Ghani v. Umran,


2008 BCSC 585

Date: 20080509
Docket: M041948
Registry: Vancouver


Farzana Ghani and Iftikhar Ghani



Tamim Umran


- and -

Docket: M054125
Registry: Vancouver


Iftikhar Ghani



Marco A. Madonna


Before: The Honourable Mr. Justice N. Smith

Reasons for Judgment

Counsel for Plaintiffs

D. Hobbs, U. Ghani & M. Brotchie

Counsel for Defendants

S. Rowed & A. duPlessis

Dates and Place of Trial

March 10, 11, 12, 13, 14, 17, 18, 20, 25 & 26, 2008


Vancouver, B.C.

[1]                The plaintiff was in three motor vehicle accidents within a three-year period.  He seeks damages for injuries suffered in two of them.  Liability is admitted, subject to an issue of contributory negligence based on the fact the plaintiff was not wearing a seat belt at the time of the third accident.

[2]                The Plaintiff is 46 years old.  After completing high school, he worked for eight years for CN Rail as a track maintainer and machine operator.  In 1989, he took a buy-out from CN Rail and returned to his native Pakistan to become involved in a business venture.  The business was unsuccessful and he returned to Canada in 1991. 

[3]                In 1992, the plaintiff obtained a job with CP Rail as a machine operator on track-welding crews.  In 1996, he took a leave of absence in order to take training as an automobile mechanic.  After obtaining his trade qualification as an auto mechanic and working for a time in that field, the plaintiff returned to his old job at CP Rail in 2001.  He says his intention was to eventually become a heavy duty mechanic with the railway.  He considered that a better, higher paying job than his work as an equipment operator.

[4]                The first accident at issue occurred on May 18, 2002.  The car the plaintiff was driving was hit from the rear and pushed into the vehicle ahead of it.   His family physician, Dr. Lau, diagnosed a whiplash injury to the neck and upper back strain.  The plaintiff says his neck and back pain got worse as he tried to continue working at a job that involved heavy physical labor.  On May 31, Dr. Lau advised the plaintiff to rest from work and the plaintiff was off work for short periods totalling approximately five weeks over the next five months.

[5]                On July 22, 2002—approximately two months after the accident—the plaintiff reported to Dr. Lau that his neck was more than 50 per cent better but his back was still painful.  During that period, he had been receiving physiotherapy treatments and taking muscle relaxants.  The plaintiff continued to have back pain and occasional neck pain through the summer and fall of 2002.  He says that by November, 2002, he was able to work, but with pain.

[6]                 On November 18, 2002, the plaintiff was involved in a second rear-end collision, but that accident did not cause any significant injury or aggravation of existing injury.

[7]                The plaintiff says he continued to have pain, mostly in his back, through 2003 and his complaints are documented by Dr. Lau.  However, the plaintiff did not miss any time at work in 2003.   In fact, that was the plaintiff’s highest income year at CP Rail because of the overtime work that was available and he admits that he took all the overtime that he was offered.

[8]                The plaintiff’s job was subject to seasonal layoffs and one such layoff occurred in late 2003.  By that time the plaintiff had applied for a position as an apprentice heavy duty mechanic with CP Rail.  The apprenticeship is normally a four-year process, but the plaintiff was eligible to be credited for two years based on his training as an automotive mechanic.  He was interviewed for the mechanic’s position on January 15, 2004, and Mr. Bostan, who conducted the interview, decided that the plaintiff would start work as an apprentice mechanic after the seasonal layoff ended. 

[9]                However, the plaintiff never responded to the notice calling him back to work in March.  He testified that his back felt better during the time he was laid off and he decided he would not return and would instead seek a less physical job.  He obtained work as an automobile mechanic in a small repair shop and never made inquiries to determine if he would be offered the mechanic’s position at CP Rail.

[10]            Dr. Yorke, a rheumatologist, began treating the plaintiff in November, 2004.  His diagnosis at that time was that the plaintiff had developed chronic low back pain as a result of the accident, with the nature of his work contributing to the persistence of symptoms.

[11]            While working in the automobile repair shop, the plaintiff found his back complaints to be manageable and improving.  After about a year in that job, he decided to seek another, better-paying mechanic’s job.

