IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Tathgur v. Dobson, |
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2018 BCSC 1384 |
Date: 20180816
Docket: M101783
Registry: Vancouver
Between:
Mandeep Singh Tathgur
Plaintiff
And
Paul Steven Dobson
Defendant
– and –
Docket: M101784
Registry: Vancouver
Between:
Mandeep Singh Tathgur
Plaintiff
And
Stefan Eric Lyren
Defendant
Before: The Honourable Madam Justice Warren
Reasons for Judgment
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Counsel for the Plaintiff: |
Mandeep S. Randhawa |
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Counsel for the Defendants: |
Christopher V. Marcom |
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Place and Dates of Trial: |
Vancouver, B.C. October 11–14 and 17–21, 2016; June 14–16, 2017; February 9, 2018 |
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Place and Date of Judgment: |
Vancouver, B.C. August 16, 2018 |
[1] The plaintiff, Mandeep Singh Tathgur, seeks damages arising from two motor vehicle accidents. The first accident occurred on May 26, 2008. Mr. Tathgur was stopped in traffic, or was in the process of stopping, when his vehicle was struck from behind by a Nissan operated by the defendant, Stefan Eric Lyren. The second accident occurred about 15 months later, on September 2, 2009. Mr. Tathgur was driving his vehicle when it was struck on the front passenger side by a Chevrolet operated by the defendant, Paul Steven Dobson, who was attempting to turn right into traffic from a gas station parking lot.
[2] Liability for both accidents has been admitted. There is no dispute that the accidents caused soft tissue injuries in Mr. Tathgur's neck and back, and that he subsequently suffered from pain in those areas and other associated symptoms. It is also agreed that Mr. Tathgur's injuries are indivisible and there is no need to apportion damages as between Mr. Lyren and Mr. Dobson.
[3] The primary issue is the cause of Mr. Tathgur's ongoing complaints of significant back pain and spasm, with pain and weakness radiating into his right leg, which he attributes to annular tears and disc bulging in his spine that were first identified on an MRI performed on December 21, 2009, roughly three and a half months after the second accident. Mr. Tathgur alleges that these injuries were caused by the first accident and aggravated by the second, and that they are permanent. The defence asserts that Mr. Tathgur has not established that the accidents are a cause of his current condition. Rather, the defence says that Mr. Tathgur's current, ongoing symptoms reflect the natural progression of pre-existing degenerative disc disease.
[4] Mr. Tathgur claims an award of $125,000 for non-pecuniary damages; $58,980 (gross) for past loss of income earning capacity; $550,000 for future loss of income earning capacity; $25,000 for loss of housekeeping capacity; $85,000 for cost of future care; and $10,033.24 in special damages.
[5] The defence says an award of non-pecuniary damages of between $30,000 and $40,000 is appropriate. The defence submits that Mr. Tathgur has established a claim for past loss of income earning capacity of only $1,968, and that he has not established a future loss of income earning capacity. Alternatively, the defence says that if Mr. Tathgur has established a future loss of income earning capacity, that loss should be assessed on a capital asset basis and damages quantified in an amount reflecting approximately one year's income. The defence submits that Mr. Tathgur has not established a claim for loss of housekeeping capacity or for costs of future care. The defence says that Mr. Tathgur's special damages claim should be capped at expenses incurred to the end of 2010 on the basis that any expenses incurred after that are related to the natural progression of his degenerative disc disease. Finally, the defence says Mr. Tathgur's damages should be reduced to reflect his failure to participate in an active rehabilitation or exercise program, which the defence characterizes as a failure to mitigate.
[6] Mr. Tathgur was 30 years old at the time of the first accident and 31 years old at the time of the second. He was born and raised in India. He attended post-secondary schools in India, obtaining a diploma in computer science in 1998, a bachelor's degree in economics in 1999, and a master's degree in business administration in 2002. While in India, he worked in sales in the telecommunications and insurance industries. He was an avid weightlifter and attended the gym regularly. He enjoyed outdoor activities including hiking and boating.
[7] Mr. Tathgur got married to Dilrup Toheem in April 2007, in India. She sponsored his immigration to Canada in December 2007. They have a daughter who was born on July 10, 2009 and a son who was born on November 1, 2014.
[8] After moving to Canada, Mr. Tathgur worked for a short time as a security guard. In March 2008, he got a job as a customer service representative with Cash Money, a payday loans provider, working 40 hours a week for $12 an hour. He was working at Cash Money at the time of the first accident.
[9] Mr. Tathgur testified that he was in good health prior to the first accident. He acknowledged that in April 2008 he complained to his family doctor, Dr. Ashok Manga, about low mood, which he attributed to adjusting to life in Canada and concerns about his employment prospects. He said Dr. Manga prescribed medication for his mood and it helped somewhat. He had no prior history of headaches, neck pain, back pain, or shoulder pain. He testified that prior to the first accident, he helped his wife with household chores such as vacuuming and that they did the laundry together at a laundromat.
[10] The first accident occurred in the afternoon of May 26, 2008. Mr. Tathgur was in the process of taking his driving road test. There was an ICBC examiner in the car with him. He was about to execute a left turn when his vehicle was struck from behind. He described the impact as significant. He said his body moved forward and backward, he gripped the steering wheel hard, and his head hit the seat or headrest. Mr. Tathgur and the ICBC examiner were driven back to the motor vehicle office by another ICBC employee. Mr. Tathgur's wife was there waiting for him and she drove him home.
[11] Mr. Tathgur testified that the next morning he had a headache and was suffering from stiffness in his neck and back, but he went to work at Cash Money. He left work early that day to go to the doctor. He testified that by the time he got to Dr. Manga's office he had a severe headache, pain in his neck, upper back and lower back, pain and weakness in his wrists, and pain in his knees and left ankle.
[12] Dr. Manga prescribed muscle relaxants and advised Mr. Tathgur to stretch, use a hot water bottle and hot showers to relieve stiffness, and attend physiotherapy or chiropractic therapy, at his discretion. Mr. Tathgur began seeing a chiropractor, Dr. Shivraj Johal, within days of the accident. He received treatments from Dr. Johal regularly until July 31, 2008.
[13] On June 8 or 9, 2008, Mr. Tathgur experienced sudden sharp pain and spasm in his low back as he stood up from sitting on a sofa. He described the pain as excruciating and said he could not move. He saw Dr. Manga who observed acute musculoligamentous spasm. Dr. Manga administered an anti-inflammatory injection, prescribed additional medication, and recommended further time off work.
[14] Mr. Tathgur remained off work from Cash Money for four weeks after the first accident. During that time, he said he suffered from daily severe headaches and almost constant pain in his neck, upper back, right shoulder blade, knees, legs and left ankle. He said he also suffered from pain and weakness in his wrists, numbness in his hands, dizziness and blurred vision, and back spasms. He took pain medication and received chiropractic treatments.
[15] Mr. Tathgur returned to work at Cash Money in June 2008. He said he continued to suffer from significant pain and stiffness, headaches and back spasms, and that these conditions interfered with his ability to perform the more physical aspects of his job. He testified that Cash Money was flexible with his schedule and allowed him to work later shifts, which he found easier.
[16] Mr. Tathgur continued to see Dr. Manga regularly. Eventually, Dr. Manga referred Mr. Tathgur to an orthopedic surgeon, Dr. Stephen Maloon. In October 2008, Dr. Maloon reported back to Dr. Manga, characterizing Mr. Tathgur's symptoms as "mechanical or activity related low back pain as well [as] right radicular symptoms" but with "no serious pathology in his back".
[17] In January 2009, Mr. Tathgur left Cash Money to take a job with Apna G BC Publishers House, which published and printed business directories and organized wedding trade shows. He was hired to do business development and sales at a salary of $3,000 a month. This job did not work out. Mr. Tathgur testified that he was not able to perform some of the physical aspects of the work such as setting up booths at trade shows. He was not paid for three months, which caused him to quit the job in July 2009. He began receiving EI benefits and he did not work again until August 1, 2010.
[18] Mr. Tathgur's symptoms improved somewhat in the 15 months between the first and second accidents, but he continued to suffer from persistent headaches, pain, stiffness and spasms. He said he had headaches once or twice a week, moderate to severe neck pain several times a week, ongoing upper back pain primarily on the right, ongoing weakness in his left wrist, occasional pinching pain in his left knee, ongoing episodes of dizziness, daily low back pain radiating into his right leg and foot, and occasional episodes of severe spasm in his low back.
[19] The second accident occurred in the evening on September 2, 2009. Mr. Tathgur was driving in the curb lane when Mr. Dobson left the gas station parking lot to Mr. Tathgur's right and struck the passenger side of Mr. Tathgur's vehicle, near the front. Mr. Tathgur described the impact as significant. He said his body moved forward and backward, and his head hit the seat or headrest. He described feeling a "jerk" in his arms and legs. He got out of his car and approached the other vehicle. He testified that the other driver was complaining of pain so he called 9-1-1. The other driver was taken away from the scene by ambulance. Mr. Tathgur said he developed a severe spasm in his low back at the scene. He said he could not stand up straight. He was taken by ambulance to Surrey Memorial Hospital, where he was examined and given pain medication.
[20] Mr. Tathgur testified that all of his symptoms were exacerbated by the second accident. In the month following the second accident he said he experienced headaches on a daily basis, daily severe neck pain, daily severe pain in his upper back and right shoulder blade, and constant severe low back pain. The pain and weakness in his wrists also increased, as did the pain in his knee.
[21] In December 2009, Mr. Tathgur took a trip to India. While there, he suffered a back spasm and went to see a doctor. On that doctor's advice he underwent a CT scan and an MRI, and he attended physiotherapy in India.
[22] The radiology report of the MRI performed in India notes, in part:
Degenerative changes are seen involving L3-L4, L4-L5, & L5-S1 intervertebral discs as evidenced by reduction in the bright signal intensity of nucleus pulposus on T2-weighted sagittal sections.
There is annular ligament tear posteriorly at L3-L4, L4-L5 level.
A mild left propensity concentric disc bulge is seen at L3-L4 level causing mild narrowing of the left sided neural foramina causing minimal left exiting nerve root compression.
There is broad-based central and left paracentral disc protrusion at L4-L5 level causing narrowing of the left lateral recess resulting in moderate left sided nerve root compression and reduced central canal at this level.
There is central disc protrusion at L5-S1 level indenting the thecal sac resulting in mild nerve root compression and reduced central canal at this level.
[23] Following the second accident, Mr. Tathgur took muscle relaxants and painkillers, used hot water bottles and heat packs, and did stretching exercises. He had physiotherapy treatments in India. He also attended a few chiropractic treatments and received some massage therapy. In 2011, he started an exercise program at a gym, focussing on core strengthening exercises.
[24] As noted, Mr. Tathgur was off work for a year between July 2009 and August 2010. He testified that during that time he looked for work but, although he was physically able to work, he was limited in his search by his inability to do any physical tasks. He said he focused on customer service and sales positions but was not successful in his job search. He was in India between December 2009 and March 2010. He testified that he wanted to spend time with family in India and also wanted to assess job prospects there. He did not find a job in India.
[25] In August 2010, Mr. Tathgur got a job as a sales manager with Kasa Mechanical Limited, a wholesale and retail distributor of electrical and plumbing supplies. His starting salary was $30,000 per year plus 1% of gross sales. The job required Mr. Tathgur to work in the office about a third of the time, phoning customers and assisting customers who attended at the premises. This sometimes required him to help customers carry products such as pipes and related fittings. About two thirds of his time was spent outside the office doing site visits and attending customer meetings. Mr. Tathgur testified that he found some of the physical aspects of this job difficult, such as attending to customers at the retail counter, carrying products, and driving, but he persevered for financial reasons. Just before his probationary period was up, he had a severe back spasm and was away from work for 10 days. Sarbjeet Sahota, one of the owners of Kasa, testified that he was concerned about Mr. Tathgur's physical limitations and he somewhat reluctantly kept him on after the probationary period.
