Musgrove v. Elliot, 2013 BCSC 1707

Editor’s Note: Corrigendum released on October 11, 2013. Original judgment has been corrected with text of corrigendum appended. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Musgrove v. Elliot, 2013 BCSC 1707 Date: 20130917 Docket: 10-3570 Registry: Victoria Between: Donald Jason Musgrove Plaintiff And: Katrina Elliot Defendant Docket: 10-3569 Registry: Victoria Between: Donald Jason Musgrove Plaintiff And: Maggie Macay Defendant Corrected Judgment: Paragraph 114 of the judgment dated September 17, 2013, was corrected on October 11, 2013. Before: The Honourable Mr.

Justice Johnston Reasons for Judgment Counsel for the Plaintiff: C.G. Robb Counsel for the Defendants: H.M. Jaeb Place and Date of Trial: Victoria, B.C. February 25-28, 2013; March 1, 2013; and June 17-20, 2013 Submissions Received: July 19, 2013; July 26, 2013; and August 2, 2013 Place and Date of Judgment: Victoria, B.C. September 17, 2013 [ 1 ] The plaintiff claims damages for injuries and other losses arising out of two motor vehicle accidents, the first occurring October 16, 2008, and the second, November 3, 2008.

The defendants in each accident admit liability for their respective accident but put damages in issue. [ 2 ] The plaintiff is 41 years old and at the time of the accident was working in his own business building residential fencing and decking. He has some experience in carpentry but no trade certification. [ 3 ] The plaintiff’s background for the years immediately prior to the accidents includes several years operating a janitorial and cleaning business in Vancouver.

In 2005 his marriage to a former wife dissolved and that dissolution led to claims for child support. [ 4 ] By 2006, litigation arising out of that marriage breakdown had led the plaintiff’s former spouse to register judgments for child support with the Director of the Family Maintenance Enforcement Program (FMEP). Enforcement efforts by the Director compromised the plaintiff’s business to the point where he shut down the business around October 2006. The plaintiff then went to work for another

company doing carpentry work in the Lower Mainland area. [ 5 ] The plaintiff had been a fit and active person prior to the accidents in question. As a teenager he swam competitively, with sufficient ability that he was on the Canadian National Junior Swim Team. Thereafter, he maintained his fitness level through regular gymnasium attendances, competitive volleyball, long hikes and similar activities. The plaintiff claims to have been able to bench press 300 pounds prior to the accident, although it is not clear whether that ability carried on right up to the accident.

One of the difficulties experienced by the plaintiff was that, as a result of the financial difficulties flowing from his 2005 marriage breakdown, he was unable to afford gymnasium memberships in the year or two prior to the accident and his fitness level had slipped somewhat. [ 6 ] In late 2007, the plaintiff moved to Victoria and started his new business of fence and deck construction as a sole proprietorship.

He was still building that business at the time of the first accident. [ 7 ] On October 16, 2008, the plaintiff was driving in the early morning toward the Victoria Courthouse on his way to a hearing brought on by the Director of FMEP. The plaintiff was driving along Quadra Street when the defendant Elliott entered onto Quadra Street from Convent Place; the plaintiff was so close that he could not avoid striking her.

The plaintiff did manage to turn his vehicle somewhat and struck the defendant Elliott a glancing blow. [ 8 ] The damage from that impact was sufficient that the plaintiff’s vehicle was written off and the defendant Elliott’s vehicle cost approximately $1,500 to repair. [ 9 ] The plaintiff attended at the office of his family physician within two hours of that accident. His family physician, Dr. Warnock, was absent from his practice for an extended period of time and the plaintiff saw a locum, Dr. Li. The plaintiff had seen Dr. Li before the accident and continued to see and be treated by Dr.

Li after the accident. [ 10 ] By the time the plaintiff saw Dr. Li, he had a headache, some discomfort in his right wrist, a stiff neck, a blister between his index finger and thumb, and a bruise that he described as a “raspberry” or “rug burn” on his forehead where his head had hit the headliner of his vehicle. The plaintiff says that his neck range of motion was limited. [ 11 ] Dr. Li’s examination demonstrated objective signs of injury which she described as tenderness to Mr. Musgrove’s right neck and shoulder area and swelling to his right hand. She diagnosed soft tissue injury to Mr.

Musgrove’s right neck, trapesius, forearm and right hand. Dr. Li felt that the headache was related to muscle tension and recommended that Mr. Musgrove be cautious about his activities, that he rest, use ice, compression, and Ibuprophen, and have massage and physiotherapy as needed. [ 12 ] Mr. Musgrove went home and telephoned counsel for the Director of FMEP to explain his failure to attend in court, as well as a customer for whom he was supposed to be working that day. He then applied some ice to his neck, took some Ibuprophen and rested. [ 13 ] Mr.

Musgrove says that the following day he had difficulty putting his socks on, had a very bad headache and that his whole body was stiff and sore. [ 14 ] Shortly thereafter Ms. Finch-Field gave birth to their son, and Mr. Musgrove described things as “hectic” around that time. [ 15 ] Mr. Musgrove went back to see Dr. Li a week following the accident and says that the stiffness he had complained of was largely gone but he now had a sore neck, sore right hand and elbow, and sore upper back.

