trade does not require the same body dexterity as that performed by plumbers and gas fitters. Should Mr. Trites pursue this line of work, she noted that his earning potential would be considerably lower than that of a plumber. [157] If Mr. Trites were to re-train as a cabinetmaker the cost of BCIT's 25 week Joinery Foundation programme would be $3,052 plus an additional $1,003 for books and supplies for a total of $4,058. [158] Dr. Quee Newell also recommended further career counselling to explore different career options, make a well-informed career decision and develop a viable vocational plan. This would

require a further eight to twelve hours of professional time at a rate of $75 to $125 per hour in the private sector. [159] Dr. Quee Newell's evidence assists in the assessment of the issue of loss of future earning capacity. The Report and Evidence of the Consulting Economist - Douglas Hildebrand [160] Douglas Hildebrand, an expert in consulting economics, prepared two reports, both dated March 27, 2009, that outlined his calculations and conclusions on future income loss and the cost of future care and the calculations and assumptions employed in arriving at those figures. [161] Mr. Hildebrand's approach was to provide examples of scenarios for assessing loss of capacity. In arriving at the figures he provided, Mr. Hildebrand factored in both positive and negative contingencies including non-wage benefits, inflation, the likelihood of unemployment, part-time employment and an inability to work. Mr. Hildebrand provided a future earnings estimate for plumbers and gas fitters based on the average statistical earnings of B.C. males employed in that capacity. He obtained the full time full-year earnings for these positions from Statistics Canada's 2006 Census. Based on the adjustments for labour market contingencies and adjusting earnings to 2009 dollars, Mr. Hildebrand then calculated expected earnings over the duration of a plumber and gas fitter's career starting at age 34 and

retiring at age 65. [162] Absent-accident future earnings and benefits for a B.C. male plumber were calculated to be $1,023,746. Absent-accident future earnings and benefits for a B.C. male gas fitter were calculated to be $1,111,173. [163] Mr. Hildebrand also provided an estimate for lifetime earnings for B.C. male cabinetmakers based on the 2006 Census figures but adjusted the earnings delay by 10 years to reflect Mr. Trites likely late entry into this occupation relative to his age peers. Future earnings and benefits for a B.C. male cabinetmaker were calculated to be $691,669. [164] Mr. Hildebrand then provided projections for with-accident earnings adjusted to reflect Mr. Trites' impairments suffered in the accident. Mr. Hildebrand provided a reduction to full-time full year of 20% to reflect Mr. Trites' lower than average earnings dues to his impairments from the accident. Mr. Hildebrand also adjusted the unemployment rates by a factor of 3 in this calculation. Mr. Hildebrand calculated a decrease of approximately $10,924 on a per annum basis as between a plumber without accident and a plumber with accident and a decrease of $11,955 on a per annum basis for a gas fitter. Mr. Hildebrand then applied a multiplier approach which he calculated as a factor of 17.018 that he multiplied against a fixed annual loss of income to determine a present-day lump sum value for the annual

income loss. This multiplier approach does not factor in the risk of unemployment due to the injuries sustained from the accident. [165] Mr. Hildebrand calculated the statistical earnings projections for with-accident future earnings and benefits for a B.C. male plumber to be $788,460. The figure for with-accident future earnings and benefits for a B.C. male gas fitter was calculated to be $844,785. The figure for with-accident future earnings and benefits for a B.C. male cabinetmaker was calculated to be $691,669. [166] Mr. Hildebrand then provided an estimate of future income and benefits loss as between these trades and arrived at the following future loss projections. Based on his calculations for the projected earnings of a plumber absent-accident and with-accident, Mr. Hildebrand estimated a future loss of approximately $235,286. Comparing the projected earnings of a plumber absent-accident to a cabinetmaker with accident, Mr. Hildebrand estimated a future loss of approximately $332,077. Applying the same approach to future loss calculations for a gas fitter, Mr. Hildebrand calculated a future loss of approximately $266,388 when he compared the projected earnings of a gas fitter absent-accident and with-accident. Comparing the projected earnings of a gas fitter absent-accident to a cabinetmaker with accident, Mr. Hildebrand estimated a future loss of approximately

$419,504. [167] Insofar as cost of future care calculations were concerned, Mr. Hildebrand prepared a report that estimated the present value lump sum cost of the future care recommendations that Ms. Fischer had included in her report of January 30, 2009. Mr. Hildebrand listed the proposed future care items Ms. Fischer recommended as including an annual gym pass, one session of treatment with a kinesiologist, one session of counselling with a psychologist, a personal trainer on an annual basis and physically based treatments (such as massage and physiotherapy) on an annual basis. Not included in the calculations was the cost of medications in the future. [168] Mr. Hildebrand used a different multiplier to calculate the estimated cost of future care because such costs can continue over one's life time rather than over a person's working life to age 65. Mr. Hildebrand calculated a remaining life expectancy of approximately 45.3 years for Mr. Trites which resulted in a higher multiplier than for estimating loss of future earnings. On this basis Mr. Hildebrand calculated the present value for each $1,000 in care costs incurred annually from the trial date onward to be estimated at $22,274. [169] Mr. Hildebrand calculated the present value estimates of cost of future care based on the recommendations made by Ms. Fischer in her report. Mr. Hildebrand includes two figures in his

report, the upper end figure is based on the assumption that Mr. Trites would continue to work as a plumber and the lower figure assumes that Mr. Trites would work at a less physically demanding occupation. [170] It should be noted that Mr. Hildebrand used the midpoint of any items that contained a range of costs. For the physically-based treatment items Mr. Hildebrand included calculations at both the high end of the range for weekly treatments if Mr. Trites were to continue working as a plumber and at the low end of the range for monthly treatments if Mr. Trites works in a less physically demanding occupation. [171] Based on these considerations, Mr. Hildebrand estimated the future care costs for Mr. Trites to range between $44,538 (assuming work in a less physical occupation) and $111,359 (assuming Mr. Trites continues to work as a plumber). [172] Mr. Hildebrand's reports, while helpful from a mathematical and straight loss approach, simply provides the court with a set of tools to consider different scenarios that provide calculations and numbers for the assessment of the future loss of earnings and cost of future care. The final determination on such future losses and costs, if any, however, is an assessment, not a straight calculation. B. The Defendant's Case [173] In addition to cross-examining the witnesses called on behalf of the plaintiff, counsel for the defendant

