Collyer v. Boon,


2008 BCSC 1745

Date: 20081218
Docket: M052859
Registry: Vancouver


Michael Collyer



Cameron Boon and Levett Auto Metal Ltd.


Before: The Honourable Madam Justice Loryl Russell

Reasons for Judgment

Counsel for Plaintiff

L. Kerr,
A. Mersey


Counsel for Defendants

M.D. Murphy,
B. Poston


Date and Place of Trial:

April 14-18 and April 21-24, 2008


Vancouver, B.C.


[1]                The plaintiff, Mr. Collyer was injured on March 30, 2005 in an accident at Willingdon and Hastings in Burnaby, BC (the “Accident”).  He was proceeding west on a green light when the defendant Boon, who was coming east, turned left in front of him.  Liability is admitted.

[2]                Mr. Collyer’s car, a 1995 Jetta, was written off, as was the Toyota Corolla belonging to the defendant.  The plaintiff suffered injuries to his neck, back, shoulders, hip, knee, superficial burns and abrasions to his arms, and bilateral thumb sprains.  The burns and thumb sprains were likely caused by the air bags which deployed on impact to Mr. Collyer’s car.

[3]                Put in summary fashion, the injuries to the plaintiff’s thumbs, knee and hip and lower back have largely resolved.  The plaintiff complains of chronic pain in his neck, mid and upper back, and problems with sleep.  His thoracic spine is his major problem.  Currently, he takes substantial amounts of Tramodol, an opiate, to control his pain, supplemented with Tylenol 3 to assist him to sleep.  He has abandoned his claim for psychological injuries.

[4]                With a short break from school not due to the injuries suffered from the accident, the plaintiff has continued to attend university since the accident.  He is currently a student at Simon Fraser University (“SFU”) where he would be entitled to apply for graduation in 2008 with a Bachelor of Arts with double majors in Criminology and Philosophy.  However, at the time of trial he was actively considering whether he would accept an invitation to enter an Honours programme and delay his graduation for one year.  The plaintiff has done well at university; in fact his marks have improved since the Accident, a result he characterizes as following from a better focus with a clear goal in mind:  to enter law school at the University of British Columbia (“UBC”). 

[5]                Before the Accident, the plaintiff states that he led an active life, going to school by day, bartending at the West Broadway Cactus Club on weekends and the odd Monday, and snowboarding and playing pick-up sports with his friends. 

[6]                The defendants accept that the plaintiff suffered moderate soft tissue injuries in the Accident, but say that it is the plaintiff’s management of those injuries and his credibility which the court must examine in what the defendants say is the plaintiff’s failure to mitigate.

[7]                At the close of trial, the plaintiff realised he had failed to plead an in-trust claim for certain special damages, which were paid for by his parents.  That amendment is granted to allow an award to the plaintiff’s parents for medical expenses they incurred on the plaintiff’s behalf.


[8]                The following issues arise concerning the plaintiff’s entitlement to damages:

(a)      Non-pecuniary damages for pain and suffering, loss of amenities and loss of enjoyment of life and any failure to mitigate;

(b)      Loss of capacity to earn past and future income;

(c)      Cost of future care;

(d)      Special damages.


[9]                Prior to the Accident, the plaintiff was attending SFU and working part-time as a bartender at the Cactus Club.  He had worked at the North Vancouver Cactus Club since October 2002, working his way up to bartender following student jobs as a busser and server at other restaurants.  The plaintiff was a successful bartender who had a pleasing personality and an ability to provide enjoyable service to his customers.  Because of his seniority in the North Vancouver Cactus Club, he was able to enjoy the most lucrative shifts and substantial tips. His tip income on Friday and Saturday nights would amount to $130 to $170.  His normal shifts there were Friday, Saturday, Sunday and Monday nights.  Monday was a good night because the Cactus Club offered cheap beer to attract customers on an otherwise quiet night.

[10]            His wages at the Cactus Club were $8.00 per hour and were a negligible component of his overall receipts. 

[11]            In keeping with what seems to be the practice for those who receive tips in the restaurant industry, the plaintiff routinely cheated on his income tax returns.  He declared about 10% of his wage income as tip income and says he did not keep track of his tips.  He placed them in a jar and used them to pay expenses such as rent and entertainment.  He now claims that he earned double his wages in tips.  He began working at the Cactus Club in 2003, but first declared tip income on his income tax return in 2005.

[12]            In January, 2005, the plaintiff followed a manager he respected, Jeff Shinkewski, to the West Broadway Cactus Club.  The plaintiff had ambitions to become the bar leader, a position which would give him a slightly higher wage, $10 per hour but, more importantly, a step up into management with some accompanying administrative tasks such as ordering liquor. 

[13]            The plaintiff testified that the move to West Broadway would result in more lucrative tips since the business volume was much greater there.  He had also been encouraged by Mr. Shinkewski to come to West Broadway because the bar leader position there would likely become available.

[14]            With the move to West Broadway, the plaintiff became the junior bartender in the group there.  He had to learn the routine in which West Broadway worked and he did not have priority for the most profitable shifts.  He usually worked 6-8 hour shifts, but would be sent home earlier if it were a quiet shift.  The plaintiff’s shifts initially were “all over the map”, but he sometimes did Friday night in the “well” where he made drinks and served the bar and then did Saturday and Sunday morning preparations:  cutting lemons and limes.  He testified he could also switch shifts with anyone who was willing.

[15]            Over the summers when the plaintiff was not in school, the plaintiff worked four or five shifts per week.  While in school, he worked three to four shifts per week.  Each shift was approximately 8 hours in length, with shifts in the summer being slightly longer.  The only summer shifts worked by the plaintiff were at the North Vancouver Cactus Club.  He worked from February, 2005 to May, 2005 at the West Broadway Cactus Club.

[16]            The plaintiff says that he loved his bartending job.  It was fun and lucrative and it accommodated his student schedule.  He testified in direct that the Cactus Club was “great” about scheduling so that if he needed a day off it was relatively easy to arrange.  He also indicated in direct that switching shifts and finding someone to cover Friday and Saturday nights were relatively easy. 

[17]            The Accident occurred on Wednesday, March 30, 2005. 

[18]            Both drivers were proceeding on the green light when the defendant Boon turned in front of the plaintiff.  The airbags in the plaintiff’s car deployed.  The airbags caused some burns to the plaintiff’s left and right forearms.  A few days later he reported to Dr. Smith, his family doctor, that he did not suffer a loss of consciousness although he was somewhat dazed.  However, in his evidence at trial he reported “waking up and being totally confused”.  I find it is more likely that he was frightened and shocked by the impact and that he is reconstructing inaccurately when he now describes himself as “waking up”.

[19]            Post-accident, the plaintiff got out of his car unassisted.  I infer that he did so with some haste since the deployment of the airbags resulted in what appeared to be smoke in the car.  The plaintiff described it as “very scary” and since the car was full of smoke he wanted to get out of it as quickly as possible.

[20]            Immediately following the collision, the plaintiff called his mother.  She picked him up at the scene and took him to a clinic in Park Royal and then to the ICBC office to file his claim.  Emergency vehicles attended at the scene of the accident and paramedics checked the plaintiff over, but did not send him to hospital.

[21]            The plaintiff attended his own doctor, Dr. Smith on Monday, April 4, 2005, a day which coincides with the plaintiff working 7.75 hours at the Cactus Club.  He reported to Dr. Smith that his neck, mid, upper and lower back, knee, pelvis and left hip and the burns on his forearms were painful.

[22]            The plaintiff testified that he took a couple of days off school and off work but that “. . . it’s pretty hard to get someone to come in to cover shifts. . . I think I eventually went back . . . probably within . . . a week.”  He did get a note from his doctor allowing him to miss two days of his university classes.

