2009 BCSC 38 Moojelski v. Edwards

Before: The Honourable Mr. Justice Pitfield

Reasons for Judgment

Counsel for the Plaintiff:	D.J. Brown P.J. Armitage
Counsel for the Defendants:	R.J. Merlo
Date and Place of Trial:	December 1-5, 8-10, 2008
	New Westminster, B.C.

Introduction

[1] The light-weight Toyota truck which Nicolas Moojelski was driving, accompanied by his passenger Richard Knotts, was struck from behind by a Ford 150 truck owned by Adam Cook, but driven by Ms. Terry Edwards. Mr. Moojelski brings this action claiming general damages, pecuniary damages in respect of lost wages, impaired earning capacity, and the cost of future care, and special damages on account of injuries sustained in the accident.

[2] Mr. Moojelski claims Ms. Edwards negligently operated the vehicle she was driving and was solely responsible for the accident. Ms. Edwards claims that she did not cause, and could not have avoided, the collision with the result that she should not be found liable.

[3] Mr. Knotts has commenced a separate action for damages in relation to the accident.

Liability

[4] The accident occurred at approximately 7:00 p.m. on May 24, 2005, at the intersection of 116th Street and 88th Avenue, in the City of Surrey, British Columbia. The parties differ with respect to the manner in which the accident occurred.

[5] Mr. Moojelski testified that he was travelling northbound on 116th Street. He stopped for a traffic control light at the intersection with 88th Avenue. He recalled that there were three vehicles, one of which was owned by a friend, Evan Thompson, ahead of his vehicle at the intersection. Mr. Moojelski testified that the light changed and as he was about to move forward with the traffic, his vehicle was struck from behind. He testified that after the impact, Mr. Knotts got out of the vehicle, but got back in whereupon Mr. Moojelski drove the vehicle to the intersection where he turned right on 88th Avenue and stopped. The defendant followed. The drivers exchanged information.

[6] Mr. Knotts testified to like effect. He said that their vehicle was stopped when it was struck from behind at a point south of the intersection, he got out of the vehicle and then got back in, and he drove with Mr. Moojelski to 88th Avenue where they turned right and stopped.

[7] Evan Thompson, a friend of Mr. Moojelski, testified that he was first in the line of traffic stopped at 88th Avenue. He had seen the Moojelski vehicle enter 116th Street and knew it was behind him. Thompson testified that he recalled that there were two vehicles between his and the Moojelski vehicle when they were stopped at the light. After the light changed and he had proceeded through the intersection, Thompson saw the Moojelski vehicle turn right on 88th Avenue. He called Mr. Moojelski by cell phone to ask where he was going. Mr. Moojelski told him of the accident. Thompson dropped off a passenger and eventually returned to the scene.

[8] None of the evidence adduced by the plaintiff in relation to the mechanics of the accident was undermined on cross examination.

[9] In her defence, Ms. Edwards testified that she and a passenger, Ms. Jewkes, were travelling northbound on 116th Street. She described the day as clear and sunny. The sun was setting to her left as she proceeded north. She testified that the vehicle she was driving was equipped with two sun-shades, one of which she moved to block or reduce the effect of the setting sun through the driver's door window. She also used her hand to block out the sun. Ms. Edwards testified that she noticed the plaintiff's vehicle in front of her, she stopped at the traffic light at 88th Avenue for approximately one minute, and she began moving forward when the traffic ahead of her, including the plaintiff's vehicle, began to move. She testified that when the front of her vehicle had crossed the pedestrian cross-walk into the intersection, the vehicle in front of her, which was Mr. Moojelski’s truck, "slammed on [its] brakes" and the collision ensued.

[10] In cross-examination, Ms. Edwards testified that when stopped at the red light for approximately one minute, she was approximately 15 feet back from the intersection. She did not recall how many vehicles were stopped in front of her at the intersection.

[11] Ms. Jewkes, the passenger in the Edwards vehicle, testified that the accident occurred at the intersection of 116th Street and Nordel Way, an intersection located south of the intersection of 116th Street and 88th Avenue. Ms. Jewkes testified that she recalled the Edwards vehicle being stopped at the red light with some four or five cars in front of it. She testified that when the light turned green, all vehicles proceeded forward. When half-way through the intersection, the truck ahead of the Edwards vehicle "slammed on its brakes - we hit them." She testified that the collision occurred when the defendant's vehicle was in the middle of the intersection. After the impact, Ms. Edwards followed the Moojelski vehicle north to the intersection of 116th Street and 88th Avenue where both turned right on to 88th Avenue and stopped.