[12]            On May 5, 2005 the plaintiff was returning home from a job interview when he was involved in a third accident.  His car was stopped in rush hour traffic on Highway One when he saw the defendant Madonna’s vehicle in his rear view mirror.  The plaintiff says he saw that vehicle change lanes and approach at a speed that made it obvious it was not going to stop.  The plaintiff said he considered getting out of his vehicle and believes he had taken off his seat belt for that purpose, but he decided he could not safely leave the vehicle because traffic was moving in the high occupancy vehicle lane next to him.  The plaintiff’s vehicle was struck from behind with enough force to break the back of the driver’s seat and to push the vehicle into the vehicle ahead. The plaintiff hit his head on the windshield.

[13]            Dr. Lau examined the plaintiff on May 7, 2005 and diagnosed a whiplash injury to the neck and back strain.  In August 2005, the plaintiff had a CT scan of the lumbar spine, which showed mild disc bulging, and an MRI of his cervical spine that revealed significant spondylosis, or degenerative arthritis.

[14]            Following the third accident, the plaintiff did not work for six months.  In December, 2005, he started a new job at an automotive shop, but left in March 2006.  He said he found the work difficult physically and he was having back and neck pain, as well as headaches.

[15]            He bought his own small auto repair shop in the belief that would be easier physically because he would have more control over the pace of his work and the ability to rest during the work day if necessary.  However, he sold the business after about a year.  He says he found that his neck and back pain were not getting better, he was still having headaches, and he did not think he could continue on a long-term basis.  During the time the plaintiff operated that business there was no significant operating profit, but he was able to sell the business for more than he had paid for it.

[16]            After selling his business, the plaintiff got a job as an automotive instructor at a high school, but he had no teaching qualifications or experience and found the job so stressful that he quit after only one term.  Since then, the plaintiff has been unemployed.  He has applied for some jobs but has found that jobs he thinks he can do generally require some computer skills.  At the time of trial, he was planning to take a short community college computer course.

Medical Evidence

[17]            Dr. Yorke, says the plaintiff’s major current symptoms are in the neck and some pain and restricted movement will likely continue “given the established nature of the osteoarthritis.”  He also attributes the plaintiff’s headaches to his neck condition.

[18]             Dr. Yorke points out that there was no history of neck pain before these accidents and the ongoing neck pain “may be arising in part because of activation of the arthritis.” He says asymptomatic arthritis often becomes symptomatic following a motor vehicle accident or other trauma and although the relationship is poorly understood and controversial, “it’s something I often see in practice.”  He says the worsening of the arthritis is more likely in this case because, in the third accident, the plaintiff hit the windshield of the car, which could cause compression of the cervical spine.

[19]            Dr. Jaworski, a specialist in physical medicine and rehabilitation saw the plaintiff on January 4, 2008 at the request of the family physician.  The plaintiff told Dr. Jaworski that his pain had not improved, but the only abnormal finding on Dr. Jaworski’s physical examination was restricted mobility in the neck.  Dr. Jaworski says the plaintiff’s complaints could not be fully explained based upon the physical findings and he diagnosed a pain disorder.

[20]            The diagnosis of a chronic pain disorder was also made by Dr. Thillai, a psychiatrist who began treating the plaintiff in February 2007.   Dr. Thillai says the plaintiff also has an “agitated depressive disorder” although he agreed on cross-examination that exact term is not a recognized psychiatric diagnosis.

[21]            Dr. Jaworski says the radiological findings indicating spondylosis are extremely common in persons of the plaintiff’s age and that there is a poor correlation between the radiological findings and the presence or absence of symptoms.  However, spondylosis is more likely to cause symptoms in person doing heavy physical labour.  He cannot say if the degenerative process was the source of the plaintiff’s pain, nor was he prepared to say that the injury aggravated the degenerative changes.

[22]            Dr. Froh, an orthopedic surgeon, examined the plaintiff at the request of the defendants.  His opinion is that the plaintiff suffered two whiplash injuries, each of which would normally require six to twelve weeks off work, although that period might be lengthened by the presence of spondylosis.  Dr. Froh says the plaintiff’s neck injury in the third accident will not cause any long term problems and will not result in worsening of the degenerative condition.  Although the plaintiff may have intermittent neck symptoms that progress over time, Dr. Yorke believes these will be due to the underlying spondylosis and not to any injury in the accidents.

