Zwinge v. Neylan

2017 BCSC 1861 Zwinge v. Neylan

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Zwinge v. Neylan 2017 BCSC 1861 Date: 20171018 Docket: M148312 Registry: Vancouver Between: Jeffrey Paul Zwinge Plaintiff And Michael Jeremy Neylan and R.F. Binnie & Associates Ltd. Defendants Before: The Honourable Mr. Justice Branch Reasons for Judgment Counsel for the Plaintiff: K. Gourlay P. Bosco Counsel for the Defendants: T. Tsang Place and Date of Trial: Vancouver, B.C. September 18-22, 2017 September 25-28, 2017 Place and Date of Judgment: Vancouver, B.C. October 18, 2017 I. INTRODUCTION [1] This action arises out of a motor vehicle accident that occurred on or about April 3, 2014 in Vancouver. Liability has been admitted. The 49-year-old plaintiff claims for injuries to his neck, shoulders, and back. He also claims for psychological injuries, including post-traumatic stress disorder, anxiety, and depression. II. ISSUES [2] Although all elements of quantum are in dispute, the most challenging issue is the proper consideration of the plaintiff's pre-existing Substance Use Disorder. III. BACKGROUND A. Prior to the Accident [3] The plaintiff had a troubled upbringing, but was able to carve out a life for himself as a drywaller prior to the accident. [4] He was adopted at birth, but his adoptive parents separated when he was very young. His mother moved his brother and himself from Ontario to a so-called "hippie colony" in

B.C. She then moved the boys to Vancouver, and finally to Langley. His mother, who was quite troubled and eventually diagnosed with bi-polar disorder, abandoned the two boys and left for Sri Lanka when the plaintiff was 13. The boys then lived on their own, with some economic support and periodic visits from their father. [5] The plaintiff withdrew from school in about grade 10 and had no further education. He started working as a drywaller, and continued to work in that role up until the accident. [6] He began dating his first common law spouse when he was 15. They had three children before she left him for another man in 2003. These children are now adults. He did not keep up the child support payments owing for these children. As a result, the Family Maintenance Enforcement Program ("FMEP") garnished his wages. He still owes approximately $37,000. [7] The plaintiff has only ever worked as a drywaller. The work is very demanding, requiring the ability to lift between 40-100 pounds, and to work overhead on ceilings. He was also able to do more sophisticated T-bar ceiling work, and to read blueprints. He worked both as an employee and as an independent contractor. He had left his regular employment with Tri T Wall and Ceiling in about 2009. This change was made primarily because he was not happy that FMEP was garnishing his employment wages for his first family. By being an

independent contractor, there would no longer be any wages to garnish. [8] At the time of the accident he was still working as an independent contractor, but generally for one company called Marpole Drywall. He was recognized as a good worker by the principal of Marpole Drywall, Falco Rehm, and by his co-worker Dennis Lee. He did have occasional missed or unavailable days due to issues with his family, but neither of these witnesses was aware of any alcohol-related problems ever affecting his work. He was described as a cheerful employee. The plaintiff testified that he had no plans to retire, particularly given that he had no savings, with all his earnings going to family expenses. [9] His earnings in the years before the accident were as follows: Year Earnings Earnings in 2017 Dollars 2004 $38,730 $48,227 2005 $40,484 $49,146 2006 $42,100 $50,036 2007 $43,700 (A family law court order shows $31,954) $51,055 2008 $13,688 $15,452 2009 $29,736 $33,832 2010 $26,550 $29,690 2011 $34,226 $37,128 2012 $32,317 $34,625 2013 $25,114 $26,623 2014 (3 mos) $7,132 (or $28,528 annualized) [10] Hence, in the five full years prior to the accident, the plaintiff was earning an average of about $32,000 per year in today's dollars. In the period leading up to the accident he was working in the range of 25 hours per week. [11] The plaintiff married in June 2005 and had three more children. The

marriage started as a reasonably happy one, but was later strained by his drinking, his wife distancing herself from him, and financial pressures, which the plaintiff generally sought to lay at the feet of his child support obligations from his first family. The FMEP started pursuing the plaintiff shortly before his marriage began. A court order was entered in November 2006. His common law spouse called him at all hours during the early days of his marriage. His ex-wife described the FMEP proceeding as "disruptive", and said that the plaintiff was frustrated and depressed about the process. This led to tensions in the marriage. The marriage effectively ended in October 2012, after the plaintiff assaulted his wife for two hours, and threatened her life. His job had been cancelled that day, which he said was "the straw that broke the camel's back" in terms of all the stresses he was facing. He plead guilty to assault, and was placed on probation. His probation terms required him to attend anger management and relationship classes. His ex-wife did support the efforts to avoid jail time, and did testify in his favour at this trial. [12] The plaintiff did maintain contact with this second family after the separation. He was making certain informal child support payments at the time of the accident. By that time, he had moved back in with his mother and father in Langley, as his

parents had reconciled. He suggested he had plans to move out to his own apartment, but had not done so. [13] The plaintiff had an alcohol abuse problem prior to the accident. He started drinking heavily after the break-up of his first common law relationship. He began drinking more heavily again as his marriage started to disintegrate. He suffered from gout, which he attributes to binge drinking. He had suffered a flare-up of the gout as recently as May 2013. The plaintiff suggests there were times when he was able to reduce his drinking, but he was never abstinent for more than three months. His ex-wife put this at six weeks. He would regularly drink up to a 26 oz. bottle of vodka over two evenings. The evidence was that these alcohol problems did not have any particularly negative effect on his quality of work up to the time of the accident. However, he did miss days of work on occasion. He did seek and receive 16 hours of counselling for his drinking problem in 2013, after the dissolution of his marriage. But his drinking continued. B. The Accident [14] The accident on April 4, 2014 was substantial, a head-on collision on 4th Avenue in Vancouver as the plaintiff was driving home from work. The plaintiff was driving his mother's van. He was travelling at about 50-55 kph when the accident occurred. After initial contact with the right front corner of the plaintiff's vehicle,

