IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Pett v. Pett,
	2008 BCSC 602

Date: 20080514

Docket: S17561

Registry: Chilliwack

Between:

Jacob Pett

Plaintiff

And

David Pett

Defendant

Before: The Honourable Mr. Justice Williamson

Reasons for Judgment

Counsel for the Plaintiff	Shelley J. Henshaw
Counsel for the Defendant	Thomas E.G. Murphy
Date and Place of Trial:	April 21-25, 2008
	Chilliwack, B.C.

[1]           The plaintiff, Jacob Pett, seeks damages for injuries sustained as a result of a single vehicle accident on a backcountry logging road near the boundary country town of Rock Creek on November 15, 2003.  Liability has been admitted.

[2]           Eighteen years of age at the time, the plaintiff was in the centre seat of a pick-up truck wearing a fastened lap belt.  To his left was the driver of the vehicle, his father the defendant David Pett.  To his right was his uncle, Matthew Tekavec.  The plaintiff’s cousin Peter Tekavec, about 12 years of age at the time, was in the jump seat behind the front seat of the extended cab pick-up truck.

[3]           The four were on a hunting trip.  They had left a motel in Midway early in the morning.  The accident took place just after 6:00 a.m., and given the time of the year, it was still dark.  The evidence discloses that the truck crossed a cattle guard and then hit loose gravel.  Unexpectedly, the road took a sharp turn.  The driver lost control and the truck slid off an embankment.  It rolled a number of times and apparently flipped end over end once.  It ended up lying on its right side.

[4]           The plaintiff, once the vehicle came to a stop, was on top of his uncle.  The defendant testified that he smashed the window to his door and climbed out, and then asked how everyone else was in the truck.  Matthew Tekavec and his son, Peter, both answered.  The plaintiff did not.  The defendant pulled the plaintiff out through the driver’s door window space with some help from Matthew who pushed from below.  He lay the plaintiff down on the ground.  The plaintiff appeared unconscious.

[5]           The vehicle, a 1994 Ford Ranger pick-up, ended up in a farmer’s field.  The farmer, whose house was nearby, came to the aid of the four men.  They carried the plaintiff into the farmer’s vehicle and all of them went to the farmhouse where an ambulance and police were summoned.  All four were taken by ambulance to Kelowna General Hospital, about one and one-half hours from the accident scene.  All were released later that day and flew home to Langley.

[6]           For a time, the plaintiff lost consciousness.  As a result of a concussion, there was a time that he had symptoms of headache, light headedness, imbalance and ringing in the ears or tinnitus.  He continued to suffer some hearing loss.

[7]           Currently, his primary complaint is of significant chronic low back pain, which he testified is present 24 hours a day and is exacerbated by hard physical labour.  He still has some neck pain, but it is no longer a significant factor.  At the time, he sustained injury to his shoulder, but it has resolved.

The Plaintiff

[8]           Jacob Pett was born in 1986 in Langley.  He has one sister.  His mother, however, has 14 living siblings.  As most of these have families, the evidence is that the plaintiff has 40 to 50 cousins.  This is significant because this extended family is very close and most of the plaintiff’s working life has been with either his father or one of his uncles.  His workmates have tended to be his cousins.  It appears most of his recreational activities are also with members of the extended family.

[9]           The plaintiff left school in grade eight.  He testified that most of his male cousins of similar age also left school early.  He said that his parents did not object to his quitting as long as he worked full-time.

[10]      On leaving school, the plaintiff went to work for one of his uncles, Rick Vant Geloof, planning to learn construction framing.  Mr. Vant Geloof runs his own small company by the name of VG Construction.  It works in the area of home construction, providing framing and some foundation work.  Mr. Vant Geloof testified, and I will refer to his testimony below.