[12] I prefer the evidence adduced by the plaintiff to that adduced by the defendants regarding the mechanics of the accident.

[13] The evidence of Ms. Jewkes regarding the location of the accident is markedly different from the evidence of all others who testified to the point. I expect that her recollection has been affected by the passage of time. I find as a fact that the accident occurred in the vicinity of the intersection of 116th Street and 88th Avenue. Because her evidence on that basic point is unreliable, I am not prepared to accept her evidence that the accident occurred in any intersection.

[14] Had the collision occurred in the middle of the 116th Street and 88th Avenue intersection, it is unlikely that Mr. Moojelski would have been able to turn right onto 88th Avenue. On the evidence of Ms. Edwards and Ms. Jewkes, the front of the Moojelski vehicle would have been through or almost through the intersection, making a right turn very difficult, and most likely impossible.

[15] The reliability of Ms. Edwards' evidence is undermined by her recollection that when she was stopped at the traffic light, the front of her vehicle was approximately 15 feet from the intersection where the accident occurred. That observation is inconsistent with the evidence of Mr. Moojelski who testified to three cars being between his vehicle and the intersection, and that of Evan Thompson, who recalled that two vehicles were between him and the Moojelski vehicle. Her evidence is also inconsistent with the evidence of Mr. Moojelski and Mr. Knotts that Mr. Knotts got out of the Moojelski vehicle immediately after impact and got back in before Mr. Moojelski drove ahead to turn right on to 88th Avenue.

[16] In sum, I do not find the evidence of Ms. Edwards and Ms. Jewkes regarding the accident to be reliable. I find it more likely than not that Ms. Edwards' attention was diverted from her responsibility as a driver by her efforts to block out the sun, which she acknowledged was affecting her ability to see. I find as a fact that the Moojelski vehicle was stopped at the traffic light controlling the intersection of 116th Street and 88th Avenue, there were three vehicles in front of it, and as Mr. Moojelski was ready to move forward with the traffic when the signal changed to green, his vehicle was struck by the vehicle driven by Ms. Edwards who was not exercising due care and attention. I find as a fact that the accident occurred at a point where neither the Moojelski vehicle nor the Edwards vehicle was in the intersection of 116th Street and 88th Avenue. I find as a fact that Ms. Edwards' negligence was the sole cause of the accident.

Vehicle Damage

[17] The Moojelski vehicle was an older model 1984 Toyota truck from which the box had been removed to be replaced by a flat bed. Very slight damage was done to the vehicle. The rear bumper was displaced by approximately one centimetre. The flat bed was moved forward by approximately one millimetre. The cost to repair was estimated at less than $300. In fact, Mr. Moojelski accepted a $200 cash payment in lieu of any repairs to the vehicle.

[18] The damage to the Edwards vehicle was more extensive. It was a newer model 1999 Ford 150 truck equipped with a bush bar. On impact, the bush bar was moved backwards resulting in some damage to the bar, some damage to the bumper, and some denting to the fender and hood. The estimated cost of repair was $2,457.07.

[19] Mr. Robin Brown, an expert in the analysis of the mechanics of motor vehicle accidents, testified on behalf of the plaintiff. He had been able to inspect the Moojelski vehicle, but not the Edwards vehicle. Working from the observations he was able to make, photographs, and estimates of repair costs, as well as industry data relating to the construction of the two vehicles, he estimated that the change in speed of the Ford 150 at impact was in the range of 8 to 10 kilometres per hour, while the change in speed of the Toyota was in the range of 12 to 15 kilometres per hour. He attributed the differences in the ranges to the fact that the F150 truck weighed more than the Toyota. Mr. Brown did not provide any estimate of the speed at which either vehicle was travelling at impact. The purport of his evidence was that the speed of the F150 was reduced by 8 to 10 kph, and that of the Toyota, increased by 12 to 15 kph upon impact.

[20] It is apparent, and I find as a fact, that the force of the impact was mild.