tendered two medical reports, one prepared by Dr. N.K. Reebye and one prepared by Dr. Bernard Tessler. Medical Evidence on behalf of the Defendant The Report of Dr. N.K. Reebye [174] Dr. Reebye, a physician with a specialty in physical medicine and rehabilitation, performed an IME on Mr. Trites on December 12, 2007 and prepared a report dated February 13, 2008. [175] During this single IME Mr. Trites outlined for Dr. Reebye the various symptoms he was still experiencing more than two years after the accident including tightening of neck muscles which give rise to headaches, pain between the shoulder blades, and throbbing and stabbing pain in his lower back 90 to 95% of the time. Physical examination revealed that Mr. Trites weighed 239 pounds and was 5' 10" tall. He exhibited a decreased active and passive range of movement in his neck as limited by pain. Palpation of the back of Mr. Trites' neck, both upper trapezius muscles, and both paraspinous muscles of the upper back caused Mr. Trites to report tenderness in those areas but there did not appear to be any palpable muscle tightness. Examination of Mr. Trites' thoracic and lumbar spine resulted in Mr. Trites reporting tenderness although he was observed to have full movement in those areas. Mr. Trites exhibited tightness in his right hip on stress tests for his hip. [176] Dr. Reebye opined that Mr. Trites suffered moderate

soft tissue injuries as a result of the accident. Although such injuries typically heal within a few weeks, Dr. Reebye noted that aches and pains can be experienced for longer periods. [177] Dr. Reebye noted that Mr. Trites was young, healthy, exercising regularly and working quite hard as a plumber, eight hours a day five days a week. Dr. Reebye expressed the opinion that in all likelihood Mr Trites' symptoms would gradually improve over time but noted that they had persisted for more than two and half years at the time of his assessment. Dr. Reebye's prognosis for Mr. Trites was expressed as "good" but then immediately qualified by stating that it was difficult to predict when all of the symptoms Mr. Trites was experiencing would fully settle down. Dr. Reebye stated that the "most likely scenario will be waxing and waning symptoms as he has at present but the intensity will become less severe and the periods in between his symptoms will become more prolonged." The Report of Dr. Bernard Tessler [178] Dr. Tessler, a physician with a specialty in neurology, performed an IME on Mr. Trites on March 25, 2009 and prepared a report dated April 15, 2009. [179] Based on his review of the materials provided and his examination of Mr. Trites, Dr. Tessler was of the opinion that Mr. Trites sustained soft tissue injuries in the neck and thoracic area as a result of the accident. He also

sustained a soft tissue lumbar strain injury. The intermittent headaches that Mr. Trites related were likely due to the soft tissue injury to the neck or cervical area. Dr. Tessler was of the opinion that Mr. Trites' symptoms will likely gradually improve but in the interim he would have to treat his discomfort with analgesic medication. Dr. Tessler did not anticipate any long term complications arising from the accident. Although he deemed the injuries to be mild in nature, Dr. Tessler noted that they interfered with Mr. Trites' recreational activities and affected his employment due to the heavy physical nature of his job. Findings in relation to the Defendant's Medical Evidence: [180] The report of Dr. Reebye is not entirely inconsistent with the evidence of Mr. Trites and the medical experts called on his behalf although he did not go so far as the plaintiff's medical experts to opine that the symptoms Mr. Trites continued to exhibit and experience when examined might continue indefinitely. Taking Dr. Reebye's report at its highest, he expects Mr. Trites' symptoms to dissipate although he cannot say when they will fully settle down. Certainly two and a half years post-accident, Mr. Trites was still exhibiting an array of symptoms that interfered with his day to day living and working abilities. [181] The report of Dr. Tessler is less helpful as it simply notes there does

not appear to be any brain injury associated with the accident and that Mr. Trites' symptoms will gradually improve. What is noteworthy, however, is that nearly four years after the accident, Mr. Trites was still exhibiting symptoms associated with the soft tissue injuries he sustained as a result of the accident. VI. Analysis and Findings A. The nature, extent and severity of the injuries sustained by the plaintiff in the accident and their impact on him in terms of his lifestyle, ability to work, socialize, and participate in recreational pursuits [182] Four years after the accident, Mr. Trites was still experiencing headaches 5-6 times a month. He also experiences neck, mid-back and lower back pain on an ongoing basis that is aggravated when working as a plumber. He relies upon narcotics medications to get him through the latter part of his work day and is wrung out by the end of the work day. The continuing pain and discomfort has impacted every facet of Mr. Trites' life - not only physically at work but also in his ability to engage in any sort of physical recreational activity such as skiing, hiking, fishing hunting, camping or any other sort of outdoor activity that he liked to do before the accident. He finds it difficult to perform a number of household chores, particularly some forms of yard work, that require bending or reaching overhead. His social life has also

been restricted by his inability to engage in the activities he was involved in prior to the accident. [183] From the foregoing evidence and my findings, I find that Mr. Trites has established that he suffered moderate soft tissue injuries to his neck and back (cervical, thoracic and lumbar spine) in the accident. He missed approximately 76 days of work and then returned to his very physically demanding position as an apprentice plumber. Despite ongoing modalities of treatment such as massage and chiropractic intervention and regular exercise at the gym, Mr. Trites symptoms had not improved to such a level that he was fully recovered from the accident by December 2006. [184] Although improved in his condition, Mr. Trites had not fully recovered when funding for his various rehabilitation efforts was discontinued in December 2006. This resulted in Mr. Trites experiencing a significant setback in the progress of his recovery. Since July 2007 Mr. Trites has returned to exercising at the gym and to some forms of additional therapies such as massage therapy, albeit at a reduced rate given his inability to financially sustain all recommended forms of treatment and expensive prescription medication. I find that since July 2007, Mr. Trites has worked consistently and persistently to try and improve and alleviate his various symptoms through a return to the gym, reducing his weight and

re-engaging in massage therapy as his finances have permitted. [185] As of the conclusion of this trial, almost four and half years post-accident, Mr. Trites remains unable to work as a plumber at the level he did prior to the accident without chronic pain and resort to a significant amount of prescription painkiller medication. He continues to experience ongoing chronic neck and lower back pain as well as headaches from time to time. His physical demeanour while testifying, although definitely not determinative, reinforced the evidence of his difficulty with movement of his neck and rotation of his trunk and with prolonged sitting or standing. He has been unable to continue with most of his recreational physical and sports activities that he enjoyed prior to the accident including hiking, skiing and camping. His ability to do significant yard work and household chores that require bending and lifting have been compromised. In essence, all facets of Mr. Trites' life have been negatively impacted by the injuries he sustained in the accident. In my view, the evidence clearly establishes ongoing impairment from the soft tissue injuries he sustained in the accident and that the impairment remains fairly significant in terms of Mr. Trites' inability to both work without pain and live his life without ongoing pain. The prognosis for a full recovery is guarded and the medical