the oncoming vehicle swung around and hit the plaintiff's van again in parallel, damaging the driver's side paneling. [15] The plaintiff was taken to the hospital by ambulance but was released the same day. He suffered substantial bruising along the seat belt areas. [16] His license was suspended at the time of the accident, which he says was an oversight on his part. C. After the Accident [17] The plaintiff has not worked since the accident. He claims his inability to work is due to ongoing neck and back pain, as well as PTSD, anxiety, headaches and depression. [18] He received about 20 sessions of physiotherapy and other treatments from April to September 2014. However, following a dispute about whether his injuries were work-related, his support from ICBC for these treatments were ended. (I note that the Workers' Compensation Appeal Tribunal has recently resolved this issue, finding that the accident was not in fact covered by the Workers Compensation Act, R.S.B.C. 1996, c. 492.) The plaintiff says that he could not afford to continue treatments on his own. The treatments he received did not improve his condition, but only provided temporary pain relief. [19] In June 2014, he was jailed for 20 days for failing to pay the child support payments from his first relationship. [20] In October 2014, he had a severe bought of pneumonia which required hospitalization. [21] In

December 2014, he had a serious argument with his mother, and the police were called. He was taken to a temporary homeless shelter. While living there he was in a fight with another homeless person and went to the hospital. After deciding to press charges, he was involved in two more altercations over the next three months, apparently in revenge for his having laid the initial charges. The head injuries sustained in these fights have resolved. The hospital records show alcohol use over the course of these incidents. [22] In July 2015, his treating physiatrist Dr. Waspe recommended cognitive behavioural therapy. This recommendation was not pursued due to lack of resources. Her recommendation for a full review of his medications also does not seem to have been followed in full. [23] In June and August 2015, the plaintiff was admitted to hospital for acute and recurrent pancreatitis. During one of these visits, the hospital notes record a period of alcohol-related hallucinations. He has not required gout medication since August 2015. [24] In October 2016, the plaintiff was diagnosed with Type 2 diabetes. His mother passed away at about this time as well. [25] Beginning in 2016, he began a fresh set of treatments with the physiotherapy/massage therapy clinic he attended after the accident. These treatments continue to provide only temporary pain relief. [26] The plaintiff now lives

with his father, who is presently 84 years old and has begun to get forgetful. The plaintiff sleeps up to 20 hours a day. He will go on short walks, and watches TV for the balance of his waking hours of the day. He does light chores and meal preparation. He is able to do his personal care. On limited occasions, he sees his second set of children. His access to them is restricted because he is no longer able to drive, and his wife is busy with twins from her new family. He has no personal life to speak of. His libido is gone, and he has had no relationships since the MVA. His ex-wife describes him as shrunken and diminished since the accident. [27] He can now take public transit, but it is difficult for him given his anxiety. He has been prescribed a variety of pain and mood medications. He has substantial social anxiety, in that he is not comfortable in lines or crowds. Loud noises bother him. He uses a cane when walking. He is presently receiving CPP Disability and Persons With Disabilities supplements from the federal and provincial governments respectively, but these total less than $1,000 per month. [28] The plaintiff does tend to minimize the extent of his alcohol use, both in his testimony at trial and as reflected in the medical records. He will often hold out that he has finally realized the error of his ways, and has at least reduced his drinking. But then the record

and evidence of drinking continues. He has declined to attend regular Alcoholics Anonymous meetings, and has not sought active treatment for his condition since 2013. That said, there have been no major medical issues or incidents arising from his drinking since August 2015. His evidence was that he has been drinking less. [29] Several experts and treating physicians offered evidence to assist the court in assessing the plaintiff's post-accident condition. [30] The physiatrist Dr. Anton found that the plaintiff had sustained injuries to soft tissue structures in the low back, mid back, neck and shoulder girdle, as well as bruising. He said that he "probably met diagnostic criteria for a major depressive disorder" and he "probably has an anxiety disorder". He notes that the plaintiff's situation "has been complicated by the development of deconditioning. That term describes loss of strength, endurance and flexibility as a result of reduced participation in exercise and activity". He concluded that the prognosis for his return to work "will depend on his response to further treatment". At trial, he testified that the longer pain is present, the longer it is likely to persist. He recommended psychological treatment, an exercise-based active rehabilitation program, participation in an interdisciplinary chronic pain management program, a vocational assessment, and treatment from an

occupational therapist. [31] The plaintiff's occupational therapist Rob Corcoran agreed that he had become deconditioned. After performing a hands-on test designed to simulate his prior work demands, he concluded that the plaintiff has "a Light to Medium strength capacity which is well short of the requisite Very Heavy strength capacity required to safely engage in his pre-disability occupation". He found that the plaintiff does possess the capacity to predominantly stand over the course of a full work shift. Mr. Corcoran recommended cognitive behavioural therapy and occupational therapy to address his pain catastrophizing, fear-avoidance and other maladaptive pain management approaches. He concluded that the plaintiff currently presents with the physical capacity to engage in labour or subtrades within light to medium strength ranges, but that he would not be durable with his current mental health presentation. In terms of future care, he recommended 24 sessions of counselling support, 24 hours of kinesiology sessions, 17 hours of vocational rehabilitation, 12 weeks of Occupational Therapy, 8 hours of case management, a 5-week Interdisciplinary Chronic Pain Management Program, physiotherapy over three phases on an ongoing basis, medications, and a gym membership. [32] Dr. Janke, a psychiatrist, found that the plaintiff had a pre-existing Substance Use Disorder. He concluded

that arising from the accident, the plaintiff did develop "symptoms of Post-Traumatic Stress Disorder with Driving Phobia, generalized anxiety with an element of social phobia, and moderate symptoms of Major Depression". He recommended further treatment by a psychiatrist, particularly to assess his medications, which to date had provided very limited relief of his symptoms. He also recommended treatment with a psychologist. He expected that this treatment would be of benefit in managing the long-term pain and his Substance Use Disorder. But he described his diagnosis as guarded - he could improve but he could get worse. He stated that it was important to get the alcohol use under control, as that condition will contribute to the generalized anxiety and depressive symptoms and interfere with other psychological treatments or use of psychotropic medications. [33] The plaintiff's vocational consultant John Lawless found that the plaintiff has sufficient academic skills that he could obtain his high school degree should he wish to pursue that enhancement. However, he concluded that the combination of multiple psychiatric issues, physical limitations, age, modest background and time out of the workforce since the accident suggest that he will probably remain unemployed. He is certainly not able to return to his previous heavy work as a drywaller. [34] The plaintiff's general