Nature, Extent and Severity of Injuries

(a) General Treatment

[21] Mr. Moojelski was 22 years of age at the date of the accident. He had been wearing a three-point seatbelt. He visited his physician, Dr. Wilson, on May 25, 2005, complaining of pain in his lower back. He did not report headaches or neck pain. Dr. Wilson observed that flexion and extension in the back were limited. Mr. Moojelski was diagnosed to have sustained a lumbar strain. Dr. Wilson recommended range of movement exercises and the application of ice to the affected areas three times a day. He prescribed an anti-inflammatory and a muscle relaxant. He considered Mr. Moojelski unfit for work and advised him to attend for follow-up approximately a week later.

[22] In subsequent visits, Mr. Moojelski continued to report lower back pain. In late June and early July, he reported neck pain. On July 13, 2005, Dr. Wilson diagnosed cervical strain and back strain. No change in treatment was prescribed. By September 1, 2005, physical examination showed minimal tenderness and a full range of movement of the neck and back. The diagnosis remained that of cervical strain and lumbar strain. Dr. Wilson recommended that Mr. Moojelski return to work. Otherwise there was no change in therapy.

[23] Mr. Moojelski returned to work on September 12, 2005. He began working 4.5 to 6 hours per day. The shorter days were those on which he was excused to attend physiotherapy appointments. At the time, he was employed by HMS Lumber Ltd., a company that was engaged in the business of drying lumber and then planing and milling it into various products, including stair railings and spindles. Mr. Moojelski was employed in the packaging department where he assembled pallets of finished materials, wrapped and banded the pallets, and moved them by forklift for loading onto transport trucks.

[24] On March 17, 2006, Mr. Moojelski told Dr. Wilson he had received acupuncture treatment on March 16. He reported that the treatment, which does not appear to have been prescribed by Dr. Wilson, provided no real relief from his symptoms.

[25] On March 28, 2006, Mr. Moojelski reported altered appetite, irritability, social avoidance and a feeling of being overwhelmed at times. Dr. Wilson diagnosed depression associated with the back injury. He prescribed an anti-depressant.

[26] Appointments with Dr. Wilson continued. In November 2006, Mr. Moojelski told Dr. Wilson he had begun using marijuana, which he found provided some relief. Dr. Wilson instructed Mr. Moojelski that the consumption of marijuana in conjunction with anti-depressants was not recommended. He renewed the prescription for the anti-depressant. Mr. Moojelski did not fill it. He continued to resort to marijuana which had not been prescribed by Dr. Wilson.

[27] Mr. Moojelski continued his appointments with Dr. Wilson until March 18, 2008, which marked the last visit. In the period from May 25, 2005 to March 18, 2006, Mr. Moojelski saw Dr. Wilson on 48 occasions regarding complaints associated with the accident.

[28] Other aspects of Mr. Moojelski's medical history are relevant. In March 2007, he was involved in a physical altercation in which he sustained a fractured jaw when he was punched in the face. He fell or was knocked to the ground on that occasion. The fracture required surgery and his jaw was wired shut for a period of time. In September 2007, Mr. Moojelski tripped and broke his ankle. That fracture was repaired by surgery and the insertion of metal parts, which were eventually removed by further surgery.

[29] Dr. Wilson referred Mr. Moojelski at the request of his lawyer for an MRI scan of his lower back. The scan was performed October 11, 2007, after the jaw and ankle fractures had been sustained. The scan indicated some abnormalities in the spine, including mild loss of disc height between various vertebrae, a small to moderate mid-line focal disc protrusion in the area of the L4-L5 vertebrae, a moderate loss of disc height with a small mid-line focal disc protrusion and associated annular or internal tear in the vicinity of L-5, S-1. The scan also showed some moderate lumbar spondylosis, which Dr. Wilson described as a degenerative condition affecting the spine.

[30] Dr. Wilson did not offer any opinion as to the etiology of the findings in the scan. No expert evidence was adduced which would attribute any of the possible abnormalities to the motor vehicle accident of May 24, 2005.

(b) Return to Work

[31] As previously noted, Mr. Moojelski returned to work on September 12, 2005, after an absence of almost four months from the date of the accident. Upon his return, his work day was initially 4.5 hours. By October 3, 2005, the work day had increased to 6 hours. Thereafter, Mr. Moojelski worked days that varied in length from 4.5 to 6.5 hours, with a few intermittent 8 hour work days.

[32] Mr. Moojelski was absent from work because of the fractured jaw from March 5 through March 30, 2007. Upon his return, he generally worked 6 hours per day except on days when he received physiotherapy treatments, when he generally worked 4.5 hours.

