Petrovic v. Stetsko, 2017 BCSC 741

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Petrovic v. Stetsko, 2017 BCSC 741 Date: 20170504 Docket: 14-0757 Registry: Victoria Between: Milomir Petrovic Plaintiff And: Kimberly Stetsko, Anthony Richard Belisle, and John Doe Defendants Corrected Judgment: The text of the judgment was corrected on the front page and at paras. 85, 86 and 88 on September 24, 2018 Before: The Honourable Madam Justice J. A. Power Reasons for Judgment Counsel for the Plaintiff: D. D. McKnight and S. Missaghi Counsel for the Defendants: C. R. Cordick Place and Date of Trial/Hearing: Victoria, B.C.

March 29 - 31, 2016 April 1, 2016 September 9, 2016 Place and Date of Judgment: Victoria, B.C. May 4, 2017 [ 1 ] This action relates to a motor vehicle accident (“MVA”) that occurred on May 31, 2012 in Victoria, British Columbia. The plaintiff was rear-ended by a vehicle, a Jeep Wrangler, driven by the defendant Kimberly Stetsko, while he, the plaintiff, was stopped at the intersection of Bay Street and Blanshard Street. Issues [ 2 ] Liability is admitted in this action. At issue are the extent of the injury suffered by the plaintiff, and whether or not that injury is ongoing.

In addition to general damages, the plaintiff seeks damages for past and future income loss, loss of homemaking capacity, and special damages. The plaintiff made submissions arguing that he was forced to go to trial in order to obtain a fair award which he submits is approximately $210,000. [ 3 ] The defendants take the position that the plaintiff suffered minor to moderate whiplash-type injuries to his neck or back that resolved, or substantially resolved within two years of the MVA.

The defendants argue that any current limitations to the plaintiff’s present occupation are due to a left shoulder rotator-cuff injury which, the defendants say, is not related to the MVA. Background [ 4 ] The plaintiff Milomir Petrovic was born in the former Yugoslavia on May 13, 1949 and was 64 years of age when he was involved in the MVA. He is currently divorced with four adult sons. [ 5 ] Mr. Petrovic grew up on a farm and demonstrated from an early age a strong work ethic which has sustained him throughout his life. [ 6 ] Mr.

Petrovic moved to Canada in his early twenties and initially found work on a poultry farm within days of his arrival. He did that for a year and a half before finding work as a painter for a company called B&B Painting. He apprenticed as a painter for that company. The owner was able to mentor him since the owner was from Bosnia and they spoke the same language. He was involved in painting residential and commercial buildings. [ 7 ] Eventually, Mr. Petrovic left his employment with B&B Painting to work at the Butchart Gardens as a painter. He worked at

Butchart Gardens for seven and a half years before leaving to open his own business, Garden City Painters, a sole proprietorship. [ 8 ] Mr. Petrovic mainly works by himself because of the difficulty in finding employees. He was actively employed and had no plans to retire, both at the time of the MVA and at trial, in part because painting was his passion and in part for financial reasons. [ 9 ] Mr. Petrovic has been generally healthy throughout his adult life. He has rarely missed work for illness or injury except for the three months when he underwent quadruple bypass heart surgery in 2009.

He was diagnosed with type-II diabetes around the same time. It does not appear from the evidence at trial that his diabetes had any impact on his ability to work. [ 10 ] Mr. Petrovic lives outside of Victoria in the community of Mill Bay. He has a hobby farm where he grows vegetables and has sheep and free range chickens. [ 11 ] Up until the time of the accident, Mr. Petrovic was an active man with many hobbies and interests including hiking, canoeing, and dragon boating. He has hiked the well-known West Cost Trail twice and has been involved in competitive dragon boating with a seniors’ team.

The Accident [ 12 ] The accident that gave rise to this action took place around 12:30 p.m. on May 31, 2012. The plaintiff was stopped on Bay Street, where it intersects Blanshard Street, waiting for the traffic light to change. He was driving his 2004 Dodge Caravan when he was struck in the rear by the defendant, Ms. Stetsko, who was driving a Jeep Wrangler which she was loaned by the second defendant. [ 13 ] Just prior to the collision, Mr. Petrovic was sitting with his arms fully extended on the steering wheel and he did not have any warning of the impending collision.

He described how after the collision he felt his left arm being pulled and his upper body was restrained by a shoulder seatbelt. [ 14 ] He described feeling “confused” by the accident and immediately feeling some “tightness” in his left shoulder. He went to talk to the other driver and remained calm since he doesn’t “fold under pressure.” He inspected the damage to his van, which would subsequently require approximately $4,000 to repair. He did not notice any damage to the defendant’s Jeep which he described as a heavy duty army type Jeep with a towing clip to the bumper.