practitioner Dr. Khan, physiatrist Dr. Waspe, physiotherapist Matthew Wright-Smith, and massage therapist Lois Griffey did not provide expert testimony, but reported on the complaints received and treatment provided. [35] The defence called Dr. Rickards, an orthopaedic specialist, who concluded that the plaintiff suffered from diabetes and alcohol abuse, and had probably suffered from cervical and lumbar spine facet joint syndrome. He concluded that the facet joint syndrome was related to the accident. He noted that in the absence of bony or joint surface injury to the joints, the pain associated with this syndrome is due to an inflammatory reaction, much like a sprain of the ankle or knee. (Dr. Rickards also identified a possible T12 fracture issue, but noted the plaintiff was not presenting with any symptoms in this area. More information was obtained on this issue through a subsequent evaluation from the radiologist Dr. Connell, who concluded that there was in fact no fracture present. The plaintiff did not dispute this finding.) [36] Dr. Rickards acknowledged that the longer one has pain, the more likely they are to continue to have pain. Further, he accepted that depression and anxiety can make chronic pain worse, and that chronic pain can make depression and anxiety worse. [37] In terms of future treatment, Dr. Rickards recommended an exercise program, and

anti-inflammatory medication. He stated that in most cases symptoms do improve and often completely resolve within a 2-4 month period from the commencement of a well-structured exercise regime. He concluded that at the very most, 9-12 months away from work would have been reasonable. He noted however that as one ages, a manual labourer will often need to pursue work activity that is less physically demanding, even apart from any accident. He advised that if the symptoms were ongoing, spinal intervention treatments such as medial branch blocks or radiofrequency ablation will usually resolve symptoms. On cross-examination however, he admitted that there is substantial controversy about this proposed treatment approach, and that even the favourable studies show relief in a limited percentage of individuals, less than 60% of those who enter the studies. He also accepted that the procedure was difficult to perform correctly. Notably, he has undergone the procedure himself, and although his symptoms were lessened, he has not been able to return to conducting surgery. Finally, it is necessary to repeat such a procedure, as the nerves grow back. [38] Dr. Tom Elliott, an internal medicine specialist and endocrinologist, testified that the plaintiff's life expectancy could be projected to be reduced to 69.1 years given his alcoholism, diabetes, and chronic pain, with the alcoholism being

far and away the strongest factor in this analysis. The statistics for the general Canadian male would suggest a projection of about 80 years. However, in cross-examination, Dr. Elliott agreed that: (1) using non-smoker rather than general population statistics, (2) using BC rather than Canada-wide statistics, and (3) accommodating the potential for the plaintiff to decrease his drinking, would each increase the projected life expectancy. Indeed, accommodating all three factors in this case would result in an estimate close to the general Canada-wide statistic. [39] The defence's Occupational Therapist Claudia Walker did not assess the plaintiff herself, but provided a report responding to that of Mr. Corcoran. Her key critiques were that (1) the recommended ongoing physiotherapy is excessive; (2) case management is not required since the plaintiff is in a position to communicate effectively, (3) any gym membership should cease at age 75-80; and (4) the rate used for physiotherapy treatment is too high. [40] The defendants provided a vocational assessment report from Avita Sharma, a registered clinical counsellor and practicing vocational rehabilitation consultant. She did "not consider Mr. Zwinge to be competitively employable at this time. However, this does not mean that he is unemployable or that he cannot improve his level of employability." She stated that "[w]ith

appropriate vocational supports, accommodations, and planning, Mr. Zwinge could, more likely than not, be capable of experiencing success in eventually returning to work-related activities in some capacity." She concluded that the plaintiff would benefit from a structured employment reactivation plan and a volunteer placement lasting 3-9 months. If that program were successfully completed, he could consider positions such as customer service clerk, assembly work, inventory clerk, or others. She also found that based on his aptitude, he has the potential to complete training programs required for positions such as parts counter clerk or non-emergency dispatching. She recommended volunteer placement and vocational counselling services. In cross-examination, she agreed that the longer one is disabled, the more difficult it is to return to work. IV. CREDIBILITY [41] The factors to be considered when assessing credibility were summarized by Dillon J. in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff'd 2012 BCCA 296, as follows: Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various factors such as the ability

and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness' evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness' testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont. H.C.); Faryna v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.) [Faryna]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time (Faryna at para. 356). [42] If the plaintiff's account of his or her change in physical, mental, and or emotional state as a result of the accident is not convincing, then the hypothesis upon which any expert opinions rest will be undermined: Samuel v. Chrysler Credit Canada Ltd., 2007 BCCA 431 at paras. 15, 49-50. [43] In this case, despite his scrapes with the law, I found the plaintiff to be generally forthright. The one area in which he was overly defensive and inconsistent was with respect to his drinking, but this is not unexpected in someone whom the doctors agree

suffers from Substance Abuse Disorder. His reaction to the accident is in excess of what one would expect, but I conclude this is more the result of the "pain catastrophizing" and "fear avoidance" noted by the practitioners rather than any actively misleading behaviour. The defendants did not aggressively challenge the plaintiff's fundamental credibility. V. CAUSATION [44] The plaintiff must establish on a balance of probabilities that the defendants' negligence caused or materially contributed to an injury. The defendants' negligence need not be the sole cause of the injury so long as it is part of the cause beyond the range of de minimus. Causation need not be determined by scientific precision: Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17; Farrant v. Laktin, 2011 BCCA 336 at para. 9. [45] The primary test for causation asks: but-for the defendants' negligence, would the plaintiff have suffered the injury? The "but-for" test recognizes that compensation for negligent conduct should only be made where a substantial connection between the injury and the defendants' conduct is present: Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21-23. [46] In special circumstances, the "but-for" test proves unworkable, and the law has applied a "material contribution" test. As Chief Justice McLachlin wrote in Clements v. Clements, 2012 SCC 32 at para. 46: Exceptionally, a plaintiff

