Noriega v. Lewars,


2008 BCSC 1405

Date: 20081023
Docket: M100486
Registry: New Westminster


Ryan Vincent Noriega



Michael Glen Lewars


Before: The Honourable Madam Justice Dardi

Reasons for Judgment

Counsel for Plaintiff

T. L. Spraggs and
O. L. Wilson

Counsel for Defendant

E. P. Morris

Date and Place of Trial:

July 24-25 and August 5-7, 2008


Vancouver, B.C.


[1]                The plaintiff, Mr. Noriega, claims damages for personal injuries sustained in a motor vehicle accident on November 26, 2005.  The defendant, Mr. Lewars, disputes both liability and the amount of damages claimed.

[2]                The plaintiff contends that as a result of the accident, he suffered soft-tissue injuries to his neck, shoulders, and upper back.  In consequence, he says, he was forced to leave his job for less remunerative work.  He claims damages for pain and suffering, past income loss, loss of housekeeping capacity, impairment of future income earning capacity, cost of future care, and special damages.


[3]                The issues for determination are:

(a)        Liability; and

(b)        Entitlement to and quantum of damages.


[4]                The plaintiff was 27 years old at the time of the trial.  He has a high school diploma and attended two years at Douglas College.  He was working at Federal Express in Burnaby as a courier at the time of the accident.  He was healthy prior to the accident.


Plaintiff’s Evidence

[5]                The accident occurred at the intersection of Hastings Street and Willingdon Avenue in Burnaby on November 26, 2005.  The plaintiff was driving westbound on Hastings Street, travelling from his home in Coquitlam to his workplace in Burnaby.  He was driving a 2002 Chevrolet Cavalier Coupe.  The accident occurred at around 10:30 a.m.  The weather was clear and sunny.  The plaintiff was planning to stop at Brentwood Town Centre to meet his friend, Mr. Bains, for coffee before they started their shift.  There were no mechanical problems with the vehicle.  The plaintiff was wearing his seatbelt, which had both regular lap and shoulder belt.  His seat had a head rest that was adjusted to his proper height.

[6]                The plaintiff testified that the collision occurred as he was making a left turn from Hastings onto Willingdon.  There are three lanes on Hastings going both east and west, plus a designated left-turn lane.  On Willingdon, there are two lanes in each direction.  There was a car in front of Mr. Noriega (the “Front Car”), which made a left turn.  The light was yellow when the Front Car entered the intersection.  At the time, there was no other traffic travelling through the intersection, and the eastbound traffic on Hastings had stopped.  The plaintiff checked the intersection to make sure traffic moving in the opposite direction had stopped and then he proceeded to make a left turn.

[7]                As the plaintiff was completing his left turn onto Willingdon, he saw the light turn from yellow to red.  At that time his vehicle was already on Willingdon; his front wheels crossing over the pedestrian crosswalk which ran east to west across Willingdon.  A red car in the right lane travelling eastbound on Hastings, driven by the defendant, collided with the rear passenger side of his vehicle.  The light was red when the defendant’s vehicle hit the plaintiff’s vehicle.  At the moment of impact, the plaintiff was looking to the right because in his peripheral vision he had seen the red car moving quickly.  The plaintiff wanted to accelerate to avoid the red car, but the Front Car turning in front of him had already slowed down and there was nowhere for him to go.

[8]                The plaintiff did honk his horn but did not put on the brakes.  If he had done so, he likely would have been hit on the front side of his car.  He did not hear any screeching of tires prior to the impact.  On impact, his left arm hit the inside of the driver-side door and his head tilted to the right.  Immediately after the collision, he was “in mild shock but didn’t notice any pain.”  The defendant’s vehicle was in the right lane closest to the curb.  The front bumper had come off the defendant’s vehicle from the force of the impact.  The plaintiff’s vehicle sustained damage to the rear-passenger side.  The cost of repairs to the plaintiff’s vehicle was $4,500.

[9]                The plaintiff pulled over to the curb-lane of Willingdon.  He rolled down his car window and saw the driver of the other vehicle approaching.  The defendant asked the plaintiff if he was okay and the defendant said he was sorry and that he was running a little late.  The defendant left the scene shortly thereafter.

[10]            Emergency services, both the fire department and the paramedics, attended the scene of the accident but they left after speaking to both the parties.  The plaintiff called his friend, Mr. Bains, who then attended at the scene.  The plaintiff drove his own vehicle to his workplace.