He noted that the Jeep had a bumper which was higher than his rear bumper. [ 15 ] A police officer attended the scene and Mr. Petrovic declined an ambulance since he was not bleeding and did not have any obvious injury except for a rash in his shoulder area. After the accident he drove himself to Mill Bay but had to pull over on the Malahat when he realized what had happened and to calm himself down. [ 16 ] When he awoke the next day, Mr. Petrovic had pain in the back of his head, neck, shoulder -- particularly his left shoulder -- left jaw, and lower back.

He initially avoided dealing with any continuing pain because he was busy working and he wanted everything to go away. His jaw pain went away within two or three weeks and he was optimistic that his other injuries would do likewise. When he realized his symptoms were not improving he, approximately a month after later, went to see his general physician, Dr. William Reynolds, who has been his physician since 2005. Dr. Reynolds testified on the trial. [ 17 ] Mr. Petrovic described the effects of the accident on his life and his ability to work.

Before the accident he had the kind of “good aches and pains” that come from a hard day’s work. Since the accident, his neck and shoulder pain impacts all areas of his life. He is concerned about his ability to continue as a commercial painter and is considering retraining as a driver. As a matter of preference, as he enjoys work, and because of financial necessity, Mr. Petrovic is unable to retire. [ 18 ] Mr. Petrovic does not take medications because they are costly and because they make him drowsy. His sleep patterns have changed since the accident and he has learned to sleep on his right side and on his back.

He describes how the continuing pain often awakens him at night. [ 19 ] Mr. Petrovic has done the exercises that he was prescribed by Dr. Reynolds, but he was forthright in admitting that he does not do the recommended exercises as often as prescribed. Eventually, he went to see a chiropractor, Dr. McDiarmid, who testified at trial. He does get some relief from Dr. McDiarmid’s chiropractic treatments but has overstated the relief experienced in order to make Dr. McDiarmid “feel good.” [ 20 ] Mr. Petrovic described how the continuing pain from the accident has affected all aspect of his life.

Whereas he was previously able to work in the range of six days a week for full days of eight to 10 hours, he now cannot work more than five to six hours a day, five days a week. He can no longer do outside painting jobs that require the use of extension ladders and has modified the jobs he takes on. [ 21 ] Since the accident, he was offered a contract to paint the exterior of a strata building called “The Julia” which was estimated to cost $29,000. He was not able to accept that contract because it required work on ladders which he was unable to do. [ 22 ] Mr.

Dutton is president of the strata council for “The Julia” -- a 30 unit property -- and in that capacity he met Mr. Petrovic five or six years ago when Mr. Petrovic was doing work at the building. He testified and described Mr. Petrovic’s work as excellent with a high degree of attention to detail. [ 23 ] Mr. Dutton confirmed that he obtained the exterior paint job estimate of $29,000 for “The Julia” which Mr. Petrovic was unable to do because he was unable to do ladder work. Mr. Dutton still hires Mr.

Petrovic for smaller jobs that do not require ladder work because he is impressed with the quality of his work. [ 24 ] While Mr. Petrovic continues with his recreation activities to the extent he is able, he does not participate, for example, in canoeing and dragon boating because he cannot compete at the same level.

Medical Evidence Dr. William Reynolds [ 25 ] Dr. William Reynolds is a Medical Doctor practising in family medicine. He has been Mr. Petrovic’s family doctor since 2005. He saw Mr. Petrovic for medical consultation for injuries relating to the MVA on five occasions between June 29, 2012 and February 24, 2014. Dr. Reynolds prepared a report dated January 14, 2016 which was admitted into evidence as Exhibit 4. Dr. Reynolds was cross-examined. [ 26 ] On June 29, 2012, Mr. Petrovic was diagnosed by Dr.

Reynolds with “… musculoligamentous injury of the cervical, thoracic and lumbar spines as well as muscular inflammation in the jaw and anterior neck.” He was prescribed physical therapy, massage therapy, range of motion exercises, and stretching. [ 27 ] In his report, Dr. Reynolds states: He was seen by me on four subsequent occasions between July 25, 2012 and his last appointment on February 24, 2014. At his last appointment to review his condition he continued to report ongoing daily symptoms of cervical spine pain and pain in his posterior shoulders.

His pain was aggravated by overhead activities and neck postures in extension. Based on the mechanism of injury and my findings on his subsequent office visits and examinations the cause of his injuries are due to his motor vehicle accident in May 2012. His symptoms are due to musculoligamentous injury of the cervical spine and aggravation of his pre-existing mild arthritis of his lower cervical spine arising from the motor vehicle accident May 31, 2012. [ 28 ] Dr. Reynolds goes on to opine that Mr. Petrovic had suffered some vocational disability from the MVA, and that Mr.