may succeed by showing that the defendant's conduct materially contributed to risk of the plaintiff's injury, where (a) the plaintiff has established that her loss would not have occurred "but for" the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or "but for" cause of her injury, because each can point to one another as the possible "but for" cause of the injury, defeating a finding of causation on a balance of probabilities against anyone. [47] Causation must be established on a balance of probabilities before damages are assessed. As McLachlin, C.J.C. stated in Blackwater v. Plint, 2005 SCC 58 at para. 78: Even though there may be several tortious and non-tortious causes of injury, so long as the defendant's act is a cause of the plaintiff's damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of the plaintiff would have been. The governing principle is that the defendant need not put the plaintiff in a better position than his original position and should not compensate the plaintiff for any damages he would have suffered anyway: Athey. [48] The most basic principle of tort law is that the plaintiff must be placed in the position he

would have been in if not for the defendants' negligence, no better or worse. Tortfeasors must take their victims as they find them, even if the plaintiff's injuries are more severe than they would be for a normal person (the thin skull rule). However, the defendants need not compensate the plaintiff for any debilitating effects of a pre-existing condition which the plaintiff would have experienced anyway (the crumbling skull rule): Athey at paras. 32-35. [49] In this case, the defendants accept that the plaintiff suffered from facet joint syndrome that was caused by the accident. Furthermore, I conclude that "but for" the accident he would not have suffered from the depression, PTSD symptoms, and anxiety. While the Substance Use Disorder also contributed to his psychiatric and psychological difficulties, it is only necessary for the accident to be a material contributor, not the sole contributor. I return to the role of the Substance Use Disorder in terms of establishing realistic baselines below, as it does remain the case that the defendants need only return the plaintiff to his pre-accident condition. VI. THE SUBSTANCE USE DISORDER'S RELEVANCE TO MITIGATION AND THE ASSESSMENT OF HIS ORIGINAL POSITION [50] A plaintiff has an obligation to take all reasonable measures to reduce his or her damages, including undergoing treatment to alleviate or cure injuries: Danicek v.

Alexander Holburn Beaudin & Lang, 2010 BCSC 1111 at para. 234. [51] Once the plaintiff has proved the defendant's liability for his or her injuries, the defendant must prove that the plaintiff acted unreasonably, and that reasonable conduct would have reduced or eliminated the loss. Whether the plaintiff acted reasonably is a factual question and it involves a consideration of all of the circumstances: Gilbert v. Bottle, 2011 BCSC 1389 at para. 202. [52] The case of Chiu v. Chiu, 2002 BCCA 618 at para. 57 sets out the test for failure to mitigate by not pursuing recommended treatment: In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff's damages would have been reduced had he acted reasonably. [53] In Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 56, the test was described as a "subjective/objective test." The first question is whether the reasonable patient, with all the information that the plaintiff possessed, ought reasonably to have undergone the recommended treatment. The second aspect is the extent to which the plaintiff's damages would have been reduced by that treatment. [54] The defence arguments

on mitigation were narrow and focused. They did not seek to attribute any responsibility to the plaintiff for failing to more actively pursue cognitive behavioural therapy or more active physiotherapy programs. They acknowledged that impecuniosity can be a sufficient reason for failing to pursue recommended treatment: Olynyk v. Turner, 2012 BCSC 1138 at para 57. Here the plaintiff sought funding from ICBC, but was then caught up in a battle between ICBC and WCB, a battle that cannot be laid at his feet. [55] The defence arguments on mitigation and the impact of the Substance Use Disorder generally were limited to the fact that the plaintiff suffered from a Substance Use Disorder, did not stop drinking after the accident, and did not take active steps to address his condition. The defendants argue that the continued alcohol abuse complicated the plaintiff's ability to recover, from a psychiatric and psychological perspective, and also from the point of view of properly managing the required medications. [56] Dr. Janke acknowledged that it "will be important for Mr. Zwinge to attain and maintain a sober state as ongoing use of alcohol will contribute to generalized anxiety and depressive symptoms and will interfere with any psychological treatments or use of psychotropic medications." The plaintiff has not yet reached that "sober state". [57] As the Court of Appeal stated in

T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA 670: [28] ... a pre-existing condition, whether it is quiescent or active, is part of the plaintiff's original position. [58] The Court of Appeal went on to say: [48] ... Whether manifest or not, a weakness inherent in a plaintiff that might realistically cause or contribute to the loss claimed regardless of the tort is relevant to the assessment of damages. It is a contingency that should be accounted for in the award. Moreover, such a contingency does not have to be proven to a certainty. Rather, it should be given weight according to its relative likelihood. [59] In Polovnikoff v. Banks, 2009 BCSC 750, the plaintiff's damages relating to his emotional condition were reduced because of pre-existing and post-accident alcohol abuse, which included binge drinking. Madam Justice Bruce characterized the plaintiff's alcohol use before and after the accident as similar to that of a "crumbling skull" situation: [365] The next issue of causation is to determine what role the plaintiff's alcohol consumption played as a pre-existing weakness inherent in his psyche and what role alcohol played in worsening his condition after the July 2001 accident. Based on the evidence before the court concerning the plaintiff's consumption of alcohol before the July 2001 accident, it was an inherent weakness that cannot be regarded as an

entirely dormant condition such that it falls within the "thin skull" rule. Instead, it is akin to a "crumbling skull" situation that at some point in the future could have had an adverse impact on the plaintiff's mental health regardless of the negligence of the defendants. Based upon Dr. Baker's evidence concerning the characteristics of alcohol addiction and the progression of this disease, it is more than just speculation that at some point in the future the plaintiff's mental health may have been adversely affected by his alcohol consumption. Moreover, the fact that the plaintiff increased his use of alcohol after sustaining a brain injury, contrary to the statistical trend for such injuries, increases the likelihood that alcoholism may have in the future led to the symptoms of mental illness exhibited by the plaintiff regardless of the 2001 accident. [366] What is more apparent, however, is that the plaintiff's alcohol consumption after the accident has substantially interfered with the diagnosis and treatment of his psychotic disorder. Since at least 2004 there is evidence of binge drinking and self-medicating with alcohol. There is no cogent evidence that a brain injury leads to alcoholism and Dr. Baker, who is the expert in addiction medicine, testified that the modern scientific view is that alcoholism and mental illness are two independent conditions despite the