[23]            Dr. Froh also says the plaintiff has some chronic mechanical lower back pain, but this will not restrict him from any physical labour or other activities.  However, Dr. Froh agreed on cross-examination that although the plaintiff is capable of physical labour, he would not recommend that the plaintiff seek that kind of work.

[24]            The best evidence of the plaintiff’s current capacity is, in my view, the report and evidence of Theresa Wong, an occupational therapist who conducted a lengthy functional capacity evaluation.  She found that the plaintiff met most, but not all, of the accepted physical requirements for work either as a railway machine operator or an automotive mechanic.  The limitations were in his tolerance for frequent stooping and some of the strength measurements.  She recorded pain complaints by the plaintiff during the course of the testing, but this pain was not at a disabling level.

The First Accident—Non-pecuniary damages

[25]            Having considered the medical evidence and the plaintiff’s testimony, I find that the plaintiff suffered soft tissue injuries in the first accident, with the most severe symptoms being in his lower back.  Although there was substantial improvement within the first six to eight months, chronic but not disabling back pain continued for another two and a half years.  By the time of the third accident, I find the plaintiff had almost, but not completely, recovered and would likely have gone on to complete recovery if he had not been involved in the third accident.

[26]            I do not accept that this back pain was as severe or as frequent as the plaintiff now recalls it.  This is demonstrated by the fact that he was able to work substantial overtime and have his best income year in 2003.  In saying that, I do not suggest the plaintiff is being dishonest or attempting to mislead the Court.  However, he is recalling that period in the context of the continuing pain complaints that followed the much more severe impact in the third collision.

[27]            Plaintiff’s counsel submits that $50,000 would be an appropriate award of non-pecuniary damages for the first accident.  He relies upon Jackman v. All Season Labour Supplies Ltd., 2006 BCSC 2053, [2006] B.C.J. No. 3559 (QL) and Sudbury v. Kohlen, 2007 BCSC 1369, [2007] B.C.J. No. 2008 (QL).  I consider the injuries in those cases to be more serious than the plaintiff’s injuries in the first accident.  The ongoing nature of the plaintiff’s symptoms as they existed just prior to the third accident was similar to that of the plaintiff in Jackman, but that plaintiff had suffered a more severe period of initial disability.  In Sudbury, the Court found that, four years after the accident, there was a 50 per cent likelihood of ongoing pain for the indefinite future.  As I have said, this plaintiff was nearing complete recovery by the time of the third accident.

[28]            Defence counsel suggests non-pecuniary damages in the $7,500 to $20,000 range.  However, the two cases she has provided me that I have found to be most helpful awarded somewhat higher damages.  In Khangura v. Zhang, 2007 BCSC 1289, [2007] B.C.J. No. 1938 (QL), the plaintiff’s neck, shoulder and low back pain healed substantially within a year except for lingering low back pain which remained present at the time of trial.  The Court awarded $26,000 in non-pecuniary damages.  In White v. Stonestreet, 2006 BCSC 801, [2006] B.C.J. No. 1150 (QL), the plaintiff was found to have soft tissue injuries that significantly improved within six months and were largely resolved about a year and a half after the accident.  He was awarded non-pecuniary damages of $35,000.

[29]            No previous case is exactly comparable but I conclude that, if the Court had been awarding damages for the first accident on May 4, 2005—that is, the day before the third accident—an appropriate award would have been $30,000 and I award that amount as non-pecuniary damages for the first accident.

The first accident—income loss

[30]            Following the first accident, the plaintiff lost 26 days of work in 2002.  I accept the plaintiff’s calculation, based on his actual earnings that year and the daily rate derived from those earnings, that the plaintiff’s wage loss as a result of those 26 days totalled $5,939.18.

[31]            The plaintiff seeks additional past income loss for 2004 and thereafter based upon an assumption that, if he had not been injured, the plaintiff would have worked as a heavy duty mechanic at CP Rail.  I am not satisfied that the plaintiff’s choice to not pursue that opportunity can be blamed on the defendants.