Petrovic had suffered general disability. In his opinion, it was highly unlikely that his symptoms arising from his injuries would be permanent. [ 29 ] An ultrasound radiologist’s report, dated June 4, 2015 and entered as Exhibit 3, noted a small, full-thickness, supraspinatus tendon tear. Dr. Frank McDiarmid [ 30 ] Mr. Petrovic was referred to Dr. McDiarmid, a chiropractor, by his legal counsel. Dr. McDiarmid agreed to defer his chiropractic fees until after the case was resolved. [ 31 ] Dr. McDiarmid was qualified as an expert chiropractor with expertise in human biomechanics. In the executive

summary on p. 2 of his report, dated January 1, 2016 and entered as Exhibit 8, Dr. McDiarmid states the following: • Prior to the May 31, 2012 MVC Mr. Petrovic was feeling fine and had no decreased daily activities of daily living, regarding the areas injured as a result of the collision. • There were numerous factors that put Mr. Petrovic at risk of injury independent of the amount of damage sustained by either vehicle. • Mr.

Petrovic is currently waiting to have an appointment booked for an MR Arthrogram of his left shoulder. • He continues to experience chronic full spine pain, headaches, and left shoulder pain. • His goal is to retrain as a delivery driver, within the greater Victoria region. [ 32 ] On August 18, 2014, Dr. McDiarmid rendered the following diagnoses: 1. Chronic residuals of cervical articular sprain (WAD 2). 2. Chronic residuals of a costovertebral articular sprain. 3. Muscle contraction headache. All three diagnoses are consistent with the mechanism of injury as described by Mr.

Petrovic, and are secondary to the May 31, 2012 MVC. [ 33 ] Further in his report, Dr. McDiarmid opined: It is well documented that shoulder injuries occur in up to 22% of all whiplash injuries. Direct shoulder contact is not required in order to suffer concomitant rotator cuff or labrum injuries in conjunction with whiplash. As mentioned under the Imaging

section of this report, the June 4, 2015, ultrasound revealed a tear to the rotator cuff supraspinatus muscle. It is known that a history of trauma is the most strongly correlated factor with rotator cuff tears. … A SLAP tear is one of the more common types of internal shoulder injuries. I strongly believe Mr. Petrovic has suffered a SLAP tear. The list of possible internal derangement shoulder injuries is quite extensive. Most orthopedic tests of the shoulder cannot truly isolate a particular structure.

The tests compress and stretch adjacent structures and only the appropriate advanced imaging is capable of differentiating the tissues. An MR Arthrogram is the definitive gold-standard diagnostic test and will determine the next course of action.

The inability to distinguish shoulder pain, from the radiating pain originating in the neck is very common. It is recognized as one of thereasons for long delays in receiving treatment. Dr. Paul Marks [34] The defence called Dr. Paul Marks, an orthopedic surgeon from Toronto, Ontario. Dr. Marks’ report was a response report andis entitled “Medical File Review”. As the title suggests, Dr. Marks did not medically examine Mr. Petrovic. Instead he simply reviewedthe medical file and then provided an opinion. [35] Dr. Marks is of the opinion that Mr.

Petrovic suffered simply soft tissue strains as a result of the accident which should haveresolved within 6-12 weeks under normal biological healing parameters. Dr. Marks agrees with Dr. Reynolds that it is highly unlikelythat the plaintiff’s symptom would be permanent. [36] Dr. Marks’

summary and discussion includes the following: … I do not agree with the conclusions made by chiropractor, Dr. Frank McDiarmid. I have carefully detailed critical appraisal of theliterature utilized by Dr. McDiarmid; the majority of which is not applicable to the circumstance and does not provide conclusions thatsupport his opinion. It would appear that at most, Mr. Petrovic has suffered simple soft tissue strains as a result of his accident. Onewould normally expect these to return to their pre-accident status given normal biological healing parameters in timeframes of perhapssix to twelve weeks.

Causation [37] The defence position on the damage assessment rests on the argument that the continuing shoulder injury suffered by Mr.Petrovic is unrelated to the accident and that he suffered whiplash-type injuries which should have resolved quickly -- not persistpermanently. [38] I wish to state at the outset, that I have no difficulty accepting Mr. Petrovic’s evidence that he delayed seeking medicaltreatment for his injuries from the accident because he had no time to do so and because he had no interest in being injured.

I accept hisevidence unreservedly and find him to be a hard-working and stoic individual who continued to work because he had no option but to doso, and that he did not seek medical treatment or other therapies because he could not afford to do so. To the extent that the defence caserests on any challenge to Mr. Petrovic’s credibility, I reject those arguments. [39] I have further determined that Dr.

Marks’ evidence is entitled to little weight for the reasons outlined by Parrett J. in Preston v.Kontzamanis, 2015 BCSC 2219 at paras. 127 to 138. [40] As noted in the plaintiff’s argument, the defence did not at any point seek an Independent Medical Assessment pursuant to theRules or request the plaintiff to submit to one voluntarily. I am of the view that Dr. Marks’ evidence is of little assistance to the court. [41] In Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458, the court outlined the general principles for the proof ofcausation at paras 13-20.