evidence, which I accept, establishes that it is more likely than not, given the chronicity of the symptoms to date, that the symptoms will persist indefinitely. The severity of the symptoms will be governed in part by the level of Mr. Trites' physical activity and fitness. [186] If Mr. Trites continues to work as a plumber he will require ongoing massage therapy, chiropractic manipulations, continued attendance at the gym and resort to medications to assist in alleviating and controlling his pain symptoms. B. What is an appropriate amount of damages, if any, payable to the plaintiff for injury or other losses he sustained that may be properly attributed to the accident? [187] Mr. Trites seeks the following for damages: 1. Non-pecuniary damages $ 75,000.00 2. Past Wage Loss $7,125.00 3. Loss of Future Earning Capacity $600,000.00 4. Cost of future care $60,000.00[1] 5. Special damages $14,581.24 6. Cost of Retraining $4,000.00 less advances paid by ICBC $15,600.48 Total $745,105.76 Non-Pecuniary Damages [188] Non-pecuniary damages are awarded to compensate the plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities. The compensation awarded should be fair and reasonable to both parties: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 [Andrews]; Jackson v. Lai, 2007 BCSC 1023 at para. 134 [Jackson]; Kuskis v. Hon Tin, 2008 BCSC 862 at para. 135

[Kuskis]. [189] For the purposes of assessing non-pecuniary damages, fairness is measured against awards made in comparable cases. Such cases, though helpful, serve only as a rough guide. Each case depends on its own unique facts: Andrews; Jackson; Jenkins v. Bourcier, 2003 BCSC 388 at para. 87; Radford v. Drobot et al., 2005 BCSC 293 at para. 62; Kuskis at para 136. [190] The relevant factors in assessing non-pecuniary damages were reviewed by Mr. Justice Voith in Lakhani v. Elliott, 2009 BCSC 1058 at para. 104, citing the majority opinion of the Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34 (see also Kuskis at para. 138): The inexhaustive list of common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] 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 plaintiffs stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54). [191] Mr. Trites seeks an award of $75,000 for non-pecuniary damages. I have

considered the cases cited by plaintiff's counsel on the issue of non-pecuniary damages: Demederios v. Heinrichs, 2001 BCSC 1475 ($70,000); Paller v. Paller, 2004 BCSC 977 ($60,000); Schubert v. Knorr, 2008 BCSC 939 ($75,000); Pelletier v. Khaw, 2005 BCSC 1302, ($65,000). [192] The defendants submit that the soft tissue injuries Mr. Trites experienced were mild to moderate and that there was a significant improvement in his condition within 18 months of the accident. Thereafter. Mr. Trites took a step backward in his condition due to his failure to maintain his exercise program and due to increased demands in his working conditions. In addition, Mr. Trites' weight and poor core strength are factors to consider in assessing the amount to be awarded under this head of damages. Accordingly, argues the defence, the appropriate award for non-pecuniary damages is between $30,000 and $40,000. [193] I have also considered the cases cited by defence counsel on the issue of non-pecuniary damages: Beick v. Webb and Ryder Truck Rental Canada Ltd. et al., 2003 BCSC 1251 ($30,000); Kipling v. Richmond & British Classic Auto, 2004 BCSC 1446 ($35,000); Stone v. Kirkwood, 2008 BCSC 1295 ($40,000); Hutchison v. Cozzi, 2009 BCSC 243 ($40,000). [194] The difficulties associated with trying to reconcile the awards in such cases are well known. While the authorities are instructive, I do not propose

to review them in these reasons, I am mindful that the nature of the inquiry is such that these cases can serve only to provide guidelines as to the range of damages awarded in cases with some similarities to the case at bar. In this case, as in all others of this kind, the inquiry is highly fact dependant and thus the quantum of any award will turn to a very large degree on its unique circumstances, having regard to what is fair and just in light of the nature, extent and duration of Mr. Trites' injuries and the impact these injuries have had on his quality of life. [195] I accept the evidence adduced by the plaintiff that Mr. Trites sustained soft tissue injuries to his neck and back as a result of the accident and that, nearly four and a half years post-accident, he still experiences pain in his neck and back, mainly the lower back area. The injuries can be described as moderate in nature but they have developed an element of chronic pain that continues to affect most every facet of Mr. Trites' work and non-work life. The pain is most significant when Mr. Trites works. To cope at work, Mr. Trites consumes a large amount of prescription pain killers in order to function as a plumber. [196] Mr. Trites is a stoic and determined person. Despite the neck and back pain and attendant headaches he has tried to continue to work as a plumber and also to remain physically active but is

far less active than he was prior to the accident. He no longer engages in any of the recreational activities he so enjoyed prior to the accident such as hiking, skiing, or camping. His injuries have impacted on his ability to contribute to various household chores such as mowing the lawn and doing yard work. The ongoing nature of the injuries and chronic pain has also had a negative impact on Mr. Trites' physical relationship with his wife. And, he no longer socializes to the extent he used to prior to the accident because of the chronic pain that prevents him from engaging in the recreational activities he previously enjoyed with his friends. [197] Taking into account all of these circumstances, the referenced authorities which I have reviewed and the nature of Mr. Trites' injuries, the fact that the soft tissue injuries of real consequence were to his neck and back, the relatively enduring nature of the injuries, the pain he has suffered and may continue to experience in the future, as well as the fact that he has suffered some significant diminishment in all facets of his life, I assess non-pecuniary damages in the amount of $75,000. [198] An award of $75,000 for non-pecuniary damages in the present case takes into account the significant pain, suffering and disability experienced by Mr. Trites throughout the first several months after the accident. It also takes into

