IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Chawla v. Lambright, |
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2017 BCSC 1884 |
Date: 20171020
Docket: M151750
Registry: Vancouver
Between:
Abhay Chawla
Plaintiff
And
Keenan Lambright, Ryan Brown and Kayla Boulter
Defendants
Before: The Honourable Madam Justice Russell
Reasons for Judgment
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Counsel for Plaintiff: |
Farouk Jiwa Navneet K. Mann |
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Counsel for Defendants: |
Leonard Kompa |
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Place and Dates of Trial: |
Vancouver, B.C. March 20-24, 2017 March 27-30, 2017 |
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Place and Date of Judgment: |
Vancouver, B.C. October 20, 2017 |
The Plaintiff - Before and After the Accidents
The Plaintiff’s Injuries and Current Medical Complaints
Functional Capacity Evaluation
Loss of Future Earning Capacity
Past Loss of Housekeeping Capacity
Future Loss of Housekeeping Capacity
[1] On March 12, 2013 and March 22, 2013, the plaintiff was involved in two motor vehicle accidents (the “Accidents”) for which the defendants admit liability.
[2] The plaintiff was rear-ended while stopped in traffic in the March 12, 2013 collision and the plaintiff was T-boned on the driver’s side in the March 22, 2013 collision as a result of the driver running a red light.
[3] The first collision caused damage to the plaintiff’s 2010 Honda Acura of less than $300, including parts and labour.
[4] The plaintiff suffered some minor neck stiffness from that collision and took five sick days. Upon returning to work, he was scheduled to and did go to a course at the Justice Institute.
[5] The plaintiff was driving his 2010 Honda Acura at the time of the second collision.
[6] The second collision was a more substantial accident and his car was a total loss.
[7] At the time of the second collision, the plaintiff had just completed an examination on the five-day forensic identification course he had attended at the Justice Institute in New Westminster.
[8] The second collision occurred near the Justice Institute and close to the intersection of 6th and McBride. The defendant’s vehicle hit the plaintiff’s car on the driver’s side door, leaving the plaintiff unable to get out of his car post-collision.
[9] First responders who attended the scene included police officers and an ambulance. The plaintiff was urged to go to hospital for examination but refused because he did not wish to be strapped to a gurney. As a police officer himself, he did not feel this would be seemly.
[10] The plaintiff does not recall hitting his head and did not suffer a loss of consciousness. His Glasgow Coma Scale, recorded at the scene of the collision, showed no impairment of his consciousness. The paramedics’ record indicates he was alert, conscious and able to communicate with them.
[11] After refusing to go to hospital, the plaintiff arranged for his father to pick him up. He went to a walk-in clinic later that day.
[12] Liability is not at issue in either accident.
[13] The main past wage loss amount is agreed at $22,911.09, a subrogated amount that must be repaid to Mr. Chawla’s employer. It is not subject to netting for tax.
[14] Non-pecuniary damages, loss of future capacity, cost of future care, and special damages are at issue.
[15] The parties agree that the injuries suffered by Mr. Chawla are indivisible. Therefore, I will make only a global finding without attribution of percentages to each accident.
Discussion
[16] The parties’ positions differ substantially in respect of Mr. Chawla’s recovery from his injuries, his continued back pain and subsequent development of radiculopathy. It is Mr. Chawla’s position that he will require back surgery that will keep him from going back to work for six months of convalescence and that the radiculopathy from which he suffers will continue to impede his ability to sit, crouch, move around and work at positions that require him to move to action quickly and easily.
[17] Mr. Chawla also asserts that his injuries will interfere with his ability to progress through the ranks. As a successful first class constable, he hopes for promotion as he gains seniority. Despite the obligation of his employer, the Delta Police Department, (“Delta Police”) to abide by the duty to accommodate imposed by the Human Rights Code, R.S.B.C. 1996, c. 210, he says that as a partially disabled police officer, he will not be as qualified for promotion as fully able-bodied officers and will be less likely to meet the competition he must to gain a higher rank and greater remuneration.
[18] The defendants say that the expert opinion that he is partially disabled is at odds with Mr. Chawla’s demonstrated performance in the Forensic Identification Services Section (“FISS”) of Delta Police.
[19] To examine these issues I must look to Mr. Chawla’s evidence and to the expert opinions.
[20] The views of other witnesses concerning their observations of the plaintiff before and after the second accident will assist in informing my conclusions but are of less importance than the evidence of the plaintiff and the experts.
[21] That the plaintiff is an intelligent, hard-working and accomplished officer is not at issue.
[22] Whenever he could, he has taken extra courses to expand his knowledge of policing. He has also completed a report on body cameras for the Delta Police.
[23] He possesses a Bachelor of Arts in criminology.
[24] After the accidents, (I will hereinafter refer to this period as “Post-Accidents”), notwithstanding his injuries, he twice competed for and attained positions first in the Economic Crimes Section, commencing January 2014, and then in FISS of the Delta Police in 2015.
[25] A position in the FISS had been his career goal for some time.
[26] He had applied unsuccessfully for a position in FISS before the Accidents.
[27] Following the Accidents, he was off work for almost four months and then on a graduated return to work. He was given a temporary position in FISS as part of his graduated return to work in the spring of 2013.
[28] He then panelled for and took a position in Economic Crimes in January 2014 since it was office-based, sedentary and did not require wearing a uniform.
[29] However, after a year in Economic Crimes but before his tenure was completed, he decided that position was not sufficiently stimulating and pursued his interests in a position in FISS.
[30] He was able to panel for and obtain a position that was open in FISS and he began in that department in January 2015.
[31] It is his evidence that positions in FISS are coveted since they result in overtime and on-call time and call-out time but generally the four staff members work four 10 hour shifts per week with one pair working Monday to Thursday and the other pair working Tuesday to Saturday.
[32] In 2015, the plaintiff earned $99,504.22 and in 2016, $100,575.58. These amounts demonstrate an increase in income since the Accidents due to the overtime, on call and call out pay he earns in FISS.
[33] When he joined FISS, its members did not wear the standard Delta Police uniform, vest and belt to go out on calls. They wore instead a Delta Police golf shirt and he wore cargo pants.
[34] There is discussion now following the appointment of a new Chief of Police concerning the desire to make the Delta Police more visible to the public. To accomplish this, it is likely the FISS members will now have to don a uniform and full duty belt while on any calls. This presents a problem for Mr. Chawla since even the modified belt he currently wears to crime scenes weighs about 20 lbs. when equipped with flashlight, handcuffs, baton or pepper spray, sidearm and magazine.