[11]      The plaintiff worked as a framer for his uncle for about two and one-half years.  He then had the opportunity to work with a company called Triac, manufacturing steel casings for swimming pools.  His father, the defendant, was the plant manager for Triac.  The plaintiff was employed there at the time of the accident.  He was off work from the November 15, 2003 accident until he returned to light duties just over three months later on February 24, 2004.  He remained with Triac until April of 2005 when Triac moved its operations to the United States.

[12]      The plaintiff then went to work with an uncle, Steven St. Denis.  Mr. St. Denis runs a company called Woodcraft Concrete Forming Ltd., which, as is evident from its name, builds forms for concrete and pours footings and foundations.  The plaintiff worked at this for about a year.  In May of 2006 he left because of the aggravation to his injuries caused by the heavy work involved in constructing footings and foundations.  After a brief job with a painting company, apparently also owned by an uncle, he worked for a few months doing some framing for his family.

[13]      From July 7 to August 3, 2006, he participated in a supervised extensive rehabilitation program at HealthX, an “active” rehabilitative therapy clinic based in Langley.  While he agreed that this program resulted in some improvement, he still was symptomatic when he returned to work as a construction labourer with a company named Vesta Properties Ltd.  He left that job in February 2007, again because of the impact of construction labour work on his injuries.  He testified that the principle remaining problem by that time was low back pain.  After some time off, and a brief period again with VG Construction, he went to Vernon to help his parents build a home.  Since November 2007, he has worked alongside his father as a framer for Lakehill Construction in Vernon.

[14]      The plaintiff testified that he now realizes that construction labour involves such repetitive heavy work that he cannot continue given his ongoing back problems.  As a result, he is considering options for some other type of employment, if possible in the construction industry, that would not involve heavy labour but would still permit him to be moving around.  This latter requirement is because he has trouble sitting long periods.  Given his level of education, he has had a cursory look at some ways in which he might upgrade his education.

[15]      I add that the plaintiff before the accident was very involved in sports, both league sports and games played with his father, his uncles and his cousins.  These included soccer, baseball, hockey and volleyball.

Lay Witnesses for the Plaintiff

[16]      The defendant testified.  He said that since the motor vehicle accident, his son, the plaintiff, has had significant physical limitations.  He notes that when they hunt, which they have done about once a year since the motor vehicle accident, if they succeed in killing a deer, he has to carry the deer out because carrying such weight is too hard on the plaintiff’s back.  He testified that while both of them now work for Lakehill Construction, the plaintiff’s hours depend not only upon the work available, but upon how he feels on a particular day.

[17]      The plaintiff’s uncle, Rick Vant Geloof, also testified.  His wife is the sister of the plaintiff’s mother.  Mr. Vant Geloof has a Bachelor of Science in computer science from Simon Fraser University, but testified that he does not use that degree, because he prefers to work outside.  He has run VG Construction for about 13 years.

[18]      He testified that the plaintiff started to work with him in the year 2000, training as a framer.  He described him as having “a great attitude”.  He said that he was a hard worker, eager, energetic and willing to learn.  He testified that when the plaintiff left, after over two years, it was a problem for his company because having learned a great deal about framing and having reached the point where he could be left on his own to do a number of tasks, the plaintiff had become a key employee.

[19]      After the motor vehicle accident, the plaintiff has twice briefly worked for Mr. Vant Geloof.  First, in the summer of 2006 he did some framing in Osoyoos.  Second he worked for VG Construction in April and May 2007.

[20]      Mr. Vant Geloof described the plaintiff as still “great to have around” in these latter periods.  He said that the plaintiff is happy and eager.  However, he testified that he is not the person he was before the motor vehicle accident.  He says that after the plaintiff has worked some time, he observes the plaintiff slowing down.  He said the plaintiff cannot “move his body as freely” as he did prior to the accident.

[21]      He also testified that there is a major change in the plaintiff’s personality in that he is now quiet whereas before the accident “he was a yacker”.  Mr. Vant Geloof testified that “you can see the pain he is going through”.  He notes, however, that the plaintiff never asks for help.  He said that when he was aware the plaintiff was in pain that he would “subtly slide in extra help so he would not suffer”.