Defendant’s Evidence

[11]            The defendant, who was driving a 1991 red Cavalier vehicle, testified that at the time of the accident, he was travelling from North Vancouver to his son’s soccer game and that he was travelling at approximately the speed limit of 50 kilometres per hour.  He was travelling eastbound in the right-hand through lane.  He testified that just as he was coming up to the mouth of the intersection, the light turned yellow a car-length or two before he reached the intersection.  He considered braking but did not want to jar his seven year-old son who was in his vehicle at the time.

[12]            In direct examination, the defendant testified that when he entered the intersection, a vehicle in the left-turning lane on the westbound, opposite side, had already initiated a left-turn on the yellow light.  That car turned safely in front of him on the yellow light.  When he saw the first vehicle turning left, he “might have” depressed his brakes, an instantaneous depression, and taken “5 miles or so” off his speed to avert “any crowding” in what he described as a big intersection.  According to the defendant, “it looked like there was room” and the defendant was “timing” and “precalculating things” in his head.  The defendant testified that when he was in approximately the middle of the intersection, the plaintiff accelerated as if to close the gap between himself and the turning car turning left in front of him; he accelerated to make a fast turn from virtually a stopped position in the turning lane.  The defendant did not anticipate the plaintiff’s vehicle would follow the first left-turning vehicle through the intersection.

[13]            The defendant then found himself looking eye-to-eye with the plaintiff and realized the accident was inevitable.  He swerved to avoid a head-on collision.  The light turned red a split-second before the impact.

[14]            The defendant pulled his vehicle over and walked toward and spoke to the plaintiff who did not appear to be injured.  He testified that he did not apologize to the plaintiff.  He left the scene after exchanging information with the plaintiff.


[15]            The plaintiff claims he suffered injury to his neck and shoulder and that he sought treatment from his doctors and physiotherapists to deal with the pain.

[16]            The plaintiff was initially in shock following the collision, with pain developing later that day.  He saw his family doctor on November 26, 2005.  The next day he started to develop left-sided neck pain, as well as some pain in behind the left shoulder blade, trapezius, and in the muscles in the front of his upper neck.

[17]            The plaintiff saw his new family doctor, Dr. David Steinson, on November 29, 2005.  On examination, the plaintiff demonstrated “palpatory tenderness to the left rhomboid, left trapezius muscles, cervical muscles bilaterally, and left sternocleidomastoid muscle”, and “examination of the cervical spine demonstrated pain with flexion and extension, as well as left rotation.”  The plaintiff had a decreased range-of-motion with respect to left rotation.  Dr. Steinson recommended that the plaintiff take a week off work and that he commence physiotherapy.

[18]            The plaintiff was next seen by Dr. Steinson on December 8, 2005.  The plaintiff had been attending physiotherapy sessions and was doing some light stretching and exercises.  Examination demonstrated palpatory tenderness in his left shoulder and neck.  Dr. Steinson advised him to continue physiotherapy and to resume his usual duties at work.

[19]            The plaintiff returned to work on December 12, 2005.  He then saw Dr. Steinson on December 14, 2005.  He was continuing to attend physiotherapy.  He had ongoing pain and stiffness into his shoulder and neck on the left side, which was worse after working.

[20]            The plaintiff saw Dr. Steinson next on January 6, 2006, by which time he had attended eight sessions of physiotherapy and his condition had improved.  He was now sleeping fairly regularly and working full-time.  He had ongoing shoulder and neck stiffness on his left side, as well as a significant increase in fatigue after work.  The doctor’s examination showed palpatory tenderness to the left trapezius muscle and the left rhomboid muscles into the cervical spine.  He had some stiffness of his neck with flexion, extension, and rotation.

[21]            The plaintiff attended approximately twelve sessions of physiotherapy in total, which sessions were paid for by the Insurance Corporation of British Columbia.

[22]            On June 28, 2006, the plaintiff saw Dr. Steinson’s colleague, Dr. Wong, for a flare-up of the pain in the left side of his neck and into his left shoulder, which the plaintiff attributed to shoulder-checking while driving as a courier.  Upon examination, Dr. Wong found tender trapezius muscles and left upper neck muscles.  Dr. Wong recommended the plaintiff re-start physiotherapy and prescribed an anti-inflammatory medication.

[23]            In July 2006, the plaintiff suffered a work-related back injury after which he never resumed working as a courier.