He decided to take two weeks off work because he did not think that he would be able to do the physical work required for fence building. He says that decision resulted from a suggestion made by Dr. Li. [ 16 ] November 3, 2008, was Mr. Musgrove’s first day back to work following his accident. He hired Ms. Finch-Field’s brother, Ian, to help that day because he did not think that his injuries would allow him to do what he knew would be needed that day, which included moving a tamping machine down 17 stairs to a patio area and laying patio bricks. Mr. Musgrove says that he tried to assist Mr.

Finch- Field but after perhaps a half hour, he had to stop. He testified that the vibration from the tamping machine made his neck and shoulders sore, that being on his hands and knees trying to lay patio bricks made him too uncomfortable in his upper shoulders and neck, and that he had a headache. [ 17 ] At about 4:30 p.m. that afternoon, Mr. Musgrove and Mr. Finch-Field had stopped working and Mr. Musgrove was driving Mr. Finch-Field home in his pickup truck.

He was stopped in traffic at the intersection of Veterans Memorial Parkway and Goldstream Avenue when he was struck from the rear by the defendant Macay, who was driving a small SUV-type vehicle. [ 18 ] Mr. Musgrove’s pick-up truck sustained minor damage to its rear bumper; nothing that prevented its operability. A police officer, who happened to be stopped in the same line of traffic, spoke briefly to Mr. Musgrove and Ms. Macay and suggested that they pull out of traffic, exchange information, and deal with matters themselves. [ 19 ] Mr.

Musgrove testified that this impact was sufficient to jostle tools he had in the bed and on the rear seat of his truck, and to jostle him. He said that he immediately felt a sharp pain in his neck. Mr. Finch-Field testified the impact had enough force to rattle him around and that he was achy and stiff for a couple of days afterward. Mr. Musgrove drove Mr. Finch-Field to his home and then drove himself home. He said that by dinner time his neck had stiffened up, his headache worsened, and he took some Tylenol.

Over the evening his headache became significantly worse and he described the pain as shooting when he moved his head. He could not sleep that night so he went to the Victoria General Hospital Emergency where he saw the emergency physician, had a neck X-ray and was given a prescription for a pain killer and an explanation of soft tissue injuries. [ 20 ] Mr. Musgrove testified that while he was at the hospital his pain was sufficient to make him feel ill and dizzy, and that he had numbness in his hands.

He did not think that the injury to his right hand and arm, which he had suffered in the first accident, was affected by the second accident. [ 21 ] He went to see Dr. Li a matter of days after the second accident. He says his headache was much worse following the second

accident and his neck range of motion was reduced. [ 22 ] Mr. Musgrove described his difficulties in trying to keep his new business alive over the next several weeks. These difficulties included the injuries he suffered in the two accidents, the birth of his son, and the death of his mother in Alberta. His mother’s death required that he take two weeks off to go to Edmonton. He managed to keep his customers mollified by hiring workers to do work that he had expected to be able to do himself before his injury. [ 23 ] Mr.

Musgrove testified that the symptoms in his hands and wrists resolved in the first two months after the accidents but that his headaches got worse. Certain movements of his head caused sharp pain in his neck and worsened his headaches. [ 24 ] In early 2009, his headaches developed into what he described as migraines that were sufficiently severe that when they occurred -- every three weeks or so -- he would have to lie in a dark room and take Tylenol No. 3, or other medications prescribed by Dr. Li. Mr.

Musgrove testified that these migraines ended at the end of 2010. [ 25 ] Every month or six weeks he continued to see Dr. Li, or Dr. Warnock when Dr. Warnock returned to his practice. [ 26 ] Mr. Musgrove tried to return to his recreational activities in 2009 but found that the activities aggravated his symptoms. [ 27 ] Heavier aspects of his work aggravated Mr. Musgrove’s symptoms. His examples of heavier work included unloading lumber by hand, digging post holes by hand, carrying bags of cement, or breaking up concrete with a sledge hammer. [ 28 ] Mr.

Musgrove said that he could do the lighter parts of fence building, which he said included nailing boards onto posts. [ 29 ] Mr. Musgrove testified that if he had help doing the heavier aspects of the work, and he could confine himself to the lighter portions of it, his symptoms would not be terribly troublesome. However, when he was off work for three of four days without much activity, he would experience increased tension in his neck and shoulders, he would stiffen up, his pain would increase, and his range of motion would decrease. [ 30 ] Mr.

Musgrove had trouble sleeping because of his symptoms, and later in 2009, because he was not recovering the way he thought he should, he went to a hospital complaining of extreme headaches, limited neck range of motion, nausea and lack of sleep. He said that he got an injection in the hospital and then saw Dr. Warnock who arranged for a CT scan, which he had in early November 2009. In April 2010 Dr. Warnock referred the plaintiff to Dr. Sun, a neurosurgeon. Dr. Sun examined Mr. Musgrove and reviewed his CT scan. Dr. Sun was uncertain, but thought Mr. Musgrove had a possible small left C5/6 disc herniation. Dr.

Sun’s opinion was that Mr. Musgrove’s predominant left neck pain was muscoloskeletal or mechanical in nature and was not amenable to surgical intervention. Dr. Sun thought that Mr. Musgrove’s occupation contributed to his ongoing symptoms and that as long as he carried on with the type of work he was doing, he was going to have to live with ongoing symptoms. Dr. Sun also thought that the ongoing symptoms might not improve even if Mr. Musgrove were to stop working. [ 31 ] Mr. Musgrove’s symptoms did slowly improve.