presence of a large percentage of dual diagnosis patients. Thus while the plaintiff may have increased his alcohol consumption after the 2001 accident to the point where it is clearly causing an adverse effect on his ability to function normally, I am unable to conclude that the defendant's negligence is the cause of this behaviour. While not entirely an unrelated intervening event, it is not causally related to either the brain injury or the mental illness caused by the trauma of the accident. Accordingly, it must be taken into account to reduce the damage award in proportion to its impact on the plaintiff's loss. [367] The impact of the alcohol on the plaintiff's present mental health is not clear on the evidence. Dr. Baker, Dr. Smith, and to some extent Dr. Gopinath, opine that any conclusions in this regard must be based on a lengthy period of hospitalization, during which the plaintiff may be observed, treated and assessed without the influence of alcohol. Nevertheless, because all the experts agree that the symptoms of late stage alcoholism can mirror the symptoms of a psychotic disorder, the continuing alcohol consumption must be regarded as a substantial factor underlying the plaintiff's current mental health difficulties. [Emphasis added.] [60] Madam Justice Bruce reduced the plaintiff's non-pecuniary damages award for his psychological injury by a total of 47

percent: [379] This award must be reduced by 2% to reflect the small but measurable risk that the plaintiff's alcohol consumption may have led to the psychotic disorder regardless of the July 2001 accident. This award must be reduced a further 45% to reflect the adverse impact of alcohol consumption on the progression of his psychotic disorder and the involvement of alcohol addiction in the symptoms that are currently a part of the plaintiff's clinical presentation. [61] Madam Justice Bruce also noted that the plaintiff's loss of earning capacity, past and future, was calculated on the "relative likelihood of the loss occurring and considering positive and negative contingencies" (at para. 396). She recognized the "adverse impact of alcohol consumption on [the plaintiff's] ability to operate a business in the future" as a negative contingency in the assessment of that plaintiff's income loss (at paras. 408 and 409). [62] The defendants' concerns about the plaintiff's alcohol use here are legitimate. The plaintiff would likely have had materially better prospects for recovery absent the pre-existing Substance Use Disorder. Below, where appropriate, I have treated this issue either as a negative contingency, or as a relevant factor in assessing the baseline "original position" of the plaintiff. [63] However, in this case the extent of the concern is moderated by the fact that the

Substance Use Disorder was under some level of control before the accident, in that: (a) its effect on his quality of work was marginal, (b) he had obtained some treatment in 2013, and (c) his drinking appears to have been somewhat moderated in the months leading up to the accident. VII. NON-PECUNIARY DAMAGES [64] 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 to all parties, and 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: Trites v. Penner, 2010 BCSC 882 at paras. 188-189. [65] In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined the factors to be considered when assessing non-pecuniary damages at para. 46: The inexhaustive list of common factors cited in 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 plaintiff's stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, 2005 BCCA 54). [66] The assessment of non-pecuniary damages is necessarily influenced by the individual plaintiff's personal experiences in dealing with his or her injuries and their consequences, and the plaintiff's ability to articulate that experience: Dilello v. Montgomery, 2005 BCCA 56 at para. 25. [67] The correct approach to assessing injuries which depend on subjective reports of pain was discussed in Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.) at 399 by Chief Justice McEachern (quoted with approval in Edmondson v. Payer, 2012 BCCA 114 at para. 2). In referring to an earlier decision, he said: In Butler v. Blaylock, [[1981] B.C.J. No. 31], decided 7th October 1981, Vancouver No. B781505, I referred to counsel's argument that a defendant is often at the mercy of a plaintiff in actions for damages for personal injuries because complaints of pain cannot easily be disproved. I then said: I am not stating any new principle when I say that the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery. An injured person is entitled to be fully and properly compensated for any injury or disability caused by a

wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence - which could be just his own evidence if the surrounding circumstances are consistent - that his complaints of pain are true reflections of a continuing injury. [68] In this case, I would summarize the significant factors as follows: 1. The plaintiff was 49 years old at the time of the trial and 46 at the time of the accident.

2. The substantial head-on collision caused long-lasting soft tissue injuries and spine facet joint syndrome.

3. The plaintiff's pain has, to this point, disabled him from working in any capacity, and has significantly reduced the quality of his life.

4. The plaintiff suffers from depression as a result of the loss of his ability to work, and to play with his children.

5. The plaintiff's anxiety and physical condition have prevented him from driving, and have made routine chores out in public difficult.

6. While the plaintiff has some prospect for recovery, his prognosis is guarded. Specifically, I find that Dr. Rickard's confidence in the proposed radio frequency ablation treatment is overstated: see Gregory at paras. 56-58.

7. The plaintiff suffered from a pre-existing and active Substance Use Disorder, and he did not seek further counselling for this problem after the accident.

8. Since the accident, the plaintiff suffered from pneumonia, pancreatitis and diabetes, all of which would have occurred in any event.

9. The plaintiff's quality of life was already in a diminished state before the accident, in that he was living with his parents following a marriage breakdown that ended violently, resulting in criminal charges and a return to heavy drinking.

10. The plaintiff has been able to live independently and care for himself since the accident. [69] The parties presented the following cases to assist the court: Plaintiff's Authorities Sebaa v. Ricci, 2015 BCSC 1492: The plaintiff was involved in an accident at age 33 (38 at trial). She continued to suffer "a chronic pain disorder with both psychological and physical workings." The prognosis was guarded. There was a realistic possibility that the plaintiff would improve beyond her current state but it was unlikely she would return to her previous level of functioning, mental health, employment, and social engagement. There was no pre-existing Substance Use Disorder or diabetes however, nor had the plaintiff suffered the various legal challenges faced by the plaintiff here. She was awarded $180,000. Kallstrom v.Yip, 2016 BCSC 829: A 44-year-old plaintiff who suffered disabling neck and back pain, headaches, and depression as a result of the subject accident. Justice Kent emphasized at para. 352 that the precise label one places on the injuries is largely irrelevant. She was previously a "happy, successful, active young single mother with a wide circle of friends" although she "had some pre-existing issues with pain, depression and sleep, but not to the extent that her lifestyle was significantly impaired". The court awarded $180,000. Pololos v. Cinnamon-Lopez, 2016 BCSC 81:

