Glowinski v. Knowlton,


2008 BCSC 662

Date: 20080528
Docket: 06/2874
Registry: Victoria


Glen Nicholas Glowinski



Cameron Robert Knowlton, Dominic J. Rizzuto
and Honda Canada Finance Inc.


Before: The Honourable Mr. Justice Metzger

Reasons for Judgment

Counsel for Plaintiff:

J.A.S. Legh

Counsel for the Defendants:

M. J. Lawless

Dates and Place of Trial:

February 11 - 13, 2008


Victoria, B.C.

[1]                The plaintiff, Mr. Glowinski, was the seat-belted driver of a motor vehicle that was rear-ended on August 13, 2005.  He suffered soft tissue injuries.  On October 14, 2005, he lost consciousness, fell and broke his leg while watching his son play an arcade game on a British Columbia ferry.  The plaintiff alleges the injuries suffered in the motor vehicle accident caused his loss of consciousness.  He seeks costs and damages from both injuries as follows:

Non-pecuniary damages

$  70,000.00

Income loss

$  60,000.00

Special damages

$    6,211.88

Future expenses

$       500.00



[2]                   The defendant admits liability and submits that the plaintiff was disabled as a result of the collision for a maximum of six weeks, with some ongoing minor discomfort.  The defendant suggests that an appropriate award for the plaintiff’s non‑pecuniary damages would be $8,000 to $9,000, subject to a 25% reduction for failure to mitigate.  The defendant submits that $5,000 would be more than adequate to compensate the plaintiff for past wage loss.


[3]                   What damages has Mr. Glowinski suffered as a result of his motor vehicle accident of August 13, 2005?  Was the plaintiff’s loss of consciousness two months after the MVA a result of his collision-related injuries?


[4]                   Mr. Glowinski testified that prior to his motor vehicle accident in August 2005, he was in “excellent” health, and never experienced headaches, nausea or balance problems.  The plaintiff’s medical history shows no complaints relevant to the case at bar.  The plaintiff is now 58 years old.

[5]                   Two reports of Dr. Colin Partridge, dated January 25, 2006 and December 21, 2007, contain the only medical evidence before the Court with respect to the injuries suffered by the plaintiff subsequent to the motor vehicle accident.

[6]                   Mr. Glowinski is divorced.  His ex-wife and young son live in Princeton, British Columbia.  Since 2003 the plaintiff’s practice, at least twice a month, has been to pick his son up in Princeton and drive him back to Victoria for the weekend.  He then drives his son back home to Princeton.  His one way driving time from Victoria to Princeton is approximately six hours including the time on the ferry.

[7]                   Mr. Glowinski was an active participant in golf, fishing, skiing and competitive curling prior to August 13, 2005.

[8]                   At the time of the MVA, the plaintiff was working as a real estate agent.

[9]                   On August 13, 2005, the plaintiff was driving a Dodge van, and periodically stopping to set out signs for an open house in a strata condominium development.  The defendant Knowlton believed that the plaintiff was blocking the semi-private roadway so honked his horn repeatedly and refused to drive around the plaintiff.

[10]               The accounts of this incident vary significantly as between the plaintiff’s testimony and the defendant’s statement to the police.  After a period of what might be described as road rage between the plaintiff and the defendant, the defendant’s vehicle hit the back of the plaintiff’s van.  The defendant significantly damaged the front end of his car and the back of the plaintiff’s van.

[11]               Almost immediately after the collision, the plaintiff said he began to feel nauseous and his neck and shoulders started to be “sore”.  He went to the Royal Jubilee hospital for treatment and received a prescription for anti-inflammatory medication, which he filled.

[12]               Since the accident, the plaintiff has suffered what he described as excruciatingly painful headaches which he said continue today, though with less severity.

[13]               The plaintiff had ongoing neck, arm and shoulder pain following the MVA.  He said that for several months after the accident, he had difficulty sleeping because the pain would wake him up.  He said that moving his right arm generally resulted in a headache.