account the pain, discomfort and loss of enjoyment of life that he has suffered thereafter, in terms of his being able to fully carry out his duties in his chosen profession as a plumber, including having to rely upon prescription painkiller medication to get himself through the day at work, and in terms of being unable to pursue his former pre-accident recreational and sporting activities such as skiing, hiking, and camping. This amount also takes into account that Mr. Trites still continues to suffer neck pain and lower back pain on an ongoing basis, as well as headaches from time to time and experiences physical limitations depending on his activity. Did Mr. Trites fail to mitigate his loss [199] In Jobs v. Van Blankers, 2009 BCSC 230, I included a summary of the law on the duty to mitigate stating at para 107: [107] The law imposes upon plaintiffs the duty to mitigate their losses. This includes taking reasonable steps to minimize any loss relating to injuries, so as to prevent plaintiffs from recovering for harm and loss caused by their own neglect. In Graham v. Rogers, 2001 BCCA 432, leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 467, Madam Justice Rowles writing for a majority of the Court of Appeal succinctly stated the principle of mitigation of damages in personal injury cases at ¶35: Mitigation goes to limit recovery based on an unreasonable failure of the

injured party to take reasonable steps to limit his or her loss. A plaintiff in a personal injury action has a positive duty to mitigate but if a defendant's position is that a plaintiff could reasonably have avoided some part of the loss, the defendant bears the onus of proof on that issue. [200] In Turner v. Coblenz, 2008 BCSC 1801, Mr Justice Halfyard summarized the test for an allegation of failure to mitigate stating at para. 101: [101] The defendant bears the onus of proving the essential elements of failure to mitigate, which are the following: (a) That a qualified medical expert recommended that a plaintiff undergo a particular form of treatment; (b) That the plaintiff failed or refused to take the recommended treatment although it was available to him or her; and (c) That the plaintiff's refusal or failure was unreasonable, in that if the plaintiff had taken the recommended treatment, there is some likelihood that he or she would have received substantial benefit from it, and the treatment would not expose the plaintiff to significant risk. See Janiak v. Ippolito [1985] 1 S.C.R. 146; Chiu (guardian ad litum of) v. Chiu 2002 BCCA 618 at paragraph 57; and Middleton v. Morcke 2007 BCSC 804 at paragraph 37. [201] In this case, the defence argues that Mr. Trites has unreasonably failed to follow the advice of Dr. O'Connor and the Work Hardening Program that Mr. Trites

attend the gym on a regular basis. Dr. O'Connor recommended continuing gym attendance both in April 2006 and again in April 2007. The defence argues that Mr. Trites has unreasonably failed to mitigate his loss by not purchasing monthly gym passes for the first six months of 2007 and continuing to attend the gym in those months where such attendance would otherwise have assisted his recovery. [202] Mr. Trites outlined in his evidence that after the accident he regularly went to the gym and followed the exercise regime established for him while in the Work Hardening Program and that he did this until ICBC discontinued funding his rehabilitation efforts in December 2006. [203] Mr. Trites allowed his gym membership to lapse in January 2007 as he could not afford to pay for a monthly gym membership, as well as his prescription medication, in addition to his other various financial obligations and the increased cost of commuting into Vancouver for his new position with Ocean Park Mechanical. Mr. Trites' cost of commuting increased when he changed employers in January 2007 as his position required him to commute for about 2 hours into the Vancouver area whereas previously he had a 20 minute commute to work in Agassiz, B.C. [204] In addition to having to pay for his prescription pain killer medication, Mr. and Mrs. Trites were paying for their September 2006 wedding and honeymoon as

well mortgage payments on their home. And, although Mr. Trites changed employers at the end of January 2007 and received an increase in pay, his income for part of March and April 2007 was reduced to about 40 to 50% of his regular pay while he attended the classroom component of his apprenticeship program. [205] In April 2007 Dr. O'Connor reminded Mr. Trites of the importance of working out regularly in order to improve his condition and alleviate the symptoms. On his return to work in May 2007, after completing the classroom component of his course, Mr. Trites immediately started to save money to pay for an annual gym membership and bought one when they went on sale at his local community centre in early July 2007. [206] On July 27, 2006 Dr. Bull wrote to the ICBC adjustor handling Mr. Trites' claim to provide an update on Mr. Trites' condition. At that time he noted that although Mr. Trites' neck pain had diminished considerably, Dr. O'Connor had opined there would be improvement from the neck and low back strain but that it would be slow and occur over the next one to three years. It is also important to acknowledge that prior to discontinuing with the gym, Dr. O'Connor noted in his report that by November 2006, Mr. Trites headaches were 90% better and his neck pain was about 70% improved. [207] Dr. Bull noted that Mr. Trites' failure to continue to attend the gym to perform

his exercise had the effect of setting him back in his recovery. On March 5, 2007 Dr. Bull wrote a general letter outlining the benefits that Mr. Trites had obtained from the attendances at the gym. It was his evidence that he hoped this letter would be presented to the ICBC adjustor and assist Mr. Trites in having funding for the gym membership re-instated. [208] Once Mr. Trites renewed his exercise regime in the summer of 2007, he was able to significantly reduce his resort to prescription medication as noted by Dr. Bull on August 15, 2007. [209] Financial circumstances are certainly one factor to consider in the overall reasonableness assessment of whether a plaintiff has failed to mitigate their losses. What is reasonable will depend on all the surrounding circumstances. One significant factor in this case however, is that as Mr. Trites was on his upward climb to recovery, ICBC determined that it would discontinue funding his efforts at rehabilitation. As a consequence, Mr. Trites was left to fund his continued rehabilitation on his own. Instrumental to continuing his recovery and functioning was not only attendance at the gym but other treatment modalities including massage therapy and chiropractic treatments and taking prescription medication. All of these items had significant benefits to Mr. Trites but they also carried with them significant costs. In the first half of

2007, Mr. Trites was unable to fund all these aspects of treatment and chose the prescription medication as it was essential to his pain management on a daily basis. [210] I find that in these circumstances, Mr. Trites' decision not to continue with a gym pass on a monthly basis for the first six months of 2007 was not unreasonable. This is not a case where the plaintiff has refused to take recommended treatment. Rather Mr. Trites was engaged in all aspects of the recommended treatments and ICBC was, until December 2006, paying for them. Thereafter ICBC unilaterally discontinued paying for these treatments, notwithstanding the fact that Mr. Trites was not yet fully recovered. I cannot find that Mr. Trites acted unreasonably in determining how best to try and pay for all the treatment modalities that had been working for him in assisting his rehabilitation but were no longer going to be paid for by ICBC and were beyond his limited means at the time. As Smith J. noted in O'Rourke v. Claire, [1997] B.C.J. No. 630 (S.C.) at para. 42 "it does not lie in the mouth of the tortfeasor to say that a plaintiff in such circumstances has failed to mitigate by failing to arrange and pay for his own rehabilitative treatment." [211] Accordingly, I find that the defence has not discharged its burden of establishing that Mr. Trites failed to mitigate his losses in this case. Loss of Past Income