As contained in those well-known passages, the test for causation is the “but for” test -- a test which should notbe applied too rigidly. The court confirmed that it is not necessary, nor has it ever been, for the plaintiff to establish that the defendants’negligence was the sole cause of the injury. [42] The Supreme Court of Canada reaffirmed these principles in Clements v. Clements, 2012 SCC 32, 346 D.L.R. (4th) 577. Applying those causation principles to this case, I am satisfied that Mr. Petrovic suffered soft tissue or whiplash-type injuries andheadaches.

I am further satisfied that the ongoing shoulder injury is related to the accident. [43] In that regard, I accept the evidence of Dr. McDiarmid. I am satisfied on all of the evidence that Mr. Petrovic did complain toDr. Reynolds of shoulder pain from the outset, but that his stoic nature and lack of interest in an ongoing injury contributed to the delayin a full exploration and an earlier diagnosis of the shoulder injury. [44] In

summary, the evidence of the plaintiff, the medical evidence of Dr. Reynolds and Dr. McDiarmid, and the temporalconnection between the accident and the injuries lead me to conclude that the injuries Mr. Petrovic described at trial were caused by theaccident. I am further satisfied that the ongoing prognosis is uncertain. [45] I am not satisfied that the defendants have established a failure to mitigate by the plaintiff by failing to follow a recommendedtreatment. As noted by Mr. Justice Verhoeven in Fifi v.

Robinson, 2012 BCSC 1378 at paras. 81-82, the defendant must do more than toshow that the plaintiff failed to engage in treatment that could or might have been beneficial and the defendants here have not establishedthat the failure to engage in physiotherapy or massage therapy or follow the exercise plan of Dr. Reynolds would have benefited Mr.Petrovic so that his injuries would have been lessened. Damages Assessment General Damages [46] The plaintiff seeks general damages in the range of $80,000 to $90,000.

The defendants seek a substantially reduced amount inthe range of $20,000 to $25,000. [47] In support of the higher range, the plaintiff cites: Kaleta v. MacDougall, 2011 BCSC 1259; Delgiglio v. British Columbia(Public Safety and Solicitor General), 2012 BCSC 480; Mitchell v. Martin, 2016 BCSC 1544; Picton v. Fredericks, 2016 BCSC 1470;Johal v. Meyede, 2013 BCSC 2381; Clark v. Kouba, 2012 BCSC 1607; Stull v. Cunningham, 2013 BCSC 1140; Woelders v. Gaudette,2016 BCSC 1066; Hu v. Tan, 2016 BCSC 908; Nijjar v. Hill, 2016 BCSC 546; Smith v. Fremlin, 2013 BCSC 800; Dorosh v. John, 2013BCSC 1442.

[48] In support of the lower range, the defendants cite: Gee v. Elvira, 2001 BCSC 1210; Gladish v. Cymbaluk, 2003 BCSC 485;Hussain v. Cho, 2012 BCSC 194; Kailey v. Kellner, 2007 BCSC 1449; Kanani v. Misiurna, 2008 BCSC 629; Manson v. Kalar, 2011BCSC 373; Rana v. Boparai, 2007 BCSC 1182. [49] In considering non-pecuniary damages, I have considered the purpose of this award as set out by the Supreme Court of Canadain Lindal v.

Lindal, (SCC), [1981] 2 S.C.R. 629, including that an individual’s loss is key and that as it is impossible todevelop a “tariff”, the award will vary to meet the specific circumstances of the individual case. [50] The framework for the assessment of non-pecuniary damages was set out by our Court of Appeal in Stapley v. Hejslet, 2006BCCA 34 at para. 46, as follows: [46] The inexhaustive list of common factors cited in Boyd that influence an award of non-pecuniary damages includes: (

a) age of the plaintiff; (

b) nature of the injury; (

c) severity and duration of pain; (

d) disability; (

e) emotional suffering; and (

f) loss or impairment of life; I would add the following factors, although they may arguably be subsumed in the above list: (

g) impairment of family, marital and social relationships; (

h) impairment of physical and mental abilities; (

i) loss of lifestyle; and (

j) the plaintiff's stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J.No. 163, 2005 BCCA 54). [51] Considering these factors, I am persuaded by the plaintiff that the MVA has impacted all aspects of Mr. Petrovic’s life. Specifically I find the following. Age of the Plaintiff [52] Mr. Petrovic was 64 years old at the time the collision occurred. He is now 67 years old. He was and is a hardworking andphysically active individual who has been negatively affected by his injuries. Nature of the Injury [53] Mr.

Petrovic suffered and continues to suffer the consequences of his injuries. It was unclear at trial whether or not there wereany other treatment options that were going to be pursued with respect to the shoulder injury. Dr. Reynolds opines that it is unlikely thatMr. Petrovic’s injuries would be considered permanent. I conclude based on Dr. McDiarmid’s evidence that his prognosis with respectto the shoulder must be considered guarded. Severity and Duration of Pain [54] Mr. Petrovic continues to experience headaches, and pain with activities that require extension.