[14]               He went to physiotherapy, massage and chiropractic treatments on the advice of his doctor.  He also exercised and swam to rehabilitate his injuries.  He stopped attending treatments in November 2005, when I.C.B.C. informed him that they would no longer pay.

[15]               The plaintiff stated as a result of the pain he was unable to work at previous levels between August 2005 and October 2005.  He stated his driving ability was diminished, and he spent less time with his son.  He testified he was unable to golf, maintain his yard, clean his house, do laundry, or do most anything that required him to move his right arm.

[16]            The plaintiff visited his son in Princeton on August 14 -15, 2005, with the help of an alternate driver because he did not feel able to drive on his own.

[17]            On September 9, the plaintiff drove alone to Princeton, and returned to Victoria with his son the same day.

[18]            On October 14, 2005, the plaintiff picked up his son in Princeton.  On the way back to Victoria, the plaintiff testified he developed a severe headache and severe neck and shoulder pain.  He took no medication for his pain.  The doctor’s notes record that the plaintiff reported he was very tired during the drive.

[19]            After getting on the ferry, the plaintiff took his son to the arcade room.  He recalled that he was standing, watching his son and experiencing a severe headache.  He said his next memory is of waking up on the floor with two ferry workers attending to him.  The plaintiff said he did not drink any alcohol or take any medications that day.

[20]            As a result of the fall, the plaintiff suffered a spiral fracture of his fibula and a chip of the distal tibia in his ankle, as well as a wound, which he said is now a scar, on his forehead or scalp.

[21]            His cast was removed in mid-December 2005.  By January 2006 he was walking normally again with some continuing soreness.  Mr. Glowinski received some physiotherapy for his ankle injury, but reported to his doctor on January 11, 2006, that he “quit physiotherapy, as it was not helpful”.

[22]            The plaintiff stated that walking with crutches aggravated his shoulder and neck pain, which in turn aggravated his headaches.

[23]            He was not able to drive until around Christmas of 2005.

[24]            The plaintiff said he was likely 80% recovered by the end of 2006.

[25]            Since then, he said he has “levelled out”.  He said he still experiences pain after extended yard work and that he has occasional headaches, though he said, “they’re less and less frequent all the time.”

[26]            He maintains he still has restricted mobility in his right shoulder.

[27]            The plaintiff testified that he continues to have problems with his ankle, and that he cannot run, ski or curl at his previous levels of participation, or at all.  The plaintiff stated his difficulties with curling and skiing flow primarily from his leg injury.  He testified that his shoulder and neck injuries have prevented him from golfing, though he has tried several times.

[28]            Dr. Partridge wrote that in his opinion, the plaintiff “is likely not suffering ongoing significant problems”, though he felt it is “conceivable that Mr. Glowinski may develop late symptoms requiring treatment down the road.”

[29]            The plaintiff said that the accident affected his personal life as his former fiancée, Ms. Cindy Story, had to take on a caregiver role.  Mr. Glowinski stated that the pain made him irritable and affected his ability to be intimate.  Ultimately, his relationship with his fiancée ended.

[30]            The plaintiff said he paid Ms. Story for some of her help, often in the form of paying her bills, in order to offset her out-of-pocket expenses and to compensate her for the time she took off work to attend to him.

[31]            The plaintiff stated he hired someone to do yard work due to the pain in his right arm, neck and shoulder.

[32]            The plaintiff said his injuries impacted his ability to work as a realtor.  His mobility was restricted after he broke his leg.  He “conservatively” estimated that during the “hot market” in 2006, he lost out on at least six sales as a result of the motor vehicle accident, representing approximately $60,000 over the 8.5 months during which he said he was limited in his ability to work.



[33]            There is no dispute that the defendant is liable for the plaintiff’s injuries resulting from the August 13, 2005 motor vehicle accident.