[24]            By July 31, 2007, the plaintiff was still experiencing neck pain, although it was not daily.  His neck had improved after he ceased working as a courier in 2006.  He continued to ice his neck and received home-based massage treatments.  He was experiencing very occasional headaches associated with his neck pain.  Upon examination he had some ongoing palpatory tenderness to the left trapezius and left cervical muscles.  He had a full range of motion.

[25]            The plaintiff next saw Dr. Steinson on November 20, 2007 because he was experiencing pain in the left neck and trapezius three or four times a week.  The pain worsened when he had to do extra driving or shoulder-checking.  Examination demonstrated that he had trapezius muscle pain with the possibility of a trigger-point in his left trapezius muscle.  The doctor recommended massage therapy or acupuncture.

[26]            On April 25, 2008, the plaintiff saw Dr. Steinson for ongoing neck and upper back pain and stiffness.  Dr. Steinson recommended acupuncture and they discussed an ongoing exercise program.  The plaintiff attended acupuncture in May 2008 and testified that the treatments were helpful and provided him with some relief.

[27]            Dr. Steinson examined the plaintiff on July 18, 2008 and testified that on palpation the plaintiff had pain in his left neck and shoulder muscles.  He had a causative trigger-point which is consistent with myofascial pain.  He had some pain into his upper back with full flexion.  Further, he demonstrated diminished left rotation of his neck and diminished right lateral flexion of the neck.

[28]            Dr. Steinson provided an expert opinion dated May 22, 2008 stating that the plaintiff had developed myofascial pain syndrome involving the left side of his neck and trapezius and that this pain is directly related to his motor vehicle accident on November 26, 2005.  Consequently, the plaintiff continues to experience episodic, although fairly regular and consistent, left-sided neck and trapezius muscle pain, which pain is aggravated by activities such as shoulder-checking.  Dr. Steinson’s prognosis for the plaintiff is set out in his report as follows:

I believe that he should be treated on an ongoing basis with as needed massage therapy or acupuncture with flare-ups, as well as he needs to be involved in a structured ongoing exercise program which incorporates aerobic activity as well as stretching and strengthening exercises to try to rehabilitate his injuries.  At this time he cannot work in a job which requires a great deal of driving.  I would also think that he probably would have to avoid occupations which require a lot of lifting, or shoulder checking as this may exacerbate his symptoms.

It is hard to know what the future holds for Mr. Noriega with respect to his ongoing episodic symptoms.  It is possible that he will have ongoing episodic pain in the left trapezius and the left side of his neck for a prolonged period of time.  I am hopeful that with his structured exercise program that incorporates aerobic exercise as well as stretching and strengthening work that given time his symptoms will continue to slowly improve as they have done since the time of the motor vehicle accident.

[29]            The defendant did not tender any expert medical evidence of the plaintiff’s condition.  It is the defendant’s position that the plaintiff suffered at most a mild to moderate soft-tissue injury to his neck and shoulders, which had substantially resolved by January 2006, two months post-accident, with one purported flare-up after that time.

[30]            The defendant submits that the plaintiff continued to drive as a courier after December 2005, and the fact that the plaintiff cancelled his last physiotherapy session on January 17, 2006 and did not seek an extension of physiotherapy treatments is consistent with there not being any ongoing complaint of accident-related injury after January 2006.  The defendant also points to the fact that, although the plaintiff reported a flare-up of his neck problems to Dr. Wong in June 2006, there was no evidence that he re-started his physiotherapy treatments.  Further, the plaintiff did not visit his doctor regarding his neck and shoulder until a year later, on July 31, 2007.  The defendant notes that when the plaintiff saw Dr. Steinson for other unrelated medical issues in the intervening period, there was no record of any reporting of the plaintiff’s symptoms regarding his neck and shoulder.

[31]            The defendant points to the evidence that, at the plaintiff’s next visit with Dr. Steinson in November 2007, he complained about pain three or four times a week, exacerbated by “extra driving and shoulder-checking” even though he had not worked as a courier for over a year at that point.  Further, despite Dr. Steinson’s recommendation, the plaintiff did not seek massage or acupuncture treatment until May 2008.

[32]            The defendant submits that, at best, this is evidence of the plaintiff’s failure to mitigate and, at worse, the over-reporting of an accident-related injury.  The defendant further submits that while the plaintiff has indicated a lack of funds as a reason for his failure to pursue treatment, he adduced no evidence of any efforts to obtain approval for further treatment.