He tried to avoid as many of the heavier work activities as he could in 2011, although he could not avoid all of it. He also began to increase his recreational activities. [ 32 ] On February 23, 2012, Mr. Musgrove saw Dr. Killian, a specialist in physical medicine and rehabilitation. Dr. Killian’s opinion was that Mr. Musgrove suffered from right cervical facet joint dysfunction caused by cervical sprain with soft tissue changes. She also believed that he had right shoulder impingement with a restricted range of movement, consistent with chronic capsular tendonopathy.

She also noted mechanical low back discomfort without evidence of impairment. [ 33 ] Of these diagnoses, I conclude that the right shoulder impingement is a chronic condition that developed when Mr. Musgrove was a competitive swimmer and is not related to the motor vehicle accident. That does not mean that Mr. Musgrove does not have symptoms in his right and left shoulders that are related to the cervical strain caused by the motor vehicle accident: it means that not all of his shoulder symptoms are accident-related. [ 34 ] I find the low back discomfort diagnosed by Dr.

Killian to be unrelated to the motor vehicle accident because it did not develop in the first six months after the accident. [ 35 ] On July 20, 2012, Mr. Musgrove saw Dr. Wahl, an orthopedic surgeon, at the request of the defendants. Dr. Wahl’s opinion was that the first accident was sufficient to have caused a musculo-ligamentus strain injury to Mr. Musgrove’s neck. Dr. Wahl believed that on November 3, 2008, when Mr. Musgrove returned to work, his symptoms had “significantly moderated” and that, what Dr.

Wahl concluded was a relatively mild second accident, caused a “moderate recrudescence of his neck/shoulder symptoms.” I do not agree that Mr. Musgrove had recovered to the extent Dr. Wahl believed, or that his symptoms from the first accident had acquiesced to the extent suggested by Dr. Wahl. On the contrary, I accept Mr. Musgrove’s evidence, supported by Mr. Finch-Field, that Mr. Musgrove’s injuries significantly restricted what he was able to do at work during the day leading up to the second accident. [ 36 ] Dr. Wahl stated that Mr.

Musgrove has progressing cervical spondylosis, being degeneration shown on imaging studies, which was not caused by either accident. Dr. Wahl concedes this may have been made symptomatic by the accidents. Dr. Wahl says that the spondylosis has been present since 2003, where it showed at one level of Mr. Musgrove’s neck, and he concludes that it is a progressive condition because it is now showing at three levels of Mr. Musgrove’s neck. Dr. Wahl’s opinion is that the soft tissue injuries Mr.

Musgrove suffered in the two accidents should have resolved within a couple of months and that any ongoing symptoms emanate from the degenerative condition in Mr. Musgrove’s neck or cervical spine. Although Dr. Wahl does not rule out the possibility of ongoing pain from the musculo-ligamentous injury, his opinion that it is more probable that the complaints are a consequence of the degenerative neck condition. [ 37 ] Dr. Wahl said that there are some people who are asymptomatic, notwithstanding Mr.

Musgrove’s level of neck degeneration as shown on imaging, but that these people are a small percentage of the population with that level of degeneration.

[ 38 ] Dr. Wahl said that a moderate soft tissue injury should resolve in six months, perhaps somewhat more, and he agreed that the pre-existing degenerative condition of the neck probably meant that it would take Mr. Musgrove somewhat longer to recover from musculo-ligamentous injuries. [ 39 ] Dr. Wahl thought there was a high degree of probability that at least some of Mr. Musgrove’s shoulder problems were referred pain from his degenerating neck condition. [ 40 ] Mr.

Musgrove described his current condition as ongoing discomfort; he said that his ability to work at the heavier tasks and to engage in recreational activities is improving. He has discontinued some recreational activities like rock climbing or hitting balls at the golf range because of discomfort, although I conclude that he has less time for such activities given the growth in his business and his increasing responsibilities at home. As to the latter, Ms. Finch-Field has had another child since the accidents. [ 41 ] Mr. Musgrove is an admittedly atrocious record keeper.

He has little or nothing by way of records to support income loss claims or increased costs of doing business as a result of his injuries. [ 42 ] He was ordered to disclose tax returns, assessment notices, and business records at a trial management conference. He did not comply and I am satisfied that was because he had not filed tax returns for several years prior to the accident and has no assessment notices. Anything resembling a business record is also sadly lacking. [ 43 ] In an attempt to overcome this lack, Mr. Musgrove called Mr. Finch-Field and Mr.

Dubhe, who both testified that they have been hired by Mr. Musgrove since the first accident, described what sort of work they did and where they did it. In addition, by agreement and court order, others provided affidavits to similar effect. [ 44 ] Some of Mr. Musgrove’s customers have also provided affidavits. One affiant, Mr. Hoy, has sworn that at some time in 2010 he hired Mr. Musgrove to build a deck and to the best of his recollection paid him approximately $13,000. Mr. Hoy recalls that Mr. Musgrove had two others helping him by digging holes and putting up posts for the deck. Mr. Hoy hired Mr.