[34]            I am satisfied that the plaintiff sustained injuries related to whiplash as a result of the collision, with symptoms of severe headache, neck and shoulder pain, limited right shoulder mobility, sleep disruption, nausea and some initial but brief dizziness.

[35]            Not all of the evidence at trial supported the plaintiff’s claims of ongoing and severe injuries.  The plaintiff’s physiotherapist, Ms. Kathy Murdoch, recorded that he had a headache the day after the accident, but she recorded no further headaches.  Ms. Murdoch noted that the plaintiff’s neck movement improved by August 22, 2005, and by September 15, his muscle soreness was gone.  By September 29, 2005, his shoulder was reported as much better.

[36]            The plaintiff reported to his chiropractor, Dr. Clark Konczak, on September 25, 2005, that he was 90% improved.

[37]            Mr. Glowinski reported to his doctor on October 6 that he had continuing tension headaches that were aggravated by housework and computer use.  The doctor also noted that the plaintiff was gradually improving.

[38]            The plaintiff’s last attendance on his physiotherapist for his neck and shoulder injuries was October 6, 2005.

[39]            He did not complete the course of physiotherapy prescribed by his doctor and by Ms. Murdoch, and therefore the physiotherapy discharge assessment was never completed.  The defendants state that the plaintiff could have chosen to pay for ongoing physiotherapy, massage, and chiropractic treatments in order to mitigate his injury-related losses.  Mr. Glowinski said he would have continued treatment if I.C.B.C. had continued to fund it.

[40]            I find that the plaintiff’s symptoms were improving at the time of his fall and loss of consciousness on the ferry, and but for the continuing headaches, were mostly healed within six weeks of the MVA.


[41]            The plaintiff alleges that the headaches and other symptoms caused by the motor vehicle accident of August 13, 2005, were the cause of his loss of consciousness on the B.C. ferry on October 14, 2005.

[42]            The October 15, 2005 report of Dr. K, Minish, summarized by Dr. Partridge, indicated that the plaintiff felt his loss of consciousness “was related to exhaustion,” and that during the drive, the plaintiff reported he “had been very tired.”  Dr. Minish did not testify at trial or provide any notes of her own.  There was no evidence regarding the plaintiff’s stress level or blood pressure.

[43]            Dr. Partridge, in his report of January 25, 2006, wrote the speculative statement that “[i]t is conceivable that the pain from the MVA contributed to the loss of consciousness.”

[44]            I have considered whether the plaintiff’s decision to drive to Princeton and back in one day was unreasonable such that it constituted an “intervening act” that broke the chain of causation regarding the defendant’s negligence.  I find that his decision was not unreasonable.

[45]            Mr. Glowinski was acting reasonably when he drove to Princeton and back in order to exercise his access with his son.  Mr. Glowinski was significantly recovered by October 13, as can be seen in his medical reports.  In September, he drove the return trip alone in one day without mishap.  It is reasonable that he would conclude that he was sufficiently recovered to drive to Princeton and back on October 14, without an alternate driver.


[46]            Did the plaintiff demonstrate on a balance of probabilities that the MVA was a contributing factor in his collapse and subsequent injuries?

[47]            Major J. stated in Athey v. Leonati, [1996] 3 S.C.R. 458 (S.C.C.) at para. 17:

It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant's negligence was the sole cause of the injury.  There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring … As long as a defendant is part of the cause of the injury, the defendant is liable, even though his act alone was not enough to create the injury.  There is no basis for a reduction of liability because of the existence of other preconditions:  defendants remain liable for all injuries caused or contributed to by their negligence.

[48]            Major J. in Athey elaborated on the standard for causation, noting that the “but for” test is normally the standard in determining causation.  He stated as follows at paras. 15-16:

The "but for" test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant's negligence "materially contributed" to the occurrence of the injury:  Myers v. Peel County Board of Education, [1981] 2 S.C.R. 21; Bonnington Castings, Ltd. v. Wardlaw, [1956] 1 All E.R. 615 (H.L.); McGhee v. National Coal Board, supra.  A contributing factor is material if it falls outside the de minimis range:  Bonnington Castings, Ltd. v. Wardlaw, supra; see also R. v. Pinske (1988), 30 B.C.L.R. (2d) 114 (B.C.C.A.), aff'd [1989] 2 S.C.R. 979.