[23]            According to the Cactus Club work schedules filed as Exhibit 5, the plaintiff worked some Fridays during the months of February and March 2005 as follows:   in February, he worked Friday, February 25 only, in March, Friday, March 4 and 18.   He did not work Friday, April 1, 2005.  He worked shifts on Saturday, April 2, Sunday, April 3, and Monday, April 4, 2005 and worked shifts on April 8, 9,10,16,17, 22, 23, 24, 30 and May 1, 2005, after which he was no longer employed by the Cactus Club.

[24]            I cannot find he missed the Friday shift on April 1, 2005 at the Cactus Club due to his injuries since there is no evidence that he was scheduled to work that night.  I also find that he is mistaken about missing any work at the Cactus Club immediately following the Accident.  His schedule after the Accident until he quit is consistent with his pre-accident schedule of work, taking into account his evidence that the hospitality business slows down after Christmas and then picks up towards summer.  His post-accident schedule does not appear to have been affected by his injuries.

[25]            The plaintiff continued to work at the Cactus Club until May 1, 2005.

[26]            I have no doubt that the plaintiff found his work at the Cactus Club somewhat difficult with the pain he was experiencing in his back and hip.  His bartending duties require that he lift trays of glasses and stand while serving customers.  He took breaks when he needed to and would go into the cooler from time to time to straighten his back against the wall.

[27]            At this time, he was also attending classes at SFU.  He had classes in different parts of the campus, so was walking between them and in some buildings, climbing stairs between classes.

[28]            The burns on his forearms healed within a week or two after the Accident as did his thumb sprains.

[29]            At this point, the plaintiff was very tired following completion of his shifts at the Cactus Club.

[30]            The plaintiff quit his employment at the Cactus Club following a conversation with Jeff Shinkewski.  The plaintiff testified that Mr. Shinkewski told him he was not performing up to his capabilities.  The plaintiff took that comment to mean that due to his injuries he was not meeting standards.  He responded that he would do his best to find another job by what he believed was a set date given him by Mr. Shinkewski. 

[31]            Mr. Shinkewski gave evidence under subpoena issued by the defendants. I found Mr. Shinkewski to be a straightforward and credible witness without any interest in the outcome of this case.

[32]             Mr. Shinkewski gave evidence that despite having suggested the plaintiff leave the North Vancouver Cactus Club to move to the Broadway location, where he might have access to a management position in the bar, in April, 2005, he informed the plaintiff that management had decided someone with more seniority and more flexibility in terms of shifts would be better suited to the bar leader position.  Mr. Shinkewski explained that he was also not able to give the plaintiff the shifts he wanted because these had to go to a bartender with more seniority.  Mr. Shinkewski recommended that the plaintiff look for another position where he could work the higher profile shifts.

[33]            Mr. Shinkewski was aware the plaintiff had been involved in an accident, but cannot recall if the plaintiff told him he was having difficulty carrying out his duties.  He stated that if the plaintiff had approached him about problems with some of the physical aspects of his job, he would have accommodated those limitations. 

[34]            Among the possibilities Mr. Shinkewski described would have been to give the plaintiff the “wood” bartender position.  In that position, the bartender is responsible for “schmoozing” the customers sitting at the bar and does not do the physical work.

[35]            One of the heavy bartending tasks the plaintiff mentioned from his experience at the North Vancouver Cactus Club relates to changing the beer kegs.  The kegs are very heavy when full, weighing approximately 50-60 pounds.  Empty kegs weigh only 10 pounds. At Broadway, the cooler is 15 feet long and it has two tiers of shelves.  The bottom shelves are used for keg storage and the top shelves house the active kegs.  When an active keg is empty, the bartender must untap it, take the empty one off and then lift a full keg onto the top shelf so that it can be tapped.   Mr. Shinkewski stated that the Broadway location has a policy that when a keg requires changing, two people must lift the full keg.  However, the policy is verbal and it is possible an employee might not be aware of it.

[36]            Mr. Shinkewski agreed that the plaintiff is a very good bartender and stated that if the plaintiff had wanted to stay at the West Broadway location, notwithstanding the fact that he was not hired for the bar manager position, Mr. Shinkewski would have been prepared to keep him employed, subject to his ability to perform his duties. 

[37]            The plaintiff gave notice at the Cactus Club and according to the records in Exhibit 5, he worked his last shift there on May 1, 2005.

[38]            At this point, the plaintiff had finished his Spring semester at Simon Fraser University.  For the three courses he was taking, he received two grades of C plus and one B minus.

[39]            In April, 2005, after the plaintiff learned  from his manager, Mr. Shinkewski, that he would not be awarded the bar leader position, he contacted Farid Vaziri, a former employee of the Cactus Club who had been his boss in North Vancouver and who had remained in contact with the plaintiff after he left.

[40]            The plaintiff felt that Mr. Vaziri appreciated his people skills and he might be able to find less physically demanding work with him.  At this time, Mr. Vaziri was working with a marketing firm called Abstract Promotions, which did door-to-door sales for Sprint, later Rogers, selling phone services. 

[41]            As a result of his conversation with Mr. Vaziri, the plaintiff provided a letter of resignation to the Cactus Club.  His resignation was effective immediately.

[42]            The plaintiff began working for Abstract Promotions in Vancouver and worked for that company for 6-7 weeks when he was offered an opportunity to move to London, Ontario to perform the same sales job.  He accepted.

[43]            According to the plaintiff, he was not making enough money with Abstract Promotions to continue to maintain his apartment, so he moved in with his father, an experience which he said he found humiliating after having been on his own.

[44]            However, that assertion by the plaintiff is not reflected in the timing of his decision to give up his apartment.  He left his apartment at the end of May, 2005.  He moved to Ontario June 20 or 21, 2005.  It appears to me that he gave notice on his apartment effective the end of May because of his impending move and, since he intended to move to Ontario in June, it would not make financial sense for him to leave his apartment mid-June having paid rent for the entire month.

[45]            According to Mr. Vaziri, the plaintiff was very good at the sales job, but he had to take breaks during the day and was also attending physiotherapy.  These issues affected his productivity and were disruptive according to Mr. Vaziri.  The plaintiff, on the other hand, says that he did not make enough money at Abstract Promotions to stay in his apartment.  However, if he were not making money at Abstract Promotions, it is odd he would be offered and would accept the same kind of job in London, Ontario. 

[46]            The job was 100% commission-based and the plaintiff was working 5 and 6 days a week walking door-to-door.  He said he could do the job because he was not carrying anything except a clipboard and he could rest from time to time.

[47]            However, despite expressing concerns about the plaintiff’s productivity with Abstract Promotions, according to the plaintiff, Mr. Vaziri was clear that if the plaintiff wanted to come to work in Ontario, he would be hired.

[48]            It seems curious that if the plaintiff’s injuries were interfering with his productivity in the sales job in B.C., that he would be offered the opportunity to perform the same job in Ontario by the same person who had expressed concern about the plaintiff’s ability to do his job.  This apparent contradiction goes to the credibility of Mr. Vaziri as does the inconsistency between saying the plaintiff was very good at the sales job, but that Mr. Vaziri was concerned about his productivity. 

[49]            In any event, the plaintiff went to London, Ontario with “Jordan”, Mr. Vaziri and two women with whom he had worked at Abstract Promotions in Vancouver.

[50]            In London, the plaintiff lived with this group and worked 6-7 days a week.  He also attended physiotherapy 12 times in the five and one-half months he spent in London, although he told his family physician he had attended physiotherapy once or twice a week when speaking to his doctor on his return.  When asked why he did not attend more often, he claimed he was unable to afford it, but in fact, his father paid for some of his physiotherapy sessions. 

[51]            I should note as well that while in Ontario the plaintiff did not apply for Ontario Health Insurance Programme (“OHIP”) coverage or inquire as to the availability of coverage for physiotherapy under OHIP.

[52]            The plaintiff’s job in Ontario involved the same sales efforts as his job in Abstract Promotions had.

[53]            The plaintiff left his sales job during the third week of September, 2005, not due to health issues, but due to personal differences with his colleagues.