[33]            The plaintiff submits that the defendant is liable for the accident.  The defendant submits that the plaintiff is 100% responsible for the accident and in the alternative, if liability is to be apportioned, it should be 75/25% in favour of the defendant.

[34]            Section 174 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA], governs the right-of-way in situations where a driver is making a left turn:

When a vehicle is in an intersection and its driver intends to turn left, the driver must yield the right of way to traffic approaching from the opposite direction that is in the intersection or so close as to constitute an immediate hazard, but having yielded and given a signal as required by sections 171 and 172, the driver may turn the vehicle to the left, and traffic approaching the intersection from the opposite direction must yield the right of way to the vehicle making the left turn.

[35]            An immediate hazard exists if the oncoming vehicle must make a sudden or violent avoiding action to prevent a collision: Aerabi-Boosheri v. Retallick, [1996] B.C.J. No. 143 at para. 8.

[36]            Section 128 of the MVA governs the duties of drivers when a traffic light turns yellow.  It states, as far as is relevant, as follows:

128      (1)        When a yellow light alone is exhibited at an intersection by a traffic control signal, following the exhibition of a green light,

(a)        the driver of a vehicle approaching the intersection and facing the yellow light must cause it to stop before entering the marked crosswalk on the near side of the intersection, or if there is no marked crosswalk, before entering the intersection, unless the stop cannot be made in safety…

[37]            Who has the statutory right-of-way is informative; however, it does not determine liability in an accident.  Drivers with the statutory right-of-way must still exercise caution to avoid accidents where possible.  In Walker v. Brownlee, [1952] 2 D.L.R. 450, Cartwright J. states at paras. 46-47:

[46]      The duty of a driver having the statutory right-of-way has been discussed in many cases.  In my opinion it is stated briefly and accurately in the following passage in the judgment of Aylesworth J.A., concurred in by Robertson C.J.O., in Woodward v. Harris, [1951] O.W.N. 221 at p. 223: "Authority is not required in support of the principle that a driver entering an intersection, even although he has the right of way, is bound to act so as to avoid a collision if reasonable care on his part will prevent it.  To put it another way: he ought not to exercise his right of way if the circumstances are such that the result of his so doing will be a collision which he reasonably should have foreseen and avoided."

[47]      While the judgment of the Court of Appeal in that case was set aside and a new trial ordered [[1952] 1 D.L.R. 82] there is nothing said in the judgments delivered in this Court to throw any doubt on the accuracy of the statement quoted.

[38]            The only evidence before the Court as to the cause of the accident is the testimony of the plaintiff and the defendant.  Both claim the other was negligent.  There is no evidence of any independent witnesses before the Court, nor was there expert evidence tendered at trial.  The physical evidence of the damage to the vehicles is not determinative.

[39]            At issue is whether the defendant entered the intersection when he should and probably could have stopped safely or, alternatively, whether the plaintiff should have appreciated the immediate hazard posed by the defendant’s vehicle and waited for the defendant’s vehicle to clear the intersection before making his left turn.

[40]            The defendant gave no evidence that it was unsafe for him to stop at the yellow light, only that he did not want to jar his son in the passenger seat.

[41]            The defendant testified in an evasive and less than straightforward manner.  The defendant’s evidence on cross-examination was as follows:

i.          The light was yellow when he entered the intersection;

ii.          Before he entered the intersection, he saw the Front Car initiating its left turn;

iii.         As he was approaching the intersection, he also saw the plaintiff’s vehicle behind the Front Car; the plaintiff’s car had signalled and was moving in the left-turn lane, “inching its way to declare an intent;”

iv          The gap between the plaintiff and the Front Car was narrow;

v.         He momentarily depressed his brakes to allow the Front Car to turn;

vi.         The light changed to red “just moments before impact” and the “people opposite had already come to a stop”; and

vii.        He expected the plaintiff to stop.

[42]            The defendant also testified in cross-examination as follows:

A          The—this is me, this is the truck in front of me. The truck in front of me goes straight through the intersection. The car in front of the plaintiff turned there, and I’m right behind this truck, but I depressed my brake a little bit because this car turned right after the truck that was in front of me, but in front of me. He went between us. And then Mr. Noriega, the plaintiff, came behind that car.

Q         So there was one or two car lengths between the truck in front of you and—and your vehicle as you approached the intersection. The truck is—goes through on the green. The light turns to yellow and the vehicle in turning left in front of the plaintiff turns in between the two of you and there’s only a gap of one or two car lengths?

