2008 BCSC 969 Heinze v. Dulay and Nissan Canada Inc.

Before: The Honourable Mr. Justice Warren

Reasons for Judgment

Counsel for the Plaintiff:	R. ter Borg
Counsel for the Defendants Dulay and Nissan Canada Inc.:	S.L. Avram
Date and Place of Trial:	March 12-13, 2008
	Vancouver, B.C.

Introduction

[1] The plaintiff seeks damages and compensation for the injuries he suffered in a motor vehicle accident on January 1, 2005, when his vehicle was struck by a vehicle driven by the first defendant and owned by the second defendant. The first defendant, Mr. Dulay, had failed to stop at a traffic control device and collided with the right-front side of the plaintiff’s vehicle. For ease of reference, I will refer to both defendants as a single defendant throughout these Reasons. Liability for the accident is not in dispute.

[2] The defendants dispute the extent of the injuries suffered by the plaintiff; plead that he suffered from a pre-existing condition; that he had not suffered any loss of income or diminished income earning capacity; and that he has failed to mitigate his losses by not following a reasonable treatment plan.

Plaintiff’s Evidence

[3] The plaintiff was born in Aruba in the Caribbean on November 3, 1949 and he lives with his wife and teenage daughter in a rented home paying a reduced rent for doing some of the maintenance and yard care for the landlord.

[4] He took his high school education in Aruba and graduated as a welder. He came to Canada when he was 23 years old, moved to British Columbia in 1989, and has worked as a steel beam welder for the same employer since 1989.

[5] His work is physically demanding and at times, he is expected to manually move pieces of steel that weigh up to a 100 lbs. As I understand his evidence, he primarily welds smaller to larger pieces of steel, occasionally punches large pieces of steel by machine, and maintains his work area.

[6] Mr. Heinze is a member of a union and works the afternoon shift starting at 4:00 p.m. and ending at 1:00 a.m. He gets one-half hour lunch break and has two ten-minute coffee breaks. His rate of pay is $28.81 per hour with a shift differential of $1.04 per hour and a pension plan contribution of $1.80 per hour. Presently he works one five-day week and one four-day week.

[7] This accident occurred on January 1, 2005. Mr. Heinze said he was proceeding west on a green light on 104th Avenue at 144th Street in Surrey when an SUV coming from his right hit his right-front fender and bumper. He said at the time that he felt fine but “shooken up”. His car was a write-off and his wife had to drive him home.

[8] Initially, his symptoms were rather mild, although he said that he was worried and could not sleep. Two days after the accident, he still felt “shooken up” and worried and started to experience blurred vision. Three days after the accident he started to have headaches and pain in his shoulders and low back, and was experiencing dizziness. He attempted to return to work on the fourth day after the accident, but was not feeling “good” and was not able to turn his neck. He was now experiencing pain in the neck, back, and shoulders, particularly where the seatbelt was located. He said that he first went to see a doctor on January 7, a Dr. Kaplonski, who, he said, prescribed Tylenol 3s and muscle relaxants, and recommended that he have physiotherapy.

[9] In fact, he had earlier seen his regular doctor, Dr. Jackson, on January 3, 2005, but this was incidental to a visit with his daughter for her appointment and he spoke to the doctor only briefly about the accident.

[10] As a result of his injuries, Mr. Heinze did not return to work for some time after the accident. He took painkillers and muscle relaxants and had physiotherapy from January 11 to February 14, 2005, at which point he had to stop the sessions due to lack of lack of money.

[11] Mr. Heinze testified that the physiotherapist recommended that he go to a swimming pool and embark upon a strengthening program, but he was not able to follow that advice because of lack of money.

[12] Mr. Heinze testified that it was his decision to return to work and that his doctor had recommended that he “take it easy”. He said that financial necessity made him return to work earlier than he would have preferred because he was behind on in his bills, owed money on a car and a bank loan, and the rent was due.

[13] While he was off work because of his injuries, he received three weeks pay from Employment Insurance and two payments from the Steelworkers Disability Plan, totalling $2,225.

[14] The plaintiff said that he was still in pain when he returned to work on February 21, but he took pain medications and did “easy work”, such as sweeping floors, “machine punching”, and doing some welding. This “easy work” lasted, he said, for one or two months until approximately late April.

[15] Mr. Heinze described his usual work as requiring walking, crouching, and bending — all of which causes him pain. He has continued to work overtime until the present, but again, this was because of financial necessity.

[16] At the time of trial, Mr. Heinze complained that he still had soreness and pain which he described as almost the same as it was one year ago although “a little better”.

[17] He still takes two Tylenol 3s and one Flexoril every four hours, every day; sometimes three times a day, sometimes four. He said that he tried stopping use of the pain medication for a day. but the pain was so bad that he had to continue.

[18] Mr. Heinze said that his neck improved after the physiotherapy, but he still gets headaches about once a week or maybe three times a month. His health before the accident was “perfect” and he was on no medications. His only pre-accident problem was with his back in 2000, which he described as muscle pain that went away. He testified that he had no back pains again until after the accident.

[19] He had suffered a previous work injury when a piece of steel fell on his foot in March 2003 and he was off work for six months as a result of a badly fractured toe. His treatment was physiotherapy and pain medication.

[20] Prior to this accident on January 1, 2005, the plaintiff said that he was physically active. He went fishing on the Vedder River, he would go camping, hiking, and take walks to the stores and the malls approximately 16-21 blocks away. He and his daughter would also do the Grouse Grind.

[21] He testified that he is not able to go fishing anymore because there are too many rocks where he would fish; he cannot camp because he cannot sleep on the ground; the Grouse Grind is too difficult and long for him; and he cannot walk further than four or five blocks without pain. He had tried hunting with his brother-in-law, an activity that he used to do before the accident, but it was too hard, particularly walking uphill.

[22] Another activity which he is now no longer able to do is lawn mowing with a manual lawnmower because he finds it painful to push the lawnmower. Accordingly, he has paid his daughter’s former boyfriend to mow the lawn at a cost of $30 per mow.

[23] He testified that he is unable to climb ladders in order to put up Christmas lights or clean the gutters (although he acknowledged on cross-examination, he is not obliged to do the external maintenance on the house), and he had to pay his daughter’s former boyfriend $50 to put a tarp on a leaking carport. He also complained that he experiences pain bending down to paint baseboards, or reaching up to paint the ceiling. Further, he used to do minor mechanical work on his car such as changing the brake pads and changing the oil, but now has to pay a mechanic to do it.

[24] His present activities consist of doing the exercises recommended by Dr. Jaworski, a specialist in physical medicine and rehabilitation, to whom he was referred by his general practitioner in 2007. Mr. Heinze said that the exercises take him about two hours to complete and he described in detail each exercise. He said that he starts these when he gets up in the morning – every morning. He testified that some exercises take five seconds to complete and some take 15 seconds.