Musgrove again some time in 2012 to build a fence and paid him about $2,200, a number Mr. Hoy is not sure of. Again, Mr. Hoy recalls that Mr. Musgrove employed two helpers who cleared away the old fence and some bushes, dug holes and put in posts. [ 45 ] Another affiant, Ms. James, swore that she hired Mr. Musgrove to build a fence approximately five years ago, paid him approximately $7,000, and that she thought Mr. Musgrove did the work himself. However, she could not be sure of this because she worked full-time. [ 46 ] Ms. James testified that in 2012 she and her husband again hired Mr.

Musgrove to build a deck, some stairs, a utility room and woodshed. She swore that Mr. Musgrove had several people on the job doing labour, carpentry and staining. That job cost Ms. James approximately $25,000. [ 47 ] A third affiant, Mr. Luscombe, hired Mr. Musgrove in June or July 2009 to build a fence. Mr. Luscombe was at home to observe part of the job, although not all of it. He swore that from what he saw, Mr. Musgrove’s labourer dug post holes by hand, put up the fence posts and built most of the fencing, while Mr. Musgrove built two gates. The project cost Mr. Luscombe $5,600.67. [ 48 ] Mr.

Musgrove has attempted to reconstruct his business records in order to prove income or opportunity losses. Records that are reconstructed in such circumstances must be examined closely because of the obvious self-interest colouring their generation, a concern that is not normally present when records are kept in the ordinary course of business. [ 49 ] I accept Mr. Musgrove’s reconstruction evidence with respect to his business income to this extent: since starting as a sole proprietorship in 2007, then incorporating Dream Home Fencing in March 2011, Mr.

Musgrove’s gross revenue from his fencing, deck building and handyman-type work has steadily grown, as has the size of the jobs he has taken on. I conclude that Mr. Musgrove’s need for hired labour has steadily grown, keeping pace with the growth in his business. Indeed, Mr. Musgrove was candid in acknowledging that not all of what he has paid since his first accident for labour has been required because of injuries suffered in either accident but that he would have had to hire some help in any event. [ 50 ] From all of this, I conclude as follows: 1. Mr.

Musgrove suffered soft tissue or musculo-ligamentus injuries in the first accident; 2. Those injuries were aggravated by the second accident; 3. Those injuries acted upon a degenerative condition in Mr. Musgrove’s cervical spine; 4. Mr. Musgrove had no appreciable symptoms from that degenerative condition prior to the first of the two accidents; 5.

That whether or not the pain symptoms flowing from the musculo-ligamentous damage were or should have been resolved in eight weeks or six months or somewhat slightly longer, or whether the ongoing symptoms are attributable to a degenerative neck condition that took over as the source of Mr. Musgrove’s discomfort, is not capable of determination.

It is not necessary to decide that because I conclude that the symptoms from the neck injury, whether musculo-ligamentous in origin or coming from the degenerative condition that pre-existed the first accident, are directly attributable to the two motor vehicle accidents; 6. It is not possible nor is it necessary to apportion the degree to which either accident contributed to the ongoing symptoms; they are indivisible for that purpose; 7. Some of the symptoms which Mr.

Musgrove complains, those coming from his neck, may have eventually been experienced in any event given the progressive nature of the degenerative condition and the hard physical labour in which Mr. Musgrove is involved;

8. It is not possible to predict with any degree of accuracy when Mr. Musgrove might have experienced similar neck symptoms if there had not been either motor vehicle accident; and 9. Mr.

Musgrove’s headache conditions, including those that he describes as migraines, are a direct result and were caused by the two motor vehicle accidents. [ 51 ] The plaintiff claims non-pecuniary damages for pain, suffering, loss of amenities and loss of enjoyment of life, lost earning capacity from the accidents to trial, future earning capacity, lost housekeeping capacity, costs of future care, and special damages or out- of-pocket expenses. [ 52 ] The evidentiary basis upon which to assess damages from Mr. Musgrove’s lost earning capacity from the time of the accidents to the date of trial is unsatisfactory.

While I have little doubt that for some time Mr. Musgrove was unable to work at full capacity as a result of the injuries he suffered in the two accidents, there is little guidance in the evidence as to a value by which that loss should be assessed. [ 53 ] In 2005, at about the time that his marriage failed, Mr. Musgrove stopped filing income tax returns. In the fall of 2006 Mr. Musgrove closed his janitorial business. He says he did that, at least in part, because actions taken by the Director of FMEP interfered with his contractual obligations and, I infer, interrupted his cash flow. [ 54 ] Mr.

Musgrove then worked for someone else in 2007, building decks and fences, but I have no reliable evidence as to how much he earned. [ 55 ] Some indication of what Mr. Musgrove either earned or was considered capable of earning might be taken from the fact his child support obligations were based upon Child Support Guidelines income attributed to him of some $33,000. [ 56 ] In late 2007 Mr. Musgrove moved to the Victoria area and began to establish himself in his own business as a fence and deck builder.

He had perhaps 10 months to build that business before the first of his two accidents, and in that time he kept lamentably few records of his earnings or expenses. [ 57 ] There is thus little reliable evidence of what Mr. Musgrove actually earned before the first accident, and evidence of actual earnings is usually the most reliable basis on which to assess damages for income losses claimed as a result of an accident. [ 58 ] Mr.