[54]            The plaintiff went to work for a diamond broker and invested some money to open a jewellery store.  He lost his entire investment and was lied to by his business partner.  He agreed that his time in Ontario was stressful. The plaintiff returned home to Vancouver and moved in with his father in December, 2005.

[55]            His father was anxious for the plaintiff to find a job and in January drove him to at least two restaurants, namely Glowbal and the Blue Water Café, to leave resumes for a bartender job.   He did not leave an application at the Cactus Club.

[56]            The plaintiff returned to SFU in January, 2006.  He did not follow up with the bartender applications and instead did some work teaching English as a second language.  Later in the year, he worked for a professor at SFU taking “real time” notes on a laptop of the professor’s lectures at the SFU Surrey and SFU Downtown campuses.  He has not returned to any work in the hospitality industry since resigning from the Cactus Club in April, 2004.

[57]            From the time the plaintiff returned to SFU in January, 2006 to the time of trial, the plaintiff attended university without taking any breaks. 

[58]            Upon his return to SFU and since he ceased working to the extent he did when bartending, the plaintiff’s marks improved.  By the spring session of 2006, he received a grade B in all three of his courses.  In the summer session of 2006, he received an A, two Bs and a B minus.  In the fall of 2006, he received two Bs, a B minus, an A minus and an A.  In the spring of 2007, he received a B plus, a B and an A minus.  The plaintiff agreed that on Examination for Discovery, he stated that the Accident did not cause him to decrease the number of courses he was taking and it did not affect his grades.

[59]            Although by the spring of 2008, the plaintiff could graduate with a Bachelor of Arts with double majors in Criminology and Philosophy, he has decided to pursue an honours degree in Criminology after being invited to participate in the honours programme by one of his professors.  He was to commence the honours programme in the fall of 2008.

[60]              Once he has concluded his studies at SFU, the plaintiff intends to take the Law School Aptitude Test (the “LSAT”) and apply to the University of British Columbia School of Law.  If he is admitted, he will not work during the school year due to the demands of the programme.  He states that he plans to work during the summer break.

Plaintiff’s account of his injuries

[61]            Prior to the Accident, the plaintiff did not participate in any organized sports, but enjoyed beach volleyball, waterskiing, Frisbee, roller hockey and football.  He went snowboarding at Whistler frequently since his mother had a place there.  Since the Accident, he plays videogames, goes for walks on the West Vancouver Seawall and watches movies.  Pre-accident, he was generally healthy, but did and does still suffer from Attention Deficit Hyperactivity Disorder for which he takes Ritalin. 

[62]            Ritalin is a stimulant which can affect sleeping.  The plaintiff was advised not to take the drug after four o’clock in the afternoon in order to avoid sleep interruption.  Although he has had sleep problems since the Accident due to back and shoulder pain, he does not attribute this to the effects of Ritalin.

[63]            Following the Accident, the plaintiff reported to Dr. Smith, his family physician that he had pain in his neck, mid, upper and lower back, pelvis and left hip.  He also had sprained thumbs and superficial burns on his forearms from the airbags, which resolved quickly.  He has also had numbness in his fingers, but this condition resolved about a year and a half ago.  His continuing problems appear to be in his neck and back.

[64]            He attended physiotherapy on Dr. Smith’s recommendation for some time following the accident.  He was also trying different medications for pain.  He saw Dr. Taylor for physiotherapy and then for chiropractic work, but felt he was not receiving benefit from the treatment and had trouble working it into his schedule.

[65]            In April, 2006, the plaintiff began taking Tramacet.  It is a narcotic and an opiate, and was most effective for his pain relief.  However, many of the plaintiff’s doctors have indicated that it is useful for short term relief of acute pain and should not be used for the long term.  These same doctors have also expressed concern about the plaintiff’s dependence on pain medication and his failure to follow through with exercise programmes.  The plaintiff takes four to six Tramacet per day and, on a bad day, up to 10 Tramacet.  Tramacet also has some side effects such as joint pain, headaches and interference with sleep.  Dr. Smith, the plaintiff’s family physician, stated that there was no doubt the plaintiff was suffering side effects from Tramacet.

[66]            The plaintiff has shifted from Tramacet to Tramadol and requires fewer of these pills over the course of the day.  He also on occasion takes sleeping medication to address his sleep problems.  He is currently not on sleep medication because he suffered from morning grogginess.

[67]            In December, 2005, Dr. Smith recommended that the plaintiff undertake Pilates for core strengthening to help the plaintiff’s back.   The plaintiff began Pilates lessons three weeks before trial in April, 2008.

[68]            The plaintiff says that since October, 2006, his neck and back have deteriorated.  The muscles in his neck are constantly aching and he notices this particularly when he is reading or sitting at the computer.  Examinations which require him to remain sitting cause him pain.  He needs to stand and move around. He also notices pain when he pulls his roller bag to carry his books.

[69]            He has an intimate relationship with his girlfriend, Lydia, but their intimacies are an issue due to his ongoing back pain.

[70]            The plaintiff states that he has been doing some exercises on his own.  His exercise history is somewhat confused.  He did the CARP programme through ICBC from February to April, 2006.  He was provided with an exercise ball to use by ICBC in March, 2006.  Both the plaintiff and his parents state he has been doing the ball exercises regularly, but the plaintiff says he stopped in 2008 when Dr. Smith indicated concern about using the ball.  However, Dr. Smith says he told him not to use the ball in 2006 and I find the plaintiff would have acted on this suggestion.

[71]            It is likely the plaintiff has not continued with the use of the exercise ball as a result of Dr. Smith’s suggestion.  His parents are mistaken about the time frame in which he used the exercise ball.

[72]             Swimming was another activity the plaintiff attempted.  However, he found it painful and did not continue with it. 

[73]            The plaintiff has a gymnasium pass and uses the stationary bicycle.  However, there was no evidence as to the frequency with which he uses it.

[74]            As I noted above, he had commenced Pilates lessons twice a week three weeks before the trial.

[75]            In direct examination, the plaintiff stated that he walks the Seawall twice a week for about a half-an-hour to 45 minutes.  However, in cross-examination, he admitted that many of his walks were only ten minutes in duration and consisted of buying a coffee in Dundarave, walking down to the seawall and back up to the apartment at 17th Avenue. This would be a short walk and if the plaintiff is drinking coffee while he walks, he could not walk quickly enough to elevate his heart rate and benefit from the activity.

[76]            Dr. Pelly, the chiropractor who was still treating the plaintiff at the time of trial, was under the impression that the plaintiff was attending yoga classes.  The plaintiff says that Dr. Pelly was mistaken and does not know how he gained this impression.

[77]            I find that the plaintiff did not fully engage in a consistent exercise programme and instead relied too heavily on medication and passive therapies to address his pain.  This is a recurrent theme throughout the medical evidence of both the plaintiff’s and the defendants’ experts. 

[78]            The plaintiff suffers from sleep interruptions.  He awakens at 3 a.m. and may not be able to fall asleep again until 4:30 or 5 a.m.  To deal with this problem, he goes for a short walk or takes a shower or, on occasion, may ask his friend, Lydia to give him a massage.  He does not feel rested in the morning.

[79]            The plaintiff relies on Lydia to carry groceries and bags.  On a trip to Las Vegas in May, 2007, she carried the plaintiff’s luggage.  Similarly, on a trip to Galiano Island in the summer of 2007, she carried the luggage.

[80]            In the apartment which the plaintiff shares with his father, he does do some chores from time to time.  He takes out small bags of garbage and does laundry, although Lydia helps him with heavy loads.  He finds vacuuming difficult.

[81]            The plaintiff’s long term plan is to marry, have children and buy a house.

Medical Evidence

[82]            As is often the case in personal injury cases, the medical evidence concerning Mr. Collyer is relatively consistent, with one exception: disagreement over whether the herniated discs in the plaintiff’s thoracic spine resulted from the Accident and whether they are one of the factors responsible for the plaintiff’s chronic pain.