[35] However, there seems to be little certainty about the extent of this new policy and there was no mention made by any of the witnesses with any confidence about how this new policy would mesh with the legislative requirements of the Human Rights Code.
[36] In addition to the items listed above for a modified duty belt, a full duty belt includes two magazines, a radio, possibly a second set of handcuffs, a stun gun and a baton. Officers are also encouraged to wear a Kevlar vest. His estimate is that a full uniform weighs between 25 and 35 lbs.
[37] He joined the Delta Police as a patrol officer and stayed in that section for almost three years. He performed general duties in that position such as apprehending suspects, investigating crimes, using the canine unit where required, sitting for long periods in a patrol car, going to call outs to the usual kinds of calls where police assistance is required.
[38] The position of a patrol officer is the fundamental position in the Delta Police and recent patrol experience forms one of the components of a resume for consideration for promotion.
[39] As a patrol officer, Mr. Chawla was required to and did wear a full uniform.
[40] He was a patrol officer assigned to the Traffic Section at the time of the Accidents but had expressed his desire to be assigned to the FISS.
[41] He had no physical difficulties with his duties as a patrol officer or with wearing the full uniform.
[42] In his duties for FISS, he works in the office and goes to crime scenes. He must move around the crime scene, looking under furniture and possibly in corners so he may have to crouch and crawl to obtain evidence. This is physically taxing for him since the Accidents.
[43] He is also required to carry a 20 lb. toolkit with him to crime scenes. On occasion, he will ask a fellow officer to carry the toolkit for him.
[44] In spite of his physical issues, he has always been able to complete the tasks he must do as an FISS officer and his evaluations reflect a positive view of his abilities.
[45] He can drive both FISS vehicles to crime scenes, and can do the lab work and paperwork he needs to do in the office.
[46] The only accommodation he has in his job in FISS is the use of a sit-stand desk, an accommodation that all the members of FISS enjoy.
[47] He has always been involved in athletic endeavours, including running, rugby, hockey and weightlifting.
[48] Fitness activities have been part of his life since he was a teenager. As an adult, he worked out at a gym regularly and often and ran daily. He lifted weights and could bench press 250 lbs. and chest press 80-100 lbs using dumbbells in each hand.
[49] He currently has a gym membership that he uses regularly.
[50] Before he joined the Delta Police in 2007, he had briefly been a member of the RCMP. To become an RCMP officer, he had completed a six-month training period in Regina. He had also undergone and passed the Physical Abilities Requirement Examination (PARE) test, a reasonably rigorous test that examines the ability of a candidate to perform the essential physical duties of police work.
[51] Because he had passed the PARE test within a year before applying to Delta Police, he did not have to undergo another physical examination to qualify.
[52] It is not disputed that if he were to apply to another police force, he would have to take the PARE test again.
[53] Mr. Chawla, by all accounts, was a great support to his family before the Accidents. Since he was physically fit and strong, he undertook the heavy repair and yard work that needed to be done at his parents’ house as well as moving and building furniture.
[54] When he and his wife bought a house of their own in the summer of 2015, it was after the Accidents and he was no longer able to perform heavy work. He can and does help with vacuuming, folds laundry, does light kitchen work but cannot do windows or tasks that require he work overhead or carry heavy weights. He no longer cleans the gutters.
[55] He is able to shovel snow if required.
[56] I should note that I have chosen not to use Mr. Chawla’s wife’s name, not out of any disrespect, but because I believe it to be prudent since he is a police officer and this decision will be in the public domain.
[57] Mr. Chawla’s wife is a family physician and works three days a week. Since he is no longer able to help with the housework, they have hired cleaning help who come in every two weeks.
[58] He describes their lawn as very small so he is able to keep it mowed himself since it takes about five minutes to cut.
[59] His wife describes his personality before the Accidents as good-natured and helpful.
[60] At the time of trial, four years post-Accidents, she says he is occasionally short-tempered and impatient. She has also witnessed him showing pain behaviour such as grimacing or rubbing his back.
[61] She notes that they no longer go for the hikes or long walks they used to enjoy together. Their vacations have also changed since he must take breaks to rest and stretch. Social occasions must also allow for him to take breaks.
[62] They have a son, born in October 2015, post-Accidents.
[63] Mr. Chawla’s spouse takes on more of the housework and care of their young son since Mr. Chawla is unable to share fully in the responsibilities for the housework and childcare.
[64] Her assumption of added responsibility has placed stress on their relationship.
[65] Mr. Chawla was able to help with the baby after he was born and took parental leave to be with him. He could change diapers and help with feeds during the night. Now, he plays with and cares for his son but cannot carry him for any length of time so that walks to the park when he is alone with the little boy require the use of a stroller and letting the child walk rather than be carried. If he carries the child, he must do so on his left side and cannot hold that position for more than 20 minutes or so.
[66] He has taken his son swimming without assistance from his wife on at least two occasions.
[67] If playing with his son requires crouching and crawling, Mr. Chawla cannot maintain extreme physical positions for any duration.
[68] However, and as I have noted above, he is able to perform in such positions at his job, notwithstanding his discomfort. He will use a chair, or will take breaks, but he is able to do the job.
[69] He has also been able to requalify on his firearm test. In this test, he has been able to demonstrate his ability to fire his firearm from standing, kneeling and prone positions.
[70] After the first accident, Mr. Chawla had some discomfort in his neck and back the day after the impact, so he saw his family doctor the next day.
[71] No doubt the fact that he was not on active duty after he took his five days of sick leave assisted in his recovery from that collision. After five days off, as scheduled, he went to a course at the Justice Institute,
[72] It was after completing his course and heading home that he suffered the second collision 10 days after the first collision.
[73] Following that more serious collision, he felt pain in his right side, low back and neck. He was dizzy, nauseous and had headaches.
[74] His family doctor recommended he take time off, undergo some physiotherapy and take over-the-counter medications.
[75] He was off work for almost four months (516 hours or approximately 12.9 weeks) before coming back on a graduated return to work.
[76] His headaches, nausea and dizziness have resolved.
[77] His sleep is interrupted occasionally.
[78] Overuse of his right shoulder gives him pain down his arm to his right elbow.
[79] When he tried to recommence running, he felt radiating pain down his right side to his right ankle.
[80] Even a simple walk with his wife cannot extend more than a short time without him feeling pain down his right leg.
[81] He takes naproxen, Advil and Tylenol to address his pain and uses topical creams as well.
[82] He stretches between his light workouts at the gym so he can manage his discomfort.
[83] He can no longer work off his stress at the gym. A secondary effect of his inability to exercise is that he has gained about 25 pounds since the Accidents and his current BMI is 36.9.