In Snell v. Farrell, supra, this Court recently confirmed that the plaintiff must prove that the defendant's tortious conduct caused or contributed to the plaintiff's injury.  The causation test is not to be applied too rigidly.  Causation need not be determined by scientific precision; as Lord Salmon stated in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, at p. 490, and as was quoted by Sopinka J. at p. 328, it is "essentially a practical question of fact which can best be answered by ordinary common sense".  Although the burden of proof remains with the plaintiff, in some circumstances an inference of causation may be drawn from the evidence without positive scientific proof.

[49]            In Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, McLachlin C.J.C., stated the “but for” test at paras. 21-23:

First, the basic test for determining causation remains the "but for" test.  This applies to multi-cause injuries.  The plaintiff bears the burden of showing that "but for" the negligent act or omission of each defendant, the injury would not have occurred.  Having done this, contributory negligence may be apportioned, as permitted by statute.

This fundamental rule has never been displaced and remains the primary test for causation in negligence actions.  As stated in Athey v. Leonati, at para. 14, per Major J., "[t]he general, but not conclusive, test for causation is the 'but for' test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant."  Similarly, as I noted in Blackwater v. Plint, at para. 78, "[t]he 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."

The "but for" test recognizes that compensation for negligent conduct should only be made "where a substantial connection between the injury and the defendant's conduct" is present.  It ensures that a defendant will not be held liable for the plaintiff's injuries where they "may very well be due to factors unconnected to the defendant and not the fault of anyone":  Snell v. Farrell, at p. 327, per Sopinka J.

[50]            I am satisfied on a balance of probabilities that the plaintiff demonstrated that his MVA-related symptoms contributed to his collapse on the ferry on October 14, 2005.  Although no expert opinion was produced to state that the MVA was a cause of the plaintiff's loss of consciousness, I accept the plaintiff’s testimony that he was overwhelmed with an MVA-related headache and neck pain immediately prior to the fainting incident.

[51]            The evidence is that the plaintiff did not have a history of such symptoms, and “ordinary common sense” dictates that the collapse was in part a result of the defendant’s negligence.  Although the plaintiff’s MVA-related symptoms were aggravated by his decision to drive to Princeton and back, the fact remains that the defendant originally caused the symptoms.  If the plaintiff was feeling exhausted as he reported to his doctor, then I am satisfied that a contributing factor was the plaintiff’s poor sleeping patterns due to the pain from the motor vehicle accident.  The defendant offered no plausible alternative explanation for the plaintiff’s collapse.

[52]            I find that the plaintiff’s general fatigue and headache were significant factors in his loss of consciousness.  There was a “substantial connection between the injuries and the defendant’s conduct” (Resurfice Corp.).  I am satisfied that but for the defendant’s negligence which caused the initial injuries, the plaintiff would not have experienced headache, neck and shoulder pain on October 14, and he would not have passed out and further injured himself on the ferry.


Whiplash Injuries

[53]            McEachern C.J.S.C. (as he then was), in Price v. Kostryba (1982), 70 B.C.L.R. 397 (B.C.S.C.), at p. 399, referred to his unreported 1981 decision of Butler v. Blaylock, where he wrote:

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.

[54]            Mr. Glowinski said that he had “severe” whiplash as a result of the MVA.  He testified that he had frequent and severe headaches for perhaps six weeks, and then suffered ongoing symptoms of headache pain, limited mobility in his shoulder, neck pain and mid-back pain.  I accept that his neck and shoulder injuries, and likely his headaches, were aggravated by his use of crutches following his collapse on the ferry.