[83]            There is widespread agreement among the experts that Mr. Collyer suffered moderate myofascial injuries as a result of the Accident.  The neurosurgeon, Dr. Sahjpaul opines that the Accident is most likely responsible for the plaintiff’s symptoms, including disc herniations at T5-6 and T6-7.   Dr. Sahjpaul also opines that the plaintiff suffers from discogenic pain as a result of the herniations.  He does not believe surgery is indicated for the plaintiff unless the herniations increase in size to the point where they cause spinal cord compression.  At present, they do not do so and there is no signal change indicated.

[84]            The most important diagnosis Dr. Sahjpaul makes is to predict that the plaintiff’s pain is chronic in nature.  He does note that the herniation at T6-7 is slightly smaller in January, 2008.

[85]            Dr. Travlos, a physiatrist called by the plaintiff, defers to neurological findings made by Dr. Sahjpaul, but holds the view that the lack of radicular pain and the location of the plaintiff’s back pain in relation to the location of the herniations lead him to believe that the herniations are not related to the pain suffered by the plaintiff.  I found Dr. Travlos to be a refreshingly objective witness, responsive in both direct and cross-examination and lacking in any suggestion of partisan identification with the plaintiff.  However, he is the first to admit he is not a spinal expert as is Dr. Sahjpaul.  Therefore, I accept that the herniations testified to by Dr. Sahjpaul resulted from the accident and are a factor in the multi-factorial pain suffered by the plaintiff.

[86]            Dr. Travlos did opine that the plaintiff required further mobilization.  He stated that although exercise is not a panacea for resolving pain, it does help with mobility, flexion and condition.  He encouraged the plaintiff to increase his activities around the house, such as vacuuming and washing dishes.  These types of activities should be increased on a graduated basis.   He is also of the view the plaintiff should wean himself off the opiate, Tramacet.  His follow-up report states that he views the plaintiff’s spinal symptoms to be due to mechanical and soft tissue pain rather than disc herniations.

[87]            Dr. Travlos also states that the plaintiff should also wean himself off passive therapies and begin to participate in a more structured and demanding exercise programme, with such non-impact activities as cycling, swimming, light weight rowing and use of an elliptical trainer.   Independent pain management should be the plaintiff’s goal.

[88]            Dr. Travlos’ view is that the plaintiff’s symptoms will continue to improve further, but he states the plaintiff will not be symptom-free given his pain complaints and lack of improvement.  However, with improvement to his mental health and greater physical functioning, the plaintiff’s pain will likely be better controlled.  His symptoms should not prevent him from becoming employed on a full-time basis in a sedentary to light level job.

[89]            Dr. Gordon Taylor, a physician and chiropractor, also treated the plaintiff and recommended an exercise regime for him.  However, the plaintiff did not complete the treatment programme Dr. Taylor prescribed and did not follow up with him due to the plaintiff’s “busy schedule”.  Dr. Taylor’s findings included a comment about his concern respecting the plaintiff’s “polypharmaceutical techniques and tendency toward self-medication in this regard”.  His diagnosis was of mechanical thoracolumbar pain consistent with the Accident as described to him by the plaintiff.

[90]            Dr. Wayne Smith is the plaintiff’s family physician.  He has seen the plaintiff 30 times between April 4, 2005 and May 22, 2007 and another 13 times up to his updated medical legal report of February 13, 2008.  He is of the opinion that the plaintiff suffered soft tissue injuries to his neck, thoracic lumbar spine and his left knee as well as burns to his hands and two thoracic disc herniations, all of which he believes were a direct result of the Accident.  He notes the plaintiff’s burns have healed and he has recovered from his left knee injury.  As of June 20, 2007, the date of his first report, he had treated the plaintiff with prescription pain medications, physiotherapy and had recommended Mr. Collyer undertake a Pilates exercise programme.

[91]            Dr. Smith’s updated report of February 13, 2008 indicated the plaintiff’s pain was interfering with his studies and his marks were suffering.  I find this curious since it is clear from the plaintiff’s academic record that his marks steadily improved from his return to university in January, 2006.  This comment is echoed in the plaintiff’s closing submission but I find no basis in fact for it.

[92]            Dr. Smith is of the opinion that the plaintiff’s ongoing pain in his neck and thoracic spine are caused by soft tissue injuries and discogenic pain caused by the Accident.

[93]            Dr. Smith believes it is unlikely the plaintiff will ever be pain-free, but states that the pain management techniques of the St. Paul’s Hospital Pain Clinic could help the plaintiff to control his pain and maximize his ability to perform and to enjoy life.

[94]            Dr. Pelly is a chiropractor who has treated the plaintiff for some time.  At this point, he stresses it is imperative the plaintiff develop coping strategies to deal with his pain, other than medication.  He believes the plaintiff should develop a plan to discontinue medication.  He is also of the view the plaintiff should stop what he calls “deconditioning treatment”, although it has afforded temporary improvement to the plaintiff’s symptoms. 

[95]            Dr. Pelly has noted moderate improvement in the plaintiff, but states it is unlikely the plaintiff will completely recover proper biomechanics to his spine due to the trauma and injuries sustained.  He has also found some evidence the plaintiff’s spine is twisting, but no other doctor has so opined or set out any medical evidence of this possibility.

[96]            Dr. Pelly foresees a few acute flare-ups for which the plaintiff may need treatment over the 6 months following the plaintiff’s attendance at the Pain Clinic.

[97]            The two defence medical experts were Doctors Reebye and Bishop.

[98]            Dr. Reebye is a physiatrist.  He concluded the plaintiff likely suffers from soft tissue injuries as a result of the Accident, but did not find his pain to come from more severe injuries such as torn muscles, damage to ligaments, intervertebral discs, nerves or nerve roots.  However, with respect to the disc herniations, he did express “some doubt” they were caused by the Accident.  He deferred to Dr. Sahjpaul and conceded the herniations “could be” caused by the Accident.

[99]            Dr. Reebye opined that the plaintiff did not have to avoid day-to-day activities such as chores around the house.  He felt the plaintiff’s pain control would improve when the plaintiff normalized his activities, a sentiment also expressed by Dr. Travlos.  The plaintiff is able to do light duties, but should avoid heavy lifting until he increases his endurance. Dr. Reebye echoed the advice of most of the other doctors, that the plaintiff should wean himself off narcotic pain medications.

[100]        However, Dr. Reebye agreed the plaintiff suffers from chronic pain in his neck and back and the Pain Clinic at St. Paul’s is a useful approach, as are some chiropractic treatments, and exercise sessions with a personal trainer.  Dr. Reebye does not anticipate that permanent physical impairment will result from the Accident and sees the plaintiff as able to continue with his studies and train as a lawyer.

[101]        Paul Pakulak, an occupational therapist, did a functional capacity evaluation of the plaintiff almost 3 years ago, in February, 2006.  He found that the plaintiff could do full-time work at a light level, with restrictions specific to prolonged and repetitive bending and crouching, prolonged standing, prolonged walking and prolonged and repetitive overhead work.  He found the plaintiff should pursue employment that allows him to primarily sit, but which would allow him the flexibility to get up and move about as needed in order to manage pain and muscle tension.

[102]        Mr. Pakulak recommended the plaintiff participate in a structured exercise therapy programme and use an ergonomic task chair, a slanted work station (an ergodesk) and a riser for his computer monitor. 

[103]        Subsequently, the plaintiff attended at CARP, a rehabilitation programme sponsored by ICBC, which is a structured exercise therapy programme.

Non-pecuniary damages

[104]        The purpose of non-pecuniary damage awards is to compensate the plaintiff for “pain, suffering, loss of enjoyment of life and loss of amenities”: Jackson v. Lai, 2007 BCSC 1023, B.C.J. No. 1535 at para. 134; see also Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Kuskis v. Tin, 2008 BCSC 862, B.C.J. No. 1248.  While each award must be made with reference to the particular circumstances and facts of the case, other cases may serve as a guide to assist the court in arriving at an award that is just and fair to both parties: Kuskis at para. 136. 