[22]      Mr. Vant Geloof also testified as to the healthy future of the construction industry in the Fraser Valley.  He said that in terms of work available, the industry is getting better.  He also testified that if the plaintiff wanted a job, he would still give him one “absolutely”.

[23]      In cross-examination, he testified that the last time the plaintiff worked with him, he “picked up big time on his pain”.  He said when the plaintiff is working it does not take long for the pain to set in and that he, Mr. Vant Geloof, can sense it.  Nevertheless, he said that the plaintiff continues to work as hard as he can.

[24]      The next witnesses were Steven St. Denis and his son David St. Denis.  Steven St. Denis is another uncle of the plaintiff.  He is married to the plaintiff’s mother’s sister.  David St. Denis is his son, therefore, the plaintiff’s cousin.  Steven St. Denis owns and operates Woodcraft, the company which constructs forms for the footings and foundation walls of buildings.  It was this company that the plaintiff worked for from the 1st of May 2005 until the 15th of May the following year.

[25]      As was evident from the testimony of other witnesses, the St. Denis are part of a large, close extended family of which the Petts are members.  David St. Denis is the same age, approximately, as the plaintiff.  They have been close friends as long as they can remember.

[26]      The evidence of Steven St. Denis and his son David is similar.  Both testified that they knew about the motor vehicle accident.  Both testified that when the plaintiff came to work for them for the year from May 2005 until May 2006, he was enthusiastic, happy to be working with his extended family and wanted to do the same heavy work as everyone.  They both testified to the effect that he was always cheerful, in good spirits, and excited to start the day.

[27]      The senior St. Denis testified that the plaintiff was enthusiastic about the work, respected him, listened to him and worked “totally hard”.  He noted that the plaintiff was in good spirits even when he was in pain.

[28]      He said that the pain was obvious when the plaintiff would strain.  He said that from time to time he would communicate with him about his back starting to get sore and he would arrange for his nephew to take on lighter chores when they existed.

[29]      Both St. Denis testified about the plaintiff’s participation in the sports of the extended family.  David St. Denis testified that as younger men they had played a number of sports.  He testified that the plaintiff excelled at volleyball because he was “so good at jumping”, but that after the motor vehicle accident he could not jump as high as before.  He testified that in hockey the plaintiff usually played goal.  He said that he was an excellent hockey player before, but that after the accident his moves were slowed and he said that “we lost a few games because of him”.

Medical Evidence

Dr. Fagan

[30]      Four doctors who have treated the plaintiff, or who have assessed him, were called by the plaintiff.  Dr. Fagan was and is the plaintiff’s family physician.  He first saw him with respect to the accident two days after it occurred.  He testified that prior to the accident, he only saw the plaintiff for minor matters such as coughs, colds or minor sport injuries.

[31]      He went through his notes and clinical records reporting on the progress, or lack of it, the plaintiff made and also testified about the various referrals he made to specialists.

[32]      Dr. Fagan testified that he was the family physician for most of the extended family of the plaintiff.  He described them as a very close knit family, who “played, prayed and worked” together.  He said they were characterized by forthrightness, honesty and by their capacity for hard work.  He said they were “very good patients”.

[33]      With respect to the plaintiff individually, he said that the plaintiff pushed himself both to get back to work and to get back into the extended family’s sports.  He said that the plaintiff “tried very hard – he worked through his pain” as encouraged by him (Dr. Fagan), as well as by Dr. Dhawan and by the professionals at the HealthX rehabilitation program.

Dr. Pankaj Dhawan

[34]      Dr. Dhawan, a specialist in physical medicine and rehabilitation, assessed and treated the plaintiff from April 26, 2005 to December 7, 2007.  It is his opinion that in the accident the plaintiff sustained soft tissue injuries to the cervical and lumbar spine.  That the plaintiff was still symptomatic a year and a half after the accident, suggested to Dr. Dhawan at his first examination that the plaintiff was at risk for chronic pain.  He advised the plaintiff to continue to function despite pain, to continue to exercise, to do stretches in order to strengthen his core muscles and to both work and “reintegrate back into sporting activities”.