from Employment [212] Mr. Trites advances a claim for past wage loss in the amount of $7,125. The defence does not take issue with this aspect of Mr. Trites' claim. Mr. Trites missed 76 days of work from May 26, 2005 to September 14, 2005. The defence also points out that Mr. Trites has been compensated for this past wage loss and Mr. Trites' counsel does not take issue with this point. Accordingly, Mr. Trites is entitled to an award of $7,125 for past wage loss. I will deal with the deduction for this repayment in my overall conclusion. Loss of Future Earning Capacity [213] One of the most significant issues in this case is whether there should be an award for loss of future earning capacity and if so what the amount should be. Although counsel for Mr. Trites acknowledges that this area is a matter of assessment, not calculation, he advances the argument that a 30% reduction of Mr. Trites earning capacity, as outlined in the evidence of the economist, Mr. Hilderbrand, properly reflects the anticipated loss Mr. Trites will suffer while also giving due consideration to negative contingencies related to unemployment in the trade. Based on this approach, counsel for Mr. Trites argues that an appropriate award under this head of damages is $550,000 to $600,000. [214] Counsel for Mr. Trites relies on the following cases in support of his position on this issue: J.F.C. v. Ladolcetta,

2009 BCSC 1151($275,000 for an apprentice plumber and pipe fitter); Sidhu v. Kiraly, 2009 BCSC 1202 ($350,000 for a heavy duty mechanic); and Zhang v. Law, 2009 BCSC 991 ($300,000 for the owner of a small grocery store). [215] Counsel for the defendant argues that Mr. Trites has not proven a permanent or ongoing injury such that an award for loss of future earning capacity is warranted, or alternatively that any such award ought to be very carefully scrutinized by the court given the evidence in this case. Counsel submits that this is particularly so as Mr. Trites has continued to work as a plumber despite his injuries, albeit it at a slower rate. Thus, according to the defendant, Mr. Trites has good future prospects to continue to generate comparable income either continuing as a plumber or a similar income if he re-trains as a cabinetmaker. [216] In the further alternative, the defence argues that if the court determines that Mr. Trites' capacity to earn an income has been diminished as result of the accident, the approach to adopt in assessing the amount to award is that of the loss of a capital asset and that on this approach Mr. Trites should be awarded one year's salary for loss of capacity. Based on his gross income for 2007, this would amount to $48,000. [217] In the further alternative, the defence argues that at its highest, the amount to be awarded is $235,286 based

on Mr. Hildebrand's estimate for future loss if Mr. Trites' were to endeavour to continue in his chosen profession as a plumber. Counsel for the defendant argues that it is a significant probability that Mr. Trites will continue to work as a plumber and that this is supported by the evidence that Mr. Trites has continued, despite his pain symptoms and difficulties, to work in the profession he loves and at trial was still looking for work in the plumbing industry. [218] Counsel for the defendant relies on the following cases in support of his position on this head of damages: Eaton v Regan, 2005 BCSC 3 ($10,000 for a radiator mechanic); Fiust v. Centis, 2005 BCSC 1067 ($30,000 for a warehouse supervisor); Schwieghardt v. Palamara, Haverinen and Plamondon, 2003 BCSC 1149 ($50,000 for a correctional officer); Walters v. Rempel, [1994] B.C.J. No. 1716 (S.C.) ($38,000 for a self-employed plumber running a successful plumbing business). [219] In Kuskis at para. 151, Madam Justice Dickson noted a claim for loss of future earning capacity raises two issues: (1) has the plaintiff's earning capacity been impaired to any degree by his injuries and, if so (2) what amount should be awarded: Fox v. Danis, 2005 BCSC 102 at para 91 [Fox]. [220] In Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.) at 59 Madam Justice Southin, writing for the Court of Appeal, stated: Because it is impairment

that is being redressed, even a plaintiff who is apparently going to be able to earn as much as he could have if not injured or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensations for the impairment. He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income earning potential. [221] The principle that governs the assessment of an award for loss of future earning capacity is that, insofar as possible, the plaintiff should be restored to the position she or he would have been in if not for the injuries caused by the defendant's negligence: Lines v. W. & D. Logging Co. Ltd, 2009 BCCA 106 at para. 185; Falati v. Smith, 2010 BCSC 465 at para. 38. [222] Recent jurisprudence from the Court of Appeal establishes that a plaintiff must demonstrate impairment in his or her earning capacity and that there is real and substantial possibility that the diminishment in earning capacity will result in a pecuniary loss. If the plaintiff discharges this requirement, he or she may prove the quantification of the loss of earning capacity either on an earnings approach or a "capital asset" approach: Perren v. Lalari, 2010 BCCA 140 at para.

32. In essence, however, in making an assessment under this head of damages, what the court must endeavour to quantify is the financial harm accruing to the plaintiff over the course of his working career: Pett v. Pett, 2009 BCCA 232 at para. 19. [223] In Rosvold v. Dunlop, 2001 BCCA 1 at para. 11 [Rosvold] Madam Justice Huddart noted that valuation of the established impairment "may involve a comparison of the likely future of the plaintiff if the accident had not happened with the plaintiff's likely future after the accident has happened." This, however, is not the end of the inquiry. [224] In Reilly v. Lynn, 2003 BCCA 49 at para 101, Mr. Justice Low, writing for the majority, summarized the relevant principles in assessing damages for loss of future earning capacity stating: [101] The relevant principles may be briefly summarized. 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.). The valuation of the loss of earning capacity may involve a comparison of what the plaintiff would probably have earned but for the accident with what he will probably earn in his injured condition: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the end of the inquiry; the overall fairness and reasonableness of the award must be considered: Rosvold v. Dunlop (2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task of the Court is to assess the losses, not to calculate them mathematically: Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Finally, since the course of future events is unknown, allowance must be made for the contingency that the assumptions upon which the award is based may prove to be wrong: Milina v. Bartsch, supra, at 79. In adjusting for contingencies, the remarks of Dickson J. in Andrews v. Grand & Toy Alberta Ltd., supra, at 253, are a useful guide: First, in many respects, these contingencies implicitly are already contained in an assessment of the

projected average level of earnings of the injured person, for one must assume that this figure is a projection with respect to the real world of work, vicissitudes and all. Second, not all contingencies are adverse ... Finally, in modern society there are many public and private schemes which cushion the individual against adverse contingencies. Clearly, the percentage deduction which is proper will depend on the facts of the individual case, particularly the nature of the plaintiff's occupation, but generally it will be small ... [Emphasis added] [225] To determine the question of whether a plaintiff has established an impaired future earning capacity the court considers the following criteria established by Mr. Justice Finch (as he then was) in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) at para. 8: a. Whether the plaintiff has been rendered less capable overall from earning income from all types of employment; b. Whether the plaintiff is less marketable or attractive as an employee to potential employers; c. Whether the plaintiff 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 d. Whether the plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market. (see also Rosvold at para. 10; Kuskis at para. 152). [226] In Bedwell v. McGill,