[26] In October 2010, Mr. Tathgur consulted a neurologist, Dr. Kennely Ho, on referral from Dr. Manga. Dr. Ho reported not having detected any reflex abnormalities but suggested a possible issue with "left ulnar neuropathy". He suggested further investigations including an EMG and a nerve conduction study to the lower extremities and left hand.
[27] In December 2010, Mr. Tathgur had a follow-up visit with Dr. Maloon, who continued to characterize his symptoms as "mechanical or activity related low back pain with bilateral radicular symptoms" but with "no serious pathology in his back". Dr. Maloon's report to Dr. Manga said the following with respect to the MRI performed in India:
…The images reveal degenerative changes in the L3-4 and L4-5 discs. There is loss of signal intensity as well as diffuse posterior bulging at both levels. No significant spinal canal, lateral recess or nerve root canal compromise is however noted.
[28] As discussed in more detail later, no party tendered an expert report from Dr. Maloon and he did not testify. I am not in a position to assess whether his statement that "no significant spinal canal, lateral recess or nerve root canal compromise is however noted" is reconcilable with the MRI report, which identified mild nerve root compression at L3-L4 and L5-S1, and moderate nerve root compression at L4-L5. It is not known whether Dr. Maloon's comment was based on his personal review of the MRI images.
[29] Mr. Tathgur saw a rheumatologist, Dr. Alan Yorke, in April and May 2011, who diagnosed mechanical back pain.
[30] Mr. Tathgur continued to work as a sales manager for Kasa throughout 2011 and into 2012. In July 2012, he quit to join Bartle & Gibson, a wholesale and retail distributor of electrical, heating and plumbing supplies, as an outside sales representative. Mr. Tathgur took the position at Bartle & Gibson because the compensation package of $55,000 per year and 2% of gross profits, plus benefits, was better than what he received at Kasa. His duties included phoning and meeting with customers, attending at contractors' jobsites, providing customer service at a sales counter and pulling and lifting product. He testified that his neck and back symptoms limited his ability to fulfil some of his duties. He found it difficult to carry samples to outside meetings. His neck and back symptoms were aggravated by driving and by sitting in the office making phone calls. He found it particularly difficult to work at the retail sales counter.
[31] In August 2014, Mr. Tathgur saw Dr. Ho again. Dr. Ho performed nerve conduction studies and reported that there was no evidence of neuropathy.
[32] In September 2014, Mr. Tathgur was laid off from Bartle & Gibson. He testified that he was told the lay-off was due to a reorganization, but he suspected his reluctance to work at the retail counter contributed to the decision to lay him off. The defence called Sarbjit Kapoor, Mr. Tathgur's manager at Bartle & Gibson. Mr. Kapoor testified that Mr. Tathgur's employment was terminated because of his poor sales performance. He said that Mr. Tathgur never mentioned having back problems but that Mr. Tathgur had demonstrated a reluctance to work at the retail counter.
[33] Within four weeks, Mr. Tathgur had secured a new job at Crown Distributors, as national sales manager, for a salary of $75,000 a year. He was working at Crown in this position at the time of the trial. Crown manufactures plumbing, ventilation and heating products. Mr. Tathgur is responsible for maintaining relationships with existing customers and building new business. He spends his time phoning customers, responding to inquiries, setting up meetings, and meeting with customers across the country. He estimated that 75% of his time is spent in the office on the phone and 25% is spent on trips outside of British Columbia.
[34] Mr. Tathgur testified that the injuries he suffered in the car accidents affect his ability to perform at Crown. His symptoms are aggravated by sitting and talking on the phone for long periods. He said he tries to change his position often. He takes short breaks and walks around with his cell phone so that he can walk and talk to customers at the same time. Sitting on planes aggravates his pain as does driving long distances. He testified that he has found it difficult to set up for trade shows, particularly after a long travel day. He has been late to trade shows and has missed dinner on business trips due to pain. Crown has been accommodating. Mr. Tathgur has been given flexibility in the scheduling of his day. He said he comes in later and leaves earlier than other employees. He also works from home occasionally.
[35] On December 16, 2014, Mr. Tathgur underwent a second MRI of his lumbar spine, this time in Vancouver. The diagnostic report reads in part:
Comparison is made with 12/21/2009 examination.
There is mild transitional anatomy with mild sacralization of L5. Alignment is unremarkable. …
At L5/S1 level, there is a moderate left paracentral disc protrusion abutting the anterior surface of the thecal sac and both descending S1 nerve roots. This is slightly worse than on previous exam. There is moderate central canal stenosis at this level. Minimal bilateral foraminal stenosis is identified.
At L4/L5 level, there is a moderate right paracentral annular tear with moderate right paracentral disc extrusion extending inferiorly slightly larger than on previous exam. There is moderate to severe central canal stenosis. There is an underlying mild to moderate diffuse disc bulge resulting in mild to moderate bilateral foraminal stenosis worse on the right.
At L3/L4 level, there is a moderate left paracentral disc extrusion with mild proximal extension superimposed on mild diffuse disc bulge. This results in moderate central canal stenosis and moderate to severe left lateral recess narrowing. The appearances mildly progressed compared to previous exam. There is also mild to moderate bilateral foraminal stenosis at this level.
At L2/L3 level, there is mild left paracentral disc protrusion without significant central canal nor foraminal stenosis. The appearance is new compared to previous exam.
At L1/L2 level, there is new mild central disc protrusion without significant central canal nor foraminal stenosis.
[36] Mr. Tathgur testified that in 2016 he had discussions with Mr. Sahota about the possibility of him returning to Kasa to run a new concrete business. He testified that the discussions did not progress because the physical limitations associated with his injuries precluded him from fulfilling all the duties associated with the new position.
[37] Mr. Sahota testified that Kasa acquired a company with a concrete business, with the purchase completing on September 30, 2016. He testified that he discussed with Mr. Tathgur the possibility of Mr. Tathgur returning to Kasa to run the new business but that he and his partner subsequently decided that, at least initially, they needed someone who was able to do everything associated with the new concrete business, including physical tasks such as running a forklift. He said they and Mr. Tathgur mutually agreed that Mr. Tathgur was not suitable for the position because of his physical limitations. He testified that the salary would have been $84,000 a year plus profit sharing of about 10%. He testified that at the time Kasa acquired the concrete business (a few weeks before he testified at trial) that business was generating a profit of about $500,000 a year.
[38] Mr. Tathgur's symptoms have gradually improved, to some extent, since the second accident, and they wax and wane with some days being better than others. However, he testified that he has been left with significant ongoing symptoms. He testified that he continues to experience headaches several times a week, neck and upper back stiffness and pain on a regular basis of varying intensity, ongoing loss of strength in his left hand, ongoing daily low back stiffness and pain with associated pain radiating into his right leg, and occasional debilitating back spasms.
[39] Mr. Tathgur's most significant ongoing issue concerns his low back. The spasms spread to his right leg and affect his mobility. He feels as if his body is tilted. Sometimes the spasms are so severe he cannot get out of bed. He recalled that on the day before his daughter's first birthday in July 2010 he suffered a severe spasm in his low back and received an injection from his doctor so that he could participate in her birthday party. He recalled suffering a severe spasm in December 2010. On that occasion, he was transported by ambulance to Surrey Memorial Hospital where he was given injections. He said he rested over the weekend and went to work the following Monday without telling his employer about the spasm because he was concerned about keeping his job. He had a severe spasm in August 2011, during a visit to Dr. Cecil Hershler's office, a physician with a specialty in physical medicine and rehabilitation who was consulted at the request of Mr. Tathgur's counsel to provide medical/legal reports for trial. Mr. Tathgur recalled an incident in November 2014 when he had a severe spasm while in Calgary attending a trade show. He recalled suffering a severe spasm when travelling in India in October 2015. He testified that he continues to experience these episodes of spasm about once every three months. The episodes typically last several days during which he takes muscle relaxants and rests.
[40] Mr. Tathgur testified that first thing in the morning is the most difficult time of the day for him. He wakes up with significant stiffness. He takes long showers and stretches every morning in an effort to alleviate the stiffness. Sometimes he has to stretch while still in bed. He stretches several times throughout the day.
[41] Mr. Tathgur testified that his symptoms interfere with his sleep on a regular basis. He testified that he suffered from driving anxiety for six to eight months following the first accident. He testified that he also suffered from low mood, which he associated with his fear of having to continue to live with pain as he ages. He said his mood started to improve towards the end of 2010. He attributed this to his "fighting spirit" although he said he still feels low when his back goes into spasm.
[42] Mr. Tathgur testified that his symptoms are worsened with certain activities, such as bending, lifting, and prolonged sitting. He finds it difficult to engage in physical activities with his young children. He can no longer lift his daughter and cannot bathe either child. He no longer helps his wife with household chores or laundry. He tried to mow the lawn once or twice but finds that this puts too much pressure on his wrists and back so his wife or his father takes care of that as well.
[43] At the time of the trial, Mr. Tathgur was continuing to take pain medication. Since 2016, he has been receiving regular massage therapy treatments about once a month and, in addition, his wife gives him massages about one to two times each week, sometimes in the middle of the night. He exercises regularly but his routine focuses on core strengthening and stretching. He has not returned to weightlifting. He swims and attends aquasize classes, but he has not returned to hiking. He testified that when he was still living in India he thought that he would take up winter sports in Canada, including skiing, but that he has not been able to do that because of his injuries.
[34] Mr. Tathgur relied on the expert opinion evidence of Dr. Hershler. He also relied on testimony from Dr. Manga; from chiropractors, Dr. Johal and Dr. Jasminder Pannu; and from massage therapists, Amanda Seminiano and Jayda Barkley.
[44] Dr. Manga, Dr. Johal, Dr. Pannu, Ms. Seminiano and Ms. Barkley did not provide expert opinion evidence. They testified as treating practitioners, to establish the observations they made of Mr. Tathgur on physical examination and the course of treatment they undertook on his behalf as recorded in their clinical records. Of course, Mr. Tathgur's subjective reports to his treating practitioners, as noted by them in their clinical records, are not admissible for the truth or to bolster the credibility of his testimony at trial. However, they are admissible for the purpose of establishing that he made those reports at the time; any admissions he made against interest are an accepted hearsay exception and may be used in cross-examination to impeach his credibility; and, with some qualifications, prior inconsistent statements made by him and noted in the records may be accepted for their truth: Edmondson v. Payer, 2011 BCSC 118 at paras. 29–37, aff'd 2012 BCCA 114.
[45] No expert opinion evidence was given by any of the treating specialists to whom Mr. Tathgur was referred; namely, Drs. Maloon, Ho and Yorke. Accordingly, the fact that they made particular diagnoses at particular times may or may not be relevant, but their diagnoses and opinions as reflected in their consult reports cannot be considered as correct, particularly in preference to expert opinion evidence that is properly before me: Edmondson paras. 38 and 46.
[46] Dr. Manga testified that he saw Mr. Tathgur for the first time on April 14, 2008, about six weeks before the first accident. On that day, Mr. Tathgur complained of sleepiness, lack of concentration and low mood. Dr. Manga attributed this to Mr. Tathgur's struggle to establish himself as a new immigrant. He prescribed a short course of low-dose Zoloft and suggested reassessment in two weeks. Mr. Tathgur did not return for reassessment.