[55]            On December 22, 2005, Dr. Partridge assessed the plaintiff with regard to his neck, shoulder and arm pain and movement, and his ankle injury.  Dr. Partridge wrote, “[m]y assessment was that he was generally better.”

[56]            On March 9, 2006, Dr. Partridge noted that the plaintiff had upper back discomfort with over-use of the right arm, after sawing wood.  Again, the doctor assessed the plaintiff as recovering normally.

[57]            On August 22, 2006, Dr. Partridge saw the plaintiff regarding the MVA injuries.  The plaintiff reported feeling about 80% recovered, but also reported continuing intermittent headaches.  The plaintiff was not receiving physiotherapy, as he said he could not afford it.  Dr. Partridge wrote:

On examination, he was in no distress.  He had no tenderness of his shoulders, occiput, or para-cervical muscles.  ROM [range of motion] of his C-spine was normal.  His right shoulder was not tender, though abduction was limited to about 110 degrees.

[58]            This was Dr. Partridge’s last assessment of the plaintiff regarding the MVA-related symptoms.

[59]            Dr. Partridge wrote that the plaintiff’s headaches and pain in his neck and right shoulder area improved with time, “but were still present a year later”, and were reportedly aggravated at times by yard work and sports.  The plaintiff also experienced “limitation in ROM of his neck and right shoulder” which continued after one year.

[60]            I am satisfied that the plaintiff suffered debilitating injuries for a period of about six weeks following the motor vehicle accident with ongoing headache, neck and right shoulder pain continuing for over one year.  I accept that he was likely experiencing some pain while carrying on his normal behaviours such as travelling to Princeton and attending his work, which he did with the help of Ms. Story.  I find that the plaintiff was unable to do many of the things he previously enjoyed, such as gardening and sports.  I accept that in all of his endeavours he generally functioned at a reduced level as a result of his injuries.

[61]            The reports from his doctor and physiotherapist indicate that after six weeks, his headaches and neck and shoulder pain were clearly improving.  After the plaintiff’s collapse on the ferry, his MVA injuries were aggravated by the use of crutches, but continued to heal.

[62]            The plaintiff’s last visit to his physiotherapist for his neck and shoulder injuries was on October 6, 2005.  Despite his assertion that these injuries have continued until the present day and prevent him from participating in activities he previously enjoyed, the plaintiff did not pursue any further physical therapy to improve his symptoms.

[63]            Likewise, the plaintiff has not seen his doctor for over one year with regard to his MVA-related injuries.  Dr. Partridge wrote:  “Since he has not been seen for over a year re the MVA-related injuries, it is my interpretation that he is likely not suffering ongoing significant problems.”

[64]            I find that by the end of August 2006, the plaintiff had largely recovered from the headaches and neck and shoulder injuries caused by the defendant.  I accept his report that he still suffers from occasional headaches.

[65]            I accept that the plaintiff’s limited range of motion in his shoulder continues to limit his ability to golf, though I note that he has not pursued any physiotherapy to ameliorate this situation.  The plaintiff stated that he could not afford such therapy after I.C.B.C. refused to cover the treatment, but I find this to be unlikely, given his income.

[66]            The plaintiff submits that his non-pecuniary damages should be $35,000 in respect of his shoulder pain, neck pain and headaches.  In support of this, he cites:  Penno v. Stephanian, 2002 BCSC 287; Tombe et. al v. Stefulj, 2002 BCSC 154; Robbie v. King, 2003 BCSC 1553; and Fiust v. Centis, 2005 BCSC 1067.