He has modified his paintingschedule and modified the type of painting jobs that he takes on. Disability [55] As a result of the injuries, Mr. Petrovic is limited in his ability to perform painting tasks and to engage in recreational activitiessuch as dragon boating. He has adjusted his work and recreational pursuits in order to manage his ongoing pain. Emotional Suffering [56] Mr. Petrovic presented as a quiet stoic individual who was initially unwilling to accept that he was injured by the accident. Hehas also had difficulty accepting the limitations to his ability to work and to his recreational pursuits.

Notwithstanding his stoicism, Iconclude that the impact of his loss has been significant. Loss or Impairment of Life [57] As noted, Mr. Petrovic has modified his work hours and work life to adjust to his more limited abilities. The evidence satisfiesme that Mr. Petrovic obtained a lot of personal satisfaction and identity from his work life.

Further, his recreational pursuits includingdragon boating and hiking have been curtailed and he cannot engage in them to the same level he did prior to the accident. [58] In all of the circumstances, and having considered the authorities cited, I conclude than an appropriate sum under this head ofdamages is $75,000.00.

Loss of Capacity to Earn Income [59] The defendants’ position is that there should be no award for future wage loss for a number of reasons including that theysubmit that Mr. Petrovic did not take any time off work as a result of his injuries, the medical evidence does not demonstrate that he hasany medical restriction, he has not shown a functional limitation with respect to work, and because he was close to retirement in anyevent. [60] I do not believe that the defendants’ position reflects the evidence at trial or the facts that I have found. I am satisfied on theevidence of Mr. Petrovic and Mr.

Dutton that Mr. Petrovic has had to shorten his work days and adjust the nature of the jobs that he takeson. Further, Dr. Reynolds indicates that Mr. Petrovic has suffered limitations with respect to overhead activities and neck postures inextension. Dr. McDiarmid accepts that Mr. Petrovic may have to retrain as a driver. [61] Although Mr.

Petrovic was close to a traditional retirement age at the time of the accident, I accept his evidence that forfinancial reasons and for his own personal enjoyment, he intended to work longer and had no immediate plans to retire. [62] There was also some evidence at trial about an injury to Mr. Petrovic’s hand which he accommodated by painting with his otherhand. I am of the view that this evidence is unrelated to the impact of the separate injuries Mr.

Petrovic sustained in the MVA and thatevidence does not impact my damages assessment. [63] In assessing the future loss of earning capacity, the Court of Appeal in Kwei v. Boisclair (1991), (BC CA), 60B.C.L.R. (2d) 393, quoting from Brown v. Golaiy (1985), (BC SC), 26 B.C.L.R. (3d) 353, endorsed the followingconsiderations at para. 25: [25] … I think the considerations referred to by Mr. Justice Finch at p. 4 of his reasons have application in cases where loss of futureearning capacity is in issue. I refer to this language at p. 4 of Mr.

Justice Finch's judgment: The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some ofthe 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 tohim, 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. [64] More recently, in Perren v. Lalari, 2010 BCCA 240 at paras. 30-32, the Court of Appeal summarized the basic principles that acourt should consider in assessing loss of future income earning capacity: [30] Having reviewed all of these cases, I conclude that none of them are inconsistent with the basic principles articulated in Athey v.Leonati, (SCC), [1996] 3 S.C.R. 458 (S.C.C.), and Andrews v. Grand & Toy Alberta Ltd., (SCC),[1978] 2 S.C.R. 229 (S.C.C.). These principles are: 1.

A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility andnot mere speculation [Athey at para. 27], and 2. It is not loss of earnings but, rather, loss of earning capacity for which compensation must be made [Andrews at 251]. [31] Furthermore, I conclude that there is no conflict between Steward and the earlier judgment in Pallos.

As mentioned earlier,Pallos is not authority for the proposition that mere speculation of future loss of earning capacity is sufficient to justify an award fordamages for loss of future earning capacity. [32] A plaintiff must always prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang, and by Tysoe J.A. inRomanchych, that there is a real and substantial possibility of a future event leading to an income loss.

If the plaintiff discharges thatburden of proof, then depending upon the facts of the case, the plaintiff may prove the quantification of that loss of earning capacity,either on an earnings approach, as in Steenblok, or a capital asset approach, as in Brown. The former approach will be more useful whenthe loss is more easily measurable, as it was in Steenblok. The latter approach will be more useful when the loss is not as easilymeasurable, as in Pallos and Romanchych.

A plaintiff may indeed be able to prove that there is a substantial possibility of a future lossof income despite having returned to his or her usual employment. That was the case in both Pallos and Parypa. But, as Donald J.A.said in Steward, an inability to perform an occupation that is not a realistic alternative occupation is not proof of a future loss. [65] In this case, as Mr.