2008 BCCA 6 the Court of Appeal clarified the issue of proof holding at para. 53 that it was necessary for the plaintiff to prove a substantial possibility of a future event leading to an income loss. The plaintiff is not required to prove this loss on a balance of probabilities (see also Steward v. Berezan, 2007 BCCA 150 at para. 17). However, there needs to be some "cogent evidence" to trigger the Brown v. Golaiy considerations: Marcelino v. Francesutti, 2002 BCSC 1711 at para. 57; Carvalho v. Angotti, 2007 BCSC 1760 at para.

59. In Moore v. Cabral et al., 2006 BCSC 920 at para. 78, Madam Justice MacKenzie (as she then was) stated that "ongoing symptoms alone do not mandate an award for loss of future earning capacity." [227] To quantify a loss of earning capacity the court conducts an assessment, based on the evidence, rather than applying a purely mathematical calculation: Rosvold at para. 11; Kuskis at para. 153; Durand v. Bolt, 2007 BCSC 480. For assessment purposes, income earning capacity is viewed as a capital asset where all relevant negative and positive contingencies must be considered: Kuskis at para 154; Fox at paras. 92, 102-103. In addition, the overall fairness and reasonableness of the award must also be taken into account: Rosvold at para. 11. [228] In terms of relevant contingencies that need to be considered, they may be general or specific in nature. Relevant contingencies can include such things as the potential for improvements in health, opportunities for advancement, decline in the economy and loss of employment, as well as the usual chances and hazards of life: Djukic v. Hahn, 2006 BCSC 154 at para. 105; Kuskis at para. 155. [229] As noted above, one approach to assessing the loss of future earning capacity is to compare the likely future income of the plaintiff if the accident had not occurred with the likely future income of the plaintiff now that it has occurred: Rosvold at para. 11; Kuskis at para.

154. In this case actuarial evidence was adduced to provide assistance on this baseline assessment through the evidence and expert report of Mr. Hildebrand. In this respect, Mr. Hildebrand opined and calculated that the likely future income potential of Mr. Trites, as a plumber, retiring at age 65, if the accident had not occurred would be $1,023,756. He also calculated the likely future income potential of Mr. Trites, as a gas fitter, retiring at age 65, if the accident had not occurred would be $1,111,173. [230] Mr. Hildebrand calculated a future loss of earnings for Mr. Trites of $235,286 if he is able to continue to work as a plumber, based on certain assumptions about reduced earnings potential and unemployment contingencies. If Mr. Trites is unable to continue as a plumber due to the continuing physical difficulties he has experienced from the accident and elects to take on a less demanding but also lower paying alternative as a cabinetmaker, Mr. Hildebrand calculates the loss of future earnings for Mr. Trites to be about $332,077. Comparable figures were advanced for Mr. Trites in the position of a gas fitter. Assuming Mr. Trites would have continued in his training and continued to work as a gas fitter his future loss of earnings would be approximately $266,377. And, assuming Mr. Trites would have worked as a gas fitter but instead works as a cabinetmaker due to his

injuries, Mr. Hildebrand calculates the loss of future earnings to be approximately $419,504. [231] On the totality of the evidence adduced in this trial, including the opinions of Ms. Jodi Fischer, Dr. Bull and Dr. O'Connor, I infer that if Mr. Trites remains in his chosen profession as a plumber he will likely experience a diminishment in his future earning capacity due to the injuries that he sustained in the accident and the symptoms that continue to plague him even four and a half years after the accident. [232] Mr. Trites is presently 35 years old, has a strong and positive work ethic and intends to continue work although he is not certain that he can sustain the physical demands associated with being a plumber. He has 30 years of employment ahead of him, thus the likely pecuniary loss to Mr. Trites either continuing as a plumber, albeit at a reduced efficiency because this work will likely aggravate his symptoms which very well may continue indefinitely, or through re-training as a cabinetmaker is not insignificant. As noted in Sinnott v. Boggs, 2007 BCCA 267 at para. 14: [t]hree of the four factors outlined in Brown are broad enough to support an award in circumstances where a plaintiff is able to continue in an occupation but the ability to perform and the earning capacity resulting from that ability are impaired by the injury. There is no reason why a plaintiff who,

although suffering from the injuries sustained in the accident, has continued to work in a particular occupation, albeit at a reduced level of performance and income and aided by medications, should not be compensated for the anticipated pecuniary loss through damages for loss of future earning capacity. [233] Based on his continuing to work as a plumber even after the accident, albeit with chronic pain, reduced efficiency and resort to prescription painkillers, as well as his focus on finding employment in that area once laid off by Saxon Mechanical and his expressed love of the profession, I find it is more likely than not that Mr. Trites will try to continue to work as a plumber, at least in the near future. However, it is equally clear on the evidence that he will be less efficient and work more slowly, he will likely aggravate his symptoms and will require much therapeutic assistance and medication to keep him working. In the end, it may well be that his continuing to work as a plumber is, in fact, not sustainable. [234] I find that in the present case there is a substantial possibility of future income loss in relation to Mr. Trites. It is clear that while Mr. Trites may have continued to work as a plumber after the accident, it was not without apparent pain and discomfort and declining functionality as the work day wore on. Mr. Heppner's observations of Mr. Trites

performance confirm this as does Ms. Fischer's observations in the simulated work day assessment. Mrs. Trites' observations of Mr. Trites at the end of the work day also confirms this point. Mr. Trites consumption of pain killers, while at the work site, in order to make it through the work day, also confirms this point. This combination of factors demonstrates that there is a substantial possibility in the future of Mr. Trites not being able to continue as a plumber. The opinions of Dr. Bull and Dr. O'Connor support the inference that although Mr. Trites could continue to work as a plumber it will not be without some physical cost to his health. Thus there is a substantial possibility that Mr. Trites may not be able to continue to work as a plumber but if he does, it will be at a reduced efficiency, which compromises his marketability to other employers. [235] Addressing the factors from Brown v. Golaiy, as endorsed in Rosvold, in the context of this case I am of the view that Mr. Trites has been rendered less capable overall from earning income from all types of employment, particularly because he is already limited to more labour related employment given his various learning disabilities which preclude him from more "white collar" related employment. Second, without the ability to sustain prolonged physically demanding work, as evidenced by his decreasing functionality as