[67]            The defendant, on the other hand, cites:  Rephin v. Alexander, 2000 BCSC 454; Dymond v. Wilson, 2001 BCSC 244; Amir v. I.C.B.C., 2002 BCSC 1121; Zulj v. Findlay, 2005 BCPC 6; Gibson v. Saran, 2003 BCSC 296; Mohammed v. Frey, 2006 BCSC 205; Gill v. Mansour, 2004 BCSC 1537; and Wright v. Dierolf, 2001 BCPC 193.  These cases support the defendant’s assertion that the plaintiff should be entitled to $8,000 to $9,000.  The defendant points to E.M.E. v. Watts, 2005 BCCA 496, as an example of the upper end of damages for injuries similar to the plaintiff’s, where the award was $20,000.

[68]            I find that the plaintiff and Ms. Story were credible witnesses with regard to the plaintiff’s ongoing symptoms.

[69]            In the circumstances, I would award the plaintiff $12,000 in non-pecuniary damages, subject to a 15% reduction for his failure to pursue treatment, which most likely would have mitigated his damages and hastened his recovery.  Thus, the plaintiff is entitled to $10,200 in non-pecuniary damages for his headaches and neck and shoulder injuries.

Collapse on the Ferry

[70]            The defendant argued that the plaintiff’s collapse and broken leg were not causally linked with the MVA, and therefore the defendant made no submissions regarding the quantum of non-pecuniary damages for the plaintiff’s broken leg.

[71]            The plaintiff, citing Choromanski v. Malaspina University College, 2002 BCSC 771, and McGrath v. Meise, 2005 BCSC 133, argued that he is entitled to $30,000 in non-pecuniary damages for his fractured right fibula and tibia.

[72]            In McGrath, the plaintiff, due to the defendant’s negligence while driving a city bus, broke her leg, and used crutches and a wheel chair for several weeks.  After five or six weeks, she was walking in a boot cast and attending a physiotherapist.  Three months later, she was walking normally, but had some limited range of motion.  One year and nine months after the accident, her doctor reported that she had made a complete recovery.  Edwards J. accepted that the plaintiff still had pain, instability and swelling which prevented her from participating in some sports.  Edwards J. awarded $30,000 “for pain, suffering, inconvenience and loss of enjoyment of life” (para. 36).

[73]            In this case, the plaintiff wore a cast for about two months.  According to his doctor’s notes, three months after the fall he was doing much better and attending a recreation centre for exercise.  The plaintiff was unable to drive for at least two months because of his leg.  Seven months after the faint, his ankle was still aggravated by extended walking.  He has continued to have some ankle soreness. He testified, and I accept, that he has not been able to ski or curl, activities which he previously enjoyed, as a result of the ankle injury.

[74]            Despite being advised to see a physiotherapist by his doctor, the plaintiff did not do so after January 2006.

[75]            I award $20,000 in non-pecuniary damages for the plaintiff’s leg injury, minus 15% for his failure to mitigate, for a total of $17,000.

[76]            I do not find that the plaintiff is entitled to any damages for the wound and subsequent scar on his forehead that he suffered as a result of his collapse.  I did not hear sufficient evidence to determine that this injury was of any consequence.


[77]            I accept that the plaintiff’s neck and shoulder injuries made it very difficult for him to work at previous levels for six weeks following the MVA.  I accept that the plaintiff was in pain and limited in his mobility to such an extent that he could not reasonably have performed tasks such as driving, meeting prospective clients, listing properties, etc. on a full time basis during this period.  The plaintiff did continue to work and go to house showings immediately following the MVA with the help of his fiancée, Ms. Story.

[78]            I am satisfied the plaintiff was unable to work at previous levels as a result of his injuries from the October 14 ferry incident for a period of six months.

[79]            However, the plaintiff did not provide the Court with opinion evidence, or other lay evidence of a similarly situated realtor, to assist in evaluating exactly how much his losses were as a result of his decreased work hours.  The plaintiff himself did not provide a clear picture of how much work was missed as a result of the MVA.  The plaintiff claimed that another realtor looked after his listings while he was incapacitated, but did not adduce evidence regarding what that realtor did, and what payments he received.

[80]            The plaintiff listed four properties for sale between August 13 and December 31, 2004.  He completed 11 sales in 2005, in 2006 he completed eight sales, and he completed nine sales in 2007.