[32]            The plaintiff, until at least January 2004, believed that he could do the work of a heavy duty mechanic and he provided no good explanation of why he did not make inquiries about that job when he received his notice to return to work.  The evidence indicates that, while the heavy duty mechanic job can sometimes be as physically demanding as the plaintiff’s former job as an equipment operator, it also includes periods when the mechanic is simply on standby because no equipment is in need of repair.  The plaintiff never attempted the heavy duty mechanic’s position and has not proved that his back pain would have been any more of a limitation or hindrance to him in that job than it turned out to be in the auto mechanic’s job that he worked at until the time of third accident.  The plaintiff has therefore failed to prove, on a balance of probabilities, that income reduction he experienced in 2004 and the first four months of 2005 was caused by the first accident. 

[33]            Damages for lost income arising from the first accident are therefore limited to the income lost in 2002, which I have found to be $5,939.18.  That is a gross figure subject to deduction for the effect of income tax and counsel may speak to that point if they are unable to agree on an appropriate deduction.

The Third Accident—non-pecuniary damages

[34]            Following the third accident, the plaintiff has had some increase in back pain, but the most significant pain was in the neck, where he has the more significant spondylosis.  This pain is likely to continue and worsen as he gets older.  Again, the pain is not disabling and the plaintiff could, if necessary, return to either of his former occupations but, given the pain and discomfort he experiences, he is well-advised to seek lighter work.  The ongoing pain has also caused to plaintiff to give up some recreational activities that he previously enjoyed.

[35]            The question is whether and to what extent these ongoing problems were caused or contributed to by the third accident.  The direct cause of any current neck pain or discomfort and any future deterioration is the underlying degenerative condition that may have become symptomatic at some point in any event.

[36]            In Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, the Supreme Court of Canada made clear that the burden is usually on the plaintiff to show that the injury would not have occurred “but for” the defendant’s negligence.  Only in special circumstances can a plaintiff rely on the less-stringent test of whether the defendant’s negligence materially contributed to the injury:

First, it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the ‘but for’ test.  The impossibility must be due to factors that are outside of the plaintiff’s control; for example, current limits of scientific knowledge.  Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered  that form of injury.  In other words, the plaintiff’s injury must fall within the ambit of the risk created by the defendant’s breach.  In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the ‘but for’ test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a ‘but for’ approach. [para.25]

[37]            The plaintiff in this case had a degenerative condition that was not symptomatic.  He had no prior history of neck or back pain prior to these accidents.  Temporal connection between an accident and the onset of symptoms does not, in and of itself, prove causation.  As this Court said in White, supra, at para. 75:

In searching for causes, a temporal connection is sometimes the only thing to go on.  But if a mere temporal connection is going to form the basis for a conclusion about the cause of an event, then it is important to examine that temporal connection carefully.  Just how close are the events in time?  Were there other events happening around the same time, or even closer in time, that would provide an alternate, and more accurate, explanation of the true cause?

[38]            However, I note that in White, the plaintiff was doing well a year after the accident and only experienced a worsening of his pain some months later.  In this case, there was no such period of complete or near complete recovery following the third accident.  At some point that is not possible to identify with any certainty, the symptoms of soft tissue injuries gradually resolved, while symptoms of arthritis continued.  From the plaintiff’s perspective, that change in the underlying medical cause made little if any difference to his day-to-day condition. 

[39]            There are no other events that would explain the onset of arthritis symptoms other than the fact the plaintiff continued to do physical labour.  But the plaintiff had done physical labour all his life without any onset of symptoms and, if anything, the mechanic’s job that he did when he returned to work after the third accident was lighter than the work he had done for many years on the railways.

[40]            Dr. Yorke and Dr. Froh disagree on the role soft-tissue trauma plays in triggering symptoms of latent arthritis or spondylosis.  If either position is supported by reliable studies in the medical literature, neither doctor referred to them in his evidence.  Clearly, there is no certain scientific answer, but the law does not require such certainty. (Athey v. Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235; Snell v. Farrell, [1990] 2 S.C.R. 311, 72 D.L.R. (4th) 289)

[41]            Dr. Yorke says that although the relationship is controversial and poorly understood, he  frequently sees evidence of such a connection in his practice and believes it to be present in this case.  On this point, I prefer the evidence of Dr. Yorke to that of Dr. Froh because the issue is more directly within Dr. Yorke’s expertise as a rheumatologist.