A          Yeah. And that’s at that point I depressed the brake just to—as a courtesy to generate a—and as my own safety, to generate a safe enough distance for that car to successfully make it since it had, I guess, what, beat me to that point and I wasn’t trying to get in an accident. But certainly I guess people get a little pushy and shovey even behind the wheel.

[43]            Given the defendant’s admission that he was travelling approximately 50 kilometres per hour and that he may have depressed his brake and taken “5 miles or so per hour” off his speed, I do not find it plausible that the Front Car could have safely turned between the defendant and the truck as the defendant describes.  I also note that the plaintiff was never asked in cross-examination whether he saw the truck travelling in front of the defendant.

[44]            Further, on the defendant’s own version of events and the position of the vehicles, the collision would have had to occur prior to the defendant’s vehicle reaching the centre of the intersection.  He testified that the light changed to red just prior to impact.  At his examination for discovery he described the light as a “long yellow.”

[45]            I find that the defendant did not enter the intersection at the beginning of the amber light.  The defendant, who was in a hurry, entered the intersection when it was not safe for him to do so, on a very late stage amber or red light.  He should have stopped.

[46]            The next issue for consideration is whether or not any negligent conduct contributing to the cause of the accident is attributable to the plaintiff.

[47]            The defendant points out various inconsistencies in the plaintiff’s evidence in support of his submission that the plaintiff did not see the defendant’s vehicle as it approached the intersection.  The defendant submits that the proper inference to be drawn is that the plaintiff was not keeping a proper lookout when he proceeded with his left turn.

[48]            The plaintiff was attempting to give a description of the collision, which happened very suddenly, and necessarily he would have a very brief opportunity to make any observations about the defendant’s speed and what he actually saw at the time.  Although there were some inconsistencies in the plaintiff’s evidence, I am satisfied that he was telling the truth as he recalled the events.  I find the plaintiff overall to be a forthright and credible witness.

[49]            I accept the plaintiff’s evidence that, prior to proceeding with his left turn, he checked that the oncoming traffic eastbound on Hastings had stopped.  This is consistent with the Front Car safely executing the left turn.  Given that the oncoming traffic had stopped and he saw no immediate hazard, it was reasonable for the plaintiff to follow the Front Car and proceed with his left turn.  I also accept the plaintiff’s evidence that, at the time of impact, his vehicle was already on Willingdon with his front wheels crossing over the pedestrian crosswalk running east-west on Willingdon.  Furthermore, given that the traffic had stopped and that there were three lanes and a left-turn lane on the eastbound side of Hastings and that the plaintiff had almost completed his left turn at the time of the collision, it is not surprising that the plaintiff would not have seen the defendant in sufficient time to react and avoid the accident.

[50]            I conclude that the plaintiff exercised reasonable care in the circumstances.  He was not negligent.  I find the defendant wholly responsible for the accident.


Non-Pecuniary Damages

[51]            Non-pecuniary damages are awarded to compensate the plaintiff’s pain, suffering, and loss of enjoyment of life.  For purposes of assessing non-pecuniary damages, fairness is measured against awards made in comparable cases, although it is “impossible to develop a tariff”.  The factors to be considered in awarding non-pecuniary damages were enumerated by the B.C. Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19 at para. 46.  The inexhaustive list includes the age of the plaintiff; the nature of the injury; the severity and duration of pain; disability; emotional suffering; loss or impairment of life; impairment of family, marital, and social relationships; impairment of physical and mental abilities; and loss of lifestyle.  However, each case is decided on its own unique facts:  Kuskis v. Tin, 2008 BCSC 862 at para. 136.

[52]            I have carefully assessed the plaintiff’s evidence given his ongoing complaints of flare-ups with his neck and shoulder, the waving and waning of his symptoms and the lack of regular visits to his family doctor for those complaints.  When testifying, the plaintiff answered questions responsively and in a straightforward and forthright manner.  In the context of all of his evidence, I am not persuaded that any inconsistencies were particularly significant.  I am satisfied that he did not exaggerate his symptoms.

[53]            I find that the plaintiff suffered soft tissue injuries to his neck and left shoulder caused by the motor vehicle accident and that these injuries caused him pain and suffering.  The injuries were such that he could not work for approximately two weeks.  He also suffered from intermittent sleep problems.  Pursuant to his doctor’s recommendation, he attended approximately twelve physiotherapy sessions.  He took anti-inflammatory medication and muscle relaxants, iced his sore muscles and did various stretching exercises.  His wife helped him with home massages.