[25] He said that he is not bending as much as he used to do at work and uses cranes and other mechanical devices to maneuver his pieces of work. He acknowledged that he is able to use cranes for the heavy lifting, specifically for weights over 80 lbs. He acknowledged that there is a lot of crouching and bending involved in his work and he sometimes pushes work objects to move them above but “only if they are not heavy, under 100 lbs”. Mr. Heinze acknowledged that at his examination for discovery he had testified that the objects he pushes were probably 100 lbs. Mr. Heinze adopted that answer at trial.

[26] Under cross examination, Mr. Heinze described his job as physically demanding but one which provides “pretty good job security” because he is a member of the union. Mr. Heinze likes his work and says that it is important for him to do a good job. His superiors are happy with his work and he intends to work there until he retires.

[27] Mr. Heinze acknowledged that he performs overtime work when asked and receives time-and-a-half for the first eight hours of overtime and double time after eight hours or on holidays. He testified that Frank Taylor was his direct supervisor and had been for many years. His jobs are sometimes assigned by the day-shift foreman prior to his shift commencing and sometimes by Mr. Taylor.

[28] Mr. Heinze said that he was off work for six weeks after the accident and then returned full-time to all of his regular duties. However, he said that when he first returned he tried to do the lightest work possible. He testified that when he asked another supervisor, Mr. Reizeg, if he could go on light duties he was informed that there were no such thing as light duties. He acknowledged that he did not ask Mr. Taylor if he could perform light work and that he did not tell Mr. Taylor about the accident or his injuries. Mr. Heinze maintained that for the first week upon returning to work he did only punching and sweeping, but the sweeping was only once in a day or two. He said, however, that he may have done some welding on his first week back at work. The plaintiff’s testimony was interrupted at this point to permit the plaintiff’s expert to testify.

[29] Dr. J.S. Jaworski was qualified as an expert in physical or rehabilitative medicine and he saw Mr. Heinze on referral from his general practitioner. Dr. Jaworski’s initial diagnosis was of mechanical back pain which features complaints of pain brought on or exacerbated by physical activities. It is a separate diagnosis from arthritic pain. On cross examination, Dr. Jaworski acknowledged that he relied on his patient’s history, had assumed it was correct, and that pain cannot be measured objectively. It was his evidence that mechanical back pain implies that, in spite of investigation, there is no clear cause identifiable.

[30] Dr. Jaworski testified that when he first saw the plaintiff in June 2006 he understood that he was working without modification and doing his job as a steel fabricator. On first examination, the plaintiff showed no pain behaviour and by that Dr. Jaworski meant no “unusual pain behaviour”.

[31] Further, he said that there was no indication of any “suspicious pain behaviour”. He found considerable stiffness in Mr. Heinze and accordingly, ordered a bone scan and when that came back negative (i.e. no abnormalities), it led Dr. Jaworski to a diagnosis of mechanical back pain.

[32] On the second visit on August 25, 2006, Dr. Jaworski recommended that the plaintiff embark on an exercise program and “watch” his body weight, the objective being to strengthen Mr. Heinze’s core muscles. Dr. Jaworski agreed that a failure to keep fit can prolong any recovery. On this occasion, Dr. Jaworski saw no indication of abnormal pain behaviour.

[33] It was on Mr. Heinze’s fourth visit on February 21, 2007 that Dr. Jaworski first heard of complaints of leg pain and he suspected spinal degeneration and accordingly, ordered a CT scan. The results showed that there was some mild lumbar spondylosis which was likely age-related. This, he said, generally has a poor correlation with complaints of back pain. Dr. Jaworski concluded that mechanical back pain was the correct diagnosis and he is not able to say that even some of the plaintiff’s complaints of pain were caused by the spondylosis. Again, at the February 21, 2007 visit, Dr. Jaworski understood that the plaintiff was working full-time without any restrictions.

[34] Dr. Jaworski gave the plaintiff an exercise program to follow and told him to start slow and to work up a number of repetitions which he stated should take the plaintiff approximately 15-20 minutes a day to perform.

[35] Dr. Jaworski next saw the plaintiff on June 4, 2007 and again he understood that the plaintiff was working full-time without any restrictions. Dr. Jaworski tested the plaintiff’s abdominal strength and the results were not good; Dr. Jaworski was “not impressed” and stated that he would have expected to see results if the plaintiff had been doing them with the proper level of intensity.

[36] At the final observation of the plaintiff by Dr. Jaworski on August 9, 2007, the abdominal muscles of the plaintiff were again “not impressive”. Dr. Jaworski testified that he told the plaintiff to continue with regular exercises. It was at this meeting that, for the first time, the plaintiff informed Dr. Jaworski that he was performing only light duties at work.

[37] Following the testimony of Dr. Jaworksi, the plaintiff was recalled for continuing cross examination. He acknowledged that he had told Dr. Jaworski on August 9, 2007 that he was on light duties, but stated that this was not correct.

[38] When Dr. Jaworski’s report was put to the plaintiff, he acknowledged that he had a poor recollection of his injuries at the time of the meetings and that he did not recall how much time off he had. It was only after he looked at some other documents that he remembered that he had been off work from January 7 through February 19, 2005.

[39] When Mr. Heinze’s work records were put to him, he acknowledged that he had worked 170 hours of overtime in 2005 after the accident; roughly 220 hours of overtime in 2006; and approximately 200 hours of overtime in 2007. He also acknowledged that his work hours had increased since 2000 and he had been able to do all of the overtime since the accident without asking for any special considerations. Nevertheless, Mr. Heinze maintained that he does have problems working and is only able to work if he uses his medications all the time.

[40] With reference to his activities and loss of enjoyment of life, Mr. Heinze acknowledged that he spends most of his time at work and on the drive to and from work and most of his free time is spent at home with his wife. His pre-accident activities of fishing, camping, hiking, walking and hunting were not mentioned at his examination for discovery because he did not remember anything but the walking and the hunting. With reference to walking, on direct examination, Mr. Heinze testified that he walked to and from the Surrey Mall and the Guildford Mall, which are approximately 21 blocks and 16 blocks, respectively. At his examination for discovery he had testified that he walked about 5 blocks. In explanation, he said that at the time he did not know the precise distance. As for hunting, Mr. Heinze explained the discrepancy between his evidence at examination for discovery and the trial regarding the number of times he had gone hunting before the accident as a result of not understanding the question.

[41] Mr. Heinze explained his inability to keep his active lifestyle after the accident as the result of being in too much pain to move a lot. He did go for physiotherapy and it was recommended that he attend to a gym and do pool exercises but he could not afford that cost. Mr. Heinze acknowledged that he did not actually look into the cost of these exercises and did not know if he could afford the cost even though he stated that it was because he was behind in all of his bills.

[42] With reference to the exercise regime, Mr. Heinze maintained that he has been doing them every day since he got the list from his doctor. He acknowledged that Dr. Jaworski had informed him that he was not impressed with his progress, particularly with his stomach muscles. Nevertheless, Mr. Heinze maintained that he was doing the exercises — although not for as long as the doctor had said because the pain was too intense. He is still not doing all of the repetitions recommended by the doctor although he does more now than he did in November 2007. Mr. Heinze explained that his exercise regime takes approximately two hours to perform because he has to stop due to pain for 15 minutes at a time after only 15-20 seconds of exercise.