[33] Mr. Moojelski was absent from work in the period September 4, 2007 through February 15, 2008 because of the ankle fracture. Upon his return on February 18, 2008, he generally worked 8 hour days unless he was excused for physiotherapy treatment in which case the work day would usually consist of 4.5 hours. The return to the 8 hour day in February 2008 closely corresponds to the curtailment of his treatment by Dr. Wilson in March 2008.

[34] Mr. Moojelski continued his 8 hour days at work until September 12, 2008 when he was laid-off because of the reduction in his employer's workload, and the employer’s determination that Mr. Moojelski was less productive than his co-workers.

(c) Surveillance Videos

[35] Mr. Moojelski was observed on May 26 and 27, 2005 and from May 11 through May 19, 2006 by private investigators retained by ICBC. The video of Mr. Moojelski's movements on May 26 and May 27, 2005 demonstrates that at that time he was somewhat slow to move, his body seemed somewhat seized, and he was slow to get into his vehicle. The video of his activities in May 2006 indicates that by then, one year post-accident, he had no trouble getting in and out of a vehicle, he could easily reach for his seat belt, he could do a head turn to detect traffic to his left, he was able to drive in reverse and able to raise the hood of a vehicle and hold it up for a period of time with one arm without changing hands. The video indicates that after closing the hood, Mr. Moojelski was able to walk back to his employer's workplace in a normal manner. He showed no sign of pain.

[36] At trial, Mr. Moojelski testified that he now experiences lower back pain which radiates upward after repetitive movement. He says the neck pain that he experienced has subsided, nightmares of the accident have ended and his sex drive has decreased. He describes coping with his back as stressful and something that affects his sleep.

(d) Rehabilitation

[37] After the accident, Mr. Moojelski acted on the recommendation of Dr. Wilson and sought the assistance of physiotherapists at Sun God Sports and Orthopaedic Physio, with whom he had 162 appointments in the period from June 6, 2005 through November 27, 2008. The invoices rendered cryptically described the service as "prolonged visit physio -10 min direct +30 min." The description of the service rendered did not change on any invoice from June 9, 2005 through June 23, 2006. Thereafter, the invoice described the service in an equally cryptic manner as "follow-up physiotherapy visit." By March 4, 2008, the description had been amended to "subsequent visit - physiotherapy." None of the physiotherapists who provided services to Mr. Moojelski were called to testify. Apart from Mr. Moojelski's testimony, there is no evidence with respect to any aspect of the treatment afforded him, his response to it, or a physiotherapist's perception of his commitment to rehabilitation.

[38] Mr. Moojelski described the nature of the exercises that had been suggested by the physiotherapists. He testified generally to the frequency with which he performed the exercises and the number of repetitions involved. In the course of his testimony, he stated that he would perform the exercises that did not aggravate the discomfort or pain he was feeling, but he would refrain from performing those that he perceived to aggravate the pain or discomfort.

[39] Of his own accord, Mr. Moojelski began exercising by swimming in January 2008. The evidence does not permit me to make any finding with respect to the regularity or vigour with which he pursued that exercise.

(e) Medical Assessments

[40] On October 13, 2007, Mr. Moojelski was assessed at the suggestion of his counsel by Dr. le Nobel, a specialist in physical medicine and rehabilitation. Dr. le Nobel described Mr. Moojelski as a "heavy-set and out of shape looking 25 year-old man." He detected nothing abnormal on physical examination and he found nothing on a lumbar spine x-ray taken May 17, 2006 that would indicate any abnormality.

[41] Dr. le Nobel stated that he found Mr. Moojelski to be deconditioned:

Nicholas [sic] Moojelski is, I believe, deconditioned. There is potential benefit for considerable improvement through application to a more structured progressive fitness reconditioning programme, using non-impact cardiovascular fitness training, core muscle strength training, regular flexibility stretches on a daily basis, as well as progressive resistance strength training, using light weights and high repetition. With such exercise protocols, Nicholas Moojelski will, I believe, have his best chances for functional improvement, in terms of once again being able to engage in his pre-accident activities.