[54]            For an initial period after the accident, his injury and the consequent discomfort he experienced while driving impacted his and his wife’s social activities because his wife did not drive.  His wife testified that this negatively affected their relationship.  She testified that for a few months after the accident the plaintiff was withdrawn and short-tempered, and they had frequent arguments.  Furthermore, the plaintiff could not perform any household chores for two weeks following the accident.  His routine walks with his wife and his weight-lifting routine were disrupted.

[55]            I accept that the plaintiff’s evidence that his neck and shoulder injury has not resolved entirely.  The plaintiff continues to experience episodes of neck and shoulder pain.  He takes over-the-counter pain medication two or sometimes three times per week; although, he is cautious about not relying on medication.  He continues to do his stretching exercises and uses an exercise ball.  He cannot carry heavy items with his left arm.  His pain is exacerbated by any repetitive motions of his head such as driving and shoulder-checking.  It is difficult for him to drive for extended periods.  Otherwise, his social and recreational activities are not significantly impacted.  The plaintiff has resumed his weight-lifting routine and his routine walks with his wife.  However, his walks are not as frequent nor as long as prior to the accident, nor his weight-lifting routine as strenuous.

[56]            For the most part, the plaintiff is able to perform his duties as a customer service representative.  He is a relatively stoic individual and I am satisfied that he continues to suffer periods of discomfort at work, for example, when he is required to dig through containers in the warehouse.

[57]            Dr. Steinson was an impressive witness.  I accept his opinion that the plaintiff has developed a myofascial pain syndrome in his neck and trapezius as a consequence of the injury in the motor vehicle accident.  I also find that the episodic pain that the plaintiff continues to experience is mild to moderate.  Dr. Steinson’s prognosis for the plaintiff is guarded.  Based on the medical evidence, the likelihood is that the plaintiff’s symptoms will continue to improve over the next few years although there is a possibility that his episodic pain may persist further into the future.

[58]            The defendant’s position is that the plaintiff has failed to mitigate his damages by failing to seek out treatments after January 2006 and by failing to follow his doctor’s advice regarding treatment.  The burden to prove a failure to mitigate rests on the defendant: Janiak v. Ippolito, [1985] 1 S.C.R. 146, 16 D.L.R. (4th) 1 at para. 32.  In Red Deer College v. Michaels, [1976] 2 S.C.R. 324 at p. 331, [1975] 5 W.W.R. 575, the Court stated as follows:

If it is the defendant’s position that the plaintiff could reasonably have avoided some part of the loss claimed, it is for the defendant to carry the burden of that issue, subject to the defendant being content to allow the matter to be disposed of on the trial judge’s assessment of the plaintiff’s evidence on avoidable consequences.

[59]            The defendant has failed to discharge this onus.  The defendant did not tender any evidence that the plaintiff’s physical condition would be better today had he pursued other treatments.  I am satisfied that the plaintiff did not pursue the other treatments because of cost considerations.  Furthermore, I am satisfied that he did not seek the acupuncture treatment recommended by Dr. Steinson in November 2007 until May 2008 because of the personal and medically-related problems he and his wife were experiencing at the time.  In so far as not following up with Dr. Wong’s recommendation to pursue physiotherapy in June 2006 for his neck and shoulder, I find that the plaintiff likely did not do so because physiotherapy treatment for the work-related back injury he suffered in July 2006 took precedence.

[60]            The plaintiff seeks an award of $35,000 to $80,000 for non-pecuniary damages.

[61]            The defendant submits that, taking into account all the factors, the appropriate award for non-pecuniary damages is in the range of $10,000 to $15,000.

[62]            The plaintiff has suffered some moderate interference with his life because of the pain and suffering associated with his neck and shoulder injury caused by the motor vehicle accident.  Having reviewed the authorities provided to the Court by both the plaintiff and the defendant and considering all the evidence of the plaintiff’s specific circumstances.  I conclude that an appropriate award for damages for pain and suffering and loss of enjoyment of life is $30,000.

Past Income Loss

[63]            The plaintiff claims that he incurred a past wage loss of $4,991.51 because of the injuries he sustained in the motor vehicle accident.

[64]            The defence entirely rejects this claim, submitting that the plaintiff has not proven a loss of income arising from the subject accident and that it was his subsequent back injury that prevented the plaintiff from working as a courier.