[43] Mr. Heinze testified that he does not do outside work any longer because he is afraid of ladders and lawn mowing with a manual mower causes him too much pain. He said he did try it one or two times since the accident. He acknowledged that at his examination for discovery he testified that he mowed “once in a blue moon” and only the front lawn.

[44] With reference to his daughter’s former boyfriend, Mr. Heinze maintained that he had paid him $30 on the 21 times that he had mowed the lawn, although he said that he had been paying the boyfriend only since June 2007. His daughter’s boyfriend had also power washed the house, washed the windows and swept the driveway.

[45] Mr. Heinze maintained that his health was perfect before the motor vehicle accident although he had previous back pain episodes before. While he could not specifically remember a complaint in 1993 or 1997, he did remember a back pain incident in 2000, which he said was caused by a twisting motion and had lasted for only a day or two. He had no recollection of any back problems after 2000. Mr. Heinze testified that he wears a 4 or 5 inch-wide support belt at work around the stomach and back. He testified that he has worn the belt for many years but not for “back problems”, and denied that he had been “concerned about back problems”. He maintained that he wears the belt in order to prevent any injuries from lifting steel.

[46] Mr. Heinze testified that he knew that his supervisor, Mr. Taylor, had been subpoenaed by the defendant to testify at the trial, but denied that any of his actions at work had changed after the accident. For example, he maintained that he had been moaning and groaning since the accident and not only after learning that Mr. Taylor had been subpoenaed. He denied that he was exaggerating his symptoms.

[47] On re-examination, Mr. Heinze said that he only wore the support belt at work. He explained the time off work in early November 2003 as a vacation rather than being laid off. Generally, instead of being laid off, he would take his vacations in order to continue to draw a paycheque.

[48] The plaintiff’s daughter, Juliet Heinze, testified that after her father’s accident, he was not the same and “things just did not get done around the house”. She said that after the accident there was little money and so the family had to get food from the food bank. She testified that she sees her father do his exercises and that since he returned to work, he appears weak and complains of back pain. She said that prior to the accident “he’d do everything”, including garden work, washing the windows and the house, painting rooms in the house, fixing things, and building a backyard shed. She said that after the accident her father was not able to do these things and her boyfriend, Jordan McLure, helped her father do the chores around the house such as mowing the lawn and raking the leaves. She gave evidence of her father’s activities before the accident, which included doing the Grouse Grind for a time and how she and her father went fishing a lot.

[49] The plaintiff’s wife, Joy Heinze, testified about her medical circumstances and the resulting financial difficulties these had caused the family. She has been off work since 2000 due to a large number of illnesses including fibromyalgia, osteoarthritis, and lupis. There are no treatments because she is allergic to anaesthetics. Mrs. Heinze testified that their daughter also has health problems and a significant number of illnesses.

[50] Mrs. Heinze described her husband after the accident. She said that he was shaking, his speech was not normal and he had memory problems. She says that he lay down complaining of severe headaches and she gave him two Tylenol 3s after which he went to sleep for six hours. She said that her husband’s complaints continued, particularly about pain and serious headache. She said that her husband refused to go to the hospital and took more of her Tylenol 3s. After Mr. Heinze had seen his doctor, he returned to work but could only work for part of the week and complained of a great deal of pain in the back of his legs, numbness in the feet, neck pain, shoulder pain and bad headaches. Mrs. Heinze testified that the family had financial difficulties and they thought they may have to go on welfare. She said that in fact would have gone on welfare, but for some benefits from the Steelworkers Union. They were worried about repaying monies that had been advanced by the union.

[51] Mrs. Heinze testified that there was no food in the house after the accident, no money to pay their debts which included car payments, a bank loan, rent and approximately $200 per month medication expenses for her daughter and herself. She testified that it was because of the financial pressures that her husband returned to work on February 21, 2005, although she had told him not to.

[52] Mrs. Heinze testified that her husband is still “not good” and is complaining of a lot of pain and distress. She described him as sad, withdrawn and worried and using Tyenol 3s and Flexoral several times a day. This was a marked departure from before the accident when he would never take medications. She testified that her husband’s back was fine before the accident except for some time long before when he had a back “cramp” in 2000.

[53] Mrs. Heinze testified that before the accident, her husband would do the yardwork, fix the plumbing, do the exterior work and pressure washing as well as painting the suite and making repairs. For this, they paid reduced rent. Since the accident, her husband has not done these things because he is not able to physically perform them. Mrs. Heinze testified that her husband had tried to mow the lawn a couple of times, but was not able to do this and complained of pain from pushing and pulling the lawnmower. He had tried again to mow the lawn after the physiotherapy sessions but was not able to do it.

[54] Mrs. Heinze confirmed her husband’s and daughter’s evidence of the yardwork done by the daughter’s boyfriend and the cost. She, too, estimated that the boyfriend had cut the lawn 21 times, had power washed the siding, the windows and deck for which she had paid him $30 per mow, $100 for the power washing and $50 for the carport repair. Her evidence of the cost of lawn mowing was based upon her notations on a calendar and although her daughter’s boyfriend had mowed the lawn once in a while before the accident, he did it regularly afterward.

[55] Mrs. Heinze testified that their personal life has been very much affected by his injury. When her husband wakes at 10 or 11 in the morning, he is very stiff and complains of leg numbness. She helps him get up and watches him take his medication and start his exercises which “take awhile”. Because she buys the medications for herself and her husband, she knows what he uses. They now sleep apart because the plaintiff moves a lot and complains in his sleep of pain. She said that she and her husband have had no sex relations for 1½ years because it is difficult for her husband to make love and he is impotent from the pain. Prior to the accident, she and her husband would take vacations but now, because of her husband’s problems, long walks and prolonged seating in a car cause shooting pains. Their mutual activities now consist of playing cards, watching television or going to a movie.

[56] On cross-examination, Mrs. Heinze testified that she is familiar with the demands of her husband’s work and acknowledged that he works full-time and a lot of overtime. She said that the long hours of overtime are necessary because of their financial problems. They have not been able to take any vacations since the accident because there is no money. She and her husband have a lot of bills to pay and the medications for the three of them have not helped their financial circumstances. The damage to the car from a break-in in May 2007 required extensive amount of repairs, which Mr. Heinze would normally do. Although Mr. Heinze has extended health benefits that pay 70% of medications, she testified that it takes a long time to get repaid by the insurer.

[57] Mrs. Heinze acknowledged that before the accident her husband had not taken full holidays, but she explained that was because they were worried of layoffs.

[58] Mrs. Heinze testified that her husband was not the same now as before the accident. Although she acknowledged that he is at work 10-11 hours per day and more when he is doing overtime, and that he can work six days a week, she nevertheless said that he gets more tired now than he did been before the accident. She described him as withdrawn and worried in part because her health is precarious and that he worries about his own injuries and complaints.