[105]        There are a number of factors that courts must take into account when assessing this type of claim.  The majority judgment in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19, outlines a number of factors to consider, at para. 46:

The inexhaustive list of common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages includes:

(a)      age of the plaintiff;

(b)      nature of the injury;

(c)      severity and duration of pain;

(d)      disability;

(e)      emotional suffering; and

(f)      loss or impairment of life;

I would add the following factors, although they may arguably be subsumed in the above list:

(g)      impairment of family, marital and social relationships;

(h)      impairment of physical and mental abilities;

(i)       loss of lifestyle; and

(j)       the plaintiff's stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54 (B.C. C.A.)).

[106]        The plaintiff submits an award of $80,000 to $100,000 would be appropriate in the circumstances and provides a number of cases in support: Knickle v. Filipovic, 2006 BCSC 1693, B.C.J. No. 2997 ($90,000); Prince-Wright v. Copeman, 2005 BCSC 1306, B.C.J. No. 1997 ($100,000); Brown v. Ryan, 2000 BCSC 680, B.C.J. No. 897, aff’d 2002 BCCA 83 ($80,000); Schellak v. Barr and Duplessis, 2001 BCSC 1323, aff’d 2003 BCCA 5 ($80,000).

[107]        The defendants submit that an award ranging from $38,000 to $60,000 is appropriate and provides the following authorities: Hamilton v. Vance, 2007 BCSC 1001 ($38,000); Haughain v. Kaufman, 2006 BCSC 911, B.C.J. No. 1353 ($40,000); Nobel v. Bergstrom, 2001 BCSC 1135, B.C.J. No. 1702 ($40,000); Tobin v. Monkman, 2004 BCSC 839, B.C.J. No. 1303 ($60,000)

[108]        The plaintiff‘s enjoyment of life has been substantially impacted by his injuries.  His intimate relationship with his girlfriend is affected by his back pain, he has become dependent on his narcotic painkillers with attendant side effects, he cannot snowboard with his friends, use of his computer causes him pain in his neck and back, his stamina is reduced and he is occasionally irritable due to his pain.

[109]        It is now 3 and one-half years since the Accident occurred on March 30, 2005 and the plaintiff still suffers from persistent pain in his neck, upper and mid-back.  While there are mixed views among the doctors, the prognosis for him appears guarded since he may only be able to expect to develop better strategies to cope with his pain, but the pain itself will not likely disappear completely.  This is a somewhat distressing prospect, although it appears he may hope for some reduction in his symptoms with dedicated attention to his fitness

[110]        I find that the plaintiff relied far too heavily on passive therapies such as physiotherapy, chiropractics and, most notably, overuse of narcotic medications for pain relief.  While I have sympathy for him in searching for any modality which would give him relief, temporary or not, there are two consistent themes in the medical evidence which he ignored to his detriment.  These themes are that he would benefit from mobilization with exercise – not a panacea for pain, as expressed by Dr. Travlos, but a great help with mobility.  And of course, at least two doctors stated that normalizing his activities would assist the plaintiff’s early recovery.  The other theme was that the plaintiff needed to wean himself off his medications. 

[111]        His evidence on exercise was that he did not follow a consistent programme and, in fact, in cross-examination he stated he did hardly any exercise in all of 2006.  I cannot help but think that this failure delayed his rehabilitation at a crucial time in his recovery.

[112]        As well, his overuse of Tramacet has resulted in some serious side effects which Dr. Smith said he suffers from.  His weight loss, sleep disturbances, joint pains may be attributable to Tramacet.  He relied far too heavily on medications.

[113]        The defendants argue that the plaintiff has failed to mitigate his damages and that failure is largely responsible for his current physical condition.  The defendants highlight the plaintiff’s failure to follow a consistent exercise programme, such as Pilates, yoga or ball exercises, in order to assist his recovery and improve his mobility.  The defendant argues a reduction of 30% is appropriate in this case, given the relationship between the plaintiff’s current complaints and the medical evidence with respect to the benefits of exercise. 

[114]        The plaintiff’s duty to mitigate in the personal injury context was outlined in Graham v. Rodgers, 2001 BCCA 432, 90 B.C.L.R. (3d) 69 at para. 35, leave to appeal dismissed, [2001] S.C.C.A. No. 467:

Mitigation goes to limit recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss. A plaintiff in a personal injury action has a positive duty to mitigate but if a defendant's position is that a plaintiff could reasonably have avoided some part of the loss, the defendant bears the onus of proof on that issue.

[115]        The defendants have the burden of demonstrating that the plaintiff failed to take reasonable steps to mitigate their damages: Janiak v. Ippolito, [1985] 1 S.C.R. 146, 16 D.L.R. (4th) 1 at 14 (Janiak cited to D.L.R.).  The BC Court of Appeal in Chiu v. Chiu, 2002 BCCA 618, in following the principles outlined in Janiak, stated that when a plaintiff has not pursued recommended medical treatment, the defendant must prove two issues: the plaintiff acted unreasonably in refusing to follow the recommendation; and the extent to which the plaintiff’s damages would have been reduced had he acted reasonably: at para. 57. 

[116]        Given the chronic pain he suffers from, had he dedicated himself to exercise the way he should have and showed a disciplined effort to strengthen his back and neck, I would have awarded $80,000 as non-pecuniary damages.  However, his lack of consistent exercise reflects a significant failure to mitigate his losses.  I will therefore deduct $10,000 from this amount and award him $70,000 for non-pecuniary damages. 

Past wage loss

[117]        A claim for past income loss is a claim for loss of earning capacity resulting from the effects of injuries suffered in an accident.  As the decision of Rowe v. Bobell Express Ltd., 2005 BCCA 141, 74 D.L.R. (4th) 290, makes clear, this type of claim is for the “loss of the value of the work that the injured plaintiff would have performed but was unable to perform because of the injury”: at para 30.

[118]        I do not accept the plaintiff’s version of events which led to his leaving his employment at the Cactus Club (West Broadway) following the Accident.  He says he was unable to continue at his job due to his back pain.  However, I find it probable that after his conversation with Mr. Shinkewski during which the plaintiff was asking about the bar leader position and learned he would not be getting it, the plaintiff talked to Mr. Vaziri and decided to take the job with Rogers selling telephone services.  I take as support for the proposition that he left the Cactus Club in some degree of anger arising from not getting the bar leader position, from his failure to re-apply there on his return from Ontario in December 2005 when his father was urging him to find work.  The plaintiff did apply at Glowbal and the Blue Water Café at that time so it was not his explanation that he did not feel capable of working in the restaurant industry.

[119]        I note as well that Mr. Shinkewski agreed that the plaintiff was a good bartender and he would have kept him on and tried to accommodate his physical condition, at least temporarily, had he asked. 

[120]        The effect of this finding is the beginning of the chain which leads to a conclusion that the plaintiff has not proved his case for past wage loss.  He left the Cactus Club of his own volition and without attempting to see if his difficulties could be accommodated.  Had he stayed and tried a modified bartender’s job and then failed at it due to his injuries, he would have had some evidence that the Accident had caused him to leave his employment.  As it happened, he chose alternate employment which had its own substantial physical demands and much longer shifts, left it not because of his physical condition but due to differences with his friends, started a new venture which failed, and then returned to Vancouver where he did not return to work at anything but minimal employment without looking for work where he could earn better wages.

[121]        The plaintiff’s decision to focus his efforts on his university studies so he would be able to enter the Faculty of Law at UBC has obviously paid off to date.  His marks are good and after being invited to do so, he has decided to spend an extra year as an undergraduate to complete an honours degree with a double major in philosophy and criminology.  However, I do not accept his argument that he could not maintain any part-time work at all while he continued his studies.  He chose not to work much in 2007, or at all in 2008, and with the exception of some short stints teaching English as a second language and taping the lectures of one of his professors, which did not result in more than minimal income, he has worked very little since his return to university in 2006.