[47] Dr. Manga next saw Mr. Tathgur on May 27, 2008, the day after the first accident. On that day, Mr. Tathgur complained of pain in his neck and low back, left ankle, left heel, and left wrist. Dr. Manga noted normal range of motion, but assessed the muscles in his neck and low back as taut. He prescribed anti-inflammatory medication, chiropractic therapy or physiotherapy at the patient's discretion, and one week off work.
[48] Mr. Tathgur returned to see Dr. Manga on May 30, 2008. On that day, he complained of dizziness, numbness in his left arm and hand, and low back pain. Dr. Manga ordered an x-ray of the low back and left wrist and suggested a pain medication. The x-ray came back normal.
[49] Mr. Tathgur next saw Dr. Manga on June 9, 2008. He told Dr. Manga that two days earlier his back had gone into spasm after he stood up suddenly from a sofa. Dr. Manga noted taut paraspinal muscles and acute musculoligamentous spasm. He deferred a physical exam because of Mr. Tathgur's discomfort. He gave Mr. Tathgur an anti-inflammatory injection and a prescription for anti-inflammatories, and he recommended more time off work.
[50] In July 2008, Dr. Manga referred Mr. Tathgur to Dr. Maloon, who, as already mentioned, reported back in October 2008 characterizing Mr. Tathgur symptoms as "mechanical or activity related low back pain as well as right radicular symptoms" and noting that he had assured Mr. Tathgur that there was no serious pathology in his back.
[51] Mr. Tathgur continued to see Dr. Manga regularly throughout 2008 and 2009. He continued to raise a number of complaints including stiffness, pain, referred pain into his leg, dizziness and low mood. From time to time he complained of spasm in his low back. On some occasions, Dr. Manga observed and made a note of spasm and tautness. He continued to suggest anti-inflammatories and pain medication. He gave Mr. Tathgur injections when the spasm was particularly acute.
[52] In August 2008, Dr. Manga encouraged Mr. Tathgur to exercise and to attend a rehabilitation program offered by ICBC.
[53] Mr. Tathgur's first visit to Dr. Manga's office after the second accident occurred on September 5, 2009. Dr. Manga was not there that day and Mr. Tathgur saw Dr. Manga's colleague, Dr. Minhas. Mr. Tathgur complained of neck and low back pain.
[54] Mr. Tathgur continued to see Dr. Manga regularly. Dr. Manga testified that he tried to determine whether there was some underlying disease that was causing the symptoms. He acknowledged that at one point he questioned whether Mr. Tathgur was a hypochondriac, but he did not provide an opinion to the effect that Mr. Tathgur was exaggerating his symptoms or malingering. I note that the hypochondriac reference was made prior to the 2009 MRI.
[55] At a visit on May 28, 2010, Mr. Tathgur brought with him the MRI that had been performed in India. Dr. Manga noted the multi-level disc bulges and protrusions affecting the spinal canal. He made a second referral to Dr. Maloon and also to a neurologist.
[56] Dr. Manga noted that Mr. Tathgur was in agony on a visit on July 13, 2010 reporting this to be his second week of spasm. Dr. Manga administered an injection on that day. He also noted spasm at a visit on October 27, 2010.
[57] In December 2010, Dr. Maloon reported back to Dr. Manga, continuing to characterize Mr. Tathgur's symptoms as "mechanical or activity related low back pain with bilateral radicular symptoms" but with "no serious pathology in his back". He also wrote that "[m]ultiple non-organic findings were noted on examination".
[58] In May 2011, the rheumatologist, Dr. Yorke, diagnosed mechanical back pain.
[59] Mr. Tathgur continued to see Dr. Manga regularly and he continued to report the same or similar complaints as he had been reporting since the first accident.
[60] Dr. Johal testified that he first saw Mr. Tathgur on May 31, 2008. He confirmed that on that day, Mr. Tathgur's complaints included low back pain and stiffness with pain radiating to the right thigh and foot. He saw Mr. Tathgur several times during the next three months and then sporadically over the next four years.
[61] Dr. Pannu confirmed that Mr. Tathgur attended at her chiropractic clinic sporadically between November 8, 2013 and August 5, 2014.
[62] Ms. Seminiano first treated Mr. Tathgur on November 12, 2010. He also attended massage therapy sessions with her on January 5, 2011 and in September 2011. He then saw Ms. Barkley for a few visits in 2013 and early 2014. Ms. Seminiano again provided Mr. Tathgur with massage therapy sporadically between May 2014 and March 2016. He began attending for more regular sessions with her in March 2016.
[63] Dr. Hershler assessed Mr. Tathgur on August 6, 2009, August 19, 2011, September 3, 2013 and November 19, 2014. Following each assessment he prepared an expert report. The reports are dated August 7, 2009, August 23, 2011, September 4, 2013 and June 23, 2015. There was no objection to Dr. Hershler's qualifications, or to the admissibility of any portion of his reports.
[64] In his initial report of August 7, 2009, Dr. Hershler summarized his observations on physical examination as including evidence of spasm in Mr. Tathgur's back. He testified that he could see and feel this spasm and considered it to be involuntary. His diagnosis, as stated in the initial report, was "soft tissue injuries to his neck, upper back, wrists (secondary to tightness in the neck and shoulders) and knees". He expressed the view that the headaches "are likely cervicogenic", which he explained meant related to tightness in the muscles. He expressed the view, in his initial report, that an MRI was warranted "as there is likely a lesser discogenic component to the pain in his neck and low back". At trial, he explained that he was concerned about the extent of spasm and suspicious that there could be some trigger other than soft tissue injuries causing the spasm. In his initial report he expressed the opinion that "these injuries were probably caused by the motor vehicle accident on May 26, 2008". He wrote that it was too soon to make a prognosis. He recommended that Mr. Tathgur focus on muscle retraining. Specifically, he suggested sessions with a fitness trainer once a week for three months and then monthly for six months. Mr. Tathgur did not follow that recommendation. Rather, he continued to stretch at home and later, in 2011, began to exercise at a gym.
[65] In his report dated August 23, 2011, Dr. Hershler reported that during the visit on August 19, 2011, Mr. Tathgur was suffering from an acute spasm in his low back, which interfered with Dr. Hershler's ability to conduct a physical exam:
Mr. Tathgur was in acute spasm and was unable to effectively sit during the interview. Instead, he had to lie on the floor and, while lying there, had to roll into different positions in order to accommodate the spasm. The spasm caused his back to arch and his right leg to externally rotate.
At trial, Dr. Hershler testified that he observed the spasm to be extreme and he characterized it as overwhelming.
[66] In his August 23, 2011 report, Dr. Hershler noted the findings of the MRI performed in India:
An MRI of the lumbar spine (Dec. 21, 2009) revealed degenerative changes from L3 to S1. There was also evidence of a ligament tear in the annulus fibrosis at both the L3/4 and L4/5 levels. A concentric disc bulge was noted at L3/4, causing mild narrowing of the left-sided neural foraman and minimal compression of the left nerve root at that level. At L4/5, there was evidence of a broad-based central and left paracentral disc protrusion, with narrowing of the left lateral recess and moderate left-sided nerve root compression. At L5-S1, there was evidence of a central disc protrusion, with mild nerve root compression. The MRI of the cervical spine revealed degenerative changes and concentric bulges.
[67] Dr. Hershler's diagnosis, as stated in his August 23, 2011 report, was:
The diagnosis remains as previously documented [in the August 7, 2009 report]. The history and physical findings are consistent with a combination of soft tissue injuries to muscles and ligaments, as well as injuries to discs. This new information is come about as a result of the MRI. There is objective evidence of annular tears at two levels, as well as disc bulging. This is the reason for Mr. Tathgur's spasms. Under certain conditions, the weight through his spine causes the discs to bulge and results in extreme pain and spasm. The spasms are now very obvious on inspection and cause him great pain.
In cross-examination he confirmed that he personally reviewed the MRI images but that he defers to the reports because radiologists have expertise in reading images.
[68] In his August 23, 2011 report, Dr. Hershler continued to express the opinion that Mr. Tathgur's injuries were caused by the initial motor vehicle accident on May 26, 2008 and aggravated by the second motor vehicle accident on September 2, 2009. He recommended massage therapy on a daily basis during spasms and on an as-needed basis between spasms, as well as the continuation of an exercise program.
[69] In his September 4, 2013 report, Dr. Hershler summarized his observations on physical examination as including "clear evidence (visible and palpable) of spasm in the lower back affecting the lordosis". He noted that Mr. Tathgur "sits, stands and walks with an accentuated lumbar lordotic curve". He referred to "palpable evidence of spasm on both sides of the lumbar spine in the region of the thoracolumbar junction" and that "[m]ovements of the low back were compromised by the spasm". He noted weakness in the right big toe and tightness in the tendons crossing the posterior region of the right knee. He noted that knee strength and wrist strength were weak, as were handgrips.
[70] In his September 4, 2013 report, Dr. Hershler reiterated the opinion that Mr. Tathgur's injuries were caused by the initial motor vehicle accident and subsequently aggravated by the second accident. His prognosis was poor. He noted that patients who have unrelenting symptoms five years post-accident usually remain symptomatic indefinitely. He then stated:
It is my opinion that Mr. Tathgur has suffered a significant injury to the spine (particularly in the lumbar region) that involves muscles, ligaments and discs. This has resulted in a situation where the muscles on both sides of the lumbar spine are in constant spasm. Depending on certain movements or postures, or weight load through the spine, the spasms increase and lead to an inability to sit or stand. I was able to observe one such spasm in this office. Mr. Tathgur has also sustained additional soft tissue injuries in other regions. While these are not as severe as the injuries in the low back, they have left him with a certain degree of discomfort and weakness. It is unlikely that this situation will change in the foreseeable future.
[71] Dr. Hershler also expressed the opinion that Mr. Tathgur will have greater difficulty adapting and this will affect his ability to work to his full capacity and to retirement age of 65. He continued to recommend massage therapy (24 sessions a year on an ongoing basis), a prescription for an anti-inflammatory cream and ongoing light exercise.
[72] Dr. Hershler's final report is dated June 23, 2015. It was based on a further assessment of Mr. Tathgur conducted on November 19, 2014 and a review of the second MRI performed in December 2014. Dr. Hershler's findings on physical examination on November 19, 2014 were consistent with his findings on his previous physical examination. However, he noted one additional finding that had not been present in any of the previous assessments. This was a weakness in the right big toe combined with diminished sensation.
[73] Dr. Hershler's diagnosis remained unchanged. In his June 23, 2015 report, he expressed the opinion that Mr. Tathgur has soft tissue injuries to muscles and ligaments, as well as injuries to discs in the lumbar spine, and that these injuries have led to persistent spasm. He noted the 2014 MRI showed evidence of progression in the disc changes, which he said was "consistent with progression in history and clinical findings". He characterized Mr. Tathgur's injury as "a severe, permanent injury" and expressed the opinion that it is "unlikely that he will ever reach a fully pain free state". He expressed the view that Mr. Tathgur will be "constantly at risk of spasms which, in turn, will affect his ability to function". He stated that "[t]his situation has essentially resulted in a permanent, partial disability".
[74] In his June 23, 2015 report, Dr. Hershler expressed the impact of the injuries on Mr. Tathgur's ability to work:
…He will be incapable of doing work that involves any form of lifting, carrying, twisting or bending. In order to continue working, he will need to work in situations where he has full control over his hours, postures and activities. If at all possible, he should do work that allows him to change from sitting to standing to walking at will.