Petrovic’s loss is not easily measurable, I proceed with the capital asset approach to assessing damages forthe loss of earning capacity. [66] The defence has set out, at para. 48 of its argument, the kinds of contingencies that the court should take into account. I haveconsidered Mr. Petrovic’s age, his general health, and that common sense indicates that although he may have wished to workindefinitely, the physical limitations of age will eventually prevent him from doing so. I have also taken into account Mr. Petrovic’sabilities and excellence as a painter, and his modified

schedule as a result of the MVA. [67] Taking into account all of the contingencies, both positive and negative, and having considered and applied the principlesdescribed above, I am of the view that an appropriate award for loss of income earning capacity is $50,000.00. Loss of Homemaking Capacity

[68] The law in respect of assessing a plaintiff’s loss of homemaking capacity was recently summarized in Suthakar v. Humble, 2016BCSC 155 at paras. 108 and 109 as follows: [108] In McTavish v. MacGillivray, 2000 BCCA 164 (B.C. C.A.), Huddart J.A. comprehensively surveyed the majority and minoritydecisions in Kroeker v. Jansen (1995), (BC CA), 4 B.C.L.R. (3d) 178 (B.C. C.A.), a decision of a five-member panelof the Court of Appeal, as well as other pertinent jurisprudence, and summarized the essential principles in relation to claims for past andfuture loss of housekeeping capacity.

At para. 43, her Ladyship emphasized the vital point that claims for loss of housekeeping capacityare distinct from claims respecting the plaintiff's future cost of care: [43] As I have noted, the majority in Kroeker quite clearly decided that a reasonable award for the loss of the capacity to dohousework was appropriate whether that loss occurred before or after trial. It was, in my view, equally clear that it mattered not whetherreplacement services had been or would be hired. It did not adopt the analogy with future care as a general rule.

Nor did it permit, nor inview of the authorities to which I have referred could it have permitted, a deduction for the contingency that replacement services mightnot be hired. Allowances for contingencies are for risk factors that might make the loss of capacity more or less likely. [109] Because an award for the loss of housekeeping capacity reflects the loss of personal capacity, which is an asset, the issue ofwhether the plaintiff had used replacement services or is likely to hire such assistance in the future does not inform the analysis.

That isa crucial distinction between those damages and awards for a plaintiff's future cost of care as affirmed in O'Connell (Litigation Guardianof) v. Yung, 2012 BCCA 57 (B.C. C.A.) at para. 67: [67] Damages for the cost of future care serve a different purpose from awards for loss of housekeeping capacity. Unlike lossof housekeeping capacity awards, damages for the cost of future care are directly related to the expenses that may reasonably beexpected to be required (Krangle at para. 22).

Determining the amount of a reasonable cost of future care award entails a unique set ofconsiderations, as Professor Cooper-Stephenson explains at 416: It is clear that both the need and the opportunity for the expenditure of moneys is relevant to the assessment. Therefore, ifthe plaintiff's medical condition may require care of a less expensive nature -- such as institutional care -- then the award for future costof care should reflect that possibility.

Equally, it would seem, if the evidence is not conclusive that more expensive care will beavailable, or that the plaintiff will find such care to be physically and emotionally satisfactory, then the award should reflect thosepossibilities; the reduced award will then reflect the best estimate of what will be reasonably necessary to provide optimum care. In thissense, the court is bound to look to the actual spending potential of the plaintiff. [emphasis by Professor Cooper-Stephenson] [69] As discussed above, the plaintiff owns a hobby farm on which he raises livestock and grows vegetables and fruit.

He maintainsthe property on his own, without the aid of neighbours or hired help. [70] The plaintiff’s position is that although he continues to be able to maintain the property, the work takes longer than it used toand causes him a great deal of pain. The plaintiff submits that, taking into account the nature of the property and the extent of workrequired to maintain it, the appropriate range for an award under this head of damages is $30,000 to $40,000: see Borgfjord v. Penner,2010 BCSC 1809; and Fontaine v.

Van Kampen, 2013 BCSC 1702. [71] Although only discussed in respect of a general damages assessment, the defendants’ position appears to be that since theaccident, the plaintiff continues to be able to maintain his hobby farm, which includes carrying around 50-pound feed bags. Whateverpain the plaintiff experienced from the accident, it does not interfere with his capacity to work on his hobby farm. [72] Having considered the evidence and the applicable legal principles, I conclude that Mr. Petrovic’s homemaking orhousekeeping capacity, a capital asset, has been reduced as a result of the accident.