[84] His mother testified that he is no longer the outgoing, cheerful son he used to be since the Accidents.
[85] A/Sgt. Warren is the plaintiff’s immediate supervisor and has been his boss since the plaintiff joined the unit in January 2015.
[86] He testified that the plaintiff is well-regarded in FISS and even if he takes a little longer to perform his duties, he is able to do all the tasks required of an FISS officer.
[87] A/Sgt. Warren said that the plaintiff is “doing excellently” in the FISS.
[88] Currently, the plaintiff is regarded as fully operational.
[89] The duties in FISS often require the officers to crawl around on their hands and knees at crime scenes to collect evidence.
[90] Delta Police has a policy of “No call too small” and will send FISS officers out to every crime scene. This means that the FISS officers are in some demand.
[91] A/Sgt. Warren has seen the plaintiff demonstrate pain behaviour such as rubbing and massaging his shoulder or lying on the floor to stretch and try to reduce his back pain.
[92] A/Sgt. Warren has also noted that the plaintiff is unable to participate in the team-building exercises that are part of the FISS mandate. These exercises involve hiking and snowshoeing in the winter.
[93] A new system dealing with tenure has been introduced that would give members a period of five years in one position with a two-year option to extend and possibly re-apply in competition with others who might wish to post for the position.
[94] However, A/Sgt. Warren was clear that such a system operates within the discretion of the Chief of Police and officers with a specialty that requires extra training may be given special consideration about staying longer in their positions.
[95] It seems that as with the new uniform policy, it is still early in the implementation of the tenure system and there is no certainty about how the plaintiff would be affected.
[96] A/Inspector New is, effectively, the Human Resources Manager for the 197 sworn officers in Delta Police.
[97] He testified about the promotion system in Delta Police.
[98] The average tenure of those who achieve a promotion to Sergeant from the rank of a First Class Constable is 14 years with the force. Mr. Chawla has 10 years with Delta Police to date.
[99] An officer may apply for a promotion after eight years with the Delta Police.
[100] Promotions are merit-based and very competitive. Each application is assessed out of 100 points and the candidate with the highest number of points will get the job.
[101] Points are assessed on the resume, competency, and length of service as a constable.
[102] Patrol experience is seen as important and 25% of the overall points are attributed to the experience of the candidate generally with 17 points to be awarded for recent patrol experience.
[103] As well, the promotion to a position as Sergeant is a change in rank and could mean the new Sergeant could be placed in any unit. Often, the Sergeant could be “on the road” in some form of patrol capacity, unless he possesses a skill set so specialized that it is possible for him to remain in his unit but in a more senior rank for which there existed a vacancy.
[104] There is a limited number of Sergeant positions available, 21 in total and competition for these positions is intense, given the greater compensation in a higher rank.
[105] The evidence was that there were few promotions over years 2015 and 2016 (a total of six).
[106] The evidence concerning the effect of the duty to accommodate was uncertain. A/Inspector New acknowledged the desire and obligation of the Delta Police to comply with the Human Rights Code but said that an officer who applies for a promotion may be unlikely to obtain it if he is unable to meet the requirement to protect public safety by reason of his disability.
[107] Neither A/Sgt. Warren nor A/Inspector New suggested that the plaintiff was currently being accommodated in his position in FISS nor was the plaintiff failing to function fully as a police officer at this time.
[108] The plaintiff’s family practitioner, Dr. Konkin, gave evidence that he saw the plaintiff after the first accident and then many times after the second accident.
[109] Among all the experts, Dr. Konkin was the only one who suggested the plaintiff suffered a mild traumatic brain injury (“MTBI”). He deduced the existence of this injury from the dizziness, nausea and headaches the plaintiff suffered post-Accidents.
[110] He did not do a CT scan or an MRI.
[111] Dr. Konkin also postulates that the Accidents accelerated cervical and lumbar spinal degeneration leading to ruptured discs and symptoms of radiculopathy.
[112] Radiculopathy describes radiating pain and or weakness down an arm or leg usually resulting from compression of nerves as they exit the spine. Here, Mr. Chawla has demonstrated radiculopathy emanating from the cervical and lumbar areas of the spine.
[113] However, Dr. Heran, Mr. Chawala’s expert and treating neurosurgeon, did not find the presence of MTBI although it is possible that it had occurred but had long since resolved by almost three years post-Accidents.
[114] Dr. Heran refers to Mr. Chawla’s headaches as “cervicogenic” in nature or stemming from compression in the cervical vertebrae.
[115] Dr. Heran believes the plaintiff’s leg pain will improve over time but his low back pain may not.
[116] He opines that a radiculopathy may improve over time as has the leg pain caused by radiculopathy.
[117] Since Mr. Chawla’s Accidents, his back and neck pain have become chronic. Despite the fact that Dr. Heran describes them as mechanically caused, (made worse with activity and related to structure), he now recommends surgery on the plaintiff’s low back but not on his neck. This is a departure from his expert report where he says that he would recommend further imaging studies and assessment before determining whether surgery would be indicated to relieve his condition. He justifies his change in the recommendation for surgery on the plaintiff’s low back from the continuing pain and the fact that the plaintiff is a young man of 33.
[118] If the plaintiff does undergo surgery, his convalescence would take about six months.
[119] Even with surgery on his low back, there is no guarantee his back pain would improve or he would not need a second surgery. Dr. Heran offers a 5-15% chance of the need for a second surgery.
[120] Dr. Ailon, also a neurosurgeon, is the responsive expert for the defendants.
[121] He did not do a physical examination of the plaintiff or have any of the original imaging made available to him.
[122] He has based his responsive report solely on a records review.
[123] There was emphatic opposition from the plaintiff to the admissibility of Dr. Ailon’s report based on the lack of physical examination.
[124] I ruled that the report itself was admissible but the weight of the report would be at issue because Dr. Ailon had not had the opportunity to meet and examine the plaintiff.
[125] I have, therefore, accorded less weight to Dr. Ailon’s opinion than to Dr. Heran’s report.
[126] As it turns out, there is little disagreement between the two neurosurgeons.
[127] Dr. Heran now believes that the lumbar mechanical back pain would be relieved by surgery and by the use of a medical device called a DIAM (a tradename). This device is inserted below the spinal process and can be used to expand the spinal canal, thus relieving compression caused by spinal stenosis.
[128] Dr. Ailon agrees the neck (cervical) pain should not be surgically addressed at this point but says that the lower back (lumbar) pain could be dealt with surgically by a laminectomy. He does not accept that use of the DIAM device has an evidentiary foundation in relief of mechanical back pain.