The plaintiff was 41 years old at the time of the accident and 49 at the time of trial. He worked in the construction industry. In the years prior to the accident, he earned $23,000 and $19,400. His earnings for the year of the accident were $8,575 prior to the accident, annualized to approximately $14,000. The accident resulted in soft-tissue injuries to his neck, lower and mid back, bruising on his chest, left arm, pain in both shoulders, arms and elbows, and his tailbone and abdominal pain. He developed sleep disturbance and anxiety, eventually developing depression. Again, there were no substantial pre-existing difficulties that had to be considered. Furthermore, in Pololos, the plaintiff was not able to attend to his personal hygiene, which is not a concern here. The court awarded $180,000. Kim v. Lin, 2016 BCSC 2405: The 27-year-old plaintiff was injured in a motor vehicle accident. Her injuries included fibromyalgia, chronic pain disorder, somatic symptom disorder, and an adjustment disorder with mixed anxiety and depressed mood. Her injuries rendered her permanently unemployable in her chosen career as either a dietician or a sanitation technician. There were no material underlying pre-existing conditions. The court awarded $175,000. Defendants' Authorities Lu v. Huang, 2016 BCSC 1146: The plaintiff was in her 40s, married with one child and employed full time as a

senior accounting clerk. She suffered soft-tissue injuries to her neck and back, numbness in her left leg, and nausea. Over time, her nausea and chest pain abated somewhat, but her neck pain and headaches remained the same. She also experienced psychological symptoms, namely depression, which slightly abated by the time of trial. She had issues sleeping. Unlike the present case, the plaintiff was able to return to work part-time after two weeks, and full-time after one year. The court awarded $90,000. Mattice v. Kirby, 2014 BCSC 657: The 56-year-old male plaintiff was an automotive mechanic who was involved in a significant rear-end collision. As a result of the accident, the plaintiff suffered chronic soft tissue injuries to his neck and upper back, chronic right ulnar nerve pain, sleep disruption, and psychological symptoms. However, unlike this case, the court rejected the formal diagnosis of depression. The court awarded the plaintiff $90,000 in non-pecuniary damages. Dhillon v. Singer, 2017 BCSC 414: The 44-year-old female plaintiff was involved in three motor vehicle accidents. She suffered soft-tissue injuries to her neck, back, and shoulders, sleep disturbances, headaches, and psychological symptoms. As a result of the third MVA, her psychological symptoms were exacerbated to the point that she suffered depression, anxiety, low energy, and issues with intimacy in her

marriage. While some of her complaints had reduced by the time of trial, the court concluded that many of her issues were ongoing and likely chronic. However, she was only off work for "some months". The court awarded $85,000. Grise v. Jones, 2017 BCSC 1337: The plaintiff was involved in two motor vehicle accidents. There was evidence suggesting the plaintiff suffered soft tissue injury to his neck, upper back, left shoulder contusion with residual pain and weakness and mild mechanical low back pain. It was unlikely the plaintiff could return to his pre-accident occupation, but there was some indication he could work in a sedentary job. His temperament had changed and he lacked energy and drive. Unlike this case, there were no diagnosed psychiatric disorders. The court awarded $75,000. [70] I also had regard to the following authorities: Bellaisac v. Mara, 2015 BCSC 1247: The 29-year-old man suffered low back pain radiating down his legs, had difficulty sitting, walking, standing, and lifting, and suffered depression. However, he was able to work part-time after the accident. The court awarded $140,000. Carver v. Or, 2017 BCSC 1496: The 62-year-old mechanic suffered from chronic pain. He was found to have no residual earning capacity. The court awarded $115,000, reduced from $130,000 due to some limited pre-existing back problems, and a two-month bout of pneumonia that would

have occurred in any event. [71] Applying the factors above, and with the guidance from the noted case law, I find that the appropriate amount for non-pecuniary damages is $150,000. VIII. PAST LOSS OF EARNING CAPACITY [72] The assessment of past wage loss was recently canvassed by the B.C. Court of Appeal in Grewal v. Naumann, 2017 BCCA 158. Mr. Justice Goepel wrote the dissent but Madam Justice Smith and Chief Justice Bauman were in agreement on his analysis on this point. Mr. Justice Goepel set out the relevant law to apply when assessing loss of past and future earning capacity and considering hypothetical events: [48] In summary, an assessment of loss of both past and future earning capacity involves a consideration of hypothetical events. The plaintiff is not required to prove these hypothetical events on a balance of probabilities. A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation. If the plaintiff establishes a real and substantial possibility, the Court must then determine the measure of damages by assessing the likelihood of the event. Depending on the facts of the case, a loss may be quantified either on an earnings approach or on a capital asset approach: Perren v. Lalari, 2010 BCCA 140 at para. 32. [49] The assessment of past or future loss requires the court to estimate

a pecuniary loss by weighing possibilities and probabilities of hypothetical events. The use of economic and statistical evidence does not turn the assessment into a calculation but can be a helpful tool in determining what is fair and reasonable in the circumstances: Dunbar v. Mendez, 2016 BCCA 211 at para. 21. [73] Compensation for past loss of earning capacity is to be based on what the plaintiff would have, not could have, earned but for the injury that was sustained: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30; M.B. v. British Columbia, 2003 SCC 53 at para. 49. [74] The burden of proof for actual past events is a balance of probabilities. An assessment of loss of both past and future earning capacity involves consideration of hypothetical events. The plaintiff is not required to prove these hypothetical events on a balance of probabilities. The future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation: Athey at para. 27; Morlan v. Barrett, 2012 BCCA 66 at para. 38. [75] Mr. Zwinge's reported income is outlined above. As noted, the average for the last five full years was about $32,000. This figure is somewhat inflated in that the plaintiff did not claim his full business expenses for gas, use of his vehicle, or tool repair, either due to lack of knowledge or the loss of his