The loss, although not easily measureable, is distinctfrom the loss considered under general damages above and deserving of compensation. Having taken into account future contingencies,both positive and negative, it is my view that $8,000.00 is a suitable award under this head of damages. Cost of Future Care [73] The principles governing an award for costs of future care were recently and succinctly summarized by Ballance J. in Suthakar,beginning at para. 123: [123] The approach to be taken in assessing future care costs was settled by the Supreme Court of Canada in Krangle (Guardian adlitem of) v.

Brisco, 2002 SCC 9 (S.C.C.) at paras. 21-22: [21] Damages for cost of future care are a matter of prediction. No one knows the future. Yet the rule that damages must beassessed once and for all at the time of trial (subject to modification on appeal) requires courts to peer into the future and fix the damagesfor future care as best they can. In doing so, courts rely on the evidence as to what care is likely to be in the injured person's best interest.

Then they calculate the present cost of providing that care and may make an adjustment for the contingency that the future may differfrom what the evidence at trial indicates. [22] The resulting award may be said to reflect the reasonable or normal expectations of what the injured person will require.

Jane Stapleton, “The Normal Expectancies Measure in Tort Damages” (1997), 113 L.Q.R. 257, thus suggests, at pp. 257-58, that the tortmeasure of compensatory damages may be described as the “'normal expectancies' measure”, a term which “more clearly describes theaim of awards of compensatory damages in tort: namely, to re-position the plaintiff to the destination he would normally have reached ...had it not been for the tort”. The measure is objective, based on the evidence. This method produces a result fair to both the claimantand the defendant.

The claimant receives damages for future losses, as best they can be ascertained. The defendant is required tocompensate for those losses. To award less than what may reasonably be expected to be required is to give the plaintiff too little andunfairly advantage the defendant. To award more is to give the plaintiff a windfall and require the defendant to pay more than is fair. [124] Damages for the cost of future care are meant to compensate for the financial loss to be reasonably incurred by an injured plaintiffto sustain or promote his or her mental and physical health: Bystedt (Guardian ad litem of) v.

Bagdan, 2001 BCSC 1735 (B.C. S.C.),

aff'd 2004 BCCA 124 (B.C. C.A.); Gignac v. Rozylo, 2012 BCCA 351 (B.C. C.A.) at para. 30 [Gignac]. The claimed services and itemsmust be medically justified. Being medically justified is not synonymous with the more stringent requirement of being medicallynecessary: Aberdeen v. Langley (Township), 2007 BCSC 993 (B.C. S.C.) at 198, rev'd on other grounds Aberdeen v. Langley(Township), 2008 BCCA 420 (B.C. C.A.); Chow v. Nolan, 2013 BCSC 1383 (B.C. S.C.) at para. 71: Lane v. Pedersen, 2014 BCSC1302 (B.C.

S.C.) at para. 397. [125] Recommendations made by physicians and other health care professionals such as an occupational therapist, are relevant indetermining whether an item or service is medically justified: Gregory at para. 38; Jacobsen v. Nike Canada Ltd. (1996), (BC SC), 19 B.C.L.R. (3d) 63 (B.C. S.C.), quoted with approval in Gregory at para. 38. However, to successfully advance a futurecost of care claim it is not necessary that the health care provider testify to the medical justification of each and every item of care beingclaimed.

What is required is some evidentiary link between the physician's assessment of pain, disability, and recommended treatmentand the care recommended by a qualified health care professional: Gregory at para. 39; Gignac at paras. 31-32. General contingenciesand those specific to the plaintiff are to be taken into account where and as appropriate: Gignac at para. 52.

The amount of the award isnecessarily affected by the nature of the future care and its anticipated duration. [126] The standard of proof for an award for future care is the determination of the real and substantial future possibilities: Anderson v.Rizzardo, 2015 BCSC 2349 (B.C. S.C.) at para. 209. [127] Whether a plaintiff is prepared to accept care that is in his or her best interests is a relevant factor.

Where the plaintiff testifiesthat he or she will not submit to the recommended treatment, even though it is medically justified on the evidence, the court may decidethat an award ought not to be made or may discount the quantum of it: Coulter (Guardian ad litem of) v. Ball, 2005 BCCA 199 (B.C.C.A.) [Coulter]; O'Connell (Litigation Guardian of) v. Yung, 2012 BCCA 57 (B.C. C.A.) [O'Connell]. Additional materialconsiderations would include: (

i) whether the plaintiff's judgment on the question of whether he or she will adhere to therecommendation has been impaired by the injuries inflicted by the tortfeasor; and, (ii) whether the evidence establishes that the plaintiffmay ultimately be forced by circumstances to participate in treatment that he or she has expressed a desire to avoid, especially if theinjuries are grave: O'Connell at paras. 61-62; Van v. Howlett, 2014 BCSC 1404 (B.C.

S.C.) at paras. 78-79. … [129] The court, therefore, should be cautious about reducing or eliminating altogether an award for the cost of future care simply onthe basis that the injured plaintiff has not confirmed a willingness to participate in a medically justified course of care, or currently saysthat he or she will not follow the recommended treatment. The court should act with similar circumspection where the plaintiff has notpreviously used the recommended type of treatment.