[35]      By May 2006, Dr. Dhawan found that the plaintiff was suffering increasing back pain and muscle spasm.  He said at that time that he thought the plaintiff might have “to change direction vocationally” to something that was not as physically demanding.  In August of the same year, Dr. Dhawan thought that the plaintiff would not be able to go back to doing heavy foundation type work.  In his final summary, after last seeing the plaintiff in December 2007, he said the following:

He can no longer do heavy construction and every time he has attempted to do that he gets significant back pain and spasm and his quality of life goes down.  He has had extensive rehabilitation and he has plateaued in his recovery and I think he has improved as much as he is going to improve.

[36]      Dr. Dhawan recommended that although the plaintiff should find work that is less labour intensive, he should continue to pursue recreational sports.

[37]      Dr. Dhawan is of the view that the plaintiff no longer requires prescription medications, but will require non-prescription analgesics on a long-term basis.  He also recommended the plaintiff continue a regular exercise program to strengthen core muscles.  He was adamant in his testimony that such a program would maintain the plaintiff’s present level of functioning, but would be unlikely to improve it.

Dr. Maziar Badii

[38]      Dr. Badii, a rheumatologist, prepared an independent report at the request of plaintiff’s counsel, and testified.  He said that the main portion of his practice involves the diagnosis and management of patients with spinal disorders, including neck or back pain.

[39]      He interviewed and examined the plaintiff on May 1, 2007.  He also reviewed a number of medical records, including those of other doctors who testified at trial.

[40]      Dr. Badii concluded that the plaintiff has ongoing neck and back pain resulting from the soft tissue injuries sustained in the accident.  He testified that the plaintiff is likely to continue to have chronic back pain.  He expressed the opinion that the plaintiff’s chronic back pain would have “a significant negative influence” upon his ability to compete in the workforce in the area of strenuous labouring jobs.

[41]      He said that the plaintiff would benefit from six to twelve sessions of physiotherapy or kinesiology every two years to work on core strengthening and stabilizing.  He did not detect any cognitive or behavioural barriers to recovery.

[42]      In cross-examination, Dr. Badii expressed the view that one should not rely entirely upon test results.  He suggested they were a brief glimpse of a patient’s condition and did not provide information about what occurs over an eight hour working shift.  He also noted that on several tests the plaintiff reported pain at the low end of a scale which, in Dr. Badii’s opinion, indicates the plaintiff is reliably reporting exactly what it is he feels.

Dr. Walter Hartzell

[43]      Dr. Hartzell specializes in occupational medicine.  He assessed the plaintiff at the request of plaintiff’s counsel.  He first assessed the plaintiff on December 14, 2005.  At that time, the plaintiff was reporting back pain on both sides of his spine from the low mid-thoracic area down to his belt line.  Like Dr. Badii, Dr. Hartzell concluded that the plaintiff does not have any significant psychological or cognitive complaints.  Dr. Hartzell found that as of that date the plaintiff had not recovered from the soft tissue injuries to his back nor to his shoulder.  He found that the plaintiff had recovered from the closed head injury.  He also found that the plaintiff’s “perception of his limitations” is consistent with the injuries sustained and with the plaintiff’s current condition as revealed by the occupational health assessment.

[44]      Dr. Hartzell relied in part upon extensive testing carried out by a kinesiologist.  He expressed the opinion that the plaintiff gave a consistent and reliable effort during this assessment.

[45]      Given the history of chronic back pain since the accident, Dr. Hartzell concluded that it is unlikely the plaintiff will have full resolution of his back injuries.  He found that the plaintiff had no mood disorders affecting his ability to work or his perception of pain.