Musgrove’s poor record keeping habits continued after the accidents, leaving little upon which to base a confident assessment of what he has earned since the first accident, or what he has paid out to others to do work he says he could and should have been able to do himself but for his injuries. [ 59 ] Mr. Musgrove has attempted to reconstruct his earnings history, perhaps because of a direction at a pre-trial conference where he was ordered to produce tax returns and notices of assessment from 2006 through 2012, as well as any corporate income tax returns and financial statements.

At the time he had prepared some, if not all, of those in draft but had not filed them, he says, because he is not confident they are complete and he is reluctant to appear to mislead the Canada Revenue Agency. [ 60 ] Arguably, there is a pattern suggested by Mr. Musgrove’s employment and record-keeping history since 2005, and that pattern might suggest that Mr. Musgrove was not much concerned with generating or retaining the kind of financial records that might be used against him in an effort to enforce or to increase his support obligations. I need not make a finding in that regard, and I do not.

I simply point out that the difficulties in proving lost earning capacity are largely of his own making. [ 61 ] Mr. Musgrove’s claim for earning capacity loss is based on three different approaches. In the first he estimated what he paid out to labourers and sub-contractors to do work which he would have done himself but for his injuries. [ 62 ] On this approach, he began with the period immediately after the accidents where he did prepare some invoices in order to persuade ICBC to release some funds so that he could go to Edmonton to deal with his mother’s death.

Those invoices show that he paid $4,492.50 in October and November 2008. One of the two labourers whom he paid, Mr. Finch-Field, corroborated at least that portion of this cost. [ 63 ] Mr. Musgrove estimated that he paid $12,000 in 2009 to labourers he hired to do work that he was unable to do himself as a result of his injuries. This represents about half of his reconstructed total labour cost in 2009. Mr.

Musgrove’s reconstruction led him to conclude that his gross revenues in 2009 were just under $107,000, including taxes collected, his net after-costs of materials and labour of about $13,000, his labour costs were $24,317, and he estimates that about half of that was to replace work he could have done himself but for his injuries. He estimates his damages for lost earnings capacity in 2009 to be $12,000. [ 64 ] The 2010 reconstruction shows revenues of just under $86,000, including taxes collected. Mr.

Musgrove attributed the decrease from the previous year as the result of the end of an improvement tax credit in 2010. He says that he paid just under $12,500 to labourers in 2010. Of this, he estimates between $6,000 and $9,000 was paid to replace work he could and should have done himself but for his injuries. [ 65 ] A similar approach for 2011 showed Mr. Musgrove’s reconstructed gross sales of $212,688. That was the year that he operated partly as a sole proprietorship and partly through Dream Home Fencing.

His reconstructed revenue from his sole proprietorship for 2011 is $30,511, and through the company, $182,188. Through the sole proprietorship and the company Mr. Musgrove says he paid just under $49,000 for labour and he estimates that between $15,000 and $24,000 of that was to replace work he would have done but for his injuries. [ 66 ] At the time of trial Mr. Musgrove had been unable to estimate his income or expenses for 2012 with any accuracy. [ 67 ] Using the estimated costs to hire labour to do work he would have otherwise done, Mr. Musgrove says he estimates having

spent between $37,500 and $49,500 from 2008 to the end of 2011. Deducting 20% for taxes, he claims $30,000 to $40,000 in loss of his earning capacity for that period. [ 68 ] The second approach proffered by the plaintiff is based on one of four opinions prepared by Mr. Wickson, a consulting economist. In a report entitled Average Earnings, Mr. Wickson performed calculations based on earnings of an occupational group labelled “Contractors and Supervisors and Other Construction Trades, Repair Servicers.” Mr. Wickson developed an estimate of average earnings of a British Columbia male born the same day as Mr.

Musgrove working in this occupational group, which he drew from the National Occupational Classification for Statistics. Mr. Wickson then adjusted the result to reflect a wage inflation index he took from the British Columbia Ministry of Management Purposes Study and then “smoothed” the result to eliminate sharp breaks between age brackets. Mr. Wickson’s result produced a total earnings figure of $207,500 at the time of his report in June 2012, recalculated by him to $248,200 at the time of trial. [ 69 ] If that approach were adopted, Mr.

Musgrove would be credited with about $55,000 per year as a notional or expected earning capacity between the accidents and the start of the trial. That so far exceeds the most optimistic of Mr. Musgrove’s own estimates of his losses that it demands caution before it is accepted. This is particularly so in the absence of any reliable pre-accident earnings history. [ 70 ] I take little comfort from Mr. Wickson’s approach as it derives its numbers from a very broad classification of workers whose experience, time in business, trade qualifications or certification are unknown.

Complications from the use of unknown data from the British Columbia Government and the “smoothing” approach further detract from the reliability of Mr. Wickson’s approach to accident to trial income loss. [ 71 ] In the alternative, Mr. Musgrove relies on the evidence from Mr. Dubhe and Mr. Finch-Field, who he said he paid to do work that he would have done but for his injuries. He also relies on the affidavit evidence of some customers, summarized above. On that approach, Mr.