This is because fairness requires that the court be alive to the prospect that aninjured person's disposition may change, or that he or she may not have had the means or ability to follow certain courses of treatment inthe past. [74] The plaintiff’s evidence is that as of the date of trial he has received more than 40 chiropractic treatments from Dr. McDiarmid. These treatments have helped him to some extent, including an increase in his functionality. [75] The plaintiff did not provide a professionally prepared cost of future care analysis as part of the evidence at trial.

With respectto the plaintiff’s anticipated future care regimen, the plaintiff has limited his claim to the rehabilitation program prepared by Dr.McDiarmid and endorsed by Dr. Reynolds. This consists of ongoing spinal manipulative therapy (“SMT”) and a regimented fitnessprogram under the guidance of a certified kinesiologist, presumably to take place at a gym or exercise facility. [76] The plaintiff submits that according to Dr. McDiarmid, the proposed SMT regime will cost approximately $5,400 over the nextfive years and that the costs of hiring a certified kinesiologist ranges from $50-$75 per hour.

Further, he suggests that Mr. Petrovic willneed a monthly/yearly gym membership. [77] While acknowledging the inherent uncertainty in arriving at a precise amount for these costs, the plaintiff submits that an awardof $7,500 is fair. [78] The defendants’ position is that the plaintiff has not provided sufficient evidence to support a claim for future care costs, notingthat the plaintiff waited two years before attending chiropractic sessions, which were described as “passive therapies” by Dr. Reynolds.

Moreover, the plaintiff has not shown that he will actually use active therapies like physiotherapy. [79] The defendants also note that Dr. Marks is of the opinion that no further investigation of the plaintiff’s injuries is required andthat there is no indication of further need for formal therapy or facility-based management. However, for the reasons stated above, Iplace little weight on the expert opinion of Dr. Marks. [80] I have taken into consideration the fact that Mr. Petrovic waited for some time before seeking therapeutic treatment for hisinjuries.

However, as discussed in Suthakar, I am not prepared to discount the relatively modest amounts being sought by the plaintiff. The evidence, which I have accepted, is that Mr. Petrovic is a stoic individual who has, up to the date of trial, attended more than 40chiropractic sessions which he claims provides some relief. [81] I am satisfied that there is a real and substantial future possibility that Mr. Petrovic will participate in the care plan prepared byDr. McDiarmid and endorsed by Dr. Reynolds, which I find to be medically justified.

In light of my findings, and having applied therelevant principles, I conclude that Mr. Petrovic is entitled to an award for costs of future care. An award of $7,500 is fair andreasonable. Special Damages [82] The plaintiff seeks $2,807.80 in special damages in respect of costs incurred prior to trial and has provided documentation insupport this claim. Specifically, the plaintiff seeks $466.22 for amounts relating to repair of his car, $56.58 for the cost of a rental car,and $2,330 for the cost of medical treatment provided by Dr. McDiarmid.

[ 83 ] The defendants oppose an award for special damages. With respect to the cost of medical treatment, the defendants submit that it took the plaintiff more than two years to attend chiropractic services for which Dr. Reynolds never referred the plaintiff. Further, the defendants argue that, according to Dr. McDiarmid, Mr.

Petrovic’s “major complaint” in December 2015 was his left shoulder injury -- an injury which the defendants argue is not attributable to the accident. [ 84 ] The test for special damages is whether the amounts sought were reasonable expenses arising from injuries caused by the accident. [ 85 ] Having considered the arguments from both the plaintiff and the defendants, I conclude that the expenses incurred by Mr. Petrovic to obtain chiropractic treatments from Dr. McDiarmid are reasonable expenses arising from injuries caused by the MVA. The total amount the plaintiff is awarded for special damages is $2,852.80.

This amount includes the medical treatment of $2,330.00 plus an additional $466.22 for the deductible amount for the repair of the motor vehicle and $56.58 for the cost of a rental car which was not covered by the insurer.

Conclusion [ 86 ] In the result, I award the plaintiff the following: Non-pecuniary damages $ 75,000.00 Loss of income earning capacity $ 50,000.00 Loss of homemaking capacity $ 8,000.00 Cost of future care $ 7,500.00 Special damages $ 2,852.80 TOTAL $143,352.80 [ 87 ] During submissions, counsel for the defence also spoke of the need for an order that $71.76 is payable by the defence to the Ministry of Health pursuant to the Health Care Costs Recovery Act , S.B.C. 2008, c. 27. I am making that order. [ 88 ] The parties have discussed and settled the issue of costs.

The defendants will pay to the plaintiff single costs of this action to March 11, 2016 and double costs of a five-day trial, plus taxes thereon and disbursements to be assessed. “J. A. Power, J.” The Honourable Madam Justice J. A. Power