the work day progresses, Mr. Trites is less marketable and less attractive as an employee in the areas of labour where he could work. Third, there is a real possibility that lost to Mr. Trites is the ability to take advantage of all job opportunities that might otherwise have been open to him had he not been injured. Finally, I accept that Mr. Trites is less valuable to himself as a person capable of earning income in a competitive labour market. As such an award for loss of future earning capacity is warranted. [236] In applying the relevant legal principles and gazing "deeply into the crystal ball" as described by the Court in Andrews, I am left to make an assessment as it relates solely to Mr. Trites' injury to his neck and lower back and his ongoing difficulties four and a half years after the accident and the likelihood that these symptoms may well persist indefinitely, thus interfering with his ability to earn a living as a plumber. [237] I do not consider Mr. Hildebrand's calculations for loss of future income as a gas fitter to be of much assistance, as Mr Trites' evidence did not support the conclusion that he would continue to work towards obtaining his Class A papers as a gas fitter. [238] Taking into account all of the evidence and the many future contingencies that may arise, including the prospect that Mr. Trites's health may continue to improve if he works less

strenuously and continues to maintain his exercise regime, the prospect of recovery or at least improvement in his symptomology and that he will either continue to work in his chosen profession as a plumber, albeit at a less productive rate, or elect to re-train as a cabinetmaker, I conclude that Mr. Trites's future earning capacity has been impaired by the injuries he suffered in the accident. [239] I accept the plaintiff's evidence, including the medical and expert evidence on functional capacity and vocational alternatives, that there is a substantial possibility indeed probability that over the long term Mr. Trites will be unable to sustain the physically demanding heavy work load required for being an industrial plumber, and, accepting that he may well find working as a cabinetmaker a suitable alternative, I conclude that an appropriate award for loss of future earnings capacity in these circumstances to be $250,000. Special Damages [240] It is well established that a plaintiff is entitled to recover as special damages all the pre-trial expenses he or she incurred as a result of their injuries, so long as they were caused by the tort and the decision to incur them was reasonable: see Jamie Cassels, Remedies: The Law of Damages (Toronto: Irwin Law Inc., 2000) at 116. When assessing the quantum of damages under any recognized head, the court is concerned, ultimately, with

making the party whole. In Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), aff'd (1987), 49 B.C.L.R.(2d) 99 (C.A.) [Milina] McLachlin J. (as she then was), described this animating principle at 78: The fundamental governing precept is restitutio in integrum. The injured person is to be restored to the position he would have been in had the accident not occurred, insofar as this can be done with money. This is the philosophical justification for damages for loss of earning capacity, cost of future care and special damages. [241] Counsel for the defendant acknowledges that the vast majority of Mr. Trites special damages have been paid. I find that the plaintiff is entitled to compensation for the amount of money he has already expended as a result of the injuries suffered. In his evidence, Mr. Trites reviewed a compiled list of special damages that reflect what he paid for in terms of treatments with a chiropractor, a massage therapist, a physiotherapist, physiotherpay, gym memberships, orthopedic boots, mileage and parking for attendances at various therapy and medical appointments and assessments, prescription medications and other related matters. The list of special damages includes those items in 2005 and 2006 that ICBC re-imbursed and so any award on the total amount of special damages will have to be adjusted with a deduction for what has already been advanced by

ICBC to cover the expenses Mr Trites incurred in 2005 and 2006. I will address the deductions issue in my conclusion to these reasons. [242] Mr. Trites has engaged in a number of modalities of therapy, has incurred expenses for gym memberships and has relied heavily on prescription medications to try and address the continuing pain he experiences as a result of the injuries he sustained in the accident. He has had to make many trips to various treatment providers and incurred expense in terms of mileage and parking in order to try and treat his injuries from this accident. None of the expenses he incurred could be described as unreasonable in any respect. I find that Mr. Trites is entitled to be repaid for his out of pocket expenses for all the items included in his list of special damages which amounts to $14,292.55. [243] Of these special expenses, $1,816 were incurred in 2007 and $3,329 were incurred in 2008, all after ICBC refused to reimburse Mr. Trites for any further special expenses. Accordingly, pre-judgment Court Order Interest in the amount of $148.95 for the special expenses incurred in 2007 and $139.74 for the special expenses incurred in 2008 should be added on to above total resulting in a total award for special expenses in the amount of $14,581.24. Cost of Future Care [244] In Izony v Weidlich, 2006 BCSC 1315 at para 70, Mr. Justice Masuhara addressed cost of

future care awards stating: [70] At the outset, I note that the cost of future care award is "by its nature notional and not a precise accounting exercise to determine the strict minimum" required by the plaintiff: Strachan (Guardian ad Litem of) v. Reynolds, 2006 BCSC 362. In Courdin v. Meyers (2005), 37 B.C.L.R. (4th) 222, 2005 BCCA 91 at [paragraph] 34, our Court of Appeal endorsed the following approach to dealing with the many imponderable factors and contingencies in assessing damages in this category: Damages for cost of future care are a matter of prediction. No one knows the future. Yet the rule that damages must be assessed once and for all at the time of trial (subject to modification on appeal) requires courts to peer into the future and fix the damages for future care as best they can. In doing so, courts rely on the evidence as to what care is likely to be in the injured person's best interest. Then they calculate the present cost of providing that care and may make an adjustment for the contingency that the future may differ from what the evidence at trial indicates. (Krangle (Guardian ad litem of) v. Brisco, [2002] 1 S.C.R. 205, 2005 SCC 9 at [paragraph] 21.) [245] The plaintiff is entitled to be compensated for all expenses reasonably necessary for his future medical care. The test to be applied when the court considers awarding the cost of future care was set

out in Milina at 84 as follows: The test for determining the appropriate award under the heading of cost of future care, it may be inferred, is an objective one based on medical evidence. These authorities establish: (1) that there must be a medical justification for claims for cost of future care; and (2) that the claims must be reasonable. ... The award for cost of care should reflect what the evidence establishes is reasonably necessary to preserve the plaintiff's health. [246] Consequently, in making an award for costs of future care, the court must take into account both what is medically required and what expenses the plaintiff will likely incur. Items and services the plaintiff is unlikely to use in the future cannot be justified as reasonably necessary aspects of the cost of future care: Kuskis at para 164. [247] In this case, Ms. Fischer has made several recommendations for future care items and services for Mr. Trites. They include: · an annual gym pass on an indefinite basis; · three sessions with a kinesiologist totalling $255; · personal training eight times a year, indefinitely, at an estimated annual cost of $480-$680; · massage therapy on a weekly basis if Mr. Trites continues to work as a plumber and on a reduced basis if he re-trains to a less physically demanding profession, at an estimated annual cost of $900 a year, for an indefinite period of time; · 8 to