Given the time elapsed since being injured, I would allow for a period of six to eight months, in order to experience the majority of benefit likely to accrue with which methods. During that time, it is to be understood that he will be exposed to aggravation of his symptoms from time to time, due to post exercise ache. In order to lessen his chances of having to reduce his exercise quota due to post exercise ache, I believe he should have access to encouragement and supervision from a physiotherapist or kinesiologist, as well as access to adjunctive pain relieving measures, including physical treatments, and medications. With such an exercise programme, there is potential for him to return to more or perhaps all of his prior activities and capabilities. I am not anticipating that other types of treatment will be helpful or recommended to Nicholas Moojelski. I do not believe that surgery would be of help to him. A full return to all of his prior activities in a symptom free state is, however, not certain. In that respect, his prognosis is felt to be guarded. [emphasis added]

[42] In the course of his testimony, Dr. le Nobel confirmed his opinion that there had been little or no progression or increase in the exercise level undertaken by Mr. Moojelski, he was exercising at a minimal level, and the increased levels required to re-condition Mr. Moojelski would be painful. Dr. Le Nobel recommended that Mr. Moojelski might be assisted by a referral to a psychiatrist, since what Mr. Moojelski reported to him suggested that pain was leading to distress which heightened pain which, in turn, heightened the level of distress. It is not apparent whether Dr. le Nobel was aware that Mr. Moojelski had been prescribed anti-depressants in March 2006, but had discontinued their use in November 2006, without medical consultation.

[43] I find that Dr. le Nobel's evidence offers the best assessment of what ailed Mr. Moojelski. As will become apparent, however, I do not accept his opinion with respect to the prognosis.

[44] Mr. Moojelski was referred to Mr. Paul Peel, a psychologist, in January 2008. On March 12, 2008, he reported his impression of Mr. Moojelski gained from his assessment of him:

Mr. Moojelski’s sequelae from the motor vehicle accident include pain, posttraumatic anxiety, and depressive symptoms that continue as he attempts to retain his employment in a lumberyard. His emotional sequelae would benefit from continuing psychological treatment.

[45] Mr. Peel recommended psychological treatment for a period of six months at an estimated cost of $3,360. Mr. Peel has not been retained to provide the psychological treatment he recommended because of lack of funding.

[46] Mr. Padvaiskas, an occupational therapist, assessed Mr. Moojelski on September 19, 2008. On the basis of his evaluation of his then-current functional ability, he concluded that Mr. Moojelski was not suited to the physical demands of either a general labourer or shipper/receiver, which his employment with HMS Lumber Ltd. entailed.

[47] Dr. William Lorch, also a registered psychologist, assessed Mr. Moojelski in September 2008. He attributed Mr. Moojelski’s mental health condition to marijuana abuse and his use of codeine in excess of prescribed amounts. He suggested that Mr. Moojelski would benefit from treatment that would reduce his marijuana consumption. He did not believe that at the time of his assessment that Mr. Moojelski suffered from any work-related or social disability related to his mental health complaints.

[48] I do not accept Dr. Lorch's opinion regarding the origin of Mr. Moojelski's mental health difficulties. The mild depression diagnosed by Dr. Wilson in March 2006 appears to have been accident-related. I do conclude, however, that recovery from depression was inhibited by over-consumption of prescribed medication and the use of marijuana.

[49] Dr. Duncan McPherson, a retired orthopaedic surgeon, examined Mr. Moojelski on February 14, 2006. On examination, he was unable to identify any objective evidence of disability. He based his opinion on a relatively brief examination of the plaintiff.

[50] I attach little weight to his opinion, in part because the assessment was made long before trial, and in part because the opinion does not appear to me to be consistent with the balance of the evidence.

(f) Conclusion

[51] Having regard for the evidence which I have summarized, and with due regard for all of the other evidence adduced at trial which I have not considered it necessary to summarize, I find the following facts.

[52] Mr. Moojelski sustained a mild muscular injury to his lower back in the motor vehicle accident of May 24, 2005. The treatment which was prescribed, namely continuing physiotherapy treatments over a protracted period of time, were mildly beneficial or therapeutic at best. However, the level at which Mr. Moojelski exercised was minimal and did not promote recovery from the mild muscular injury he sustained in the accident.

[53] The fact that Mr. Moojelski has been long-delayed in returning to a normal state of health results from a combination of inadequate or ineffective exercise and supervision, Mr. Moojelski's refusal to take prescribed medications in prescribed dosages and his decision to exceed the recommended dosages by some substantial margin. In that regard, Mr. Moojelski admitted that he reported to Dr. McPherson that when he had been prescribed Tylenol 3, he had used 6 tablets every 2 hours, greatly in excess of the prescribed quantity. I find that it is likely that Mr. Moojelski’s mental health was adversely affected by his personal decision to rely on marijuana as a source of relief rather than adhering to his physician's prescription of anti-depressants, and by not pursuing physical reconditioning of the kind Dr. le Nobel considers appropriate to a man of his pre-accident physical ability and age.