[129] As well, Dr. Ailon points out that use of the DIAM has resulted in the necessity of many second surgeries.
[130] Hence the two neurosurgeons disagree on the surgical approach required but not on the possible benefit that could enure to the plaintiff from a surgery on the lumbar spine.
[131] Dr. Ailon is clear that any patient must be advised of the possible risks of back surgery and of the potential for little or no improvement in the level of pain.
[132] The other difference between them is Dr. Heran’s diagnosis of Mr. Chawla as being partially disabled from his employment by his neck and lower back pain.
[133] Dr. Ailon does not opine on whether Mr. Chawla’s back and neck pain amount to a partial disability although he agrees that strenuous activities likely cause Mr. Chawla pain. He defers to Mr. Hosking’s functional capacity evaluation on the topic of vocational limitations, which I will address below.
[134] I admit to some skepticism with respect to the diagnosis of any indefinite partial disability for Mr. Chawla.
[135] The plaintiff is currently able to do all the duties of his job in FISS although on occasion he works a little more slowly than others. Is the plaintiff’s condition a temporary partial disability from which recovery is possible with surgery and the passage of time?
[136] As characterized by the defendants, it appears that the plaintiff has some functional limitations from his mechanical neck and back pain that will have some effect on his activities, vocational and recreational, but these limitations are improving.
[137] Given his medical history since the Accidents, and his success in his job since the Accidents, the defendants say not only that the plaintiff can expect further improvement over time, but also that these limitations will not inhibit the plaintiff’s ability to progress through the ranks.
[138] Certainly Dr. Heran seems to accept that Mr. Chawla will improve over time and with surgery.
[139] His report is somewhat contradictory since he says that
… Following the natural history of disc problems, which is that of improvement over years, there is a potential for improvement as time goes on. Furthermore, following any potential surgical interventions, there is a likelihood of improvement as well. . . . He would likely be able to return to field duties in that setting as long as he is not having worsening arm or neck pain. Therefore, longitudinal follow up is required in this regard. His period of total disability was approximately about two to three months and then the partial disability thereafter. It appears that he is impaired indefinitely in the competitive open job market at the present time and expected future, and particularly in advancing his career in the police. . . (at page 8)
[140] Mr. Chawla is not currently performing as a patrol officer so there is no current test of his ability to do the required duties other than conjecture on Dr. Heran’s part and the use of normative tests representing a one-day snapshot of the plaintiff performed by Mr. Hosking.
[141] I am of the view that the functional capacity evaluation performed by Mr. Hosking has failed to provide an opinion with respect to the inhibiting effect of the extra weight the plaintiff carries on his ability to run, part of the duties of a patrol officer.
[142] Mr. Hosking does point out that the plaintiff’s lack of control of his core muscles to maintain a neutral position (straight back position) of his spine limits his ability to demonstrate strength activity.
[143] Along with the plaintiff’s weight, this is a problem that is capable of improvement but the work to solve these problems can only be done by Mr. Chawla alone.
[144] What I do see is the immediate need to give the plaintiff the assistance he requires to address his weight problem and his lack of core strength.
[145] Therefore, while I am indeed satisfied that as Dr. Konkin states in his report, the soft tissue injuries caused by the Accidents have long since healed, the plaintiff has been left with neck pain and low back pain, and numbness and tingling from radiculopathies caused by nerve root compression in the cervical and lumbar spine. I am also of the view that the improvement over time in the radiculopathies and in the leg pain gives a more optimistic prognosis for the future than that presented by the plaintiff.
[146] In saying this, I also accept that the plaintiff is vulnerable to recurrent cervical radiculopathy but the medical opinion is that this risk is difficult to quantify. There is some risk in this regard.
[147] I am not satisfied by the expert evidence that the “partial disability” referred to by Dr. Heran will not improve over time.
[148] Mr. Chawla will have certain limits on what he can do due to his neck and back pain but that these are not substantial limitations can be seen from his post-Accidents progress from Patrol and Traffic sections, into Economic Crimes, and finally, into FISS, the position he saw as a career goal, where he remains today.
[149] His limitations did not interfere with his ability to compete for the FISS position and he was not given the position in FISS as an “accommodated position”.
[150] I note that Dr. Ailon says that the records he reviewed show that the plaintiff’s lumbar and cervical radiculopathies have improved considerably since their onset and that this is “in keeping with the natural history of these conditions”.
[151] Dr. Ailon also points out that the right L4/5 disc protrusion/extrusion that was compressing the right L5 nerve root has largely resolved, “as commonly occurs”.
[152] The expression by Dr. Heran in his expert report that lumbar surgery was not currently indicated and would require further imaging and follow up is a point of view shared by Dr. Ailon. He is also of the view that cervical spine surgery is currently not warranted and this is consistent with Dr. Heran’s opinion.
[153] Should the plaintiff’s low back pain and leg pain continue, Dr. Heran would likely recommend surgery.
[154] Dr. Brooks is a medical doctor who is a diplomate in sports medicine and who has special training in occupational medicine, including the assessment of fitness of RCMP officers to return to work post-injury.
[155] He is not optimistic with respect to Mr. Chawla’s eventual improvement, and although not a neurologist, does not hesitate to opine that it is likely the plaintiff’s neck and back pain will continue even if he has surgery to address both the cervical and lumbar issues.
[156] He does acknowledge that Dr. Heran believes there is about a 70% chance of success of the proposed back surgery and he must defer to his greater and more specific expertise.
[157] Throughout his report, he refers to the plaintiff’s “accommodated position” in FISS. This is simply inaccurate since the plaintiff achieved this position post-Accidents through a merit-based and competitive process and is able to perform all the duties required to fulfill his job responsibilities, notwithstanding that he sometimes has pain doing so.
[158] I note as well that Dr. Brooks’ finding of moderate diminished range of motion of Mr. Chawla’s cervical and lumbosacral spine was not duplicated in Dr. Heran’s findings in which he indicated full range of motion and no positive neurological findings with the exception of one positive nerve root tension sign of the right lower extremity. Dr. Brooks could not demonstrate any other diagnostically significant neurological findings other than the one right leg nerve root tension sign.
[159] Dr. Brooks concludes that due to the injuries suffered in the Accidents, Mr. Chawla is unable to continue as a full duty officer in Delta Police except in an accommodated position like the one he currently holds - although this is not correct.
[160] Dr. Brooks qualifies his view somewhat when he admits that opining on the plaintiff’s vocational future at this point is speculative.
[161] I did not find Dr. Brooks’ report to be persuasive and where he opines on topics that address neurological findings, I prefer the evidence of Drs. Heran and Ailon.