Musgrove has shown that he paid some $14,800 and, reducing it by 20% for taxes he would otherwise have paid had he earned the money himself, Mr. Musgrove says that his income loss from the time of the accident to trial should be at least $11,800. [ 72 ] I am satisfied that as a result of the injuries he suffered in the accidents, Mr. Musgrove had to hire others to do work that he would have done himself had he not been injured. This represents a loss to Mr. Musgrove for which he should be compensated. [ 73 ] Mr. Musgrove must accept responsibility for the consequences of his poor or non-existent records.

One such consequence may be an award lower than it might have been had he kept proper records. In all of the circumstances, I assess Mr. Musgrove’s loss of earning capacity at $20,000 from the time of the accident to trial. [ 74 ] As to future loss of earning capacity, Mr. Musgrove looks to Mr. Wickson’s report which estimates a lifetime earnings stream of $1,000,000 as a benchmark for someone of Mr.

Musgrove’s age. [ 75 ] I have no more confidence in that approach as a basis upon which to assess future loss of earning capacity than I had in it as a guide to past loss of earning capacity. [ 76 ] A part of the assessment for future loss of earning capacity requires a determination of whether Mr. Musgrove’s ongoing symptoms are caused by injuries he sustained in the automobile accidents, or are symptoms he would have experienced because of a pre- existing degenerative condition. [ 77 ] There is conflicting testimony regarding whether Mr. Musgrove’s cervical spine shows evidence of some degenerative condition.

Dr. Killian described small posterior osteophytes shown on an X-ray taken shortly after the second accident on November 4, 2008. Her opinion was that these osteophytes were not contributing significantly to Mr. Musgrove’s complaints. [ 78 ] Dr. Sun reviewed a CT scan of November 2, 2009, and concluded that it showed no significant disc herniations, spinal stenosis, or foraminal stenosis. [ 79 ] Dr. Wahl’s opinion, on the contrary, is that there is some evidence of osteophytes at Mr.

Musgrove’s C6/7 level in an ultrasound of October 14, 2003, that there is evidence of anterior and posterior osteophytes at the same level in the November 4, 2008, X-ray and that the November 2009 CT scan shows evidence of degeneration at levels other than C6/7. Dr. Wahl concludes that the degeneration evidenced by these various studies is progressing. [ 80 ] The weight to be attached to Dr. Wahl’s opinion is weakened somewhat by his concession that his report had muddled up the 2003 ultrasound and the 2008 X-ray. Dr.

Wahl’s evidence on cross-examination was that the 2008 X-ray was not ideally suited to demonstrate degeneration and that the 2003 ultrasound was inadequate, adversely affected the weight of his opinion that the degeneration was progressing. [ 81 ] I am not persuaded by Dr. Wahl’s evidence that Mr. Musgrove’s degenerative condition is progressing as he says, and I am unable to determine that there is a measurable risk that Mr. Musgrove’s cervical degeneration would have manifested itself at some point if there had not been an accident. [ 82 ] Indeed, I am not persuaded that Mr.

Musgrove’s current complaints are entirely attributable to the cervical degeneration as Dr. Wahl opined. The medical evidence taken as a whole leads me to conclude that Mr. Musgrove’s current complaints emanate from musculo-ligamentous injury to his neck and shoulders, that his recovery from those injuries has been slowed by the very heavy nature of his work, and that those symptoms may have been aggravated or worsened by the underlying degeneration in his neck. [ 83 ] I note that Mr.

Musgrove’s symptoms are improving and that he is apparently much better in 2013 than he was in 2011, something that would not be consistent with the bulk of his symptoms coming from a progressively degenerating cervical spine. [ 84 ] I conclude that Mr. Musgrove’s future earning capacity is, and has been, affected by the injuries he suffered in the accidents, but not to a substantial degree.

[85] Mr. Musgrove is still relatively young but he cannot expect to be able to indefinitely do the kind of work he has been doing.Additionally, Mr. Musgrove concedes that his physical conditioning is not as good as it was or could be, which I accept. If Mr.Musgrove applies himself, he can regain a great deal of his former physical condition and that will permit him to carry on working withminimal impairment. [86] That minimal impairment I assess at $25,000. [87] Mr.

Musgrove seeks damages to compensate him for impairment of his ability to perform household tasks. [88] He testified that before the accident he did 40% of the household cooking, and his partner, Ms. Finch-Field, largely supportedthis evidence, without quantifying the amount. Both agreed that Mr. Musgrove did not cook for quite a while after the accident, and thathe is now back to cooking, although Mr. Musgrove says he is still not cooking as much as he did before he was injured. [89] Additionally, before the accident, Mr. Musgrove did dishes and laundry. He is back to doing dishes, but not laundry.

I concludethat the growth of his business would likely have reduced the time and energy he had available for household tasks and that because hehad worked as a cook in years past, he would have stopped doing laundry before he stopped cooking, even if the accidents had notoccurred. [90] These are activities that have recognized economic value: see Kroeker v. Jansen (1995), (BC CA), 4 B.C.L.R.(3rd) 178 (B.C.C.A.). The fact that courts struggle with how to quantify losses involving unpaid work of economic value can be seen inMcTavish v. MacGillivray, 2000 BCCA 164.