[42]            In terms of the “but for” test of causation, it is not necessary for the plaintiff to prove that he would never have developed symptoms from his degenerative condition “but for” the third accident.  He must only prove that, “but for” the accident, he would not have developed those symptoms when he did.  Based on the temporal connection and the opinion of Dr. Yorke, I find that the plaintiff has proved, on a balance of probabilities, that his spondylosis would not have become symptomatic when it did but for the third accident.

[43]            However, the fact that the plaintiff has met the burden of proving a causative link does not necessarily mean the defendant is responsible for the full amount of his damages.  In Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R. 3, the Supreme Court of Canada said at para. 78:

It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort.  The rules of causation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities.  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 …

[44]            In Athey, supra, the Court said at para 35 that “if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award”.

[45]            An example of how that principle is applied in cases such as this can be found in the decision of this Court in Zaruk v. Simpson et al., 2003 BCSC 1748, 22 B.C.L.R. (4th) 43.  The Court found that the plaintiff had suffered soft tissue injuries, but that some of her symptoms by the time of trial were consistent with degenerative changes.  The Court was not satisfied that the degenerative condition would have become symptomatic between the date of the accident and the date of trial, but concluded at para. 40 that there was a measurable risk that it would have become symptomatic in the future:

However, application of the crumbling skull doctrine may not result in the same reduction for past losses as future losses.  Past losses must be assessed on the basis of a balance of probabilities.  “Once the burden of proof is met, causation must be accepted as a certainty,” Athey [paragraph] 30).  But for the assessment of future losses, “[a] future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation,” (Athey [paragraph] 27).

The Court recognized the risk of future problems in any event by reducing non-pecuniary damages by 15 per cent and future care damages by 20 per cent.

[46]            I find that a somewhat larger deduction is appropriate in this case.  The medical evidence indicates that there is no reliable way to predict which people with degenerative changes will go on to develop symptoms, but those in physical occupations are at higher risk.  In fact, the medical evidence supports a conclusion that the plaintiff was more likely than not to develop symptoms before the end of his working life and defence counsel relies on that evidence to argue for a 51 per cent deduction if any causative link is found.  However, that submission ignores the fact that it is impossible to say when those symptoms would have developed, how serious they would have been or how rapidly they would have progressed.  In the circumstances, I find that it is appropriate to deduct 25 per cent from the award of non-pecuniary damages for the third accident.

[47]            The plaintiff suffers from ongoing neck pain that is likely to continue and worsen over the years.  However, the pain is manageable and causes only mild impairment in the plaintiff’s functional capacity.  Part of the plaintiff’s problem is the chronic pain disorder diagnosed by Dr. Jaworski and I agree with Ms. Wong that the plaintiff would probably benefit from participation in a pain program where he could learn ways to manage his pain.  The severity and worsening of the pain will also be mitigated by the plaintiff finding less physical employment.  Having said that, however, I am satisfied that the plaintiff will always experience bouts of pain and will always need to be cautious in his activities in order to avoid bringing on or worsening his pain.

[48]            The plaintiff has also been treated by Dr. Thillai for emotional and psychological problems.  These resulted primarily from the stress the plaintiff experienced first in operating a business that was not making very much money, then in attempting to take on the teaching job for which he was not qualified.  In my view, the question of what label is given to these difficulties for the purpose of a psychiatric diagnosis is of little importance.  They form part of the pain, suffering and loss of enjoyment of life the plaintiff has experienced as a result of his attempt to find work that is less physically demanding and that effort is, in turn, a result of the accident.

[49]            Plaintiff’s counsel suggests that damages for the third accident should be in the range of $100,000, relying on cases such as Caldwell v. Ignas, 2007 BCSC 1816, [2007] B.C.J. No. 2692 (QL) and Jackson v. Lai, 2007 BCSC 1023, [2007] B.C.J. No. 1535 (QL).  I do not find the plaintiff’s injuries to be as serious as the injuries in those cases.