[59] Dr. Elaine Jackson has been the Heinzes’ family physician since 1995. She described the plaintiff as generally in good health, although she had treated him in March 2003 for a broken toe for which he was off work for approximately six months. Dr. Jackson’s clinical notes recorded the complaints of the plaintiff and his attendances. Dr. Jackson noted ongoing complaints of low back and neck pain and headaches, but the last complaint of neck pain was six months after the accident in July 2005. The clinical records indicate that the plaintiff saw a Dr. Kaplonski twice in January 2005 when he complained of blurred vision and a very stiff and very painful neck.

[60] On cross-examination, Dr. Jackson noted muscle spasms in the plaintiff back’s in late January 2005 and that he complained of stiffness and reduced range of motion. She saw no other objective signs other than the posture of the plaintiff. Dr. Jackson agreed that it was important to get a patient back to normal activities as soon as possible and that she had told the plaintiff that it was important to be active. Her clinical records on January 24, 2004 noted “very stiff, not moving, won’t take painkiller”, and on February 1, 2005, she noted that the plaintiff was getting stiffer. Her notation was “needs to move” because not moving would lead to more stiffness and prolonged recovery. She prescribed Tyenol 3s for the first time on February 1, 2005.

[61] Dr. Jackson continued to see her patient periodically thereafter and noted muscle spasms, reduced flexion through to January 6, 2006, as well as reduced range of motion. In September 2006, she noted spasms and tenderness in the lumbar spine. It was Dr. Jackson’s opinion that an inability to reach lower than one foot from the floor was abnormal. On June 1, 2007, Dr. Jackson noted spasms and reduced flexion. Dr. Jackson did not agree that most soft tissue injuries heal within 6-12 weeks, but stated that generally, a normal healthy and fit person can go to physiotherapy and expect recovery within about six months. She agreed that physiotherapy, exercise and swimming all help towards a faster recovery.

[62] Dr. Jackson maintained that following the accident the plaintiff had chronic back pain and although he also had back pain symptoms prior to the accident, they were previously manageable. It was her opinion that the accident caused back symptoms to flare and to continue. The fact that Mr. Heinze required no medications for symptoms between April 2000 and the accident in 2005 lead her to believe that Mr. Heinze was alright until the accident but. She does not believe that his chronic and persistent complaints are the result of any degenerative disease or that his injuries are completely resolved. Although Mr. Heinze is “able” to mow the lawn, Dr. Jackson understands that this causes him pain and she believes that he has to modify his lifestyle.

[63] Dr. Jackson believes that there is a big difference between what Mr. Heinze can do and the things that he should do. It is her belief that Mr. Heinze will need medications into the future “unless something changes”.

[64] On re-examination, Dr. Jackson expressed the opinion that Mr. Heinze’s work is not the best thing for him to do but “he is not a complaining sort of guy and he has to support his family”.

Defendant’s Evidence

[65] The defendant called Dr. Randall Locht who was qualified as an expert in orthopaedics with a specialty in musculo/skeletal complaints. His medicolegal report dated April 29, 2007 diagnosed the injury suffered in the accident as follows:

… the mechanisms of the injuries, initial and subsequent symptoms, and the submitted documents all support the diagnosis of nonspecific soft tissue injuries or musculoligamentous strains to the cervical (neck) region and the lumbosacral spine (low back) regions.

[66] In arriving at a diagnosis of the plaintiff’s current condition, Dr. Locht made reference to:

… an earlier noted diffuse intervertebral disc bulging at multiple levels of [Mr. Heinze’s] lumbar spine seen on CT scanning [which] are most unlikely due to the accident, considering the frequency of this widespread age related subtle CT finding in individuals without back pain in his age group.

[67] He further opined that:

… the musculoligamentous strains, which most probably healed by 12 weeks, initiated the spinal motion loss and pain behaviour leading to the vicious circle of pain inhibited movement, learned illness behaviour (belief that there still is ongoing tissue damage from the accident) and deconditioning.

[68] Dr. Locht recommended that the plaintiff enroll in a six-week conditioning program with a kinesiologist or physiotherapist with monthly reviews for a six-month period. He opined that the basic program should include educating the plaintiff to the fact that any soft tissue injuries caused by the accident have healed and that aging is responsible for the majority of his pain; a program of aerobic conditioning to strengthen his core muscles and trunk mobility; and an education program on maintaining a fitness program.

[69] Dr. Locht gave the following prognosis:

It is difficult to determine an accurate prognosis for a clinical presentation consisting of entirely an initial, subsequent and current pain complaints along with the current pain inhibited low back motion. Nevertheless, it is reasonable to conclude that a physical pathological condition such as arthritis or intervertebral disc disruption will not develop in the future, surgical intervention will not be necessary and any disability will not develop in the future from injuries sustained in the accident of January 1, 2005. This conclusion is based on the ability of Mr. Heinze to sustain himself at work from one to two weeks post injury until now, the lack of a specific current diagnosis except for probable deconditioning, and the favourable prognosis after low back soft tissue injuries suffered in accidents.

[70] On cross examination, Dr. Locht agreed that the plaintiff has chronic back pain, but opined that it was most likely that this pain is the result of a pre-existing quiescent degenerative condition activated by the accident. He maintained that the plaintiff should keep moving as much as he can within his own tolerance level and to increase his tolerance level using medications. However, with proper care he would improve. The program which Dr. Locht considered to be appropriate was similar to the one that the physical therapist had earlier recommended to the plaintiff, with the difference that the plaintiff has to continue with the program after the recommended eight-week period and be seen monthly for six months for follow up by a physiotherapist or a kinesiologist. However, even with this program, Dr. Locht agreed that the plaintiff would not be 100% cured.

[71] On re-examination, Dr. Locht’s clinical notes, which had indicated pre-existing periodic low back pain, were put to him and he stated that the plaintiff’s natural history of low back pain would likely lead to back pain. He said that the accident did temporarily aggravate his back and that led to the plaintiff’s deconditioning. Even when Dr. Locht saw the plaintiff on April 3, 2007, two years after the accident, he described the plaintiff as “a person who is very stiff”.

[72] Francis (Frank) Taylor is a journeyman fabricator and the plaintiff’s supervisor and the working foreman at the plaintiff’s work. Mr. Taylor has been a foreman since 1991 and he has been on the same afternoon shift as the plaintiff and his supervisor since 1995.

[73] Mr. Taylor described the various duties of the plaintiff as a fitter/welder. He said that the plaintiff works on steel pieces weighing anywhere between 10 lbs and 40000 lbs with a maximum length of 60 feet. He stated that the plaintiff’s job requires heaving lifting at times and, since the accident, he has seen the plaintiff manually move metal pieces, the most heavy of which were between 100 lbs and 150 lbs. Mr. Taylor stated that, personally, he would not lift more than 50 lbs without the use of a crane. He also testified that he had seen the plaintiff push steel beams weighing around 3000 lbs through a puncher along rollers. He testified that the plaintiff uses all of the equipment in the shop except the “cold saw” and that he had seen the plaintiff use a sledgehammer to strengthen a [steel] “detail”, swinging the sledgehammer in a sideways motion.

[74] Mr. Taylor is generally on the floor during a six hour shift and able to observe the other workers, which is assisted by the open workspace. Mr. Taylor is also the first aid attendant and stated that a worker who has a work related concern is supposed to report to him.