[162] There is no doubt that the plaintiff has been left with some functional deficits as a result of the Accidents.
[163] Lifting heavy weights, running and sitting in one position for long periods of time are problematic for him.
[164] It is not that he is unable to do any of these activities at all, but that he is limited in his ability to perform them.
[165] He may not be currently able to perform all the duties required of a patrol officer, but that is not his job at present and he is able to perform all the duties required of him as an officer in FISS where he has not required any accommodation.
[166] He performs such duties as stooping, kneeling, crouching and crawling as required from time to time in FISS.
[167] I find Mr. Hosking’s report to be based on the premise that the plaintiff’s physical abilities should be measured against the general duties required of a police officer, which appear to be analyzed from the point of view of a patrol officer.
[168] This is an unfair comparison since we must take the plaintiff as we find him: he is fortunately located in a position within Delta Police that does not require him to chase and take down suspects or run with the canine unit.
[169] His inability to run affects his leisure activities more than it does his vocational position. However, this is a loss the plaintiff has suffered and should be considered in the analysis of non-pecuniary damages.
[170] Non-pecuniary damages compensate the plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities. This type of compensation must be fair to all parties. This is done in part by comparing the circumstances at issue with other cases of similar circumstances.
[171] A non-exhaustive list of relevant factors to consider when determining an appropriate award for non-pecuniary loss was developed by Madam Justice Kirkpatrick in Stapley v. Hejslet, 2006 BCCA 34 at para. 46:
[46] The inexhaustive list of common factors cited in Boyd [Boyd v. Harris (2004), 237 D.L.R. (4th) 193] 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 (QL), 2005 BCCA 54).
[172] However, a non-pecuniary damages award will ultimately turn on the particular circumstances of the case.
[173] The plaintiff in this case was 29 years old at the time of the Accidents. Generally speaking, his age is not a substantial factor in determining non-pecuniary damages except for the fact that he may be coping with neck pain and possibly back pain for a longer period of time than he would be if he were to be older.
[174] The nature of his injury was soft tissue. However, the pain it has caused has proved to be particularly difficult to overcome, partly due to its locations in his cervical and lumbar spine.
[175] The plaintiff has been consistent in reporting ongoing pain in his neck with accompanying radiculopathy into his right arm and down into his hand. As well, he has low back pain with radiculopathy into his right leg.
[176] He reports some sleep disturbance, from having to change positions through the night. It is reasonable to assume that pain would interrupt sleep and I attribute part of the plaintiff’s sleep problems to pain.
[177] The plaintiff has undertaken physiotherapy, exercise, and used over-the-counter medication. He has achieved some diminution of the radiculopathy but is still unable to run. He continues to go to the gym, and uses light weights.
[178] He manages his pain by stretching and massage and is fortunate to have a workplace where he can lie on the floor to stretch his back.
[179] Consequently, almost four years after the Accidents, despite the fact that his soft tissue injuries have likely healed, he still suffers pain and a somewhat restricted lifestyle.
[180] The level of Mr. Chawla’s disability is somewhat difficult to state and as I earlier noted, I prefer to describe him as having some functional limitations that do not keep him from being able to fully perform in his current position in Delta Police.
[181] Mr. Chawla has lost some of the formerly active lifestyle he enjoyed, including the hikes and long walks he formerly engaged in with his wife.
[182] His play time with his son still takes place and he is able to care for him but he becomes fatigued if he tries to carry him too long or must maintain an extreme position.
[183] Any activity he undertakes that is affected by his limitations must be tempered with the knowledge that he will need the opportunity to stretch to deal with his pain.
[184] Travel must accommodate rest stops and time to stretch.
[185] It also appears that he may require lumbar surgery to effect improvement in his low back pain. Such surgery is estimated to have a 70% chance of success. If he undergoes surgery, he will require six months of convalescence but may well be able to participate once again in field activities after he has recovered.
[186] Mr. Chawla has demonstrated his strength of character by making and succeeding at efforts to resume many of his pre-Accidents activities.
[187] It is clear he is well-respected by his colleagues and seen as a bright, competent, hardworking officer.
[188] Both counsel have referred me to numerous cases on the topic of non-pecuniary damages.
[189] As is the usual situation, the plaintiff has referred me to cases where the injuries suffered are more severe than those he suffered and the defendants have referred me to cases where the injuries are of lesser severity and duration than those suffered by the plaintiff.
[190] I must determine an award of damages that is fair to all parties.
[191] I have carefully reviewed the myriad of cases referred to me by both parties.
[192] Because there are so many cases, I will only refer to those mentioned in the written arguments of counsel on the topic of non-pecuniary damages.
[193] The plaintiff relies on X. v. Y, 2011 BCSC 944. In X v.Y, the plaintiff was a police officer who suffered a serious back injury that was permanent as a result of a collision between his motorcycle and a truck. His back injury was a burst fracture of his T12 vertebra that required surgical fusion but did not resolve his continuing pain. He had been a competitive triathlete but was unable to resume running, cycling or swimming. He was no longer able to participate in active police work. He was awarded $140,000 in non-pecuniary damages.
[194] X v. Y deals with a case where the plaintiff was no longer able to participate in active police work as a result of his serious injuries. Here, the plaintiff has been able to achieve the position he has wanted since before the Accidents.
[195] In Cumpf v. Barbuta, 2014 BCSC 1898, Greyell J. awarded the plaintiff $150,000 in non-pecuniary damages after a significant collision that pushed her car from the centre lane of Broadway to the sidewalk where it hit a telephone pole and was almost overturned. Two of her children were in the car and were also injured. By four and one-half years from the accident, she still had chronic and significant back and hip pain, was unable to fully resume her duties as a property manager, had had to give up her cultural activities of cooking and dancing, and was diagnosed with depression.
[196] Cumpf involved a more serious collision. The plaintiff’s injuries while generally similar to Mr. Chawla’s, were more extensive and caused disruption not only to her marriage but to her family and social relationships.
[197] Here the plaintiff has some degree of continuing pain but is able to keep working. While he has suffered some loss of intimacy, he is still close to his family and his wife.
[198] The next case cited by the plaintiff is Bellaisac v. Mara, 2015 BCSC 1247 where the plaintiff was awarded $140,000 in non-pecuniary damages. The injuries suffered by the plaintiff in Bellaisac were serious low back injuries including a major disc protrusion that left him with chronic pain that could not be addressed by surgery. In addition, the plaintiff was not well educated, and spoke little English with the result that his access to employment was very limited. He could not return to his previous highly physical occupation and at the time of trial was on medical employment insurance.