[81]            The plaintiff’s tax returns show that his gross business income was $55,006 in 2001, $65,195 in 2002, $73,948 in 2003, $22,324 in 2004, $88,011 in 2005, and $32,494 in 2006.

[82]            The plaintiff claimed his income was lower than usual in the two years prior to the MVA because he was involved in a custody battle over his son and could not work full time.  He claimed that after 2005, his income was lower than usual because of his injuries related to the MVA.  Thus, it is difficult to determine an average amount of income he would have earned if he were not injured.

[83]            The plaintiff estimated his lost income at approximately $60,000 for the eight months he said he was unable to work at his normal, pain-free level.

[84]            Counsel for the plaintiff suggested determining the plaintiff's average income per month over five years, which was $6,243, and then multiplying that number by eight months to obtain $49,946 in lost gross income, and then subtracting $4,800 for business expenses.

[85]            Alternatively, counsel for the plaintiff suggested determining the value of six lost commissions, using the plaintiff’s normal commission percentage and 2006 average prices, and subtracting sale expenses.  This method of calculation leads to an estimate of $79,000 in lost income.

[86]            Plaintiff’s counsel went on to submit that $60,000 is between the two calculation methods and is an appropriate number.

[87]            The plaintiff’s gross versus net income on his income tax return for 2005 indicates that his business expenses in Victoria were considerably greater than those advanced by his counsel.

[88]            Ms. Story supported the plaintiff in his work by driving him around and assisting him at open houses.  The plaintiff was clearly able to continue to work and earn income, despite his serious injuries.

[89]            The defendant suggested that an award of $5,000 would be “more than sufficient” to compensate the plaintiff for past wage loss.  This amount was premised on the defendant’s assumption that the plaintiff was incapacitated for a maximum of six weeks following the initial MVA, and that the loss of consciousness on October 13 was not caused by the defendant.

[90]            I have found that the plaintiff was injured to such an extent that he could not work at previous levels for a total of six weeks as a result of his initial MVA injuries, and then six additional months as a result of his injury on the ferry which was causally linked to the MVA.

[91]            I am satisfied that the plaintiff is entitled to an award for past wage loss in the amount of $41,000 based on his limited capacity to work for seven and a half months.

[92]            I am satisfied the plaintiff's leg pain would have interfered with his normal functioning at work for at least six months regardless of whether or not he attended a physiotherapist.


[93]            The plaintiff claims expenses for:


$     98.33

Physiotherapy appointments

$   240.00


$   104.00

Massage therapy

$   337.05

Gym membership

$   585.00

Cancelled doctor appointments due to headaches

$   100.00

Mileage for treatments and rehabilitation


Yard work

$   387.50

Home care and driving assistance



[94]            In terms of past expenses, I find all are reasonable except those amounts the plaintiff claims for home care and driving assistance and the amount he claims for mileage.

[95]            I find that the plaintiff was unclear about the amounts he actually paid Ms. Story to assist him.  I find that half of the amount claimed, or $1,680, is reasonable.

[96]            The plaintiff claims $10 in mileage costs per trip for 100 trips, for a total of $1000.  In the absence of any evidence in this regard, but assuming that the plaintiff did drive to his medical appointments and to the gym which he accessed for rehabilitation purposes, I would allow half of this amount, for a total of $500.

[97]            Thus, the plaintiff is entitled to special damages for a total of $4,031.88.

[98]            The plaintiff claims future expenses of $500 for his ongoing headaches.  I do not find that he has proven that this amount is warranted.


[99]            The plaintiff will recover judgment against the defendant for $27,200 in non‑pecuniary damages, $41,000 for past wage loss, and $4,031.88 in special damages.  Thus, the plaintiff will recover a total of $72,231.88.

[100]        The plaintiff shall have his costs.

              "R. W. Metzger, J."               

The Honourable Mr. Justice Metzger