Over time, however, he will have greater difficulty adapting and this will affect his ability to work to his full capacity and to retirement age of 65.
[75] Dr. Hershler continued to recommend 24 massage therapy sessions per year, topical cream, gym attendance, swimming and use of a steam room or hot tub.
[76] In cross-examination, Dr. Hershler was asked to confirm that the changes seen in the MRI images were primarily degenerative. He testified that determining whether the changes are degenerative or traumatic requires a consideration of context. He agreed that it is possible for annular tears to develop with age but he characterized that as rare. He explained that given Mr. Tathgur's history and the results of his physical examination combined with the MRI evidence, it is unlikely that the annular tears and disc bulging predated the first motor vehicle accident. This is because tears at two levels, combined with disc bulging touching nerve roots, would likely lead to symptoms and Mr. Tathgur reported not being symptomatic prior to the first accident. He explained that this is the foundation for his opinion that these particular changes – the annular tears and disc bulging – did not likely exist prior to the first accident and were likely caused by trauma.
[77] In cross-examination, Dr. Hershler was also asked to confirm that given the pre-existing degenerative changes it is possible that Mr. Tathgur would have developed his current symptoms, even in the absence of the accident, as a result of other incidents such as picking things up or falling down the stairs. Dr. Hershler characterized that scenario as "so unlikely". He explained that degenerative changes take years to develop and there would have been countless situations prior to the accident where Mr. Tathgur would have done such things without the development of symptoms, such that it is more likely than not that in the absence of the trauma from the accidents he would not have developed his current conditions.
[78] In cross-examination, Dr. Hershler was asked about the use of Waddell-type testing to identify non-organic or psychological components to reported pain. He said he considers this kind of testing to have been discredited. He testified that these tests do not exclude organic causes of pain – in his words, it is "a big leap to infer" from those tests the absence of a physiological basis for pain.
[79] The defence relied on the expert opinion evidence of an orthopedic surgeon, Dr. Martin Grypma, who conducted a medical/legal assessment of Mr. Tathgur on May 30, 2011. Dr. Grypma prepared an expert report dated May 31, 2011, following that assessment. He prepared a supplemental report dated August 21, 2015, following a review of additional clinical records, and a report dated December 3, 2015, in which he commented on Dr. Hershler's reports.
[80] Mr. Tathgur objected to the admissibility of Dr. Grypma's reports on the basis of bias, partiality, and lack of independence. The defence position was that these concerns go to weight rather than admissibility, and that I should hear Dr. Grypma's evidence in a voir dire before deciding the question. I adopted that approach and advised the parties that I would rule on the admissibility of Dr. Grypma's evidence in this judgment. I do that in the next section. Here, I summarize Dr. Grypma's evidence.
[81] Dr. Grypma's initial report of May 31, 2011 was based on the history he said Mr. Tathgur provided during the May 30, 2011 assessment, Dr. Grypma's physical examination of Mr. Tathgur that day, and Dr. Grypma's review of emergency room records from Surrey Memorial Hospital generated after the second accident and the associated paramedic's crew report. He did not have the rest of Mr. Tathgur's medical records, including Dr. Manga's file and the results of the 2009 MRI.
[82] Dr. Grypma summarized his examination of Mr. Tathgur's neck and upper extremities as "unremarkable", aside from instability in a joint in the left wrist. With respect to the low back, he noted tenderness and decreased lateral flexion worse on the left than the right, but he also noted what he considered to be inconsistencies in Mr. Tathgur's reports of pain and his view that Mr. Tathgur demonstrated "submaximal effort" in some of the testing. Dr. Grypma then set out a number of "inconsistencies and unusual findings" in a section of his report that directly challenged Mr. Tathgur's credibility.
[83] In his May 31, 2011 report, Dr. Grypma expressed the following opinions:
· Mr. Tathgur sustained a mild soft tissue injury to his neck in the first accident;
· it is unlikely that Mr. Tathgur sustained any significant injury to his lower back in the first accident;
· it is unlikely that Mr. Tathgur injured his wrist in the first accident;
· in the second accident, Mr. Tathgur likely sustained a mild soft tissue injury to his neck and his lower back, aggravating pre-existing symptoms;
· it is unlikely that Mr. Tathgur injured his wrist in the second accident;
· following the first accident, Mr. Tathgur likely had a total disability for four weeks, followed by a period of partial disability for two to four weeks;
· following the second accident, Mr. Tathgur likely had a total disability for one to two weeks followed by a partial disability for one to two weeks;
· the most likely cause of Mr. Tathgur's enduring symptoms is inactivity and deconditioning; and
· Mr. Tathgur's prognosis is excellent.
[84] Dr. Grypma's opinions rested on five primary footings: first, he said that Mr. Tathgur reported having no pain in his neck or lower back the day after the first accident; second, he opined that "[a] rear end accident rarely causes injury to the lower back as there is minimal movement that takes place in the lower back"; third, he opined that "[a] rear end accident is unlikely to cause a wrist injury particularly if there was no contact or direct impact to the wrist"; fourth, he said that Mr. Tathgur described wrist symptoms of weakness and numbness that came on gradually after the first accident, which is "not compatible with an injury"; and fifth, he noted the emergency room records generated after the second accident make no mention of the wrist.
[85] Dr. Grypma's second report, dated August 21, 2015, followed his review of additional clinical records, including Dr. Manga's clinical records, Dr. Maloon's consult reports, the 2009 MRI and the 2014 MRI. In his August 21, 2015 report, Dr. Grypma noted what he referred to as a number of "concerns" arising from the review of the records, but he did not express any material change to his previously expressed opinions.
[86] Dr. Grypma's third report, dated December 3, 2015, followed his review of Dr. Hershler's reports. He noted that Dr. Hershler's August 7, 2009 report stated that on the day after the first accident Mr. Tathgur had symptoms that included neck, upper back and lower back pain radiating to his right leg, and he said clarification was necessary because Mr. Tathgur told him there was little pain after the first accident. He identified some other matters that required clarification. He then observed that his opinion differs from Dr. Hershler's opinion. Although the required clarifications had not been obtained, he reiterated that significant injury from the first accident was "very unlikely" based largely on the fact that Mr. Tathgur had very little pain after the first accident. He reiterated that significant injuries from the second accident were also unlikely based on the fact that no x-rays were taken in the emergency room, Dr. Manga noted normal neck range of motion three days later as did Dr. Yorke in May 2011, Dr. Maloon reported no serious pathology, and the 2014 MRI scan showed stenosis at L4-5 which is "not compatible with an injury to the back from the motor vehicle accident".
[87] The basis for Mr. Tathgur's objection to the admissibility of Dr. Grypma's evidence is alleged bias, partiality, and lack of independence.
[88] There is no dispute about the fundamental nature of an expert's duty to the court. An expert is duty bound to provide independent assistance to the court through objective, unbiased opinion. This duty is expressed in the Supreme Court Civil Rules and, pursuant to Rule 11-2, all proposed expert witnesses must certify that they are aware of and will comply with this duty. The question raised by Mr. Tathgur's objection is whether the elements of this duty are preconditions to the admissibility of Dr. Grypma's evidence rather than mere considerations going to the weight to be given to it. This was the very question answered by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23.
[89] In White, the Court noted the progressive tightening of the rules of admissibility and corresponding enhancement of the trial judge's gatekeeping role in relation to expert opinion evidence, and held that a proposed expert's independence and impartiality is a precondition to admissibility. In other words, a proposed expert's independence and impartiality go to admissibility and not simply weight, and there is a threshold admissibility requirement in relation to this duty. The Court also clarified the two-step inquiry for determining the admissibility of expert opinion evidence.
[90] At the first step, the proponent of the evidence must establish the four threshold requirements identified in R. v. Mohan, [1994] 2 S.C.R. 9: relevance; necessity; absence of an exclusionary rule; and a properly qualified expert. Evidence that does not meet all four of these should be excluded: White at para. 23. If the evidence survives the first step then, at the second discretionary gatekeeping step, the trial judge must balance the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks.
[91] Concerns related to an expert's duty to the court should be addressed initially when assessing whether the "qualified expert" threshold requirement has been met. As explained in White at para. 53, "A proposed expert witness who is unable or unwilling to fulfill this duty to the court is not properly qualified to perform the role of an expert." If it is determined by the trial judge that the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence, then the expert's evidence should be excluded at the threshold stage: White at para. 49.
[92] The mere fact that a proposed witness has an interest in or connection to the matter will not necessarily render his or her evidence inadmissible, but it may if, in the circumstances of the case, it is determined that the expert is unwilling or unable to fulfil his or her fundamental duty to the court. However, "an expert who, in his or her proposed evidence or otherwise, assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court": White at para. 49. If the expert is not found to be clearly unable or unwilling to fulfill his or her duty, any remaining concerns about impartiality and independence should be taken into account in the overall weighing of costs and benefits or receiving the evidence at the second, gatekeeping stage: White at paras. 49 and 54.
[93] The question then is whether Dr. Grypma was in fact biased, impartial, or acting as an advocate for the defence. If I find he was, he is clearly unwilling or unable to fulfill his duty, and his evidence is inadmissible as not meeting the threshold requirement of "qualified expert".
[94] Dr. Grypma included the certification required by Rule 11-2(2) in each of his reports, but that is not the end of the matter: see White at para. 48. The concern is that notwithstanding the inclusion of this certification in his reports, Dr. Grypma assumed the role of advocate for the defence. For the following reasons, I have determined that Dr. Grypma was acting as an advocate for the defence and, as a result, was not able and willing to provide fair, objective and non-partisan evidence.
[95] As noted, Dr. Grypma's opinions rested on five primary footings. The second and third footings concerning Dr. Grypma's rear-end accident theories are themselves opinions for which no foundation was expressed in the reports. The failure to expressly note the foundation for those opinions would not, on its own, be sufficient to exclude the reports at the initial stage on grounds of bias or advocacy. However, it became apparent that Dr. Grypma is not actually aware of an adequate foundation for these views. When asked, in cross-examination, to explain the foundation for the opinion that a rear-end accident rarely causes injury to the lower back, Dr. Grypma testified that he had attended courses with others who agreed that an injury to the lower back is rare in a rear-end accident. He did not say when he attended these courses. He did not identify the entities or institutions that offered the courses or even their subject matters. He did not identify who these others were who agreed with him. He also said that he relied on the conclusions of two professors. He did not say when those conclusions had been relayed to him or in what form, and he was able to name only one of these professors, having forgotten the name of the other. He acknowledged not having referred to any scientific publication supportive of this opinion.
[96] In the circumstances, it is not possible to evaluate the soundness Dr. Grypma's rear-end accident theories or even determine whether they fall within the scope of his expertise. More fundamentally, however, Dr. Grypma relied so heavily on opinions for which he had no proper foundation strongly suggests that he had taken up the role of advocate for the defence. Any doubt about that was removed by Dr. Grypma's response to being provided with a more complete set of Mr. Tathgur's clinical records, which undermined another of the foundational footings for Dr. Grypma's opinion.
[97] It is not clear to me why Dr. Grypma did not have all of Mr. Tathgur's medical records, including Dr. Manga's clinical records and the 2009 MRI, before he wrote his first report in 2011. It is apparent from his May 31, 2011 summary of the history provided by Mr. Tathgur that Dr. Grypma was aware that Mr. Tathgur had been treated by his family doctor, and that x-rays and an MRI had been performed. In other words, he knew that relevant records existed. While he is not required to conduct an investigation (Edmondson at para. 77) it would have been more helpful had he obtained access to these before offering an opinion, particularly before challenging the credibility of Mr. Tathgur's complaints.