[199] Clearly, the circumstances of the plaintiff in Bellaisac were more dire than those of Mr. Chawla.
[200] Trites v. Penner, 2010 BCSC 882, is a decision of Ker J. Here the plaintiff suffered injuries to his back and neck as a result of a rear-end collision. Notwithstanding the fact that he would likely lose his occupation because his injuries made it very difficult to continue as a plumber, his counsel argued for and received $75,000 in non-pecuniary damages. However, it is a seven year-old decision and in my view, would attract a larger amount of non-pecuniary damages today.
[201] Olson v. Farran , 2016 BCSC 1255, is a contributory negligence case where the defendant was found 75% liable and the plaintiff 25% liable. The plaintiff received $48,750 after deduction for her contributory negligence. The pedestrian plaintiff was hit in an unmarked crosswalk and was left with chronic pain from a permanent injury to her hips, and soft tissue injury to her low back. She still had pain some 4.5 years after the impact. But she was able to continue working, and notwithstanding some symptoms of depression, suffered no interruption to her relationships that appeared in evidence. Her injuries were not as serious as those suffered by Mr. Chawla.
[202] In Villing v. Husseni, 2016 BCCA 422, five years after the accident, the 23 year-old plaintiff who suffered chronic low back pain (her neck and shoulder pain had resolved) was awarded $85,000 for non-pecuniary damages. She was able to continue with her studies with some difficulty and to obtain and keep employment but would require ongoing treatment to deal with the lumbar facet syndrome from which she suffered. Notwithstanding the discomfort caused by the treatment recommended, she could expect substantial relief after six weeks or so. She would require at least two treatments but because of her relative youth, she was expected to reach good recovery.
[203] Mr. Chawla may need to have surgery to obtain relief from his back pain and he runs a risk of recurring radiculopathy.
[204] I am satisfied that taking into account all of the circumstances of this case, the possible need for surgery, and the functional limitations of the plaintiff that are only slowly improving, that an amount of $125,000 is a reasonable amount to compensate Mr. Chawla for his pain and suffering and loss of amenities and to restore him as much as possible to his pre-Accidents condition.
[205] As I make this award, I recognize that no amount of money could give Mr. Chawla back the confidence in his physical abilities he has lost as a result of his injuries.
[206] The parties are agreed that $22,911.09 is the subrogated amount that the plaintiff’s employer must be reimbursed.
[207] This amount need not be netted for tax: (Hill v. Murray, 2014 BCSC 1528 at para. 241.)
[208] Plaintiff’s counsel has also claimed for loss of opportunity to earn overtime immediately post-Accidents until he took a position in Economic Crimes in January 2014.
[209] I do not have any basis in evidence of the overtime he lost during this period of time and therefore cannot award it.
[210] I understand that the plaintiff was not able to attend team-building exercises with FISS personnel and that he would have been paid for this time had he been able to attend. If the team-building exercises occurred on weekends he would have been paid for time he would not have otherwise been working. He has suffered some loss but I do not have evidence of the number of days he missed for these activities or when they occurred.
[211] It would not be fair to the defendants for me to try to guess at the quantification of this loss.
[212] A/Sgt. Warren’s evidence that Mr. Chawla has missed work occasionally due to his injuries is insufficiently specific to allow me to award any amount of loss. I was not shown the plaintiff’s bank of sick leave and how it was affected after his appointment to FISS, so that this contention does not meet the standard of proof required to award an amount approaching that claimed by the plaintiff.
[213] The principles applicable to this head of damages are well-known.
[214] In a decision of Voith J., Brewster v. Li, 2013 BCSC 1412, he sets out some of the principles to be considered in making an award under this head. In particular, Voith J. cites a decision of the BC Court of Appeal in Reilly v. Lynn, 2003 BCCA 45, as follows:
[100] An award for loss of earning capacity presents particular difficulties. As Dickson J. (as he then was) said, in Andrews v. Grand & Toy Alberta Ltd., I [1978] 2 S.C.R. 229 at 251:
We must now gaze more deeply into the crystal ball What sort of a 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?
[101] The relevant principles may be briefly summarized. The standard of proof in relation to future events is simple probability, not the balance of probabilities and hypothetical events are to be given weight according to their relative likelihood: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 27. A plaintiff is entitled to compensation for real and substantial possibilities of loss, which are to be quantified by estimating the chance of the loss occurring: Athey v. Leonati, supra,at para. 27, Steenblok v. Funk (1990) 46 B.C.L.R. (2d) 133 at 135 (C.A.) The valuation of the loss of earning capacity may involve a comparison of what the plaintiff would probably have earned but for the accident with what he will probably earn in his injured condition: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93 (S.C). However, that is not the end of the inquiry; the overall fairness and reasonableness of the award must be considered: Rosvold v. Dunlop, (2001) 84 B.C.L.R. (3d) 158. . . Moreover, the task of the Court is to assess the losses, not to calculate them mathematically: Mulholland (Guardian ad litem of) v. Riley Estate(1995) 12 B.C. L. R. (3d) 248 (C.A.). Finally, since the course of future events is unknown, allowance must be made for the contingency that the assumptions upon which the award is based may prove wrong: Milina v. Bartsch, supra at 79. In adjusting for contingencies, the remarks of Dickson J. in Andrews v. Grand & Toy Alberta Ltd., supra at 253 are a useful guide:
First, in many respects, these contingencies implicitly are already contained in an assessment of the projected average level of earnings of the injured person, for one must assume that this figure is a projection with respect to the real world of work, vicissitudes and all. Second, not all contingencies are adverse. . . Finally, in modern society there are many public and private schemes which cushion the individual against adverse contingencies. Clearly the percentage deduction which is proper will depend on the facts of the individual case, particularly the nature of the plaintiff’s occupation, but generally it will be small.
[215] Perren v. Lalari, 2010 BCCA 140 discusses the requirement for the plaintiff to prove a “real and substantial possibility of a future event leading to an income loss“ with the quantification of that loss of earning capacity determined on an earnings approach or a capital asset approach. This future loss of income may still be proved notwithstanding the fact that the plaintiff has returned to his or her employment.
[216] Further, this head of damages need not be proved on a balance of probabilities but as noted above, the plaintiff need only show a real and substantial possibility of loss as a result of injuries suffered in the Accidents for which liability is admitted.
[217] As stated by Goepel J.A. in dissent in Grewal v. Naumann, 2017 BCCA 158 at paras. 48-49:
[48] In summary, an assessment of loss of both past and future earning capacity involves a consideration of hypothetical events. The plaintiff is not required to prove these hypothetical events on a balance of probabilities. A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation. If the plaintiff establishes a real and substantial possibility, the Court must then determine the measure of damages by assessing the likelihood of the event. Depending on the facts of the case, a loss may be quantified either on an earnings approach or on a capital asset approach: Perren v. Lalari, 2010 BCCA 140 at para. 32.