receipts: Grise at para. 25. [76] The plaintiff suggested that this amount should be increased as high as $48,000 because the plaintiff was working to get his drinking under control prior to the accident, and the five-year sample included the disintegration of his second relationship. But given that his earnings had actually been decreasing over the last three full years, and the plaintiff's alcohol intake had fallen and risen several times before, I see no basis for assuming that his income would have increased substantially from the five-year average for the years preceding the accident. Using the average already ignores the downward trend. As noted above, the question is what he would have achieved, not what he could have achieved under ideal conditions. [77] Taking all these factors into account, I find that using $32,000 is a reasonable baseline for the assessment of past income loss. Further, by not imposing an express deduction to reflect unclaimed business expenses, it reflects a modest positive contingency in favour of the plaintiff's potential capacity after the marriage breakup. The effect of the pre-existing alcohol abuse problems and other family issues, such as the troubles with FMEP, are already embedded in the actual pre-accident history, such that no further deduction is required on that basis. [78] This was a significant accident and injury, and one could

expect a meaningful period of recovery. The recovery has been longer and more difficult than expected primarily due in part to the overlay of both the psychiatric and psychological conditions, but I find that the accident did materially contribute to these conditions. [79] The plaintiff's economist Darren Benning illustrated a past wage loss claim of $88,560, using the $32,000 baseline for income. However, this calculation failed to account for $9,133 in retroactive CPP payments that should come back into the analysis. Hence, I would award $97,693 for past income loss, plus applicable interest. IX. LOSS OF FUTURE EARNING CAPACITY [80] The legal principles relevant to determining future loss of earning capacity were recently and neatly summarized by Mr. Justice Voith in Pololos v. Cinnamon-Lopez, 2016 BCSC 81 at para. 133: a) To the extent possible, a plaintiff should be put in the position he/she would have been in, but for the injuries caused by the defendant's negligence; Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at para. 185, leave to appeal ref'd [2009] S.C.C.A. No. 197; b) The central task of the Court is to compare the likely future of the plaintiff's working life if the Accident had not occurred with the plaintiff's likely future working life after the Accident; Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 32; c) The assessment of

loss must be based on the evidence, but requires an exercise of judgment and is not a mathematical calculation; Rosvold v. Dunlop, 2001 BCCA 1 at para. 18; d) The two possible approaches to assessment of loss of future earning capacity are the "earnings approach" and the "capital asset approach"; Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at para. 7 (S.C.); and Perren v. Lalari, 2010 BCCA 140 at paras. 11-12; e) Under either approach, the plaintiff must prove that there is a "real and substantial possibility" of various future events leading to an income loss; Perren at para. 33; f) The earnings approach will be more appropriate when the loss is more easily measurable; Westbroek v. Brizuela, 2014 BCCA 48 at para.

64. Furthermore, while assessing an award for future loss of income is not a purely mathematical exercise, the Court should endeavour to use factual mathematical anchors as a starting foundation to quantify such loss; Jurczak v. Mauro, 2013 BCCA 507 at paras. 36-37. g) When relying on an "earnings approach", the Court must nevertheless always consider the overall fairness and reasonableness of the award, taking into account all of the evidence; Rosvold at para. 11. [81] The relevant principles were also summarized by our Court of Appeal in Reilly v. Lynn, 2003 BCCA 49 at para. 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. [82] This is the first head of damage that requires consideration of the proper approach to life expectancy. I have used Mr. Benning's figures for a life expectancy to age 75 in light of the following: a) I find that on the basis of the

evidence presented, a combination of the plaintiff's Substance Use Disorder, diabetes, and chronic pain can reasonably be expected to cause a material impact on life expectancy. While I agree with the plaintiff that the court should not encourage the necessity of expert reports for marginally decreased life expectancy, the combination of all three factors here is sufficiently material to support a deduction. b) I do not conclude that the B.C. tables must be used in all cases in B.C. The question of life expectancy will always be a question of fact: Sangra (Guardian ad litem of) v. Lima, 2015 BCSC 2350 at para.

199. In this particular case, the plaintiff was born in Ontario. Dr. Elliott noted that one of the reasons to use national data within Canada is the ease of mobility across the country. Further, to the extent that heredity is a factor in life expectancy, the plaintiff presumably possesses certain Ontario-based characteristics. c) That said, I am prepared to increase the projected life expectancy beyond the defence's suggestion of 69-70 years, given that the plaintiff is a non-smoker, he did live most of his life in B.C., and there is a substantial possibility of the plaintiff being able to improve his life expectancy through a reduction in his drinking. [83] I conclude that the appropriate award under this head of damage is $400,000. This is based on the following analysis: a) I see no basis for concluding that the plaintiff was ever going to make a material jump upwards in his earnings from the approximately $32,000/year he was making in the years prior to the accident. This time period overlapped with a relatively good period in the industry since the run up to the 2010 Olympics. As Mr. Rehm advised, the construction business is cyclical. b) Again, by using the plaintiff's actual pre-accident performance as a base, that reasonably incorporates the plaintiff's material non-accident related issues, including the medical issues such as diabetes, alcohol abuse, pancreatitis, and

gout, as well as the social issues such as his criminal record and his job-shifting efforts to avoid the large outstanding support obligation. It also allows the court to use the actuarial multiplier rather than the economic multiplier, since the actual earnings incorporate the effect of general economic risks in a way that is more specific to the plaintiff's own history. c) I conclude that it would be difficult for a manual labourer such as the plaintiff to have worked in his position much beyond the age of 65. This conclusion was supported by the evidence of Mr. Rehm, who advised that the work is difficult to sustain after the "wear and tear" of many years. The plaintiff may have wanted to work after age 65. However, it is difficult to see how he would have been able to do so beyond that age, even with a lighter duty "T-Bar ceiling" focus. There are few if any full time management positions for persons of his educational level that would have avoided the need to do any demanding physical work. d) I find that the injuries incurred in the accident are such that it is unlikely that he will be able to return to the heavy work he was performing prior to the accident. e) However, now that the impecuniosity concerns will be removed through the fruits of this judgment, the plaintiff will be in a position to pursue the various treatments recommended by the experts. Once the