[75] Mr. Taylor learned of the plaintiff’s accident when the plaintiff came to work on the weekend after the accident. He testified that five days after the accident the plaintiff came in and said that his back hurt and he was then off for six weeks. He then returned to work full-time with the same duties as before the accident. Mr. Taylor could not recall any modifications that the plaintiff had to do other than “punching detail”, which was a normal job for him.

[76] Mr. Taylor testified that it was only in the summer of 2007 that the plaintiff spoke with him about doing light duties, but Mr. Taylor informed the plaintiff that he was not authorized to put him on light duties.

[77] Since the accident, Mr. Taylor has seen the plaintiff do a little bit of stretching and rotating after finishing a job, but he said that every worker does that so he did not think there was anything unusual.

[78] Mr. Taylor testified after he was subpoenaed for the trial last fall he spoke with the plaintiff and thereafter noticed a change in the plaintiff, who appeared to be in discomfort. Whereas since the accident and before October 2007 he had seen the plaintiff act as if discomforted only once in a while, since he had been subpoenaed he has seen the plaintiff act this way every day.

[79] Mr. Taylor stated that the plaintiff is a very good employee who is dependable and makes very few mistakes and gets along with other workers. The plaintiff does overtime and he has never known him to turn it down unless he is tied up on some other matter. In fact, during 2007, the company had a big job and the plaintiff received a bonus for working long hours of overtime between August and the first week of December.

[80] Mr. Taylor testified that he knows that the plaintiff wears a support belt at work and said that he has worn it for “as long as I can remember”.

[81] On cross examination, Mr. Taylor maintained that he had seen the plaintiff lift metal weighing between 100 lbs – 150 lbs “all the time” and that the plaintiff had never turned Mr. Taylor down when he asked him to do any of the jobs.

[82] Mr. Taylor denied that he had a grudge against the plaintiff, a man he says who will not complain unless you asked if he is having difficulties. Mr. Taylor was aware that the plaintiff’s back hurt and he had seen him taking pain medications or pills, but said that if the plaintiff had asked for lighter duties, he would try to accommodate him. Mr. Taylor said that for example, the plaintiff could weld all of the time if he wanted to and that would be light duty working on a flat surface without any overhead reaching.

[83] Mr. Taylor acknowledged that he had spoken to the plaintiff about the case and had advised him to settle it and that he had made jokes about the plaintiff’s back.

Plaintiff’s Submissions

[84] Plaintiff’s counsel submits that his client fell into deep financial crisis as the result of not being able to work during the period following the accident and, as a result, he returned to work too soon. At that time, while many of his symptoms had resolved, he was still suffering from low back and leg pain, and occasional headaches which he treated with medications. It is only because of his poor financial circumstances that the plaintiff worked overtime when asked and used vacation time whenever possible in order to avoid lay-offs and corresponding loss of income.

[85] The plaintiff’s counsel acknowledges that his client’s poor memory makes him a poor witness. He agrees that the plaintiff is easily confused and his evidence was often unreliable, but submits that this was because he simply could not remember details. However, he states that the plaintiff’s case rests not just on his evidence but on the evidence of others, and this supporting evidence demonstrates he is not lying. The evidence clearly shows that the plaintiff had no low back pain prior to the accident and that he was active at home and in his extracurricular activities.

[86] While there is some evidence of some low back pain before the accident, that was considerably before the accident on January 1, 2005. Accordingly, when a doctor inquired about previous symptoms and the plaintiff made no mention of them, it was not because he was trying to hide the complaints but simply because he had forgotten about it or it did not occur to him as something sufficiently significant to be reported. In any event, there was no consistent prior low back pain and there is now.

[87] With reference to the medicolegal opinion of Dr. Locht, and his evidence at the that the plaintiff would have had low back pain because of his degenerative arthritis, the plaintiff’s counsel submits that the pain presently experienced by the plaintiff is far different from what he would have experienced as a result of his arthritis — the pain is constant rather than intermittent.

[88] The plaintiff’s counsel points to the fact that no doctor says that the plaintiff does not actually experience pain and his family doctor has consistently found stiffness and muscle spasms in the lower back. This is also supported Dr. Locht who found marked restriction of the plaintiff’s lumbo-sacro spine.

[89] Counsel acknowledges that the plaintiff is not exercising properly and has not followed the exercise regime recommended by the physiotherapist or Dr. Jaworski, but says that this can be corrected if he has the necessary supervision.

[90] For the appropriate award of non-pecuniary damages, the plaintiff referred me to a number of authorities including Park v. Arthur, 2007 BCSC 1365 ($35,000); Leo v. Leo 2005 BCSC 1300 ($45,000); Tardiff v. Toews, 2004 BCSC 1009 ($50,000); Kerr v. Macklin, 2004 BCSC 318 ($75,000); and Chetal v. Honig, 2007 BCSC 1464 ($40,000), all supporting an appropriate award in the range of $35,000 to $75,000 in somewhat similar situations. Counsel submits that a mid-range award of $50,000 is appropriate and consistent with the evidence and authorities.

[91] For past income loss, the parties are agreed that the sum of $6,071 is the appropriate award.

[92] The claim for future income loss/diminished earning capacity depends a great deal on whether the plaintiff will be able to work during the course of the rehabilitation program recommended by the physiotherapist. His counsel submits that given the plaintiff’s heavy workload, it would be impossible for him to continue to work full-time and fully participate in the rehabilitation program. Accordingly, counsel submits that an award $979 per week for the eight-week program results in a future net income loss of $7,832.

[93] As for the diminished income earning capacity, the plaintiff relies upon the well-known decision in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353, 35 A.C.W.S. (2d) 96 (S.C.), applied by Mr. Justice Metzger in Tardiff. Counsel submits that when one applies the Brown factors, the plaintiff is less marketable and less capable and although he has six and a half years to retirement, it is a substantial possibility that he will be working fewer hours as a result of his ongoing complaints. Accordingly, if he works three hours less per month for the following six and a half years, the loss is $7,330. If he works five hours less per month, the loss is $12,218. Accordingly, his counsel says that an award of $10,000 is appropriate under this head.

[94] The plaintiff’s counsel says that the only parts of the claim for special damages not agreed are those for the monies paid to the plaintiff’s daughter’s boyfriend who mowed the lawn at $30.00 per mow, to a total of $780.00. Otherwise, the parties have agreed to the general practitioner’s form preparation fee of $100.00, the physiotherapy cost of $84.00, the mileage cost of $32.40, and the medication expense of $167.85. Thus of the total special damages claim of $1,164.25, $384.25 is agreed, leaving $780.00 in dispute.

[95] As for the claim for cost of future care, this is based on cost of medications, which is apparently agreed to at $72.00 per year for the next seven years or $1,205.00, and the claim for the rehabilitation program at $3,310.00. The total claim for future care costs is $4,515.00.

[96] Finally, the plaintiff advances a claim for loss of household maintenance ability which, based on his payments to the boyfriend and the inability to do the repairs on his vehicle, is claimed to be worth $7,500.00.