[98] Nevertheless, irrespective of what Mr. Tathgur told Dr. Grypma about the initial onset of pain following the first accident, it is beyond dispute that Mr. Tathgur did report pain to Dr. Manga the day after the accident and, by the time Dr. Grypma wrote his August 21, 2015 report, he must have been aware of this. Dr. Manga's handwritten clinical records are not easy to read but the words "pain neck, low back" are legible in the clinical record for May 27, 2008, and there is also a hand-drawn sketch of Mr. Tathgur's back with diagonal lines on it at the left side of the neck and the left low back, which is obviously intended to record the specific locations of reported symptoms. In his August 21, 2015 report, Dr. Grypma complained that Dr. Manga's records were not legible and he said he had to "go on Mr. Tathgur's memory as [he found] the family physician's records were not helpful", yet he went on to specifically note that the family physician's records indicated normal range of motion on May 27, 2008, the day after the first accident and the same day that the words "pain neck, low back" and the sketch appear. He also referred to notations in the clinical records for September 5, 2009 and December 18, 2011 that support his theory, but made no mention of other references that did not support his theory, such as the references to spasm.
[99] Again, Dr. Manga's records are not easy to read. It would have been understandable if Dr. Grypma had refused to comment on the clinical records at all unless they were transcribed. However, he clearly could read some of the entries and he relied on those that were consistent with his previously stated views. He cannot overcome the inescapable conclusion that he cherry-picked entries, ignoring those that undermined his opinion.
[100] Similarly, in his December 3, 2015 report, he noted that the history given to Dr. Hershler concerning symptoms the day after the first accident was materially different from that which he said Mr. Tathgur gave him such that clarification was required, but then he went on to reiterate the same opinion (that significant injury from the first accident was unlikely) based largely on the fact that Mr. Tathgur experienced little or no pain after that accident. Again, by this time he also had Dr. Manga's clinical records, which clearly indicated complaints of pain on the day after the first accident.
[101] For the foregoing reasons, I find that Dr. Grypma lost sight of his duty to the court and instead became an advocate for the defence. His evidence is inadmissible as a result. Even if I was not prepared to exclude the evidence, for the same reasons I would give it no weight. Further and in any event, as discussed below, I accept Mr. Tathgur's evidence that he did have significant pain the day after the first accident. Leaving aside concerns of bias, partiality and lack of independence, this finding is incompatible with a key footing for Dr. Grypma's core opinion and, for that reason alone, I would give his opinion no weight.
[102] The defendants say that Mr. Tathgur's injuries are "almost entirely subjective", that he testified in an evasive and vague manner and was a poor historian, and that some of his testimony at trial was inconsistent with the evidence and records of his treatment providers and with answers he gave during examination for discovery. They say he is at best an unreliable historian and that a review of the whole of the evidence suggests he also lacks credibility.
[103] While it is true that Mr. Tathgur's case depends to some extent on his subjective complaints, I do not agree that there is little or no objective corroborating evidence. Dr. Manga provided evidence of multiple objective findings on physical examination as noted in his clinical records. It is not necessary to refer to each such finding, some examples will suffice:
· May 27, 2008 – soft tissue muscles on left side of neck and left and right low back were tender and taut;
· June 9, 2008 – paraspinal muscles tender and taut, acute musculoligamentous spasm observed, anti-inflammatory injection given;
· June 12, 2008 – reduced range of motion;
· June 30, 2008 – reduced range of motion;
· July 27, 2009 – torso in spasm convex to left, anti-inflammatory injection given;
· June 22, 2010 – tender and taut on back;
· July 13, 2010 – patient in agony, spasm, injection given;
· October 27, 2010 – spasm, range of motion grossly restricted;
· November 17, 2011 – neck and adjoining upper back tender and taut;
· April 7, 2012 – range of motion in low back restricted; and
· June 1, 2012 – spasm, tenderness, taut, range of motion markedly restricted.
[104] Dr. Johal also noted spasm on occasion, as well as hypertonicity and occasional restrictions in range of motion. Dr. Hershler noted spasm during his first examination on August 6, 2009. He testified compellingly with respect to his observations of Mr. Tathgur's acute spasm on August 19, 2011. He also noted "clear evidence (visible and palpable) of spasm in the lower back affecting the lordosis" on September 3, 2013.
[105] In addition to the above-noted observations, both the 2009 MRI and the 2014 MRI provide objective evidence of annular tears and disc bulges with nerve root compression. Dr. Hershler's opinion is that this is the direct cause of the extreme pain and spasm. As Dr. Hershler acknowledged, it is possible for abnormalities seen on an MRI to be asymptomatic, but the MRIs are nevertheless objective evidence that is consistent with Mr. Tathgur's subjective reports.
[106] Having said all of that, Mr. Tathgur's subjective reporting remains the only evidence of his pre-accident health and the primary evidence of the intensity and frequency of his symptoms and the impact they have on his functionality. Accordingly, notwithstanding the consistent objective evidence, it is important to exercise caution and examine Mr. Tathgur's testimony carefully.
[107] The proper approach to assessing the truthfulness of any interested witness's testimony was articulated in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) at 357:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions….
[108] The factors identified by Justice Dillon in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff'd 2012 BCCA 296, also play a role in assessing whether the evidence of a witness is truthful and accurate. These factors include the ability of the witness to resist being influenced by his or her interest in recalling those events; the internal and external consistency of the witness's evidence; whether the witness's evidence harmonizes with or is contradicted by other evidence, particularly independent or undisputed evidence; whether his or her evidence seems unreasonable, improbable or unlikely, bearing in mind the probabilities affecting the case; and the witness's demeanour, meaning the way he or she presents while testifying.
[109] The defendants' submission on Mr. Tathgur's credibility flows from several aspects of his testimony, which defence counsel says, when considered cumulatively, indicate that he exaggerated his symptoms. I have some difficulty reconciling that submission with the defence's position that Mr. Tathgur does have degenerative disc disease in his lower back, which causes pain and spasms. This suggests that the defence to the claim is not centered on the credibility of Mr. Tathgur's subjective reports, but rather on the cause of his symptoms. In any event, I was not persuaded that any of the particular aspects of Mr. Tathgur's testimony identified by the defence had any material impact on his credibility. I will give some examples.
[110] Defence counsel referred to what he said were inconsistencies between Mr. Tathgur's direct evidence and answers he gave on examination for discovery. In my view, there were no material inconsistencies between what Mr. Tathgur said at trial and what he said on examination for discovery. That does not mean that his evidence was in all respects exactly the same on both occasions. However, I agree with and adopt what was said by McEachern C.J.S.C., as he then was, in Diack v. Bardsley (1983), 46 B.C.L.R. 240 (S.C.) at 247, aff'd (1984), 31 C.C.L.T. 308 (C.A.):
… I wish to say that I place absolutely no reliance upon the minor variations between the defendant's discovery and his evidence. Lawyers tend to pounce upon these semantical differences but their usefulness is limited because witnesses seldom speak with much precision at discovery, and they are understandably surprised when they find lawyers placing so much stress on precise words spoken on previous occasions.
[111] Defence counsel also emphasized what he said were inconsistencies in Mr. Tathgur's reporting of symptoms to doctors and other treatment providers and, in particular, the degree and severity of his complaints during his direct evidence contrasted with what is documented in clinical records. With the exception of what Dr. Grypma took from his interview with Mr. Tathgur about when he first felt pain following the first accident, I did not find there to be any such inconsistencies. I have already noted several of the objective findings noted in the clinical records. The records are also replete with subjective reports of pain, including very severe pain, and other symptoms. While those subjective reports are not admissible for the truth, they may be used to rebut the defence submission that Mr. Tathgur's subjective reporting was inconsistent. Further, as noted by Justice Smith in Edmondson at paras. 32–35, Chief Justice McEachern's observation noted above applies with even greater force to statements in clinical records, which are usually not a verbatim record of everything that was said, and inconsistencies are almost inevitable when a number of clinical records made over a period are being considered.
[112] Defence counsel criticized Mr. Tathgur for relying on language difficulties to explain what were presented to him as inconsistencies. Mr. Tathgur speaks English well, however, it is not his first language and it was apparent to me that language difficulties could have led to some confusion. Having said that, as I have already said, I did not find the inconsistencies relied on by the defendants to be material in any event.
[113] The defendants submit that Mr. Tathgur gave vague explanations for not following treatment recommendations. In my view, he did not give vague explanations. Dr. Manga recommended active rehabilitation in 2008, which had been suggested by ICBC. Mr. Tathgur testified that by the time this was offered he had returned to work at Cash Money, he advised the ICBC adjuster that he was back to work, and the matter was not pursued. He explained that he thought the rehabilitation was focused on getting him back to work. I accept this explanation. Dr. Manga recommended chiropractic treatments or physiotherapy at Mr. Tathgur's discretion. Mr. Tathgur used his discretion. He tried chiropractic treatments for several weeks after the first accident. He tried physiotherapy while in India in late 2009. He explained that he found these treatments to offer only temporary relief. As discussed in more detail below, he did initially fail to follow Dr. Hershler's advice to exercise, but this did not affect my assessment of his credibility.
[114] The defendants also rely on what they characterize as an inconsistency between Mr. Tathgur's report at trial of his symptoms prior to the second accident and a written statement he gave to ICBC after the second accident. Again, I did not find there to be a material inconsistency. In the statement, he said he had not recovered from the first accident and that he was 50% or less recovered at the time of the second accident. Further, there is no evidence of the process that led to the statement being made. It appears on its face to have been given at an ICBC Claim Centre. It is not handwritten. I do not know who typed it. There is no record of the questions that elicited the information in it. I do not know whether everything he said was included in it.
[115] Finally, the defence relies on "[t]he finding of non-organic signs or complaints with no relation to objective findings by various healthcare providers". As already noted, Dr. Maloon made reference to non-organic findings, as did Dr. Grypma. Dr. Yorke may have done so as well. I have rejected Dr. Grypma's evidence. As already explained, no expert opinion evidence was given by any of the treating specialists, and the views they expressed in consult reports are not admissible for the truth, particularly in preference to expert opinion evidence that is properly before me. Dr. Hershler's evidence is the only expert opinion evidence that is before me. In his opinion, elicited during cross-examination, testing for what is commonly referred to as "non-organic signs" has been discredited and does not exclude organic causes of pain. I accept that opinion, particularly in the absence of any contrary expert evidence.
[116] I found Mr. Tathgur to be a generally forthright and credible witness. I found his evidence to be internally consistent and consistent with the core objective evidence; that is, the MRIs and the objective observations of spasm. He was not unusually vague or evasive. He acknowledged that although his symptoms cause him considerable discomfort, aside from a few weeks after the first accident and some periodic absences due to particularly acute spasm, they have not prevented him from working.
[117] Mr. Tathgur's evidence was corroborated by the evidence of his wife, Ms. Toheem, who testified that since the first accident she has observed Mr. Tathgur stretching, using hot water bottles and having hot showers in an effort to alleviate his pain and stiffness, waking up during the night and requesting massages, and suffering from occasional severe spasms. Mr. Tathgur's evidence was also corroborated by his colleague, Rahul Chopra, who testified that Mr. Tathgur's employer, Crown, has accommodated him by allowing him to start work late, take a few days off each month, and leave early on occasion. He also testified that he has personally observed Mr. Tathgur walking around the office while talking to clients on the phone and stretching. Both Ms. Toheem and Mr. Chopra were credible witnesses, and I accept their evidence.