12 sessions of psychological counselling for an estimated total of $1,280 to $1,920; · vocational rehabilitation counselling; · funding for prescription medication. [248] Dr. O'Connor supports the following modalities of continuing treatment: kinesiology, a personal trainer, massage if it helps, and a gym membership. He recommended a reduction in the amount of medication Mr. Trites consumes but also acknowledged that medications may be necessary in order for Mr. Trites to manage his pain and continue to work. Dr. Bull supported an ongoing physical program at the gym, assistance from a kinesiologist or physiotherapist, massage therapy, chiropractic treatment and prescription medications. [249] Given the limits on abilities to engage in re-education and training, it is unlikely that Mr. Trites will be able to re-train to a "white collar" position, I find that it is more likely than not that he will remain either in his chosen profession as a plumber or undertake re-training as a cabinetmaker. Therefore it is likely that Mr. Trites will require significant amounts of both passive and active therapy in the future in order to maintain his level of fitness and stabilization such that his symptoms continue to reduce over time or are at least managed at a level such that he is able to continue to work in labour oriented positions. [250] The defence argues that as the medical opinions

indicate that Mr. Trites will slowly improve over time, an award for future care costs needs to be limited to less than that suggested by the plaintiff as there will not be an ongoing requirement for all of the treatments over Mr. Trites' lifetime. [251] The evidence supports a medical justification for all of the recommended therapies outlined by Ms. Fischer, Dr. O'Connor and Dr. Bull. What is not so clear, however, is how long some of those therapies, particularly personal training and medication may actually be required. [252] Mr. Hildebrand has provided a straight calculation approach to covering all of the therapies that Ms. Fischer recommended except the issue of cost of medications. [253] As noted above, damages for cost of future care are a matter of prediction. And as in all cases, no one knows what the future holds for Mr. Trites. Since damages must be assessed once and for all at the time of trial (subject to modification on appeal) this requires the court to peer into the future and fix the damages for future care as best it can. [254] I accept the evidence and opinions of Ms. Fischer, Dr. Bull and Dr. O'Connor on the recommendations they make for Mr. Trites' future care as being both medically justified and in his best interests. Mr. Trites indicated a willingness and desire to explore all aspects of the recommended treatments. The difficulty in this case is

endeavouring to predict how long that care may actually be necessary. [255] I find that although Mr. Hildebrand's overall cost of future care calculations are helpful some of them are of limited assistance as they are calculated on some costs being incurred over the duration of Mr. Trites' estimated life expectancy, a calculation that appears to be overly generous in light of the fact that it is entirely likely that with concentrated effort Mr. Trites injuries and symptoms may eventually diminish. [256] I accept that the following future care items over the duration of Mr. Trites' life expectancy are reasonable costs that are medically justified and the evidence clearly establishes they are necessary to preserve Mr. Trites' health: · annual gym pass (present value of) $9,130 · physically based treatment (present value of) $53,450[2] [257] I find the following one time future care costs to be reasonable costs that are medically justified and the evidence clearly establishes are necessary to preserve Mr. Trites' health: · psychological counselling (8 to 12 sessions) $1,600 · vocational rehabilitation counselling $1,200 · kinesiologist (three sessions) $255 [258] Insofar as costs for medication and personal trainers are concerned, I accept that these two items are medically justified and necessary to assist in preserving Mr. Trites health. However, I am not satisfied that it is

reasonable to assume they are necessary over the duration of Mr. Trites' life expectancy. The evidence was not entirely satisfactory on the duration that these items might be required, particularly the issue of medication as Dr. O'Connor suggested that it would be appropriate to endeavour to have Mr. Trites reduce his reliance on pain medication. Nor does the evidence support the need for a personal trainer for the 45.3 years of remaining life expectancy. [259] Accordingly, predicting as best I can these two items I find that the following amounts are appropriate for future care costs for a personal trainer and medication: · personal trainer $680/yr for 10 years $6,800 · medications $750/yr for 5 years $3,750 [260] Accordingly, predicting as best I can what may happen in the future and adjusting for the many contingencies that may occur in the course of Mr. Trites working life, I find that an appropriate overall award for cost of future care to be $76,185. Cost of Retraining [261] It is clear from the evidence of Mr. Trites, Ms. Fischer and Dr. Quee Newell that it is more likely than not that Mr. Trites will have to re-train and that the most likely occupation that would suit his skills, abilities and aptitude is that of becoming a cabinetmaker. Dr. Quee Newell's evidence discloses that the cost of retraining would be $4,058 for the Joinery Foundation programme at BCIT. I find

that this is an appropriate additional amount that should be awarded to Mr. Trites so that he can enroll in the programme and start his re-training should he elect to do so. VII. Conclusion [262] In conclusion, and based on these reasons, I find the following awards of damages to be appropriate for the injuries sustained by Mr. Trites in the accident: Non-pecuniary Damages $75,000.00 Past Wage Loss $7,125.00 Loss of Future Earning Capacity $250,000.00 Cost of Future Care $76,185.00 Special Damages $14,581.24 Cost of Retraining $4,058.00 Less advances paid by ICBC -$15,600.48

TOTAL $411,348.76 [263] Mr. Trites is also entitled to pre-judgment interest at the prevailing rate and costs, unless the parties seek to make further submissions on the issue, in which case notice must be given to the court within 30 days of the filing of this judgment. "Ker J." [1] Counsel for the plaintiff argued the amount for cost of future care should be higher, up to $125,000, if the loss of future earning capacity is assessed at a lower amount. [2] Assuming Mr Trites may stay employed as a plumber for the short term but will likely have to transition into in a less physically demanding occupation than that of a plumber this figure represents an average of the high and low amounts provided by Mr. Hildebrand.