[65]            The plaintiff’s position is founded on the premise that he was forced by the injuries he suffered in the motor vehicle accident to change his position from a courier with Federal Express to a customer service representative with Federal Express at the Vancouver airport.  As a customer service representative, his job duties include dealing with customers on the phone and in person, and processing envelopes and packages.  This position is a pay level lower than the courier position held prior to the accident and the change entailed a pay cut from $16.88 per hour to $16.04 per hour.

[66]            The plaintiff missed approximately two weeks of work immediately after the accident.  He testified that he performed his duties as a courier in pain and that he was applying for other jobs after November of 2005.  He did continue to work as a courier until July 2006 when he suffered a work-related back injury.  Couriers are required as part of their job duties to lift and manoeuvre heavy packages.

[67]            It was Dr. Steinson’s evidence that the plaintiff’s back injury was an “acute onset of lower back pain with sciatica.”  The plaintiff testified that his back continues to bother him.  No medical evidence was tendered at trial to establish that the neck and shoulder injury suffered by the plaintiff as a result of the accident, and the symptoms associated with that injury contributed in any way to his work-related back injury.

[68]            After his back injury in July 2006, the plaintiff never resumed his duties as a courier.  His evidence was that after his back injury, he decided to take a new direction in his career.  In cross-examination the plaintiff agreed that the new customer service position is “a better fit, more hours and more growth opportunity in the long-term.”  In all the circumstances, I am not satisfied that the plaintiff has established that it was his neck and shoulder injury that caused him to change jobs and therefore make no award for past wage loss.

[69]            Further, on the evidence, there has been no claim established for wage loss for the period of work (November 26, 2005 to December 11, 2005) the plaintiff missed after the motor vehicle accident.

Loss of Housekeeping Capacity

[70]            The plaintiff submits that he has reduced capacity to perform all of the household cleaning and tasks that he was once able to perform and based on the principles enunciated in Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652, 4 B.C.L.R. (3d) 178 (C.A.), that the appropriate range of damages under this head is $5,000.  At the time of trial, for the most part, the plaintiff had resumed any household tasks he performed prior to the accident.

[71]            I find that no compensable loss of housekeeping capacity has been established on the evidence.

Future Loss of Income and Diminished Earning Capacity

[72]            The plaintiff is seeking compensation for future loss of income and diminished earning capacity.  He is seeking damages in the range of $40,000 to $75,000.

[73]            The defendant’s position is that there is no evidence on which the Court can conclude that either the plaintiff has diminished work capacity or that the loss of capacity is related to the subject accident.  In particular, the defendant notes that the plaintiff continued to work as a courier after the accident until his workplace accident some seven months later.  The defendant submits it was the back injury that prevented the plaintiff from working as a courier.  Further, the plaintiff has provided no functional capacity evaluation or other objective assessment of capacity.

[74]            The plaintiff testified that by virtue of the injuries he sustained in the motor vehicle accident, his future employment prospects would be limited because he would not be able to be employed in any position that required physical labour.  His evidence was that, for example, he could not return to work at Home Depot in the warehouse because of the heavy lifting and operation of a forklift required in that position.  He also testified that working as a courier would probably “be out of the question.”

[75]            In Kuskis, the court succinctly summarized the relevant principles regarding a claim for future earning capacity at paras. 151-155 as follows:

[151]    A claim for loss of future earning capacity raises two issues:  (1) has the plaintiff’s earning capacity been impaired to any degree by her injuries and, if so, (2) what amount should be awarded:  Fox at ¶ 91.

[152]    To determine the question of impaired capacity the court considers factors such as whether the plaintiff has been rendered less capable overall of earning income from all types of employment; is less marketable or attractive as a potential employee; has lost the ability to take advantage of all job opportunities that might otherwise have been open; and is less valuable to herself as a person capable of earning income in a competitive labour market:  Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353.

[153]    To quantify a loss of earning capacity the court conducts an assessment, based on the evidence, rather than applying a purely mathematical calculation:  Rosvold v. Dunlop, (2002) 84 B.C.L.R. (3d) 158; Durand v. Bolt, 2007 BCSC 480.  For assessment purposes, income earning capacity is viewed as a capital asset and all relevant positive and negative contingencies must be considered:  Fox at ¶ 92 and 102-103; Parypa v. Wickware, 1999 B.C.J. No. 270.

[154]    One method of assessing loss of future earning capacity is to compare the likely future income of the plaintiff if the accident had not occurred with the likely future income of the plaintiff now that it has occurred.  In addition, the overall fairness and reasonableness of the award must be taken into account:  Rosvold at ¶ 11.