Defendant’s Submissions

[97] The defendant’s counsel submits that a critical feature in this case is the credibility of the plaintiff and that the lack thereof affects each of his claims, particularly general damages. In particular, he stresses the failure to be consistent in his reporting of a pre-existing or prior condition, the extent of his present disability, and his failure to mitigate.

[98] The defendant’s counsel points out that the plaintiff’s counsel had acknowledged that the plaintiff was not a good witness and that much of his evidence was unreliable, even though he was otherwise an honest man. The defendant’s counsel submits that throughout the plaintiff’s evidence he has been inconsistent and has either misstated the facts or exaggerated his condition. In this regard, the defendant relies on the decision of Madam Justice Southin (as she then was) in Le v. Milburn, [1987] B.C.J. No. 2690 at para. 2 (S.C.):

When a litigant practices to deceive whether by deliberate falsehood or gross exaggeration, the court has much difficulty in disentangling the truth from the web of deceit and exaggeration. If, in the course of disentangling of the web, the court casts aside as untrue something that was indeed true, the litigant has only himself or herself to blame. In this case there has been some deliberate falsehood and some exaggeration.

[99] I do not understand defendant’s counsel to be saying that there has been deliberate falsehood, but I do understand her to be submitting that there has been mis-statement and exaggeration and these directly impact on the reliability of the plaintiff’s evidence. Counsel also directs me to the judgment of O’Halloren J.A. in Faryna v. Chorny, [1952] 2 D.L.R. 354 at 355, [1952] 4 W.W.R. 171 (B.C. C.A.):

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test by 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.

[100] Turning to the evidence in the case, the defendant’s counsel pointed to a number of areas where the plaintiff is said to have either misstated or exaggerated his evidence. In particular, while he said in direct that he did not push heavy items, on discovery he said he pushed and pulled weights up to 100 lbs., on cross examination that claimed that the weight of these items was not as high as a 100 lbs.

[101] The plaintiff had testified in chief that when he went back to work after the accident for one or two months, he performed light duties such as mostly punching metal and sweeping the floors and only some occasional welding. However, on cross examination, he testified that he did not do the punching for one to two months and that he only did light duties for about a week. As for the sweeping, he said that it was around his own workstation. Further, he said that he only did the punching for two or three days, then welded for two or three days, and then went back to his regular duties. Later, the plaintiff agreed that when he went back to work full-time to regular duties. This evidence was supported by the Frank Taylor, the plaintiff’s immediate supervisor.

[102] Counsel says that the plaintiff’s evidence must be weighed in light of Dr. Jaworski’s report which noted that on August 9, 2007 the plaintiff had told him that he was only on light duties, a statement which the plaintiff admitted on cross examination was not correct.

[103] In his evidence in chief, the plaintiff was very clear of the precise dates when he saw particular doctors, his complaint and when he experienced them, and about his return to work after the accident. However, on cross examination, he testified that he did not really remember these details: “It’s been so long I can’t really remember.”

[104] The evidence of the plaintiff’s witnesses was that the plaintiff did not really have a good recollection. Dr. Jaworski reported that the plaintiff had told him that he did not really remember the first week after the accident and that he had returned to work within one or two weeks. The plaintiff admitted reviewing the documents before the trial in order to be able to say that he was off work for six weeks, but he had no specific memory without that and had told Dr. Jaworski that “he possibly had some time off but not sure about that”. Another example of the plaintiff’s exaggeration or misstatement was his evidence concerning the lawn mowing done by his daughter’s boyfriend. He stated in his evidence in chief that he clearly remembered that the boyfriend had mowed the lawn 21 times at a cost of $30.00 per mow. In his examination for discovery, the plaintiff had testified that he himself had mowed the lawn only once in a “blue moon”.

[105] The defendant’s counsel submits that these examples demonstrate that the plaintiff guesses and is not careful in his evidence. This is important in assessing the weight to be given to his evidence. Another example was the plaintiff’s evidence of the quantity of Tylenol 3s and Flexoril, which, according to him, he takes three or four times a day. This evidence is not supported by the evidence of his doctor, Dr. Jackson, who said that he could not possibly be taking that much medication.

[106] Another example is the evidence Mr. Taylor, who said that he had noticed nothing unusual about the plaintiff’s behaviour or activities after the accident until shortly before the trial, and then he seemed to be “exaggerating his pain”. The defendant’s counsel submits that Mr. Taylor’s evidence is credible and, contrary to what was put to him on cross examination, it is not based on a grudge. The fact that Mr. Taylor had spoken with the plaintiff and suggested that he settle his case was really the result of a genuine concern that the plaintiff might lose because he had seen the plaintiff doing his normal hard work without signs of pain or discomfort and without complaint and he felt that his evidence would not support the plaintiff’s case.

[107] Yet another example suggested by the defendant’s counsel is that the plaintiff exhibited no pain behaviour when he was seen on various occasions by Dr. Jaworski, but he did display pain behaviour when he was seen by the independent medical examiner Dr. Locht. This, in the defendant’s submission, supports the conclusion that the plaintiff is inclined to exaggerate his symptoms.

[108] Defendant’s counsel submits that “the bottom line” is that the plaintiff’s evidence is not supported by other witnesses and even by his own later evidence. Accordingly, it is difficult to determine what is a fact, what is a guess, and what is an exaggeration. The court must be cautious in approaching and assessing the nature and extent of the plaintiff’s injuries. The defendant’s counsel relies upon the decision of McEachern C.J.S.C. in Price v. Kostrba (1972), 70 B.C.L.R. 397 at 4 (S.C.):

Perhaps no injury has been the subject of so much judicial consideration as the whiplash. Human experience tells us that these injuries normally resolve themselves within six months or so. Yet every physician knows some patients whose complaints continue for years, and some apparently never recover. For this reason, it is necessary for a court to exercise caution and to examine all the evidence carefully so as to arrive at a fair and reasonable compensation.

[109] And also at 2:

I am not stating any new principle when I say that the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending upon the normal or usual recovery.

[110] I would note, however, that here there is independent evidence, particularly that of Dr. Jackson, who consistently saw muscle spasms in the plaintiff’s low back since the accident and there is the evidence of the plaintiff’s wife and his daughter of the restrictions on the plaintiff’s activities.

[111] The defendant’s counsel says that the plaintiff returned to full-time and regular duties and made no request to modify his work to accommodate any restriction or impediment. Mr. Taylor had testified that the plaintiff can will be able to do welding, which is apparently a lighter duty, until he retires. Moreover, Mr. Taylor had testified that he saw the plaintiff handling very heavy pieces of metal and using a heavy sledge hammer to shape pieces of metal. The defendant submits that all of this demonstrates that the plaintiff has not been having much difficulty at work. He supports this submission by pointing to the facts that he has not asked for additional time off work because of a sore back; works long hours and as much overtime as he can get; his supervisors are happy with him and his work; and he has not done anything to lighten work activities and has not asked anyone for assistance. The defendant submits that this is important and compelling evidence that the plaintiff has not had any employment problems after the accident. If the plaintiff was stoically suffering, then there would be some evidence of this such as use of mechanical aids at work or asking others for assistance. Moreover, the defendant submits that the evidence of plaintiff’s heavy work and his ability to perform it is inconsistent with his evidence that he is not able to do leisure activities such as fishing, camping or long walks.