[46]      Dr. Hartzell reassessed the plaintiff on February 7, 2007.  On this assessment, he ordered only limited testing by a kinesiologist.

[47]      Dr. Hartzell concluded that the plaintiff experiences “functionally limiting pain” while carrying out heavy physically demanding labour work, and that therefore, he is not competitively employable in labouring occupations.

Dr. K.J. Favero

[48]      The defendant called Dr. Favero, an orthopaedic surgeon.  Dr. Favero performed an independent orthopaedic medical examination.  He saw the plaintiff twice, first on September 28, 2005 and second on February 27, 2008.

[49]      When he saw the plaintiff in 2005 he found that the plaintiff appeared healthy, “albeit mildly depressed”.  He said that there was no overreaction, exaggerated pain behaviour or non-organic clinical signs present.  He concluded that as a result of the November 15, 2003 accident, the plaintiff sustained a moderate to severe soft tissue injury to the lower back, a moderate soft tissue injury to his neck and a strain/soft tissue injury to his right shoulder.

[50]      It was his opinion that the plaintiff’s ongoing neck and back pain complaints were due to three things:

1.   resolved moderate to severe soft tissue injuries,

2.   physical deconditioning, and

3.   residual intermittent spasms.

[51]      After the second assessment in February 2008, Dr. Favero concluded that the plaintiff’s complaints at that time were mid to lower back pain and neck pain.

[52]      He also again mentioned “deconditioning”, saying that the plaintiff had “relative deconditioning of the core musculature (trunk/abdominal) and legs”.  He reported that there was no clinical overreaction, exaggerated pain mannerisms or non-organic signs present.

[53]      In the second assessment he concluded that the plaintiff’s consistent chronic neck and back pain complaints are soft tissue in nature and due to multiple factors, including resolved soft tissue injuries, significant ongoing physical deconditioning and psychosocial factors.

[54]      With respect to the latter, he said that no one (meaning other medical personnel) entertained or explored the possibility of psychosocial factors.  He noted that it was his impression in 2005 that the plaintiff “may have been mildly depressed”.  He went on to say that he would “strongly recommend” that the plaintiff be assessed by a psychiatrist.

[55]      On the evidence before me, I find no evidence that the plaintiff is either depressed or that there are psychosocial factors that are contributing to his present chronic pain.  Dr. Favero said these might be to do with his personal life, his personal relationships or his family.  However, he offered no evidence to support his suggestion that problems in those areas existed.  It would appear he “strongly recommends” a psychiatric assessment simply to rule these things out.

[56]      The family physician, Dr. Fagan, who treated the patient before and after the accident, and who knows the plaintiff’s family circumstances, did not suggest depression or psychosocial factors.  As well as the other medical witnesses who never observed any suggestion of depression or psychosocial factors involved, a plethora of lay witnesses testified about the plaintiff’s personality, attitude and enthusiasm or keenness for recovering and returning to work.  None of this suggests depression.  There is ample evidence that the plaintiff has an exceptionally positive relationship with his immediate and his extended family.  I see no suggestion of any psychosocial factors that may have contributed to his condition.  There is nothing, I conclude, to warrant the psychiatric assessment recommended by Dr. Favero.

[57]      Further, I do not accept Dr. Favero’s opinion that the plaintiff has “a degree of pain avoidance behaviour” contributing to his chronic back pain problem.  The evidence suggests the opposite.  The plaintiff has repeatedly returned to work, and repeatedly tried to work through his pain rather than avoid it.

[58]      Finally, I observe that Dr. Favero is of the opinion that the plaintiff has not been compliant in pursuit of a goal oriented supervised or self-directed exercise program to build up his core muscle strength.  Dr. Favero recommends that the plaintiff should receive six to eight sessions of one-on-one supervised exercise therapy.  He makes this recommendation knowing that the plaintiff attended for 20 sessions of an active, supervised rehabilitation program in the summer of 2006.  Dr. Favero, however, did not know the details of this program.