In that case the court dealt with claims for past loss of the ability to perform householdtasks, and in doing so, referred to the potential for unfairness that can arise if “hoovering” were to be treated as a hobby or pastime,leading to awards for non-pecuniary damages for loss of “hoovering” as an amenity. The court said at paras. 67-69: [67] This characterization undervalues or devalues housework, and comes into direct conflict with the well-established recognition ofthe economic value of housework at common law. Hoovering in Canada has never been seen as a hobby.

It is work of economic value,although the person who "hoovers" may not be remunerated directly in money for what he or, more frequently she, does. It is well tokeep the distinction between unpaid work of economic value and hobby in mind. The loss of a hobby requires compensation by an awardfor a functional replacement. The loss of the ability to perform household tasks requires compensation by an award measured by thevalue of replacement services where evidence of that value is available. [68] In my view, when housekeeping capacity is lost, it is to be remunerated.

When family members by their gratuitous labour replacecosts that would otherwise be incurred or themselves incur costs, their work can be valued by a replacement cost or opportunity costapproach as the case may be. That value provides a measure of the plaintiff's loss.

Like the trial judge I would prefer to characterize suchcompensation as general damages assessed in pecuniary terms, reserving special damages for those circumstances where the plaintiffactually spent money or incurred a monetary liability, although I do not wish to state a settled view on that question in the absence of fullsubmissions as to the consequences of the distinction, if any. [69] A plaintiff who performed the tasks with difficulty or functioned with the tasks undone and never to be done will becompensated for that loss under the head of pain and suffering and loss of amenity, just as she would if she were to go to work every day,earning her regular wages, but suffer in the course of mitigating her loss. [91] This aspect of the claim is not approached in the expectation that Mr.

Musgrove will compensate Ms. Finch-Field for theadditional burden she has taken up: it is Mr. Musgrove’s loss, not hers. [92] Measuring this loss presents a different problem in this case. There was no evidence as to the value of any of these services,whether cooking, laundry or otherwise, and so no basis on which to evaluate either the replacement cost or opportunity cost. I note thatthe court in McTavish expressed a preference for the replacement cost approach over opportunity cost, at paras. 48-49. Also, nothing hasbeen paid out to replace Mr.

Musgrove’s contributions to household tasks, so that measure is not available. [93] I am not prepared to pick a figure out of the air, for either an hourly rate, or for length of time for which replacement servicesmight be reasonable. In Rezaei v. Piedade, 2012 BCSC 1782, the court accepted $15 per hour, partly because it had been used as ameasure in earlier decisions, but also because it accorded with evidence in that case of what a witness paid for similar services. In Smuszv.

Wolfe Chevrolet Ltd., 2010 BCSC 82, the court had some evidence based on the plaintiff’s previous work as a housekeeper on whichto value housekeeping or cleaning services. I do not have such evidence in this case. [94] I find that Mr.

Musgrove’s ability to perform some household tasks was reduced by the injuries he sustained in the accidents,that his ability to perform at least the cooking portion of those tasks has almost reached pre-accident levels, and that growth in hisbusiness will account for any future reduction in his contributions to household tasks. [95] I do not read either Kroeker or McTavish as preventing me from assessing damages for this aspect of Mr. Musgrove’s loss asthough it were the loss of amenity. If that method of measuring the loss short changes Mr.

Musgrove, it is because of his failure toprovide more satisfactory evidence by which to quantify his damages. [96] With that, I award $5,000 for loss of housekeeping capacity. [97] Mr. Musgrove seeks an award of $12,274.32 for future care costs, and relies on suggestions or recommendations made by eachof the doctors who have treated or examined him. The largest single component of this claim is $7,911.12 for monthly chiropractictreatments until Mr. Musgrove reaches age 65. [98] In her January 16, 2012, written opinion, Dr.

Li stated at page 6: “Ongoing treatment with the chiropractor and possible repeattrigger point injections may be required for the foreseeable future as his symptoms have not completely abated despite the 3 year periodthat has passed since the collisions.”

[99] In her written opinion of March 14, 2012, Dr. Killian said “it is reasonable to have a skilled manual therapist work with Mr.Musgrove over eight to twelve treatments over six weeks.” [100] Since the decision in Milina v. Bartsch (1985), (BC SC), 49 B.C.L.R. (2d) 33 (B.C.S.C.), claims for cost offuture care have required proof that they are medically justified and reasonable: see p. 84. [101] On the evidence in this case, I do not conclude that the claims for future chiropractic care are medically justified as a result ofinjuries sustained in the accidents. Dr.

Li’s opinion is weakened by the level of advocacy that permeated her written report, particularlyin the last page and one-half. Dr. Killian’s recommendation is for a different form of treatment entirely, and much limited in scope. [102] The plaintiff’s claims include the therapy mentioned by Dr. Killian, as well as occasional massage therapy referred to by Dr.Wahl. This latter suggestion is puzzling, considering the efforts made by counsel for the plaintiff in final argument to discredit Dr. Wahl.In any event, I accept that some therapy, such as suggested by Dr. Killian, is medically justified.

I award $845 for Dr. Killian’srecommended therapy. [103] Mr. Musgrove seeks $2,500 for a gym membership for five years. Mr. Musgrove has had a gym membership in the distant past,and used it to maintain a fairly high level of fitness. I accept the medical evidence that getting fit and keeping fit will be of benefit to Mr.Musgrove in controlling the remaining symptoms of his injuries, and that this claim is therefore medically justified. I award $2,500 forgym membership. [104] I also award $300 for over-the-counter medications, medically justified in this case because they will enable Mr.