[112] The defendant’s counsel also focuses the defendant’s prior back problems. While he testified that he had no memory of prior back complaints, his wife testified that he had some but nothing significant, and his general practitioner said that he did have some history going back to 1993 with further complaints in 1995, 1998 and 2000. The plaintiff’s doctor had in fact diagnosed his condition as degenerative arthritis. The defendant says that there is ample medical evidence of the plaintiff’s prior medical condition provided by Dr. Jackson, Dr. Jaworski and Dr. Locht. In fact, the plaintiff even wears a support belt at work, which shows that at the very least he is aware of his back condition and he had worn the belt since well before the accident.

[113] Dr. Jaworski wrote his report without knowing that the plaintiff had prior back complaints because the plaintiff had not told him of them and he did not have the clinical records of Dr. Jackson. Nevertheless, he noted prior back complaints.

[114] Dr. Locht had seen the clinical records and he was of the opinion that the plaintiff had chronic back problem, albeit with peaks and valleys. The defendant submits that although the accident caused a temporary aggravation of his pre-existing condition, the plaintiff’s present problems are the result of his deconditioning and his learned pain behaviour.

[115] The defendant submits that the plaintiff has failed to mitigate. He has often been told by his advisors, his doctors and the physiotherapist, that he must keep active and exercise and get back in shape, but has failed to do so. Every doctor has advised him of this. As the plaintiff described his exercise regime, it clearly shows that he is not following the program and if he would follow the program properly, his core muscles would be strengthened and he would not be deconditioned.

[116] Further, it is noteworthy that although the physiotherapist had recommended a fitness program and the plaintiff did not pursue it because he said he could not afford it, he had not even checked the cost.

[117] It was Dr. Jaworski’s opinion that a failure to follow an exercise regime would prolong the recovery and that suitable exercises would take only fifteen to twenty minutes a day. As the plaintiff testified that he stops doing a stretching exercise as soon as he feels pain, his own evidence admits that he has not done even the minimum requirements.

[118] In these circumstances, the defendant submits that the plaintiff’s inactivity and lack of exercise has lead directly to his deconditioning and a prolonging of his pain and complaints. Dr. Locht testified that if the plaintiff were motivated enough to do the reconditioning he would recover, although he acknowledged that it would not be a 100% recovery.

[119] In these circumstances, the defendant submits that any award of non-pecuniary damages should be discounted by 25-30% because it is clear that the plaintiff is not the things that medical evidence indicates he is capable of.

[120] The defendant’s counsel referred me to a number of authorities dealing with appropriate ranges of compensation for similar plaintiffs with similar complaints, including:

· Wild v. Toth, 2004 BCSC 1449, Humphries J. awarded $10,000.00 for a mild whiplash injury to the low back with pain tapering off after ten months. There was an expectation that the plaintiff’s discomfort would dissipate completely.

· In Gladysh v. Cymbaluk, 2003 BCSC 485, Lamperson J. awarded $14,000 to a plaintiff who had improved by 75-80% within three and a half months of the accident but had since plateaued and continued to suffer morning stiffness and soreness was awarded. His wife, also a plaintiff, who had symptomatic spinal problems prior to the accident and a congenital fusion of two vertebrae in the back, was diagnosed with cervical strain and had improved approximately by 70%, was awarded $17,000.00.

· In Cowan v. Farmer, 2001 BCSC 1006, Williamson J. awarded $18,000.00 to a 35 year-old male with a pre-existing heart condition and who was still experiencing headaches, low back pain, hip pain and burning between the shoulder blades 15 months after the accident. His wife, also a plaintiff, had similar difficulty with headaches and upper body pain and was awarded $15,000.00 for injuries that were described as “moderately serious” but with a prognosis for a good recovery.

[121] The defendant’s counsel submits that although the plaintiff’s complaints are somewhat greater than those in the authorities just referred to, they are significantly affected by his failure to follow the recommended fitness program. Accordingly, the appropriate range for damages is $15,000-$18,000 which should be discounted by 25% to 30%.

[122] Although the past wage loss is agreed, the defendant disputes the claimed future income loss and diminished earning capacity. The defendant’s counsel points to the fact that there is no evidence that the plaintiff could not do the rehabilitation program and work at the same time; this being the foundation for the plaintiff’s claim for future wage loss during the eight weeks of the rehabilitation program. Accordingly, the defendant’s counsel submits that there should be no award under this head.

[123] As for the claim for compensation for diminished earning capacity, counsel referred me to the decision in Steward v. Berezan, 2007 BCCA 150 at para. 16, 64 B.C.L.R. (4th) 152, which revisited Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.) and Parypa v. Wickware (1999), 65 B.C.L.R. (3d) 155, 169 D.L.R. (4th) 661(C.A.):

16 The judge appears to have lifted the phraseology "it is impossible to say..." from the judgment of Southin J.A. in Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (B.C. C.A.) at 59, quoted in Parypa v. Wickware, 169 D.L.R. (4th) 661, 1999 BCCA 88 (B.C. C.A.):

63 This passage makes it clear the principle that it is not the lost earnings themselves that must be compensated, but the loss of earning capacity as a capital asset that requires compensation. There are several cases in this court which confirm that the capital asset approach is correct: Earnshaw v. Despins (1990), 45 B.C.L.R. 380; Palmer v. Goodall [citation omitted]; and Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393. The significance of compensating earning capacity as a capital asset as opposed to projected future earnings is seen in the following passage from Palmer, supra, at 59:

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

[emphasis in Steward]

[124] At paras. 17 and 18, Donald J.A. wrote:

17 But the language in question there was used in the context of appellate review and with respect, it cannot be transported to an original analysis at the trial level. The claimant bears the onus to prove at trial a substantial possibility of a future event leading to an income loss, and the court must then award compensation on the estimation of the chance that the event will occur: Parypa, para. 65.

18 When the record is examined according to that approach, I cannot see the basis for a substantial possibility giving rise to compensation for diminished earning capacity. There being no other realistic alternative occupation that would be impaired by the accident injuries, the claim for future loss must fail.

[125] The defendant’s counsel submits that the words of Donald J.A. are apposite. Here, there is no evidence that there is any impairment of the capital asset. The plaintiff continues to work full-time at his regular job and has had no time off because of any complaints. He has testified that he is happy at his job and that he will remain there until he retires. His supervisor has testified that he is happy with him and that if he experienced difficulties he could be put on the less physically onerous task of welding. Finally, the plaintiff’s income has increased. In all the circumstances, the plaintiff has failed to prove a substantial possibility that there is any diminished income earning capacity or that his capital asset has been impacted.