[54] I find that the delay in recovery has been prolonged because of the fracture to Mr. Moojelski's jaw and the fracture to his ankle, both of which contributed to his avoidance of a rigorous exercise regime that would promote recovery to his pre-accident status, and a corresponding elimination of mental distress.

[55] I find that the guarded prognoses offered by Dr. Wilson, Dr. le Nobel, and Mr. Peel are unduly pessimistic and not warranted by the objective evidence, particularly, Mr. Moojelski's return to work for 8 hour days in February 2009. I accept Dr. le Nobel’s opinion and find as a fact that with proper physical training, Mr. Moojelski will fully recover from the mild muscular injury sustained in the May 24, 2005 motor vehicle accident.

Assessment of Damages

(a) General Damages

[56] Mr. Moojelski sustained a mild muscular injury to his lower back in the motor vehicle accident. While he experiences some pain at this time when performing repetitive tasks, I am not persuaded that his complaint will persist as chronic pain.

[57] The presence of the pain which he now reports results from the failure to embark upon and adhere to an exercise regime that would promote recovery. The regime, encouraged and endorsed by the physiotherapists, was minimalist in nature. That is not solely attributable to Mr. Moojelski’s actions. To some degree, he did what he was told to do by a doctor and physiotherapists, but that which he was told to do was not beneficial or therapeutic because it was of inappropriate intensity. In that regard, the most reliable evidence was provided by Dr. le Nobel. Moreover, by his own admission, the minimalist regime was ineffective because Mr. Moojelski stopped exercising when he felt pain or aggravation. As Dr. le Nobel testified, getting better from an injury of the kind Mr. Moojelski sustained is painful.

[58] In addition to problems associated with the inadequacy of the exercise regime, Mr. Moojelski did not promote healing by his other actions, including self-prescribing doses of medications substantially in excess of the prescribed dosage, failing to take the prescribed medication for his depression from and after November 2006, and placing reliance upon the consumption of marijuana without medical advice or prescription from and after that date. The precise effect of the plaintiff's actions is difficult to assess on the evidence, but the pattern of conduct was not conducive to the promotion of recovery in respect of this very mild muscular injury.

[59] Mr. Moojelski says that an appropriate award for general damages is in the range of $100,000. The defendants say that the appropriate award is in the range of $16,000 to $20,000. Having regard for the findings I have made, the plaintiff's claim is far in excess of the appropriate range.

[60] In all of the circumstances, I am satisfied that an award of $25,000 as general damages adequately compensates Mr. Moojelski for the pain and suffering he has endured, and for the adverse effect upon his enjoyment of life and the loss of amenities. In that assessment, I have taken into account the onset of a mild depression in March 2006, which was accident-related. However, the depression was prolonged by Mr. Moojelski’s failure to adhere to the use of prescribed medications. His refusal was unreasonable and is therefore reflected in the assessment of general damages.

(b) Pecuniary Damages

(i) Loss of Income

[61] As I have remarked previously, Mr. Moojelski was employed by HRS Lumber Limited, a company which was engaged in the manufacture of spindles, railings and other finishing wood products from standard dimension lumber. Mr. Moojelski worked principally in the packaging and shipping part of the business. The work was repetitive in nature, and involved some amount of lifting and sorting of manufactured wood products and the packaging of pallets of finished wood products.

[62] By February 2008, Mr. Moojelski returned to work in 8 hour shifts, which he continued until he was laid off in September 2008. The return to work on a full-time basis was delayed as a result of the broken jaw sustained in the spring of 2007, which saw him absent from work for a period of time, as well as a prolonged absence from work in the period September 2007 through February 2008 as a result of a fractured ankle. I accept the evidence of Dr. le Nobel that those injuries, entirely unrelated to the motor vehicle accident as they were, likely contributed to Mr. Moojelski’s deconditioning.

[63] I am satisfied that it is more likely than not that Mr. Moojelski would have been able to return to work full time by March 31, 2007, had not the broken jaw and the fractured ankle interfered with the process of recovery. It was not reasonably foreseeable that either of the fractures would occur and deter his return to work. The defendants cannot be held accountable for the delay in the return to work occasioned by either or both fractures.