[118] I generally accept Mr. Tathgur's account of his pre-accident health, the initial severity and gradual progression of his symptoms after the first accident, and the aggravation and gradual progression of his symptoms after the second accident. On the basis of his evidence, I make the following findings:
· Mr. Tathgur was in good health prior to the first accident and had no pre-existing neck, back, or wrist pain, although he likely had undiagnosed, asymptomatic degenerative disc disease;
· on the day after the first accident, Mr. Tathgur was suffering from a severe headache, dizziness, and neck, upper back and low back pain, along with pain in the knees and wrists;
· on about June 8, 2008, upon standing up from a sofa, Mr. Tathgur experienced a sudden increase in his low back pain accompanied with severe spasm;
· in the roughly 15 months between the first accident and the second accident, Mr. Tathgur's symptoms improved somewhat, but he continued to suffer from persistent headaches, pain and stiffness in his neck, upper back and low back radiating into his left leg and foot, weakness in his left wrist, occasional pain in his left knee, and occasional severe spasms in his low back;
· Mr. Tathgur's symptoms disturbed his sleep and led to episodes of low mood;
· Mr. Tathgur suffered an exacerbation of his symptoms in the second accident;
· since the second accident, his symptoms wax and wane with some days being better than others;
· Mr. Tathgur's symptoms caused him to suffer from low mood until about the end of 2010;
· Mr. Tathgur continues to experience headaches several times a week, neck and upper back stiffness and pain on a regular basis of varying intensity, ongoing loss of strength in his left hand and ongoing daily low back stiffness and pain with associated pain radiating into his right leg;
· most mornings, Mr. Tathgur wakes up with significant stiffness and has to stretch and move slowly before he is able to get on with his day;
· since the first accident, Mr. Tathgur has experienced several episodes of debilitating spasm, each lasting at least a few days and sometimes more, and he continues to be at risk of suffering from such spasms;
· Mr. Tathgur's symptoms continue to interfere with his sleep on a regular basis;
· Mr. Tathgur's symptoms are worsened with certain activities, such as bending, lifting, and prolonged sitting; he finds it difficult to engage in physical activities with his young children; he can no longer lift his daughter and cannot bathe either child; and he no longer helps his wife with household chores, laundry or yard work; and
· Mr. Tathgur continues to swim and exercise regularly but his routine focuses on core strengthening and stretching, and he has not returned to weightlifting or hiking.
[119] As noted, the primary issue is the cause of Mr. Tathgur's ongoing complaints of significant back pain and spasm, with pain and weakness radiating into his right leg, which he attributes to annular tears and disc bulging in his spine that were first identified in the 2009 MRI. Mr. Tathgur's position is that Dr. Hershler's evidence establishes, on a balance of probabilities, that these injuries were caused by the first accident and aggravated by the second, and that they have left him with a severe and permanent injury. The defence asserts that Mr. Tathgur has not established that the accidents are a cause of his current condition. Rather, the defence says his current symptoms, including the episodes of spasm, are attributable to his pre-existing degenerative disc disease.
[120] The resolution of this issue depends on whether I accept Dr. Hershler's evidence. Although the defence did not challenge the admissibility of Dr. Hershler's evidence, the defendants submit that it should be given little or no weight because Dr. Hershler presented as an advocate, his opinion was not supported by clinical records, his observations differed greatly from the treating specialists, and his opinion is highly dependent on Mr. Tathgur's reliability. I do not agree.
[121] Some of the criticisms levelled against Dr. Hershler are based on his failure to mention certain facts but it was not established that those facts were material to his opinion.
[122] Although some aspects of Dr. Hershler's opinion depended heavily on the history provided by Mr. Tathgur, such as the absence of pre-accident symptoms, which supported the opinion that the injuries were caused by the accident notwithstanding the likelihood of pre-accident degeneration, the history given by Mr. Tathgur was not materially inaccurate. Further, for the reasons I have already expressed, I found Mr. Tathgur to be generally credible and reliable.
[123] In my view, Dr. Hershler's opinion was consistent with the clinical records. He acknowledged some variability between Mr. Tathgur's subjective reports as documented in the clinical records but he did not consider those to amount to inconsistencies. I, too, saw nothing that was materially inconsistent. The defence submission in this respect appears to be based, at least in part, on the fact that Mr. Tathgur sometimes went a few months without seeing Dr. Manga. However, a plaintiff whose condition does not change is not required to constantly attend at the doctor to report ongoing symptoms, particularly if he has no reason to think the doctor will offer new treatment. Indeed, a plaintiff who persists in attending at the doctor regularly to report no change is likely to be accused of attempting to build evidence.
[124] The defence criticized Dr. Hershler for not noting in his last report that the 2014 MRI did not refer to an annular tear at L3/L4, which suggested that the tear had healed. However, Dr. Hershler was not asked whether he considered this to be significant to his opinion. Further, the 2014 MRI report continued to suggest weakness in the lining at that level and expressly referred to moderate disc extrusion with "mildly progressed" appearance compared to the 2009 MRI. In the circumstances, I am not persuaded that this criticism is justified.
[125] The defence criticized Dr. Hershler for refusing to endorse the validity of testing for non-organic signs. However, I found his view, as noted above, to be reasonable and it was not contradicted by any defence evidence.
[126] The defence criticized Dr. Hershler for not asking Mr. Tathgur to return for a physical examination before finalizing his second report. It will be recalled that Dr. Hershler was unable to perform a physical examination during the appointment just prior to the second report because Mr. Tathgur was suffering from an acute spasm at the time. This criticism is unjustified given that Dr. Hershler had previously conducted an examination and in light of Dr. Hershler's compelling description of his personal observation of Mr. Tathgur's condition that day. I am satisfied that a further physical exam would not have enhanced Dr. Hershler's understanding of Mr. Tathgur's then condition.
[127] The defence criticised Dr. Hershler for stating in his last report that Mr. Tathgur is incapable of doing work that involves any form of lifting, carrying, twisting or bending given that Mr. Tathgur currently performs all of these activities at work. Dr. Hershler agreed in cross-examination that he should have said Mr. Tathgur could perform these manoeuvres occasionally. Although I agree that Dr. Hershler should have been more precise in his report, I am not persuaded that he became an advocate for Mr. Tathgur. The fact is that although Mr. Tathgur may perform these manoeuvres at work, he does so only very occasionally. I am satisfied by his evidence and that of Dr. Hershler that these kinds of activities do put him at significant risk of spasm.
[128] I found Dr. Hershler to be fair and measured in his assessment of Mr. Tathgur. His opinions were well founded on Mr. Tathgur's subjective reporting, Dr. Hershler's personal observations, including his observations of acute spasm, and the MRIs.
[129] Dr. Hershler readily acknowledged that Mr. Tathgur likely had pre-existing degenerative disc disease and that some of the changes seen on the MRIs were likely degenerative. However, he accepted, as do I, that Mr. Tathgur was asymptomatic prior to the first accident. He explained that determining whether particular changes are degenerative or traumatic requires a consideration of context. In his view, the annular tears and disc bulging seen on the 2009 MRI were not age-related but, rather, were traumatic. He agreed that it is possible for annular tears to develop with age but he characterized that as rare.
[130] He explained that given Mr. Tathgur's history, the results of his physical examination, and the MRI evidence, it is unlikely that the annular tears and disc bulging predated the first motor vehicle accident because tears at two levels combined with disc bulging touching nerve roots would likely lead to symptoms and Mr. Tathgur was not symptomatic until just after the first accident. Dr. Hershler also testified that prior to the first accident, Mr. Tathgur would have moved his body in normal day-to-day activities, such as picking things up and moving suddenly, without the development of symptoms, such that it is more likely than not that in the absence of the trauma from the accidents he would not have developed his current conditions. This was the foundation for his opinion that the annular tears and disc bulging did not likely exist prior to the first accident, that they were likely caused by the trauma of the first accident, and that his symptoms were exacerbated by the second accident. I accept this evidence.
[131] Mr. Tathgur must prove, on a balance of probabilities, that the accident caused his injuries. The test for causation is the "but for" test, which requires him to establish, on a balance of probabilities, that "but for" the defendants' negligent acts, the injuries would not have occurred and, inherent in that test, is the requirement that the injuries would not have occurred without that negligence: Clements v. Clements, 2012 SCC 32 at para 8. As explained by Justice Adair in Yip v. Saran, 2014 BCSC 1283 at paras. 54–58, a defendant's negligence does not need to be the sole cause but only a necessary cause; however, the corollary is that a defendant is not required to compensate a plaintiff for any loss not caused by the defendant's negligence such as the effects of a pre-existing condition that would have been experienced anyway.
[132] On the whole of the evidence, including that of Dr. Hershler, I find that Mr. Tathgur has met the "but for" test. It is likely that he suffered from pre-existing degenerative disc disease, but it was asymptomatic prior to the first accident. In the first accident, he suffered soft tissue injuries to his neck, upper back and low back, with referred pain to his wrists, knees and right leg, and he also suffered annular tears that resulted in disc bulging, which is the primary cause of the spasms. His symptoms were exacerbated by the second accident. I accept Dr. Hershler's opinion that it is more likely than not that in the absence of the trauma from the accidents he would not have developed his current conditions. There is no contrary evidence. Given the passage of time, it is unlikely that Mr. Tathgur will ever return to a fully pain-free state and he is likely to continue to suffer from ongoing pain and episodes of spasm, which will affect his ability to function. Specifically, I find that the risk of spasm renders him incapable of doing work that involves sustained or significant lifting, carrying, twisting or bending, and that he will need to work in situations where he can control his posture and have the flexibility to change from sitting to standing to walking.
[133] An award of non-pecuniary damages is intended to compensate for pain, suffering and loss of enjoyment of life, both prior to the trial and into the future. In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave to appeal ref'd [2006] S.C.C.A. No. 100, the Court of Appeal set out a non-exhaustive list of factors to be considered in determining the amount of non-pecuniary damages to award. That list includes the age of the plaintiff, the nature of the injury, the severity and duration of the pain, the extent of disability, the existence of emotional suffering, the loss or impairment of life, the impairment of relationships, the impairment of physical and mental abilities, and the loss of lifestyle.
[134] I conclude that as a result of the injuries he sustained in the accident, Mr. Tathgur has suffered pain and a loss of enjoyment of life, which will likely continue into the foreseeable future and from which he is unlikely to ever fully recover.
[135] Mr. Tathgur sustained soft tissue injuries plus annular tears and resulting disc protrusions. As a result of these injuries, he suffered from significant pain in his neck, upper back, low back with radiating pain into his right leg, wrists, and knees, associated severe headaches and episodic spasms, for several months. The symptoms gradually improved over the 15 months between the two accidents but never resolved and he continued to be plagued by episodes of severe and debilitating back spasms. His symptoms were aggravated by the second accident. They have improved, to some extent, over the years since the second accident, and they wax and wane with some days being better than others. However, he continues to experience headaches several times a week, neck and upper back stiffness and pain on a regular, virtually daily basis of varying intensity, ongoing loss of strength in his left hand, ongoing daily low back stiffness and pain with associated pain radiating into his right leg, and occasional severe and debilitating back spasms. It is more likely than not that his current condition is permanent.
[136] Mr. Tathgur's pain is exacerbated by certain physical activities and by lifting, carrying, bending and twisting. The pain has resulted in difficulties sleeping. It has also affected his mood and his lifestyle. Before the accident, Mr. Tathgur's mood was generally good, apart from the one occasion when he reported low mood associated with adjusting to his move to Canada. Before the accident, he enjoyed weightlifting and hiking. He hoped to pursue other outdoor activities in Canada. He is now limited to swimming and an exercise routine focussed on maintaining core strength.