[126] Turning to the claim for compensation for future care costs, the defendant submits that the only reason for the rehabilitation program is because the plaintiff has not done what he was supposed to have done as recommended by Dr. Jaworski. If he had followed the advice of his physiotherapist in 2005, the advice of his general practitioner to keep active, or the advice of Dr. Jaworski to follow a fitness regime, the present program would not be required. Accordingly, the defendant submits that this claim should not be allowed or, if it is allowed, then it ought to be discounted by 25% to 30% for the plaintiff’s failure to follow medical advice.

[127] Similarly, the claim for the cost of future medication should not be allowed. Dr. Locht has testified that the plaintiff will get better if he does what he is required to do and follows the exercise program. Alternatively, the claim for future medication costs ought to be discounted, again because the plaintiff has failed to take appropriate steps to mitigate his loss.

[128] With reference to the claim for the loss of abilities as a handyman, the defendant submits there is no evidence of what this would amount to in terms of a dollar amount other than the hotly contested cost of lawn mowing. In any event, if the plaintiff does follow the rehabilitation/retraining program as recommended, he should be able to do these things.

[129] Finally, with reference to the claim for special damages, the only portion of which is disputed is the cost of the lawn mowing, the defendant says this has not been proven and the court ought to draw an adverse inference from the failure of the plaintiff to call the daughter’s boyfriend to support the evidence.

[130] In reply, the plaintiff’s counsel submits that it would be a harsh world if the plaintiff were held to the legal wisdom of a lawyer or medical wisdom of a doctor in knowing precisely what mitigation was required of him. His counsel submits that the plaintiff has provided ample evidence of his exercise regime that he has been endeavouring to follow spending approximately two hours each day. The fact that he stops when he encounters pain is understandable. His doctors told him to simply “keep moving” and he did do that and in fact returned to work within approximately six or eight weeks after the accident. His work is in itself a workout, so much so that at the end of the day “he has nothing left”. Although the defendant argued that the plaintiff has not done the exercises as required in order to be effective, the evidence shows that he does doggedly does the exercise program everyday.

Conclusions and Orders

[131] I do not find that the plaintiff has attempted to deceive or mislead the court as to his injuries or symptoms. Admittedly, he is not the “best of witnesses”, and there were a number of inconsistencies between his evidence during the trial and at his examination for discovery, but my overall impression is that he was attempting to relate his injuries and symptoms to the best of his ability. That said, however, as his counsel acknowledged, he was a “poor witness” with a “poor memory” and he is a man who was and is beset with a number of family and financial difficulties, which have not assisted in his recovery from the injuries he suffered in the accident. Further, he is an extremely hard working individual with an excellent work history and a good work reputation. He works long hours and is extremely tired at the end of the work day. Understandably, he would find it difficult to perform the exercises so necessary for his speedier recovery, and his natural fatigue coupled with the pain has induced him to not consistently perform the core fitness exercises recommended by his doctor, the physiotherapist, and the specialists. This failure has led, I conclude, to prolonging his symptoms.

[132] I conclude that the plaintiff suffered a mild to moderate soft tissue injury the symptoms of which were exacerbated by his very heavy work duties, his financial worries, and the poor health of his wife and daughter. The combination resulted in a lack of motivation to adequately do the exercises and instead, a reliance on medications, which his wife supplied. On the evidence before me, I find that the injuries to his neck and upper back had more or less resolved within ten to twelve months after the accident with occasional flare-ups. It is probable that even with appropriate exercising, these symptoms would have persisted that long because he was obliged to return to work too early.

[133] There has been a substantial impact on his enjoyment of life and I am satisfied that he is not able to participate in family activities as much as he could before, including doing the Grouse Grind and fishing with his daughter. His ability to perform previously done housework has also been affected, although I am not satisfied on the evidence of the extent of gardening/lawn mowing help required. The daughter’s boyfriend could have been called as a witness and the failure to do so or explain his absence rightly allows the defence to suggest that I should draw an adverse inference, and I do so. Nevertheless, I accept that the plaintiff is not as able to bend or stoop to paint or do repairs to the house and his car. Further, in part because of his pain, his marital relations with his wife have been affected.

[134] Taking all that into consideration I find that the appropriate compensation for his non-pecuniary loss is $40,000, but this amount must be reduced because of what I find has been a significant failure on his part to mitigate his injuries. He has failed to abide by the doctors’ and physiotherapist’s advice to engage in an appropriate exercise program. Although he said that he could not afford the program, he admitted that he had not even taken any steps to enquire as to the cost. Further, the plaintiff has not diligently performed the exercises that can be done at home and stops at the first sign of pain. He relied and relies too heavily on painkillers when, in the opinion of the medical experts, he should be properly exercising. The defendants are not obliged to compensate a plaintiff who fails to take proper steps to reduce the extent of the loss. Accordingly, I would reduce the non-pecuniary damages as well as some other heads of damages by 25% to reflect this failure and set them at $30,000.

[135] The claim for past wage loss is allowed at the claimed amount of $6,071. The future wage loss is set at $3,000 because, in part, of the failure to mitigate but, more importantly, because I conclude the plaintiff’s ability to work will at the most only be affected for a maximum of three weeks by any stiffness or pain resulting from an exercise program. The reduced award reflects the failure to mitigate and the probability that the plaintiff will work though his pain, most likely after three weeks. I find that the plaintiff will be only slightly limited in his work during the first three weeks of the rehabilitation programme and the future wage loss is limited to that extent.

[136] Turning to any diminished capacity, I conclude that this claim has not been made out. The plaintiff’s foreman speaks most highly of his abilities and his dependability. Since the initial six-week recovery time after the accident, the plaintiff has worked his normal shifts, and in fact he has worked long hours of overtime, including increased overtime over the past year. Finally, as Mr. Taylor noted, the plaintiff could do lighter duties such as welding on a flat surface or other arrangements could be made to accommodate his limitations, if any. Accordingly, I do not find that the plaintiff fits within any of the factors set out in Brown entitling him to compensation under this head of damages.

[137] The claim for special costs as agreed is allowed save for the claimed cost of lawn mowing paid to the daughter’s boyfriend. It is unsupported by any documents, the plaintiff himself only mowed the lawn once in awhile, and the boyfriend was not called. I would have allowed a component for the cost of car repairs, but there is no evidence of the actual cost that the plaintiff had to pay, nor of any predicted future costs.

[138] The cost of future care for the treatment/rehabilitation program is allowed without deduction. This was a program which the plaintiff should have undertaken earlier and it ought to have been paid or provided for earlier. I do not allow any claim for home care or household assistance unless there is some agreement between the parties as to its cost. Accordingly, and based on an agreed cost for medications at $1,205 and the cost of the exercise program, the future care costs are allowed at $4,515.

[139] On the issue of costs, unless there are any circumstances of which I am unaware, the plaintiff is entitled to his costs, but counsel may speak to that issue if necessary.

Summary

	Amount
Non-pecuniary award	$30,000
Past wage loss	$6,071
Future wage loss [based on only 3 weeks at $979/week net] rounded	$3,000
Loss of Capacity	Not Allowed
Special damages	$384.25
Future care costs	$4,515

“The Honourable Mr. Justice Warren”

Citation:	*Heinze v. Dulay and Nissan Canada Inc.,*
	2008 BCSC 969