Musgrove todeal with the remnants of his injury symptoms. [105] The special damages claimed total $2,406.95. I award $1,800, and arrive at that by allowing the claims for the Pharmasavemedications at $620, chiropractic treatments for a total of $1,020, and over-the-counter pain medication at $150, then rounding up thetotal. [106] As to non-pecuniary damages, the plaintiff’s authorities suggest a range between $80,000 and $100,000, the defendants suggestaround $30,000. [107] I am mindful of the comments of McEachern C.J.S.C. in Butler v.

Blaylock, (October 7, 1981, Vancouver B781505 (B.C.S.C.)),adopted by the Court of Appeal in Maslen v. Rubenstein (1993), (BC CA), 83 B.C.L.R. (2d) 131 (B.C.C.A.), at para.15: 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 ofcontinuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery. [108] In this case there are few objective signs of significant injury. In spite of that, I accept Mr. Musgrove’s evidence of the natureand extent of his injuries.

I do so largely on the basis that, if he were inclined to exaggerate his complaints, he would have been to hisdoctor more often and he would not have returned to his demanding physical job with the same determination as he has shown. As well,if he had not been injured as he says, he would not have required the labouring assistance he did. [109] Of the authorities put forward by the plaintiff, Mackenzie v. Rogalasky, 2011 BCSC 54, dealt with a plaintiff whose injurieswere more severe, longer lasting, and had greater impact on employment and other aspects of life.

The plaintiff there was awarded$100,000 for non-pecuniary damages. [110] The plaintiff in Smusz sustained a disc herniation that might be ameliorated through surgery that involved some risk, togetherwith other pain in the neck and low back. There was also an emotional or psychological consequence flowing from the accident. All ofthe injuries were more severe and longer lasting than those sustained by Mr. Musgrove. The plaintiff there was awarded $100,000 fornon-pecuniary damages, which included $10,000 for loss of housekeeping capacity. [111] The three other cases cited by the plaintiff, Borgfjord v.

Penner, 2010 BCSC 1809, Smith v. Moshrefzadeh, 2012 BCSC 1458,and Kaleta v. MacDougall, 2011 BCSC 1259, share some similarities with each other and this case. Of them, I find Kaleta most similar.Similarities in facts is all one can expect from other decisions involving other plaintiffs who sustained other injuries. Authorities aremere guideposts in assessing damages, an exercise that is specific to the particular circumstances and injuries of the plaintiff. [112] With that in mind, I conclude that Mr.

Musgrove has shown improvement in the last year, and, with some effort on his part,regained some of his former fitness. His future will be somewhat brighter than those plaintiffs whose cases he relies on for damages. Iassess Mr. Musgrove’s damages for pain, suffering, loss of amenities and enjoyment of life at $60,000. [113] Finally, the defendants argue that Mr. Musgrove’s damages should be reduced because he failed to act reasonably to minimizehis injuries or to maximize his recovery. The burden is on the defendants to prove the basis for such a reduction, and I find that they havenot done this. Some of Mr.

Musgrove’s problems since the accident have been prolonged by his impecuniosity; he has not been able toafford all of the treatment he might have benefitted from and he has not been able to afford to take time off work to heal properly. I donot find that he has failed to act reasonably in the face of conditions that were, at best, only a small measure within his control. [114] In

summary, the defendants shall jointly and severally pay to the plaintiff: Non-pecuniary damages: $60,000Loss of earning capacity to trial: $20,000Lost future earning capacity: $25,000Lost housekeeping capacity: $5,000Cost of future care: $3,645

Special damages: $1,800 TOTAL $115,445 [ 115 ] The plaintiff shall have his costs of the action unless there are circumstances that lead counsel to seek a different order. “R.T.C. Johnston, J.” The Honourable Mr. Justice Johnston IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Musgrove v. Elliot, 2013 BCSC 1707 Date: 20131011 Docket: 10-3570 Registry: Victoria Between: Donald Jason Musgrove Plaintiff And: Katrina Elliot Defendant Docket: 10-3569 Registry: Victoria Between: Donald Jason Musgrove Plaintiff And: Maggie Macay Defendant Before: The Honourable Mr.

Justice Johnston Corrigendum to Reasons for Judgment Counsel for the Plaintiff: C.G. Robb Counsel for the Defendants: H.M. Jaeb Place and Date of Trial: Victoria, B.C. February 25-28, 2013; March 1, 2013; and June 17-20, 2013 Submissions Received: July 19, 2013; July 26, 2013; and August 2, 2013 Place and Date of Judgment: Victoria, B.C. September 17, 2013 Place and Date of Corrigendum: Victoria, B.C. October 11, 2013

[1] Paragraph 114 is corrected to read as follows: [114] In

summary, the defendants shall jointly and severally pay to the plaintiff: Non-pecuniary damages: $60,000 Loss of earning capacity to trial: $20,000 Lost future earning capacity: $25,000 Lost housekeeping capacity: $5,000 Cost of future care: $3,645 Special damages: $1,800 TOTAL $115,445 “R.T.C. Johnston, J.” The Honourable Mr. Justice Johnston