[122]        The plaintiff is indeed fortunate to have had the financial support of his parents in the pursuit of his degree, but I cannot help point out that this support meant he could choose not to work part-time while going to university.  As he stated in his discovery at Questions 823, 847 and 887 when asked why he did not search for work after his stint teaching English as a second language ended, he stated he was doing well in school, school was his priority and he didn’t want his grades to suffer, that he is extremely busy and wanted to focus on his studies.   Mr. Collyer made an investment in his academic career by choosing not to work while going to university, but it should not result in a substantial additional burden in damages to be borne by the defendant when I cannot find his decision not to carry on as a bartender in May, 2005 through to December, 2005, was caused by the injuries resulting from the Accident. 

[123]        After that point, when his injuries in a sense “matured”, I accept that he had some reduced capacity to work while attending university, because the lack of stamina from which he suffered can be attributed to the injuries resulting from the Accident, but he did not try to work in any substantial way and he benefited from not working. 

[124]        I make the finding about the bartending job, despite medical evidence that it is unlikely Mr. Collyer could continue to work as a bartender, and I infer that this evidence refers to unmodified duties as a bartender.  I am not aware of any evidence led by the plaintiff concerning modifications to his duties which could have been made, but which were not.  For example, the plaintiff testified that one of the jobs for the evening bartender at the Cactus Club was to replace the kegs of beer.  These kegs are heavy but the Cactus Club policy is to require that two people must lift the keg.  While Mr. Shinkewski testified in redirect that it was possible an employee might not know of this policy, the plaintiff did know of it but said if things were busy it might not be possible to find someone to help with a keg.  The plaintiff did not give evidence that he had been forced to try to replace a keg by himself after the Accident.

[125]        I find it unlikely that if Mr. Collyer were as good at his bartending job and people skills as all of the witnesses said he was, that he would not have been accommodated with help for such tasks as carrying trays of glasses, lifting the frozen drinks dispensers and taking the odd break to sit for a moment.  In fact, the bartending job would have allowed him to move around and change positions regularly, a need he says his back pain requires.  As well, his evidence was that he left work early when he had to following the Accident and that shifts were shorter if it was not busy.  The Cactus Club had always accommodated his exam schedule by adjusting shifts in the past.  With his good record and his seniority, I infer he could have come to some arrangement which would have accommodated his needs.

[126]        I note as well that the February 10, 2006 report of Mr. Paul Pakulak, a functional capacity evaluator, stated that based on his examination, the plaintiff was able to work as a bartender on a part-time basis with some accommodations and could also work full time with “light duty” accommodations.  Both Drs. Travlos and Reebye agreed with this conclusion.  In addition, Drs. Bishop and Travlos stated that the sooner the plaintiff got back to his regular work and school activities, the sooner he would recover. The particular problem here is that the plaintiff had his conversation with Mr. Shinkewski some time after the Accident and he quit his job for reasons I have found to be unrelated to his injuries.  He has not made any attempt to try bartending since that time and, in essence, spoiled his chance to ask the Cactus Club to modify the duties he described as having been part of his job in North Vancouver.  He did not give evidence about the requirements of the West Broadway job.

Future Wage Loss

[127]        Mr. Collyer has claimed for lost wages based on his contention that he would have worked as a bartender between academic terms in law school, since he does not have the choice to attend law school continuously if he attends law school at the UBC, which operates on a September – April academic term system. 

[128]        I am advised by counsel that the break between academic terms at UBC law school is 18 weeks.

[129]        The plaintiff has given evidence that he will not work during the academic term while at law school, but would have worked as a bartender in the summer terms.  The plaintiff claims lost wages based on income, including tips, which he would have earned as a bartender for 18 weeks preceding first year law, between first and second year law, and second and third year law.  He claims for 54 weeks’ lost income in this respect.

[130]        The difficulty with this position is twofold:  first, the only evidence I have which supports the plaintiff’s position that he is unable to work as a bartender comes from Mr. Pakulak, who seems somewhat equivocal on the point since he suggests that perhaps with certain accommodations the plaintiff could continue to work as a bartender and, second, the plaintiff clearly has superior sales skills and very likely could and would earn well in sales jobs for that 18 week break, just as he did with Abstract Promotions and later in London, Ontario.  So while I am able to take into account the kinds of earnings he would have had as a bartender, those earning will be subject to substantial deductions.  I note as well that Dr. Bishop indicated there was nothing in the plaintiff’s condition which would preclude him from working as a bartender for all of that time.  I must conclude from this medical evidence that the plaintiff may very well be able to work as a bartender between academic terms with some modifications to his duties to avoid heavy lifting. 

[131]        In consideration of the fact that he has suffered a moderate soft tissue injury to his neck and back, which still causes him fatigue, I am prepared to make a notional award which takes into account the fact that he may not be able to work shifts as long as might be required for a bartender or as many shifts as he would otherwise be able to work.   However, he will be able to earn some money during summer breaks since he is not completely disabled.

[132]        The plaintiff suggests that he would able to earn approximately $46,000 as a bartender during the summer breaks until he completes law school.  I take the lower figure proposed by his counsel as a more accurate estimate since the higher figure he proposes is based on a transfer to a more lucrative location, which is somewhat speculative.  From $46,000, I will deduct the sum of $30,000, which I consider the plaintiff will be able to earn over 54 weeks.  This leaves a loss of $16,000, which I will award to the plaintiff for his reduced capacity to work during the break between academic terms while he is waiting to enter law school and the breaks between first and second year and second and third year law. 

Loss of Future Capacity

[133]        The plaintiff also claims for future loss of capacity. The defendants take the position that Mr. Collyer has not been hampered in any of the activities in which he wishes to take part and is well on his way to qualifying for admission to law school or life as an academic.

[134]        In order to receive damages for loss of future capacity, the plaintiff must demonstrate a substantial possibility of future income loss: see Parypa v. Wickware, 1999 BCCA 88, 169 D.L.R. (4th) 661; Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133, B.C.J. No. 1158 (C.A.); Steward v. Berezan, 2007 BCCA 150, 64 B.C.L.R. (4th) 152.

[135]        The purpose of this award is to compensate the party for the loss of earning capacity as a capital asset, not to compensate for the lost earnings themselves: see Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44, B.C.J. No. 16 at 59 (C.A.); Parypa at para. 63; see also Rosvold v. Dunlop, 2001 BCCA 1 at para 8.   

[136]        There are, of course, inherent difficulties in assessing such damages, which was recognized by Justice Dickson (as he then was) in Andrews, where he stated at 251:

We must now gaze more deeply into the crystal ball.  What sort of career would the accident victim have had?  What were his prospects and potential prior to the accident?  It is not loss of earnings, but, rather, loss of earning capacity for which compensation must be made: A capital asset has been lost: what was its value?

[137]        In considering this claim, a court must determine the extent of the future loss of income-earning capacity by taking into account all substantial possibilities and assessing the likelihood of their occurrence based on the evidence: Parypa at para. 67; Steward at para. 17.   The possibilities “are to be given weight according to the percentage chance they would have happened or will occur”: Rosvold at para. 9.

[138]        To assist in this assessment, there are four considerations which are often cited in determining the value of the loss and these are set out in the decision of Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353, B.C.J. No. 31, at para. 8 (S.C.):

1.     The plaintiff has been rendered less capable overall from earning income from all types of employment;

2.     The plaintiff is less marketable or attractive as an employee to potential employers;

3.     The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

4.     The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

[139]        While a first step in this determination may involve some element of mathematical calculation, “the law is clear that in these cases the task of the court is to assess damages not to calculate them on some mathematical formula”: Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248, B.C.J. No. 1823 at para. 43 (C.A.).