[137] As already noted, the defence submits that an award of between $30,000 and $40,000 for non-pecuniary damages is appropriate, but that submission was based on the defendant's theory of causation, which I have rejected. Accordingly, I did not find the cases cited by the defendants on this issue to be helpful because they concern plaintiffs whose injuries were much less severe than those of Mr. Tathgur.
[138] Mr. Tathgur seeks an award of $125,000 for non-pecuniary damages. I considered the following cases cited by his counsel: Majer v. Beaudry et al, 2002 BCSC 746 ($95,000 awarded in non-pecuniary damages, which the plaintiff says would equate to about $110,000 if adjusted for inflation); MacKenzie v. Rogalasky, 2011 BCSC 54 ($100,000 awarded in non-pecuniary damages); Arletto v. Kin, 2016 BCSC 77 ($110,000 awarded in non-pecuniary damages); Bellaisac v. Mara, 2015 BCSC 1247 ($140,000 awarded in non-pecuniary damages); and Sekihara v. Gill, 2013 BCSC 1387 ($130,000 awarded in non-pecuniary damages).
[139] I agree that all these authorities are generally instructive. However, the amount of non-pecuniary damages involves not simply a comparison of cases and injuries but also an appreciation of the impact of the injury on the particular plaintiff given his or her particular circumstances. It is my view that the plaintiff in Bellaisac was left with more significant ongoing symptoms. He suffered from ongoing significant depression as well as significant back pain. In Sekihara the injuries had a much more significant impact on the plaintiff's pre-accident very active lifestyle. Majer, Mackenzie and Arletto were more similar in terms of the actual loss to be ameliorated through an award of non-pecuniary damages. These cases concerned men who were left with chronic back injuries. In Majer and Arletto, the injuries included disc injuries causing nerve irritation. However, in all three of these cases the injuries affected the ability of the plaintiffs to work at occupations they enjoyed prior to the accident and this was considered to be a significant factor in the appropriate quantum of non-pecuniary damages.
[140] The most significant of the Stapley factors in this case are Mr. Tathgur's age and the severity and duration of his pain. He was relatively young at the time of the accidents. He has already lived with roughly 10 years of pain, stiffness and recurring, occasional, debilitating spasms. He is unlikely ever to be without some pain, discomfort and disability. This has caused emotional suffering linked to some degree of angst about his future. On the other hand, while his lifestyle has been impacted, he did not have a particularly active pre-accident lifestyle, and he has learned to manage the day-to-day symptoms well enough to continue to work and progress in his career notwithstanding his functional limitations. Having considered all the authorities and the factors discussed in Stapley, I assess Mr. Tathgur's non-pecuniary damages at $95,000.
[141] A claim for past loss of income earning capacity is based on the value of the work that the injured plaintiff would have performed but was unable to perform because of the injury: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30.
[142] A common method of assessing this value is to project the net income the plaintiff would have earned in the period between the accident and the trial had the accident not occurred, taking into account all realistic contingencies, and to award the difference between the projected net income and the actual net income the plaintiff did earn or was capable of earning during that period. In doing so, it is necessary to weigh possibilities and probabilities of hypothetical events that are to be given weight according to their relative likelihood: Reilly v. Lynn, 2003 BCCA 49 at para. 101.
[143] Projecting what a plaintiff would have earned in the past had he not been injured is a hypothetical exercise. While the standard of proof relating to actual past events is a balance of probabilities, a hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation: Grewal v. Naumann, 2017 BCCA 158 at para. 48.
[144] The first issue that arises is the demarcation between Mr. Tathgur's claims for past and future loss of income earning capacity. This issue arises because the trial proceeded in three separate phases due, in large part, to the availability of Mr. Tathgur's counsel. In the result, most of the evidence relevant to the loss of income earning capacity claims was heard in October 2016, some additional evidence was heard in June 2017, and final argument was not heard until February 2018. In the circumstances, Mr. Tathgur's counsel ultimately acknowledged that the claim for past loss of income earning capacity should be assessed as of the end of 2016, to align with the evidentiary record. Defence counsel did not take a contrary position. Accordingly, I will assess the past loss of income earning capacity claim for the period up to December 31, 2016 and the future loss of income earning capacity claim will be assessed from January 1, 2017.
[145] Mr. Tathgur claims $58,980 (gross) for past loss of income earning capacity to the end of 2016. There are three aspects to this claim.
a) He claims $1,920 for the four weeks of work he missed from Cash Money in May and June 2008, immediately following the first accident. He was working 40 hours a week and earning $12 an hour at that position.
b) He claims $32,894 for the period from September 1, 2009 to December 31, 2010. He was unemployed between July 2009 and August 2010, during which time he collected employment insurance benefits. He acknowledges that he left his job for reasons unrelated to his injuries. However, he submits that had he not been injured, he would have had a broader range of employment opportunities and, by September 1, 2009, he would have secured employment at a salary of at least $46,000 per year in a position similar to the position he ultimately secured at Kasa in August 2010. The amount claimed, $32,894.33, is the difference between his actual income earned from EI and Kasa during this period and the amount he would have earned had he been making $46,000 per year during this period.
c) He claims $24,166 for the period from August 2016 to December 2016, which he says reflects the opportunity he lost to return to work with Kasa to run Kasa's new concrete division. He submits that had he taken that position he would have earned income of $134,000 a year commencing August 1, 2016 (comprised of salary of $84,000 and 10% of total profits of $500,000 for a profit sharing component of $50,000). The amount claimed, $24,166.66, is the difference between his actual income earned from Crown between August 1, 2016 and December 31, 2016, and the amount he would have earned had he been making $134,000 a year during this period.
[146] I accept the first aspect of this claim. Indeed, it is not disputed that because of his injuries, Mr. Tathgur was unable to work for the four weeks immediately following the first accident. He has established a claim of $1,920 (gross) for that period.
[147] I do not accept the second aspect of this claim. Mr. Tathgur testified that he was physically able to work in customer service and sales positions during his period of unemployment but that he was limited in his search by his inability to perform physical tasks. However, he did not testify as to any particular opportunity that he lost or was unable to pursue as a result of his limitations. He has always worked in customer service and sales positions, even in India, and he did not testify about ever having worked in a physical job. He was receiving employment insurance benefits throughout the entire period of his unemployment. In the circumstances, I am not satisfied that there is a real and substantial possibility that he would have secured a more physical job had he not been injured in the accidents.
[148] I turn now to the lost Kasa opportunity. I accept Mr. Tathgur's evidence, as corroborated by Mr. Sahota, that the opportunity to return to Kasa to run the new concrete business was discussed and I find, on a balance of probabilities, that, but for his injuries, Mr. Tathgur would have secured that opportunity. The salary at $84,000 a year plus profit sharing was materially better than the $76,000 per year he was earning at Crown. He has demonstrated a willingness to pursue new opportunities in order to advance in his career.
[149] However, the amount proposed by Mr. Tathgur does not adequately reflect the very significant contingencies associated with this opportunity. Mr. Sahota's evidence makes clear that the quantum of the profit sharing component of the compensation package was never finalized. He testified that he thought he would offer Mr. Tathgur about 10%. There is a real and substantial possibility that he would have offered less than 10%. More significantly, there is a real and substantial possibility that the concrete business would not have continued to generate profits of $500,000 a year. The only evidence of the quantum of profits generated by that business was Mr. Sahota's testimony that the business had been generating profits of that magnitude prior to it being acquired by Kasa. He gave that evidence mere weeks after closing the purchase. There is no evidence of the performance of the concrete business under Kasa's ownership. Finally, the purchase did not complete until September 30, 2016. There is no evidentiary basis for determining that this opportunity might have been available to Mr. Tathgur at any time before that date. In all the circumstances, I assess this aspect of the claim at $2,000 per month for the months of October, November and December 2016, for a total of $6,000. This is the monthly equivalent of the difference between an annual salary of $84,000 plus $16,000 a year to reflect some profit sharing and Mr. Tathgur's salary of $76,000 at Crown.
[150] In summary, I assess Mr. Tathgur's claim for past loss of income earning capacity to the end of 2016 at $7,920 (gross).
[151] To establish a claim for future loss of income earning capacity, a plaintiff must first prove a real and substantial possibility of a future event leading to a loss of income, as opposed to a speculative loss: Perren v. Lalari, 2010 BCCA 140 at para. 32. If the plaintiff discharges that burden, then the loss must be assessed, taking into account all realistic positive and negative contingencies.
[152] There is more than one way to assess a loss of future income earning capacity: see Perren at paras. 11–12. The "earnings approach", which is generally appropriate where the court can more easily measure the loss mathematically, typically involves a determination of the plaintiff's estimated annual income loss, multiplied by the remaining years of work, and then discounted to reflect current value. The "capital asset approach", which is typically used when the loss is not as easily measurable, involves the consideration of a number of factors such as whether the plaintiff has been rendered less capable overall of earning income from all types of employment, is less marketable or attractive as a potential employee, has lost the ability to take advantage of all job opportunities that might otherwise have been open, and is less valuable to himself as a person capable of earning income in a competitive labour market: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.).
[153] Irrespective of the approach used, the Court is required to quantify a pecuniary loss and the quantification must be grounded in the evidence and the particular facts of the case. There must be a "reasoned analysis to explain and justify the award": Schenker v. Scott, 2014 BCCA 203 at para. 56. The loss need not be calculated with mathematical precision but mathematical, statistical, and/or economic evidence will inform the assessment. This reflects the fact that an award for loss of earning capacity, irrespective of the quantification approach adopted, is "not simply at large": Dunbar v. Mendez, 2016 BCCA 211 at para. 20.
[154] As already noted, the standard of proof relating to hypothetical events, which, of course, includes future events, is simple probability. Such events are to be given weight according to their relative likelihood.
[155] I have no difficulty concluding that Mr. Tathgur has met the threshold of establishing a real and substantial possibility of a future event leading to a loss of income. For the reasons already expressed, I have found it unlikely that Mr. Tathgur will ever return to a fully pain-free state, it is more likely than not that he will continue to suffer from ongoing pain and episodes of spasm, which will affect his ability to function; the risk of spasm renders him incapable of doing work that involves sustained or significant lifting, carrying, twisting or bending; and he will have to work in situations where he can control his posture and have the flexibility to change from sitting to standing to walking. He has already lost the Kasa opportunity, from which he most likely would have earned more income than he will earn, at least in the near future. In addition, there is a real and substantial possibility that he will periodically miss work as a result of his symptoms, particularly the back spasms, and he may retire earlier than he otherwise would have done, all leading to a loss of income.
[156] Having found that there is a real and substantial possibility of a future event leading to an income loss, it is necessary to quantify that loss. The assessment must take into account all realistic positive and negative contingencies. In this case, it is necessary to reflect the significant likelihood that, in general terms, Mr. Tathgur's career will progress as it would have had the accidents not occurred. Given his education, experience and inclination, it is unlikely that he would ever have pursued a physical job and very likely that he would have continued to pursue increasingly senior positions in sales and management. This career path remains open to him. However, this does not mean that he has not suffered a capital loss.
[157] Mr. Tathgur submits that it is appropriate to use the earnings approach in assessing his future loss of earning capacity, and that his annual loss is likely to fall between $8,000 (the difference between his salary at Crown and the salary before profit sharing that he could have earned running Kasa's concrete business) and $58,000 (the difference between his salary at Crown and the salary plus profit sharing that he likely could have earned running Kasa's concrete business). Using the income loss multipliers in an expert report provided by Mr. Hassan Lakhani, an economist, he quantifies the loss to age 67 at between $176,000 and $1,276,000, and submits an award at the midpoint, $550,000 is appropriate.