[59]      Dr. Favero agrees the plaintiff sustained injury to his back, neck and right shoulder.  I conclude there is little, if anything, in Dr. Favero’s report that would detract from the evidence from the other medical personnel or the lay evidence with respect to the plaintiff’s present condition.

Damages

[60]      The plaintiff seeks non-pecuniary damages for pain, suffering and loss of enjoyment of life.  He also seeks past wage loss, future wage loss or compensation for lost capacity, and costs of future care.

Non-Pecuniary Damages

[61]      There is no doubt that the plaintiff sustained injuries as a result of this accident.  At the beginning, he suffered briefly from a concussion.  He also had injuries to his left shoulder, which resolved fairly quickly.  His neck pain is no longer significant.  However, to this day, chronic pain in his lower back is a difficulty.

[62]      I am satisfied that the plaintiff is one of those persons who works through his pain.  I find that he has tried very hard to return to the type of work, labouring in the construction industry, that he enjoyed previous to the accident.  I am satisfied that while he is physically capable of working as a construction labourer, and particularly framing, the increased pain that he experiences when working long hours at these jobs is such that he cannot realistically continue with such intensive labouring jobs.

[63]      I am also satisfied that the back injury continues to have a significant impact upon his recreational activities.  The evidence discloses that he was very active in sports and that while he has continued sports since the accident, his performance has suffered, the length of his participation has been curtailed, and as a result, his enjoyment of these activities has diminished.

[64]      The plaintiff seeks an award for non-pecuniary damages of $120,000.  I am not satisfied that an award of that amount is justifiable.  A number of the cases relied upon by the plaintiff involved more serious injuries.

[65]      For example, the plaintiff relies upon Schucknecht v. Singh, 2006 BCSC 1025, a case in which the plaintiff was awarded $190,000 of non-pecuniary damages.  However, Mr. Schucknecht sustained a fractured left hip, two fractures of the left leg and a broken ankle.  He also suffered from depression and post-traumatic stress disorder.  I am satisfied his injuries were more serious than those sustained by the plaintiff in this case.

[66]      Similarly, the plaintiff relies on Fox v. Danis, 2006 BCCA 324, 228 B.C.A.C. 164, a case in which the plaintiff was awarded $100,000 in non-pecuniary damages.  This case is closer to the case at bar.  The plaintiff sustained permanent injuries to her neck and lumbar spine leaving her with “a moderate severe condition” that was found to be unlikely to improve.  There was, in addition, an exacerbation of pre-existing migraine problems and a risk of depression.

[67]      The defendant, on the other, hand relies on a number of cases with much lower rewards.  For example, the defendant relies upon Masoodi v. Dennis, 2000 BCSC 825, in which a plaintiff complained of neck and back pain and developed insomnia.  The pain was found to have continued up to trial.  The award for non-pecuniary damages was $30,000.  However, the case was said to not involve chronic pain syndrome or post-traumatic stress disorder.

[68]      In Medeiros v. Vuong, 2000 BCSC 1404, the plaintiff was awarded only $20,000.  However, in that case the court found the lower back pain was intermittent and not disabling.

[69]      In Roeske v. Verishine, [1992] B.C.J. No. 1805 (S.C.) (Q.L.), the plaintiff was found to have permanent minor discomfort to his leg.  Surgery was required and a pronounced scar remained.  He was awarded $38,000.  “Minor discomfort” is not a description of the effect of the injuries to the plaintiff here.

[70]      In considering these cases, and the other cases cited by counsel, and reviewing the circumstances of the plaintiff, including his continuing back pain and its impact upon his enjoyment in life both in terms of recreation and his chosen occupation, I award non-pecuniary damages of $85,000.