[49] The assessment of past or future loss requires the court to estimate a pecuniary loss by weighing possibilities and probabilities of hypothetical events. The use of economic and statistical evidence does not turn the assessment into a calculation but can be a helpful tool in determining what is fair and reasonable in the circumstances: Dunbar v. Mendez, 2016 BCCA 211 at para. 21.
[218] The factors to be considered in making such an assessment are found in the following cases: Parypa v. Wickware, 1999 BCCA 88; Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); and Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.).
[219] These relevant factors are oft-cited but bear repeating once again:
(1) whether the plaintiff has been rendered less capable overall from earning income from all types of employment;
(2) whether the plaintiff is less marketable or attractive as an employee to potential employers;
(3) whether the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him or her, had she or he not been injured; and
(4) whether the plaintiff is less valuable to himself or herself as a person capable of earning income in a competitive labour market. However, I consider this point to be somewhat diluted as a result of the Court of Appeal’s dismissal of the judge’s award of damages founded on this factor: Kim v. Morier, 2014 BCCA 63.
[220] It is the capital asset approach that is appropriate for quantification of loss in the circumstances of this case.
[221] The plaintiff says that his ability to achieve promotion in his job is affected by the pain he suffers, even though it may be a manageable level of pain.
[222] There is a real possibility of loss here, but there are other contingencies that would affect Mr. Chawla’s ability to obtain a promotion. Certainly, his mobility in the Delta Police has not been affected by his injuries. But the large numbers of candidates for a small number of more senior management positions must also affect the likelihood of promotion, which in any event would probably not be available to him until he has greater seniority in the Delta Police.
[223] However, I can account for the factors that would affect his promotability by assessing the appropriate contingencies and I am able to do so.
[224] As well, it is probable that he will not be able to take a new job in another police department as he did when he left the RCMP because his back pain will make him less marketable particularly when such employment is likely to have some physical component to it. (Sevinski v. Vance, 2011 BCSC 892 at paras. 104-105).
[225] I find that the plaintiff has lost the ability to take advantage of job opportunities which might otherwise have been open to him, had he not been injured.
[226] I would award the amount of $220,000 under this head of damages, an amount that approximates two years’ salary. From this amount I deduct one-third to account for the negative contingencies I have noted for a total of $146,667. I find this amount appropriate as it takes into account the possibility of delay in promotion as a result of surgery that may be necessary and the effect over time of that delay. I have also considered the contingencies that are noted above that are unrelated to his injuries and could cause some effect on his promotability in any event. But I have counterbalanced those contingencies against the fact that Mr. Chawla is a young man at 33 and will have many years to work while he endures back pain and may be limited to positions in the Delta Police that have fewer physical demands than those of any patrol-based positions.
[227] I accept the argument of the plaintiff that his injuries have interfered with his ability to assist with the work of keeping the house clean.
[228] In the period when his injuries were acute, there is little doubt he would have found doing housework difficult. Vacuuming and reaching up to clean windows would have been problematic for him.
[229] The plaintiff’s evidence was that he and his wife would have done the necessary work together but he can no longer undertake the heavier tasks.
[230] Ms. Inglis, the plaintiff’s expert in occupational therapy, assumed that those tasks included such items as window washing, heavier seasonal cleaning and heavier garden and yard care.
[231] The acute stage of his injuries would not have lasted beyond the first year following the Accidents. I will assume that he would have needed help for the first 12 months for a cost of about $2,750 (based on the plaintiff’s evidence that $11,000 represents the cost of hiring household help since the four years from the Accidents to trial). Thereafter, he could have done some of the housekeeping duties and did not need as much help. Thus I award the amount of $2,750 under this head of damages.
[232] I did not receive evidence of the amount of the housekeeping work that Mr. Chawla’s wife routinely performs and the amount she had to take up for Mr. Chawla so I cannot award any amount for her gratuitous services for him. I can only surmise that these duties amounted to a relatively minor adjustment of the duties within the family.
[233] I can also conclude that she received a benefit from using paid house cleaning help so that a full award of $11,000 for past loss of housekeeping capacity would not take into account the reduction in her usual workload by hiring cleaning help, assuming that Mr. Chawla and his wife performed equal amounts of house cleaning.
[234] I am not satisfied that Ms. Inglis performed a sufficiently rigorous analysis to support a claim for life-long housekeeping support and Ms. Walker’s report does not assist in this regard.
[235] It appears that Ms. Inglis did no real investigatory observation of the plaintiff attempting to perform housekeeping duties and accepted without careful examination his own description of his limitations.
[236] Both Ms. Inglis and Ms. Walker seemed to accept that Mr. Chawla’s condition will be static over time and for almost all of the rest of his life he will remain unable to perform housekeeping duties beyond the simplest and most routine.
[237] This assumption is simply not consistent with his ability to perform all the physical requirements of his FISS job.
[238] It is also my view that Mr. Chawla’s medical issues will likely improve over time as is often the experience with radiculopathies according to the expert neurological reports. We know as well that his lumbar problems have a 70% chance of improvement with surgery.
[239] For a period of the next five years, I will allow an amount of $1040 per year for regular household cleaning help and $160 per year for heavier seasonal cleaning.
[240] This is a total of $1,200 per year for five years or $6,000.
[241] The parties have advised that they are able to calculate a present value for this amount.
[242] Ms. Inglis has included an amount for gardening services that appears to be unsupported. Mr. Chawla’s evidence was that he has a tiny lawn he can mow in almost no time. There was no evidence from him that described other and heavier needs in his garden that he is now unable to perform.
[243] There will be no award for garden and yard care.
[244] Claims for the cost of future care must be medically justified and reasonable. The award of damages must be moderate and fair to both parties: Milina v. Bartsch, (1985) 49 B.C.L.R. (2d) 33 (S.C.) at para. 210, aff’d (1987) 49 B.C.L.R. (2d) 99 (C.A.)
[245] There is some disagreement between the plaintiff’s expert neurologist and the defendant’s expert neurologist about the need for ongoing physiotherapy.
[246] The plaintiff’s expert neurologist, Dr. Heran, says :
From a treatment perspective, all the interventions that he has utilized have been beneficial to him from what I can establish. His maintenance with a stretching routine and gym exercise routine is valuable. He has demonstrated excellent range of motion throughout his spinal axis, which is probably as a result of these exercises. These should continue. I do think he would benefit from a personal trainer and a dietitian for his overall course of care, particularly with his history of obesity and his potential for further improvement of his spinal condition through the endeavours of weight loss and guided therapy. I do not think any rehabilitation program, physiotherapy, or passive modality treatment, is warranted now but may be valuable for any aggravations or exacerbations that arise in the future, which he is at risk of.