[50]            This case is more comparable to Zaruk v. Simpson, referred to above, and Niitamo v. ICBC, 2003 BCSC 608, 16 B.C.L.R. (4th) 276.  In both those cases, plaintiffs were found to be suffering ongoing pain and impairment, but there was a material risk that pre-existing conditions would have caused pain and impairment at some point in any event.   In Zaruk, the Court awarded $50,000, less 15 per cent to recognize the material risk presented by the ongoing condition.  In Niitamo, the Court awarded $60,000, less a similar 15 per cent deduction.

[51]            Taking into account all of the factors involved, I find an appropriate award of non-pecuniary damages for the third accident to be $70,000, less a 25 per cent deduction for the material risk represented by the pre-existing condition.  That results in a net award of $52,500.

[52]            The next question is whether there should be a further reduction because of the plaintiff’s failure to wear a seatbelt in the third collision.  Dr. Froh says the injuries would have been less serious if he had been wearing a seat belt, but agreed on cross-examination that he did not consider the fact that the plaintiff’s seat back broke in the collision.  Mr. Sdoutz, the engineering expert called by the plaintiff, said the broken seat back could reduce the effectiveness of the seat belt, particularly when the driver was thrown forward.

[53]            In any event, I accept the plaintiff’s evidence that he removed the seat belt while he was considering getting out of the car to avoid the impact.  That exit proved to be impossible and may not have been the most prudent course even if it had been possible, but, given that the plaintiff was acting in the heat of the moment and fearing an imminent collision, I cannot say that he was acting unreasonably or without proper regard to his own safety. There will therefore be no reduction of damages for the plaintiff’s failure to be wearing a seatbelt at the moment of impact.

The Third Accident--Past Income loss

[54]            The plaintiff was off work for six months following the third accident.  At the time of the third accident, he was earning $12 an hour as an auto mechanic, but had just been interviewed for another job that he says would have paid $19 an hour.  Contrary to the plaintiff’s understanding, he had not actually been offered that job.  However, when he was able to return to work in late 2005, he found a job as a mechanic that paid $16 an hour and I find that, if he had not been injured in the third accident, the plaintiff likely would have found a job paying at least that much in or around May 2005.  I therefore find that the plaintiff’s gross loss for that period should be based on 26 weeks at 40 hours per week at $16 per hour, for a total of $16,640.

[55]            I am also satisfied that, as a result of the third accident, the plaintiff was unable to meet the full physical demands of his work as an automobile mechanic and reasonably explored other options, including self-employment.  If he had not been injured in the third accident, he would most likely have continued to work full time as a mechanic earning $16 an hour as he gained experience in that field.  Contrary to the plaintiff’s submissions, he would not have been working as a heavy duty mechanic at CP Rail because, as I have found, he had abandoned that opportunity before the third accident and has not proved that decision was made necessary by his injuries in the first accident.

[56]            If the plaintiff had worked as an auto mechanic throughout the period from the beginning of 2005 to the date of trial—a period of three years and 10 weeks--his total income, at $33,394 a year, would have been $106,582.  According to income tax returns and T4 slips filed at trial, his actual income during that period, including employment income, business income and employment insurance, was $60,723.  I find that the difference between those two amounts—$45,859—represents further past income loss as a result of the third accident. 

[57]            Total income loss attributable to the third accident, on a gross basis, is therefore $62,499.  Again, I will leave it to counsel to make submissions on the appropriate net-of-tax award if they are unable to agree.

The Third Accident—loss of earning capacity

[58]            The plaintiff also says he has suffered a reduction in his capacity to earn income in the future.  The factors the Court must consider in arriving at an appropriate award under that head of damages were discussed by the Court of Appeal in Parypa v. Wickware, 1999 BCCA 88, 169 D.L.R. (4th) 661 at para. 67:

These cases demonstrate that the trier of fact, in determining the extent of future loss of earning capacity, must take into account all substantial possibilities and give them weight according to how likely they are to occur, in light of all the evidence.  However, in calculating such likelihoods, the plaintiff is not entitled to compensation based solely on the type of work she was performing at the time of the accident.  There is a duty on the plaintiff to mitigate her damages by seeking, if at all possible, a line of work that can be pursued in spite of her injuries.  If the plaintiff is unqualified for such work, then she is required, within the limits of her abilities, to pursue education or training that would qualify her for such work. 