[140]        A court must consider all of the evidence that is reasonable in the circumstances in assessing such an award; reference to projections, calculations and formula may be useful insofar as determining what is “fair and reasonable”: Parypa at para. 70.  It is important for courts to “look at all relevant factors, especially general incapacity, before fixing an amount”: Morris v. Rose Estate (1996), 23 B.C.L.R. (3d) 256, 75 B.C.A.C. 263 at para. 24.  A court should also be guided, to some extent, by the claimant’s actual earnings prior to the accident: Smith v. Knudsen, 2004 BCCA 613, 247 D.L.R. (4th) 256, at para. 34.

[141]        Any award under this head of damages must be set off against appropriate contingencies.  As stated in Andrews, the appropriate deductions for contingences will depend on the facts of the case, in particular the nature of the plaintiff’s profession, but “generally it will be small”: Andrews at 253, quoted with approval in Reilly v. Lynn, 2003 BCCA 49, B.C.L.R. (4th) 16 at para. 124.  Common examples include: potential for improvement in health, opportunities for advancement and the “usual chances and hazards of life”: Kuskis at para. 155; see also Djukic v. Hahn, 2006 BCSC 154, CarswellBC 214 at para. 105.

[142]        It is my view Mr. Collyer will do well in whatever occupation he chooses.  He has achieved good marks at university and has been chosen to participate in an honours programme as a result.  It is clear he is blessed with intelligence and, despite his ADHD, an ability to focus on his work.  I agree that the prospects for the plaintiff are bright either as a lawyer or an academic.  However, there is no dispute that he has suffered an injury, which has not resolved some 4 and-a-half years after the accident.  The kind of pain which he suffers makes it difficult for him to sit in front of a computer for long periods of time and it affects his stamina.  Both of these problems make him less valuable to himself and potentially to employers.  He may be seen as less attractive as a partner in a law firm if he is less able to put in the long hours required to be successful.

[143]        At the same time, the quality of employment available to Mr. Collyer gives some guarantee that he will also have some independence in his work.  As a lawyer, he will not be restricted from standing and stretching whenever he needs to while working in his office and, as an academic, the same is true.  It would be different were he working on an assembly line, or in a shop or factory job where conditions would likely be more regimented.  Also, he will be able to sit most of the time and his work will be sedentary, both of which Paul Pakulak, the functional capacity evaluator, recommends.

[144]        I award the plaintiff $50,000 for loss of a capital asset.

Cost of future care

[145]        Ruby Schulstad, a former nurse who has taken courses in life care planning, and has had experience as a rehabilitation nurse and head nurse of a rehabilitation unit with experience in discharge planning for disabled patients, prepared a report on the cost of future care.  Her qualifications were not questioned insofar as she gave expert opinion as a rehabilitation nurse regarding the cost of and requirements for future care for the plaintiff.  Ms. Schulstad opined that the plaintiff should be awarded some $200,000 (present value) for future care, for the management of the plaintiff’s chronic pain. 

[146]        The claimant must demonstrate that there is medical justification for the future cost of care claim and the claim itself must be reasonable: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33, CarswellBC 13 (S.C.) at para. 211, aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.).  The standard is one of reasonableness; it would be too stringent to require a plaintiff to demonstrate a claim is a medical necessity in order to succeed under this head of damage: Zapf v. Muckalt (1996), 26 B.C.L.R. (3d) 201 (C.A.) at para. 36.

[147]        An award for future cost of care is based upon a prediction of the medical and non-medical services that will likely be in the plaintiff’s best interests.  As stated in Krangle v. Brisco, 2002 SCC 9, 1 S.C.R. 205: “No one knows the future. Yet the rule that damages must be assessed once and for all at the time of trial (subject to modification on appeal) requires courts to peer into the future and fix the damages for future care as best they can”: at para. 21. 

[148]        An award for future cost of care must attempt to provide the plaintiff with damages “as best as they can be ascertained”, without providing the plaintiff “a windfall and [requiring] the defendant to pay more than is fair”: Krangle at para. 22.  The award must be “moderate, and fair to both parties”: Andrews at 586. 

[149]        I have seldom seen a more partisan witness than Ms. Schulstad and the partisan nature of her report was consistent with her evidence in cross-examination.  Her identification with and sympathy for the plaintiff influenced her answers in cross-examination and I infer, her report as well, so that I am not persuaded she was objective and fair.  For example, Ms. Schulstad was asked about a statement in her report (tab 19, Exhibit 1) at paragraph 10, in which she states: 

Mr. Collyer is no longer able to cope with working as a bartender to support himself. . . 

[150]        Counsel for the defendant asked her whether the plaintiff told her this in June, 2007 (when she attended to interview the plaintiff).  This exchange followed (April 16, 2008 transcript commencing at page 89 line 29 through page 90 to line 30):

Q:        Is that [statement] Mr. Collyer’s report to you?

A:         Well, I --- I knew from Paul Pakulak’s  [2006] report that he couldn’t - - he couldn’t do the bartending lifting, due to the heavy lifting, due to the work that’s involved being a bartender.

Q:        I’m asking you though, Ms. Schulstad, if Mr. Collyer told you that in June, 2007?  I’m not asking you if you read Mr. Pakulak’s report, just if Mr. Collyer told you that.

A:         He didn’t tell me that and I didn’t ask him either.

Q:        All right.

A:         I had in front of me a young man who was barely able to open up his eyes, very upset, very irritated and very frustrated with how his life was going.  Very sad that his goals were not able to be met at this point in time.  And he was ---it was not a question that you could even bring up.

Q:        What question could you not bring up?

A:         Well, there was no point in bringing up, “Why can’t you be a bartender,” when you’ve got someone who’s distraught.  I mean it’s inappropriate to ask a person that when they’re in pain, chronic pain, that they haven’t slept well that night or other nights, they’re struggling to get from --- from one place to the next.  He was either, you know, having to take a bus or whatever.  And he was not coping well at all.  He wasn’t happy having to live with his dad.  He told me that.

Q:        All right.  Well ---

A:         He would have preferred to be on his own.  The tensions were pretty high so you don’t start bringing up with a young man, well, you know, “Why is it that you can’t go and be a bartender,” when I already knew that he had difficulty with lifting, bending, carrying and I could see that he was in chronic pain.

Q:        Well, Ms. Schulstad, I didn’t ask you if you brought it up with Mr. Collyer.  I asked if he told you he could not work as a bartender.

A:         No, he didn’t tell me that.

[151]        The defendant submitted, and I agree, that it is clear that in every instance Ms. Schulstad has chosen the most expensive option for future care available.  That alone would not be sufficient to characterize her evidence as partisan, but I do recall that in cross-examination when asked about her recommendation of a very expensive brand name mattress as required by the plaintiff, she responded that her recommendation was based on her personal experience since she was enthusiastic about its comfort.  In cross-examination, she stated she recommended this mattress because it did not need to be turned.  The cost of the mattress she recommends is $4,200, to be replaced every 20 years.  The basis of her choice is not scientific and the medical experts indicate that a mattress is a personal choice.  I do not regard the Tempur-Pedic mattress as a reasonable cost of future care.  I would allow the amount of $2,000 once for the purchase of a good mattress.  

[152]        Notwithstanding the tone of her evidence, there are some items she has recommended that the plaintiff will need, which the defendant has not disputed, but which the defendant points out are overpriced in Ms. Schulstad’s report.  The defendant agrees with a one-time purchase of an additional wheeled cart with a cost of $135 and the ergonomic chair and desk at a total cost of $705 (as costed by Mr. Pakulak).  There will be an award of $840 for these items.  I do not consider it necessary to award a lifetime number of replacements for these items.  The ergonomic chair and desk will be used by the plaintiff at home since it is likely he will have a desk and chair supplied by his employer once he is employed.  The same is true of the wheeled cart.  A carrying contrivance will likely be supplied by his employer.

[153]        I will go through the rest of the items, which are disputed, in the order they are set out in her report.