Past Wage Loss

[71]      The plaintiff has provided a table setting out the loss of wages from the time of the accident until the present time.  In discussions with counsel, it became clear that some of the amounts on the table are inappropriate.  In reviewing the presented numbers, and adjusting for the amounts that I think upon the evidence are inappropriate, I assess past wage loss at $31,000.  However, I would reduce that amount by approximately 25% to take into account contingencies that may have meant he would have worked less time.  There is evidence that earlier in his career, after he left school, he did not work full-time.  In the result, I assess past wage loss at $23,000.

Future Wage Loss

[72]      The plaintiff, age 22, has at least the possibility of 43 more years of employment before his 65th birthday.  His counsel has enumerated the positive contingencies that the plaintiff says are present.  She points out he has an outstanding work ethic, partly as a result of the role models provided by his extended family.  She submits that he is a keen worker, a description that comes both from the lay witnesses and the medical witnesses.  He has continued to work hard despite his injuries and despite his pain.  There is no indication of any other medical issues that might impact on his employability.

[73]      On the other hand, he has a troubling lack of education, having left school in grade eight.  This is a negative contingency that would likely have impacted upon his employability in the future.

[74]      The plaintiff said he intends to take steps to upgrade his education and to attempt to find work in the construction industry that would not involve the degree of heavy labouring that exacerbates his continuing low back pain.

[75]      This is a case somewhat like Graham v. Rogers, 2001 BCCA 342, a case in which a 54 year old shingle mill sawyer, who had left school in grade nine, and worked in a shingle mill ever since, was awarded $60,000 for loss of earning capacity.  The Court of Appeal raised that amount to $175,000.  That Court found the barriers to employment faced by the appellant included his age, his lack of work experience at jobs other than sawing shingles, his lack of transferable skills, his lack of an educational foundation to take retraining, and the nature of his disability.  He was said, at para. 72, to have only “some limited residual earning capacity”.

[76]      In this case, the plaintiff is considering other jobs in construction, the field he knows, which are less physically demanding.  He has explored educational upgrades.  He is only 22 years of age.  He is not as restricted in future opportunities as was the plaintiff in Graham.

[77]      However, I am satisfied that the plaintiff is “precluded from other occupations”, or at least restricted in the range of occupations available to him, by two things.  The first is his education level for which the defendant is not responsible.  The second, however, is the fact that a number of jobs that interest him and would have been open to him in the past are not open to him now because, being of the heavy labour variety, they exacerbate his back pain to the point where he can no longer continue in such work.

[78]      In other words, he is less marketable now than he was.  He cannot compete for jobs once available to him.  He is less valuable to himself as an income earning individual.  There is a loss of a capital asset which is compensable.

[79]      Given the significant negative contingencies present here however, I am not satisfied that the award under this head of damages should be as high as suggested by plaintiff’s counsel.  I note that he is currently working alongside his father and being paid the same hourly rate.  He does, however, work fewer hours, partly in response to his lower back pain.  In all of the circumstances, I assess his loss of future earning capacity at $120,000.

Cost of Future Care

[80]      Dr. Badii recommended that the plaintiff would likely benefit from six to twelve sessions of physiotherapy or visits to a kinesiologist every two years.  He recommended this to ensure maintaining “core” strength stabilization.  He said physiotherapy would cost $80 per hour; a kinesiologist $60 per hour.

[81]      While I am satisfied such sessions would be appropriate for a few years, I am not persuaded they are necessary every two years until age 65.  I reach this conclusion because the evidence is that after completing his rehabilitative course at HealthX in 2006, a program at which he worked very hard “because I wanted to get better”, the plaintiff continued with the exercises on his own.

[82]      This latter testimony leads me to conclude that once he has learned the necessary exercises, he is motivated to keep them up without further supervision.  In the result, I conclude it is reasonable that he be awarded the costs for the average cost of these sessions ($70 per hour) for nine sessions every two years for a six year period.  By that time, I conclude, he will have sufficient knowledge and the motivation to continue on his own.  I therefore assess this head of damages at $1,890.

Summary

[83]      Unless there is something of which I am unaware, the plaintiff will have his costs.

“Williamson J.”