[247] Dr. Ailon, the defendants’ neurologist opines as follows:
Mr. Chawla has had extensive and appropriate treatments thus far. I think he would benefit from ongoing active physiotherapy, regular exercise, and a concerted effort to reduce his weight. Activities that do not load the spine such as swimming, pool walking and riding a recumbent bike would likely be of benefit. Core-strengthening exercises such as yoga, pilates and those directed by a physiotherapist are also recommended.
[248] Ms. Inglis and Ms. Walker have both included substantial claims for the cost of physiotherapy to the end of the plaintiff’s life although the plaintiff agreed it should be capped at 65.
[249] It does not need to be said but of course the occupational therapists do not have the expertise to diagnose a condition that requires physiotherapy and so I will only rely on the doctors’ opinions in this regard.
[250] Looking at both neurologists’ opinions, I am of the view that Mr. Chawla should have access to physiotherapy as needed when and if his condition flares up. He is at risk of recurrent cervical radiculopathy and the pain and tingling caused by the compression of the affected nerve root and may require treatment. However, the likelihood of recurrence is uncertain.
[251] Dr. Konkin, the plaintiff’s family practitioner, is of the view that ongoing therapy and interventions are required to assist Mr. Chawla with his medical issues.
[252] The defendants concede that some physiotherapy may be necessary.
[253] I will award the plaintiff 12 sessions per year for a total of five years. That is 60 sessions at $65 for a total of $3,900.
[254] Once again, the parties have said they will be able to determine the present value of this amount since there was no expert evidence to provide the appropriate multiplier.
[255] If the plaintiff does have surgery, he would need some additional physiotherapy. The plaintiff says he would need 25 or 30 such treatments at $65 each for a total of $1,625.
[256] However, there is a degree of uncertainty in respect of the need for surgery and Mr. Chawla’s desire to undergo it. I would estimate this uncertainty at about 50% and will therefore reduce the post-surgical physiotherapy by 50% to $813.00 as my best determination of the probability it will be required.
[257] Doing the best I can with the evidence before me, I find it probable that there is a need for some assistance with Mr. Chawla’s exercise program from a kinesiologist who could help him focus on rebuilding his core strength and make certain he is performing his exercises properly. Notwithstanding the fact that he is experienced with exercise and is a regular attendee at the gym, it is my view that some focused therapy would be of use to him.
[258] He does not require a personal trainer as well as the help of a kinesiologist.
[259] If he has surgery, he would require more sessions with a kinesiologist.
[260] The amount for post-surgery kinesiology is subject to the same contingency as is post-surgical physiotherapy.
[261] I will award him 12 sessions of kinesiology per year for five years at $65 a session for a total cost of $3,900.
[262] For post-surgical kinesiology sessions, I will award 20 sessions at $65 a session for a total of $1,300 reduced by 50% for the contingency that Mr. Chawla will not proceed with surgery. This amounts to $650.
[263] The plaintiff also claims for vocational counselling. I do not see this as a sufficiently certain requirement to be awarded. He is successful in his current position and it is very doubtful his condition will worsen over time, thus necessitating a change of career for which such counselling would be required.
[264] I agree that a gym membership is a sensible tool to be given to Mr. Chawla to continue to work on restoring his core strength and his general condition. As Dr. Heran noted, his exercise regime has likely helped to maintain his range of motion.
[265] Once again, I will award the gym membership for a period of five years at a cost of $485.25 per year less the plaintiff’s pre-MVA gym membership dues of $129.74 per year for a total of $1,778.
[266] None of the doctors opined on future medication costs. The plaintiff says that he continues to be on medication for pain management. I do not have any evidence of his continued costs in this regard but he has said he takes Advil, Tylenol, naproxen and uses topical pain relief. I have no evidence of the costs of these medications.
[267] I have reviewed the list of special damages to obtain some idea of what costs the plaintiff incurred in the past for medications.
[268] I note at Exhibit 3, page 22, there are two entries for medication totalling $64.33 from June 2013. I can only assume that there were no other non-prescription drugs purchased by the plaintiff and that his prescription drugs were covered by his employee benefits plan, which may be the amount of the subrogated claim for special damages. But I do not know that to be the case.
[269] I am limited to some form of guesswork to grant damages for the future cost of medication for Mr. Chawla. At the same time, it is entirely reasonable that he would need medication from time to time.
[270] I will award the plaintiff a lump sum of $3,000, being $600 per year for five years for the future cost of medications. But it would have been more useful for the plaintiff to provide actual numbers.
[271] As well, other than the reports of the occupational therapists, I do not have any evidence concerning the psychosocial aspects of the management of Mr. Chawla’s pain to form a factual basis for this category of damages. The defendant’s occupational therapist, Ms. Walker, suggests the use of a pain program, a yoga studio pass, and appointments with an occupational therapist, physiotherapist and a clinical psychologist but there is no medical support for these suggestions for which the plaintiff would accept a lump sum of $10,000.
[272] There is insufficient support to say that this expense is reasonably medically necessary.
[273] The list of special damages shows an amount of $10,248.03 and includes a subrogated interest of Pacific Blue Cross.
[274] The defendants did not contest any item on the list of special damages.
[275] All of the expenses appear reasonable and I award the amount claimed: $10,248.
[276] In summary, I award the plaintiff the following:
|
Non-pecuniary Damages |
$125,000.00 |
|
Past Wage Loss |
22,911.00 |
|
Loss of Future Earning Capacity |
146,667.00 |
|
Loss of Past Housekeeping Capacity |
2,750.00 |
|
Loss of Future Housekeeping Capacity |
6,000.00 |
|
Cost of Future Care: |
|
|
Physiotherapy |
3,900.00 |
|
Post Surgical Physiotherapy |
813.00 |
|
Kinesiology |
3,900.00 |
|
Post Surgical Kinesiology |
650.00 |
|
Gym Membership |
1,778.00 |
|
Medications |
3,000.00 |
|
Special Damages |
10,248.00 |
|
TOTAL: |
$327,617.00 |
[277] Some of the items listed above will be subject to recalculation for the determination of present value.
[278] Mr. Chawla will have his costs. If the parties need to speak to costs, they may arrange a time with the Registry within the next 10 days.
“Russell J.”
________________________________
The Honourable Madam Justice Russell