[154]        In her amended report at Exhibit 1, tab 20, Ms. Schulstad lists the Pain Clinic at St. Paul’s Hospital at the cost of $10,000.  However, Mr. Collyer is enrolled in the half-day programme and so far has not been told he will have to incur the cost of $4,500.  His entry assessment was paid for through the Medical Services Plan.   There will be no award under this head.

[155]        At the outset of this trial, counsel for the plaintiff advised that the claim for psychological damages was abandoned.  In her cost of future care report, Ms. Schulstad has indicated a cost for psychological evaluation and follow-up counselling.  This has been endorsed by Dr. Travlos.  However, in the absence of a claim for such damages, I do not see this claim as appropriate.  I also understand there is some counselling which occurs during the Pain Clinic programme. There will be no award under this head.

[156]        In her earlier report, Ms. Schulstad recommended some chiropractic treatments be made available to the plaintiff.  I am aware of a number of medical recommendations that the plaintiff wean himself off passive treatments.  However, I am also of the view that the limited number of treatments recommended by Drs. Travlos, Reebye and Pelly will give the plaintiff some, at least temporary, relief of symptoms or deal with acute flare ups (Pelly) while he is weaning himself off his narcotic painkillers.  I award $2,200 for chiropractic treatment.

[157]        I consider the cost of a personal trainer to be a wise investment for the plaintiff, to habituate himself to the discipline of regular exercise with a trained professional who will ensure the plaintiff learns the exercises properly.  I award $700 on a one-time basis for this purpose.

[158]        The plaintiff stated he attended a gym for exercise before the Accident.  However, it does not appear to me he consistently maintained such a membership following the Accident.  It is clear that if he is to improve his pain, he must maintain his fitness level.  A gym membership will assist in that regard.  I will award the sum of $3,000, which will purchase a gym membership for 5 years.  Based on the medical evidence, I consider if the plaintiff actively maintains fitness for that period of time, his back pain will improve. 

[159]        Several of the plaintiff’s doctors have recommended he attend Pilates’ training to strengthen his core and thus improve his back pain.  He commenced this training 3 weeks before trial.  I have no idea if he has continued it, but this form of exercise is based on medical recommendation and I award the sum of $4,400 for two years of such training.

[160]        Ms. Schulstad’s responses when asked about the future cost of medication were vague and unhelpful.  She said that many of the medications to do with pain management, like Neurontin and Lyrica, are not covered by Pharmacare.  These are prescription medications, but it was not explained to me why or what the basis is for her statement that they are not eligible for Pharmacare.  I doubt that this is accurate.

[161]        As well, although I consider it is more probable than not that the plaintiff will become a professional and, as such, will have extended benefits available, I will not deduct for this contingency since I believe it is likely he would not be entitled to coverage for medications for a pre-existing condition.

[162]        He will, however, be entitled to an income tax deduction for the cost of necessary prescription medications for which he is not otherwise reimbursed.  We are in the realm of speculation in attempting to consider what the plaintiff’s income will be in three or four years and beyond, so that any deduction on this ground is notional at best.

[163]        He will have some benefit from Pharmacare, but the value of that benefit is unknown.  Therefore, I have taken the lower figure recommended of $1,800 per year for medication allowance and I award it for a total of 5 years for a sum of $9,000.  I consider this to be a generous allowance given that one of the goals of the Pain Clinic the plaintiff will attend at St. Paul’s Hospital is to reduce his need for medications.  Beyond the period of 5 years, I consider that the plaintiff will be weaned off his opiates and other prescription medications, and may have some need for over-the-counter medications.  I will award an additional amount of $500 per year for an additional 3 years, a total of $1,500.   Therefore, the total amount awarded for medication allowance is $10,500.

[164]        The cost of hot/cold packs at $50 per year seems somewhat high, but I have no evidence to refute this cost.  Since it is not my experience that they “rot” over time, I will allow their replacement every two years so their cost will be awarded at $25 per year for 8 years, or $200.

[165]        A heated mattress pad to make his bed “cozy”, as suggested by Ms. Schulstad, has no basis in medical reasonability.  There will be no award for this item. 

[166]         I note that when Ms. Schulstad was asked about her recommendation for the costs of assistance for household work inside and outside, which she estimated would require 4 to 6 hours a week for assistance, she disagreed with Dr. Travlos’ recommendation that the plaintiff needed to be encouraged to do more around the home.  Dr. Travlos feels that the plaintiff is capable of doing more and should be encouraged to do so.   He recommends not more than 18 to 24 hours per year of additional help for outside maintenance, once the plaintiff has a yard to work in.  Dr. Travlos is a physiatrist, a specialist in rehabilitation medicine.  Ms. Schulstad is not a physician.

[167]        The other obvious difficulty with this recommendation is the uncertainty which surrounds the assumption that the plaintiff will have a yard to deal with in 6 years.  Assuming that the plaintiff commences law school in September 2009, graduates in 2012, finishes articles in 2013 and commences employment in 2013, it seems somewhat unlikely he will have a yard to care for by 2013 as predicted by Ms. Schulstad.  While I appreciate that I am not dealing in the realm of proof on the basis of the balance of probabilities with respect to the cost of future care, I find this predicted need for assistance in home maintenance and yard care altogether too speculative.  I am also of the view that Dr. Travlos’ words are sensible: the plaintiff needs to be encouraged to do more.  He has received a great deal of sympathetic assistance from his parents and his girlfriend, which has not required him to extend himself.  I note as well that Drs. Reebye and Bishop consider this assistance unnecessary while Mr. Pakulak and Dr. Travlos consider some award appropriate.  I will therefore award 18 hours of home maintenance at $20 per hour on a one-time basis only, for a total of $360, to compensate him for initial maintenance/ heavy cleaning of a residence he may move into in 2013.

[168]        In summary, I award $24,200 for the cost of future care.  I leave the present value calculations to counsel.

Special Damages

[169]        I do not propose to go through the special damages amounts in detail.  As I have noted, I granted the amendment to the pleadings requested by the plaintiff at the outset of the trial, to add an in-trust claim for each of the plaintiff’s parents.  Any amounts they paid on behalf of the plaintiff for medical treatments, for which they remain unpaid, should be reimbursed to them.

[170]        There were a number of errors in the plaintiff’s book of special damages, such as including a $2,350 payment to Dr. Pelly for his court appearance, which is more properly a disbursement (at page 10a), including the cost of a prescription for PMS-Methylphenidate (Ritalin) in medication costs and showing a charge for provision of clinical records from Park Royal Physiotherapy, again more properly a disbursement, when the plaintiff did not attend there after June 21, 2005.

[171]        The mileage charge contended for by the plaintiff is not reasonable in light of his lack of access to a car until 2008 and his evidence that he was using the bus.  I assume that some of this mileage was incurred by one of his parents, but I do not have clear evidence on the amount each of them incurred.  Therefore, I will award a notional amount of $200 as special damages for mileage and bus fare incurred by or on behalf of the plaintiff to attend medical appointments.

[172]        Notwithstanding the fact the plaintiff might well have decided to maintain his gym membership absent the Accident, I find it is more likely he purchased the gym membership because of the Accident and thus that cost forms part of his special damages.

[173]        I find the chiropractic charges to be reasonable.  Since I have deducted an amount for the plaintiff’s failure to exercise consistently as a failure to mitigate, to refuse to allow the chiropractic sessions would be to penalize him twice for his dependence on passive therapies.

[174]        I will, therefore, leave special damages to be recalculated by counsel.  If the parties are unable to agree on the final figure, they may set down a hearing before me.

[175]        In conclusion, I find the following:

Non-pecuniary damages:               $70,000

Future wage loss:                            $16,000

Loss of capacity:                             $50,000

Cost of future care:                         $24,200

Special damages to be determined.


[176]        Subject to any submissions to be made by counsel, the plaintiff will have his costs.


The Honourable Madam Justice Loryl Russell