[158] In my view, in this case, an earnings approach is inappropriate because of the very significant uncertainties inherent in quantifying or assessing an annual loss on which to base a purely mathematical calculation. Mr. Tathgur's approach assumes that he will never close or even narrow the gap between his income at trial and that which he could have earned from the Kasa opportunity. In my view that is an unjustified assumption. Again, in general terms, Mr. Tathgur's career will likely progress as it would have had the accidents not occurred. His income is likely to continue to rise, as it has over the years since he moved to Canada. The ongoing success of the Kasa concrete business, and the corresponding level of ongoing profit sharing, is speculative. Further, Mr. Sahota testified that although his present desire was to have a single person in charge of the concrete business who could also perform the physical tasks, he was open to the possibility of hiring someone like Mr. Tathgur in the future to manage the business and focus on sales, with other employees responsible for the physical aspects. If the business continues to generate profits in the neighbourhood of $500,000 a year, there is a real and substantial possibility, indeed a likelihood, such a position will become available and, if it does, that Mr. Tathgur will secure the opportunity.
[159] In this case, the capital asset approach is the better approach to use. In assessing damages on that approach, I must consider the factors outlined in Brown. As a result of his injuries, Mr. Tathgur is unable to perform physical jobs. Accordingly, he has been rendered less capable overall from earning income from all types of employment, although this factor carries little weight because he would not likely ever have pursued physical work. Nevertheless, he is less marketable or attractive as an employee to potential employers because of his actual physical limitations and the risk of triggering a spasm. In the result, he is less valuable to himself as a person capable of earning income in a competitive labour market. He has demonstrated an inclination and willingness to change jobs when better opportunities present. There is a reasonable and substantial possibility that he will be precluded from pursing some of the opportunities that would have been available to him had he not been injured in the accidents. There is a real and substantial possibility that he will retire earlier than he otherwise would have.
[160] Having said all that, determining the appropriate quantum of an award of damages remains a difficult task. Again, in Dunbar, the Court of Appeal emphasized that an award for loss of earning capacity, irrespective of the quantification approach adopted, is not simply at large.
[161] In my view, the $8,000 per year difference in Mr. Tathgur's salary at trial and the salary he could have earned from Kasa (i.e., without profit sharing, which is speculative) is indicative of the annualized value of the capital loss he has suffered. For the reasons I have already expressed, an assumption that the same $8,000 gap in salary will continue to accrue year after year is not justified, but the $8,000 (about 10% of Mr. Tathgur's current salary) can be seen in rough terms as one-year's manifestation of the capital loss. In one year, the loss might arise primarily from a difference in salary that could have been earned from a lost opportunity. In another year, the loss might arise primarily from time off work due to a greater number of long-lasting spasms. The loss will be greater in some years than it is in others.
[162] Taking into account all contingencies, including the possibility that Mr. Tathgur would have earned significantly more over his career had he been able to take up the Kasa opportunity, the possibility that he would have earned only marginally more, the possibility that he will be presented with a similar opportunity from Kasa in any event, the possibility that he will have to forgo other opportunities, the possibility that he will nevertheless continue to progress in his career and income level irrespective of the lost opportunities, the likelihood that he will take time off work due to ongoing symptoms, and the possibility that he will retire earlier than he otherwise would have done, as well as all the normal chances and hazards of life, I assess Mr. Tathgur's loss of future income earning capacity at $150,000. This is roughly two times Mr. Tathgur's current annual salary and it comes close to the present value of an $8,000 annual loss to age 65.
[163] A loss of housekeeping capacity award is properly characterized as an award for loss of capacity, distinct from a cost of future care claim: McTavish v. MacGillivray, 2000 BCCA 164 at para. 63; Westbroek v. Brizuela, 2014 BCCA 48 at paras. 72–78. An award for loss of homemaking capacity is intended to reflect the value of the work that would have been done by the plaintiff but which he is incapable of performing due to the injuries caused by the accident. It is not dependent upon whether replacement costs are actually incurred.
[164] As stated in Westbroek at para 74:
… An award ordered for homemaking is for the value of the work that would have been done by the plaintiff but which he or she is incapable of performing because of the injuries at issue. The plaintiff has lost an asset: his or her ability to perform household tasks that would have been of value to him or herself as well as others in the family unit but for the accident. This is different from future care costs where what is being compensated is the value of services that are reasonably expected to be rendered to the plaintiff rather than by the plaintiff.
[Emphasis in original.]
[165] Before the accident, Mr. Tathgur assisted with some homemaking tasks, including vacuuming and laundry. He has been unable to perform these tasks and is not able to maintain the grass. He seeks an award of $25,000 under this head.
[166] A cautionary approach is to be taken in assessing damages for loss of housekeeping capacity to ensure the award is commensurate with the loss. There was no evidence led as to what it would cost to hire someone to perform the tasks Mr. Tathgur can no longer perform. Further, the evidence of both Mr. Tathgur and Ms. Toheem indicates that Mr. Tathgur's contributions to the housework were quite limited in relation to hers. Having said that, Mr. Tathgur's physical limitations are likely to be permanent. In the circumstances, I award $5,000 under this head.
[167] A plaintiff is entitled to be compensated for expenses reasonably necessary for the future medical treatment of injuries for which the defendant is liable. The test for assessing an appropriate award for the cost of future care is an objective one based on the medical evidence. It is twofold: first, there must be a medical justification for the cost; and second, the claim must be reasonable: Tsalamandris v. McLeod, 2012 BCCA 239 at paras. 62–63.
[168] In assessing the reasonableness of a claim, it is appropriate to consider the extent to which the plaintiff has used the services in the past and whether the plaintiff is likely to use the services in the future: Gignac v. Insurance Corporation of British Columbia, 2012 BCCA 351 at paras. 40, 52–54.
[169] Allowance must be made for the contingency that the assumptions on which the award is predicated may prove inaccurate: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at 78.
[170] Mr. Tathgur seeks $85,000 to compensate him for the cost of future care. This amount is based on Dr. Hershler's recommendations of 24 massage therapy sessions per year, a prescription for an anti-inflammatory cream, and ongoing light exercise, all to age 75.
[171] I am satisfied that the first branch of the test has been met with respect to the claim as it pertains to massage therapy, anti-inflammatory creams, and ongoing exercise. I accept Dr. Hershler's evidence and find that it provides a medical justification for these items. The real issue is what is reasonable in the circumstances of this case.
[172] The defence submits that a significant award for ongoing massage therapy is not reasonable because Mr. Tathgur has attended such treatment on only a sporadic basis. The defence says any award for cost of future care should be limited to the cost of an active rehabilitation program or sessions with a kinesiologist to learn a proper exercise routine, discounted to reflect the high likelihood that the plaintiff will not follow through based on his past failure to follow similar recommendations.
[173] Until shortly before trial, Mr. Tathgur's attendance at massage therapy was sporadic. For example, in 2013 he received five massage therapy treatments, in 2014 he received four massage therapy treatments, in 2015 he received one massage therapy treatment, and in 2016, between January and September, he received 10 massage therapy treatments. I am satisfied that he receives some, albeit probably short-term, benefit from massage therapy and I accept that he will continue to attend sporadically but an award based on 24 sessions per year would not be reasonable given the history of his use of this service. In my view, six sessions per year at $105 per session better reflects the appropriate contingencies. This equates to $630 per year.
[174] On the other hand, since 2011 Mr. Tathgur has regularly attended a gym. I am not persuaded that he needs personal training or sessions with a kinesiologist to learn how to exercise. He testified that his exercise routine, which includes swimming, focuses on maintaining his core strength. It is his existing program that Dr. Hershler most recently recommended be continued. Mr. Tathgur spends almost $73 per month for his YMCA membership, which equates to $876 annually.
[175] Similarly, I am satisfied that Mr. Tathgur has continued to use anti-inflammatory creams, gels and other pain medication. He says he requires approximately $150 a year to cover the cost of these items. I agree that that is a reasonable claim.
[176] The total annual cost of six massage therapy sessions, the YMCA membership and the medication is $1,656. According to Mr. Lakhani, the applicable multiplier to age 75 is $24,560. Applying that multiplier results in a present value calculation of $1,656/1,000 X $24,560 = $40,671. In my view, it is necessary to reduce that amount somewhat to reflect the contingency that Mr. Tathgur will not continue to attend the gym or use the medication. The contingency that he will make use of fewer massage therapy sessions is offset by the contingency that he will attend more. I award $30,000 under this head.
[177] Mr. Tathgur claims $10,033.24 in special damages. This amount includes costs for chiropractic therapy, medication, prescriptions, physiotherapy, gym memberships, ambulance services, parking, taxis, and the cost of the MRI performed in India, as well as consult fees paid to a physician in India.
[178] The defence says that Mr. Tathgur's special damages claim should be capped at expenses incurred to the end of 2010 on the basis that any expenses incurred after that are related to the natural progression of his degenerative disc disease.
[179] I reject the defence position. There is no evidence to support the claim that Mr. Tathgur would have experienced symptoms as a result of his degenerative disc disease in the absence the accident. I award Mr. Tathgur special damages of $10,033.24, as claimed.
[180] The defence says Mr. Tathgur's damages should be reduced to reflect his failure to participate in an active rehabilitation or exercise program, which the defence characterizes as a failure to mitigate.
[181] In order to establish that a plaintiff has failed to mitigate by not pursuing recommended treatment, the defendant must prove, on a balance of probabilities, that the plaintiff acted unreasonably and also the extent to which the plaintiff's damages would have been reduced had the plaintiff undergone the treatment in question: Chiu v. Chiu, 2002 BCCA 618 at para. 57.
[182] For the reasons already expressed, I accept Mr. Tathgur's explanation for not participating in the active rehabilitation program offered shortly after the first accident. Again, he explained that he thought the program was focused on getting him back to work and he had already returned to work by the time it was offered. However, he did not provide an adequate explanation for failing to follow Dr. Hershler's advice, first given in August 2009, to follow an exercise program. He did not commence a regular exercise program until 2011. I am satisfied that his failure to follow this aspect of Dr. Hershler's advice was unreasonable.
[183] I am also satisfied that the preponderance of the evidence supports a finding that Mr. Tathgur would have benefitted from adhering to an exercise regime. I draw this inference from the fact that Dr. Hershler continues to recommend it. However, I have concluded that the defence has failed to establish the extent to which Mr. Tathgur's damages would have been reduced had he commenced an exercise program in 2009 instead of in 2011. He has not been awarded any damages for income loss during this period and, notwithstanding his regular participation in an exercise program since 2011, he remains significantly symptomatic.
[184] In summary, the damages awarded to Mr. Tathgur are:
|
Non-pecuniary damages |
$ |
95,000.00 |
|
Past loss of income earning capacity (gross) |
$ |
7,920.00 |
|
Future loss of income earning capacity |
$ |
150,000.00 |
|
Loss of housekeeping capacity |
$ |
5,000.00 |
|
Cost of future care |
$ |
30,000.00 |
|
Special damages |
$ |
10,033.24 |
The past loss of income earning capacity award has been calculated on a pre-tax basis. I leave the calculation of the tax consequences and the issue of pre-judgment interest and costs for the parties to resolve. If counsel are unable to reach agreement on these matters they may make arrangements to speak to them provided that, within 60 days, they submit a request to appear.
"WARREN J."