[59]            More recently, in Steward v. Berezan, 2007 BCCA 150, 64 B.C.L.R. (4th) 152, the Court of Appeal stressed that the analysis must be based on a “substantial possibility,” which the plaintiff has the burden of proving.

[60]            I accept that the plaintiff has been forced to seek work as something other than an automobile mechanic.  However, the evidence of the plaintiff’s own vocational consultant, Ms. Wilkinson, is that there are other, less physical, jobs in the automotive sector for which the plaintiff, with some training, would be suited.  These include jobs such as service advisor and collision estimator.  The average income levels for those jobs are roughly similar to that of a mechanic. I am satisfied that with some job-specific training, as well as some training in basic computer skills, the plaintiff will have access to those lighter jobs and that his ongoing pain, while it will be sometimes uncomfortable, will not limit his ability to work in those occupations.

[61]            The plaintiff will obviously need time for the necessary training and time to find a suitable job.  In that search, his age and medical history may put him at a competitive disadvantage, with the result that it may take him longer than others to find a job.  However, I am satisfied that, within two years, the plaintiff will be capable of earning as much as he would have been earning as an auto mechanic. Accordingly, I assess the plaintiff’s lost earning capacity at $65,000, the approximate equivalent of two years’ wages.

[62]             Because I have found there is a measurable risk that the plaintiff would at some point have had symptoms from his degenerative condition, there must be a deduction to reflect the risk the plaintiff would have experienced this loss in the future even if he had not been injured.  In assessing non-pecuniary damages, I set that deduction at 25 per cent.  However, non-pecuniary damages reflect both past and future loss.  Because the award for lost capacity is entirely based on future losses, a higher deduction is necessary (Zaruk, supra).  The award for lost capacity will therefore be discounted by 30 per cent, for a net award of $45,500.

[63]            Ms. Wilkinson says the cost of a training program in one of the alternate automotive jobs is approximately $3,900 and I award the plaintiff that amount, less the same 30 per cent reduction.

The Third Accident—Cost of Future Care

[64]            The plaintiff also seeks an award for cost of future care based on the recommendations of Ms. Wong.  These include participation in a pain program to learn ways of managing his pain, vocational counselling to assist in pursing alternate employment and kinesiology assistance to develop an appropriate fitness program.  I find all of these to be appropriate and within Ms. Wong’s expertise as an occupational therapist.

[65]            However, I do not accept that Ms. Wong is qualified to recommend psychological counselling.  I have found that the plaintiff has experienced a great deal of stress as a result of his reduced income and attempting to do alternate jobs that he was not qualified for, but he is already under the care of a psychiatrist for those matters.

[66]            Ms. Wong also recommends some relatively minor expenditures for pain management and fitness, which I find to be reasonable.  However, her inclusion of medication in future care recommendations is based on the medication the plaintiff is now taking and there is no medical evidence of the future need for those medications.

[67]            Using the present values set out in the report of Mr. Carson and making the above deductions, I find that the present value of the cost of future care is $21,842.  Because there is a measurable risk that these expenditures would have become necessary at some point in the future in any event, the award must be subject to the same 30 per cent discount that was applied to the future loss of earning capacity.  The net award for cost of future care is therefore $15,300.

[68]             The plaintiff seeks a further award for loss of housekeeping capacity.  The plaintiff has not proved that he is unable to perform basic household tasks, such as yard work.  To the extent that such work may sometimes be uncomfortable or take longer to do, I consider that to be a matter included in non-pecuniary damages. (Chumber v. Ford Credit Canada et al., 2006 BCSC 1935, [2006] B.C.J. No. 3310 (QL).

[69]            I accept the plaintiff has incurred special damages in the amount $1,926.39.  I will leave it to counsel to apportion them between the two accidents if necessary.


[70]            In summary, I award the plaintiff the following damages:

For the Accident of May 18, 2002:

Non-pecuniary damages


Past income loss
(subject to deduction for Income tax)


For the Accident of May 5, 2005

Non-pecuniary damages


Past income loss
(subject to deduction for Income tax)


Loss of Future Earning Capacity


Cost of Retraining


Cost of Future Care


Special Damages
(Not apportioned)


[71]            Costs will follow the event, unless counsel have reason to make contrary submissions.

”N. Smith J.”