behavioural and occupational therapy proposed under the future cost of care award below is received, there is a substantial possibility that the plaintiff could find his way back into the work force, at least in a light to medium level minimum wage position on a part time basis, and with assistance from a vocational counsellor. The plaintiff has shown himself to be a good worker, an intelligent individual notwithstanding his limited education, and a motivated person when presented with achievable opportunities. If he can finally get the help he needs, I believe he has a reasonable prospect of pursuing the dignity that will be gained from performing even limited work. f) A part time minimum wage position commencing after September 2017 would yield about $12,000 per year on a 20 hours/week basis. I conclude that this is the most that can be reasonably projected given his age, education, and present condition. g) Securing any employment will be difficult, particularly at his age and with his constellation of challenges. I expect it will be some time before he is able to pursue any type of employment. There will likely be gaps in employment thereafter. As such, I apply a 50% contingency to the $12,000 per year, reducing it for assessment purposes to $6,000. I also expect that it will take the plaintiff about two years to put himself on sufficiently solid footing to pursue this

limited type of employment. h) Using a life expectancy to age 75, a loss of $32,000 for the next two years (during the most intense treatment efforts), and then a net loss of $26,000 per year through to retirement at age 65, yields $388,166, calculated using Table 4B of Mr. Benning's July 13, 2016 report using the following formula for the actuarial multiplier: (1965X32) + (14476-1965)X26). [84] Hence, applying all the relevant factors, I find that $400,000 is a reasonable assessment of loss of future earning capacity. X. COSTS OF FUTURE CARE [85] In Peters v. Ortner, 2013 BCSC 1861, Madam Justice Harris outlined the general principles to consider when assessing a plaintiff's cost of future care: [141] The plaintiff is entitled to compensation for the cost of future care based on what is reasonably necessary to restore him to his pre-accident condition in so far as that is possible. The award is to be based on what is reasonably necessary on the medical evidence to preserve and promote the plaintiff's mental and physical health: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.); Williams v. Low, 2000 BCSC 345; Spehar v. Beazley, 2002 BCSC 1104; Gignac v. Rozylo, 2012 BCCA 351. [142] The test for determining the appropriate award under the heading of cost of future care is an objective one based on the medical evidence. For an award of future care: there must be a medical

justification for claims for cost of future care and the claims must be reasonable: Milina; Tsalamandris v. McLeod, 2012 BCCA 239 at paras. 62-63 [143] Future care costs are "justified" if they are both medically necessary and likely to be incurred by the plaintiff. The award of damages is thus a matter of prediction as to what will happen in the future. If a plaintiff has not used a particular item or service in the past it may be inappropriate to include its cost in a future care award. However, if the evidence shows that previously rejected services will not be or be able to be, rejected in the future, the plaintiff can recover for such services: Izony v. Weidlich, 2006 BCSC 1315 at para. 74; O'Connell v. Yung, 2012 BCCA 57 at paras. 55, 60, 68-70. [144] The extent, if any, to which a future care costs award should be adjusted for contingencies depends on the specific care needs of the plaintiff. In some cases negative contingencies are offset by positive contingencies and, therefore, a contingency adjustment is not required. In other cases, however, the award is reduced based on the prospect of improvement in the plaintiff's condition or increased based on the prospect that additional care will be required. Each case falls to be determined on its particular facts: Gilbert v. Bottle, 2011 BCSC 1389 at para. 253. [86] An assessment of damages for cost of future care is not a

precise accounting exercise: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at para. 21. [87] Here, I conclude that the plaintiff does require the spectrum of non-medication supports proposed by Mr. Corcoran in order to be restored as close as possible to his pre-accident condition. These were valued at $48,107 at a normal life expectancy. The plaintiff noted Dr. Janke's comment that he "may well" require ongoing supportive treatment "if" he continues to experience significant physical symptoms. I do not find that this doubly qualified recommendation is sufficiently definitive to require an enhancement to the estimate. [88] The defence challenged the cost of medications on the basis that the medical practitioners seem to accept that these are going to need to be reviewed. The plaintiff proposed to reduce this claim from $56,703 to $30,000 in their final argument. [89] The defence challenged the need for physiotherapy on the basis that the pain relief provided to date was only temporary: Hollyer v. Gaston, 2016 BCSC 1401 at para.

129. However, the plaintiff noted that the nature of the proposed future treatment was more directed to achieving lasting results. Furthermore, in Rayner v. David, 2012 BCSC 2048 at para. 49, the court stated: Massage provides temporary relief from his symptoms. In Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), the Court said that an award for future care is based on what is reasonably necessary on the medical evidence to promote the physical and mental health of the plaintiff. Massage therapy is something that the plaintiff has engaged in and it does provide him temporary relief. [90] I accept that the physiotherapy proposed here is reasonably necessary. [91] I also note that the defendant did not take the position that any of the care amounts claimed were related solely to the treatment of the Substance Use Disorder. I agree. [92] Hence: a) using as a base the present value calculation proposed by the plaintiff's economist Mr. Benning; b) accepting the plaintiff's reduction to the proposed future medication costs; c) adjusting downwards for the life expectancy issue, and d) acknowledging the direction that this assessment is not a precise accounting exercise, I award $70,000 under this head of damage. XI. SPECIAL DAMAGES [93] It is well established that an injured person is entitled to recover the reasonable out-of-pocket expenses he or she incurred as a result of an

accident. This is grounded in the fundamental governing principle that an injured person is to be restored to the position he or she would have been in had the accident not occurred: X. v. Y., 2011 BCSC 944 at para. 281; Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 78. [94] Here, the parties were helpfully able to agree that the special damages should be set at $6,271.14.26. I agree that he is entitled to this amount, plus any applicable interest. XII. SUMMARY [95] In summary, damages are awarded as follows: General Damages $150,000.00 Past Loss of Income 97,693.00 Future Loss of Income 400,000.00 Future Cost of Care 70,000.00 Special Damages 6,271.14 TOTAL: $723,964.14 XIII. COSTS, TAXES AND INTEREST [96] I will leave it to the parties to address any tax and interest implications. If they cannot agree they are liberty to make submissions. Furthermore, unless the parties wish to make submissions concerning costs, the plaintiff will be entitled to his costs at Scale B, for matters of ordinary difficulty. "Branch J." ________ The Honourable Mr. Justice Branch