[155]    Relevant contingencies for consideration may be general or specific in nature.  Such contingencies include, for example, the potential for improvement in health, opportunities for advancement, and the usual chances and hazards of life:  Djukic at ¶ 105.

[76]            In Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.), Madam Justice Southin stated:

Because it is impairment that is being redressed, even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensation for the impairment. He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income earning ability.

[77]            Based on the authorities in order to determine damages for loss of future earning capacity, the following questions as set out in Earnshaw v. Despins (1990), 45 B.C.L.R. (2d) 380 (C.A.), must be addressed:

1.         Has the plaintiff’s earning capacity been impaired to any degree by his injuries?

2.         If so, what amount in the light of all the evidence should be awarded for that impairment?

[78]            The plaintiff testified that his back continues to bother him and I find that the plaintiff’s work-related back injury is a divisible injury from his neck and shoulder injury.  At para. 24 of Athey v. Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235 [Athey], the court discusses the assessment of damages when the plaintiff has suffered injuries as a result of two separate incidents as follows:

Separation of distinct and divisible injuries is not truly apportionment; it is simply making each defendant liable only for the injury he or she has caused, according to the usual rule. …such cases merely recognize that the defendant is not liable for injuries which were not caused by his or her negligence.

[79]            The standard of proof in relation to hypothetical or future events is not the balance of probabilities; a future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility.  Hypothetical events are to be given weight according to their relative likelihood: Athey at para. 27.

[80]            Dr. Steinson opined that the plaintiff would have to avoid occupations which required a great deal of driving, a lot of lifting or shoulder-checking as this may exacerbate his symptoms.  The evidence with respect to the extent of the impairment of his earning capacity was not well-developed.  Even so, I accept that the condition of the plaintiff’s neck and shoulder has resulted in some impairment of his future earning capacity.  For as long as his neck and shoulder pain persists, there will be some occupations closed to him; for example, those occupations requiring repetitive motion of his neck and shoulders.  Given the plaintiff’s age, level of education, lack of specialized skills, and past work history, some allowance should be made for the possibility that the plaintiff may have lost the capacity to take up a strenuous labouring job if he should ever need to engage in such employment.

[81]            In applying the relevant legal principles and gazing “deeply into the crystal ball” described by the court in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452, I am left to make an assessment as it relates solely to the plaintiff’s neck and shoulder injury.

[82]            I conclude that the plaintiff’s future earning capacity has been impaired by the injuries he suffered in the motor vehicle accident.  In these circumstances, taking into account the many future contingencies that may arise and the prospect of recovery or at least improvement in his symptomology, I assess the plaintiff’s damages for loss of future earning capacity at $20,000.

Future Cost of Care

[83]            The plaintiff seeks a lump-sum award of $2,000 to allow him, pursuant to Dr. Steinson’s recommendation, to seek pain management modalities such as acupuncture or massage therapy, as well as to participate in a structured exercise program in an effort to rehabilitate his injuries.  The plaintiff testified that the acupuncture treatments he has received, which cost $70 per visit, provided him with some pain relief.  I am also satisfied that the plaintiff would benefit from a structured exercise program, although there was no evidence tendered with respect to the costs associated with such a program.

[84]            The Court in Kuskis summarized the relevant principles on cost of future care at paras. 163-164:

[163]    An award for the cost of future care is notional and imprecise in nature:  Strachan (Guardian ad Litem of) v. Reynolds, 2006 BCSC 362.  The court must consider evidence regarding what care is likely in the injured person’s best interest and calculate its present cost, with appropriate adjustment for contingencies in all of the circumstances of the case:  Courdin v. Meyers, 2005 BCCA 91.

[85]            I am satisfied that an award of $2,000 is appropriate.

Special Damages

[86]            The plaintiff claims special damages of $600 for non-prescription drugs, mileage, and out-of-pocket expenses of $135 for his physiotherapy treatments.  Given the evidence, I award the plaintiff $500 for special damages.


[87]            In summary, the defendant is held wholly liable for the accident and damages are awarded to the plaintiff as follows:

(1)        Non-pecuniary loss $30,000;

(2)        Loss of future earning capacity $20,000;

(3)        Cost of future care $2,000; and

(4)        Special damages $500.

[88]            The damages awarded total $52,500.


[89]            In the event that the parties cannot reach an agreement on costs, they have liberty to apply by contacting the Registry to set a date for submissions on the matter.

“Dardi J.”