[64] The evidence provided by Mr. Moojelski's employer suggests that a reasonable assessment of the additional income he would have earned in the period May 24, 2005 through March 31, 2007, had he been engaged in full time employment approximates, $18,000. I consider an appropriate allowance for income tax to be 15 percent of that amount, or $2,700, with the result that the net amount I consider appropriate in respect of past wage loss is $15,300.

(ii) Loss of Future Earning Capacity

[65] An award of damages for loss of capacity is designed to reflect the fact that an injury may impair an individual's ability to earn income which is a capital asset. The relevant principles were cited in Pallos v. Insurance Corporation of British Columbia (1995), 100 B.C.L.R. (2d) 260, 53 B.C.A.C. 310 at para 24, where the court quoted with approval from a passage in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353:

The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether:

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

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

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

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

[66] As I have indicated, the evidence does not permit me to find that Mr. Moojelski's earning capacity has been permanently impaired by the accident. He was able to return to work on a regular basis for a full time day shift from and after February 2008. The fact that he was laid off in September 2008 was not the result of the injury, but the result of the employer's reduced workload and the fact that Mr. Moojelski was not as productive as his co-workers. To the extent his reduced productivity was the result of pain from repetitive effort, I repeat what I have said: I do not consider it likely or even a substantial possibility that Mr. Moojelski cannot and will not recover to his pre-accident level of function. No award for loss of capacity is justified in all of the circumstances.

(iii) Cost of Future Care

[67] Recovery from a soft tissue injury necessitates some amount of physiotherapy and adherence to a regimented exercise program. The evidence of Dr. le Nobel is persuasive in that regard. It should have been obvious that the physiotherapy treatments Mr. Moojelski received were not what was required to promote recovery. As I have said, there is no evidence from any physiotherapist saying anything to the contrary, and the description of the services and the results speak for themselves.

[68] When use of a personal trainer or kinesiologist, or a work-conditioning program was recommended, the defendants’ insurer declined to fund the cost. The insurer has not contributed to the cost of any exercise regime which would promote recovery. As a result, the injuries, while capable of resolution, have not yet resolved.

[69] The evidence indicates, and I find, that Mr. Moojelski will benefit from an exercise regime devised and supervised by a qualified personal trainer or kinesiologist who will ensure that he conforms to the regime that is devised for him. Given the passage of time, the process of reconditioning may take longer than would ordinarily be the case. In all of the circumstances, I am satisfied that an award of $10,000 in respect of the cost of future care will be adequate to ensure that Mr. Moojelski has access to a personal trainer for a period of up to two years.

[70] I decline to award any amount in respect of the cost of future care for psychological counselling. Simply stated, the plaintiff failed to mitigate the depressive or psychological aspects of his injuries by unreasonably failing to comply with the care regime prescribed by Dr. Wilson, and resorting to marijuana as an alternative.

(c) Special Damages

[71] The plaintiff claims special damages of $9,000. Of the total, $4,990 pertains to 162 physiotherapy visits in the period from June 6, 2005 through November 27, 2008. As I have stated earlier in these reasons, none of the physiotherapists involved in treating Mr. Moojelski was called as a witness on his behalf to explain the reason for the substantial number of treatments and the justification for them. At the same time, Mr. Moojelski appeared to be visiting a physiotherapist as he had been advised by his physician to do. The evidence does not allow me to conclude that the number of physio visits was reasonable. I must accept the evidence of Dr. le Nobel that the fractured jaw and ankle, both of which were unforeseen events, prolonged the recovery and quite likely contributed to the perceived need for physio. I have no evidence as to what would have been reasonable in relation to the motor vehicle accident as opposed to other injuries. I consider special damages of $2,495 for physiotherapy to be reasonable in the circumstances.

[72] Included in the amount claimed for special damages is the sum of $745 paid to Focus Training Institute Limited for a Level 1 certification course as a by-law enforcement officer. For the reasons I have stated, I am not persuaded that the injuries sustained by Mr. Moojelski compromised his capacity to earn income in the future in any respect. I cannot conclude that the alternate training pursued by him was occasioned by the accident or the injuries sustained in it rather than personal choice. I decline to award any amount in respect of that training.

[73] In all of the circumstances I am satisfied that an appropriate award for special damages is $5,760, representing the amount of $9,000 claimed, less the amounts of $2,495 and $745.

Costs

[74] In the absence of agreement, the parties may speak to costs.

"Mr. Justice Pitfield"

Citation:	*Moojelski v. Edwards,*
	2009 BCSC 38