Grewal v. Naumann, 2015 BCSC 1147

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Grewal v. Naumann, 2015 BCSC 1147 Date: 20150703 Docket: M112472 Registry: Vancouver Between: Pardeep Grewal Plaintiff And: Stefan Gerhard Naumann, En Vogue Nail Systems Inc. and Chrysler Financial Services Canada Inc. Defendants Before: The Honourable Mr. Justice D.M. Masuhara Reasons for Judgment Counsel for Plaintiff: R.E. McCardell S.R. Lerner Counsel for Defendants: C. Godwin Place and Date of Trial: Vancouver, B.C.

October 6-10, 14-17, 20-22, 2014 January 15-16, 2015 March 3, 2015 Further Written Submissions: March 9 and 13, 2015 Place and Date of Judgment: Vancouver, B.C. July 3, 2015 Table of Contents I. Introduction .. 3 II. Issues .. 4 III. Background .. 4 IV. Medical Evidence .. 17 A. Dr. Hershler 17 B. Dr. Mallavarapu .. 18 C. Dr. Gouws . 19 D. Dr. Lui 21 E. Dr. M. Boyle . 23 F. Dr. K. Singh .. 24 V. Functional Capacity Evaluation .. 25 VI. Vocational Assessment .. 27 VII. Economic Evidence .. 28 VIII. Discussion .. 30

A. Findings on Injuries . 30 B. General Damages . 33 IX. Diminished Earning Capacity - Past and Present .. 35 A. Past Loss of Income Opportunity . 38 X. Loss of Future Income Capacity .. 40 XI. Diminished Housekeeping Capacity-Future Cost of Care for Housekeeping Services .. 43 XII. Special Damages .. 45 XIII. Cost of Future Care .. 45 XIV. Conclusion .. 49 I. Introduction [ 1 ] The plaintiff, Mr. Grewal seeks damages arising from a motor vehicle accident that occurred on June 28, 2007 in the intersection of 64 th Street and 200 th Avenue, Langley, B.C. (the “Accident”).

He was 26 years old at the time and is now 33 years old. Mr. Grewal was driving a 1997 Honda Civic and was attempting to turn left at the intersection; Mr. Naumann was driving a 2007 Dodge Ram pickup and was going through the intersection travelling in the opposing direction. Mr. Grewal was “T-boned” by Mr. Naumann on the passenger side of the Honda he was driving. Mr. Grewal was transported by ambulance to Langley Memorial hospital. Mr. Grewal’s vehicle was declared a total loss. The Dodge Ram sustained damage valued at $14,608.81.

The plaintiff seeks damages for his injuries caused by the Accident including chronic pain around his right shoulder, right wrist, right knee, right ankle, and neck; and recurrence of depression. [ 2 ] At the hospital Mr. Grewal was diagnosed to have right arm lacerations, chest abrasion, abdomen injury, and fractured right ribs 10-12 with ribs 11-12 being comminuted fractures. He was found to have a small renal contusion, and mild retro-peritoneal hemorrhage. Shortly after his release from hospital he saw his family doctor Dr. Singh.

She found a right elbow laceration, right lateral thigh pain, right flank and lateral axilla pain, and a bruise on the right lower back. She found on the cervical spine decreased forward flexion, decreased lateral rotation, decreased extension and decreased lateral flexion. The medial side of the right knee was tender with mild swelling. Bruises and abrasions were noted on his torso. [ 3 ] At the time of the Accident Mr. Grewal was employed as a mobile security guard and was engaged in the course of his work duties travelling from one site to another.

His injuries were not covered by the Workers’ Compensation regime. [ 4 ] Apportionment of liability including contributory negligence has been settled between the parties. These reasons deal with causation and quantum of damages. [ 5 ] An Agreed Statement of Facts was tendered at the start of trial. [ 6 ] The witnesses called in the plaintiff’s case, in addition to the plaintiff were: Mr. B. Gill, a friend of the plaintiff; Dr. H. Mallavarapu, the plaintiff’s treating psychiatrist; Dr. D. Gouws, an occupational medicine specialist; Ms. Louise Craig, a functional capacity evaluator; Ms. R.

Johal, the plaintiff’s cousin; Dr. C. Hershler, a physiatrist; Mr. A. Grewal, the plaintiff’s father; Mr. G. Mahal, the plaintiff’s uncle; Dr. D. Powers, a vocational rehabilitation consultant; Mr. R. Carson, an economist; Dr. S. Lui, an orthopedic surgeon, who appeared by video deposition; Dr. K. Singh, the plaintiff’s family physician; and Mr. T. Horne, the plaintiff’s former manager. [ 7 ] The witnesses called in the defence case were: Mr. D. Hildebrand, an economist; and Dr. M. Boyle, an orthopedic surgeon. II. Issues [ 8 ] The issues to be determined are to what extent the Accident caused Mr.

Grewal’s injuries; and to the extent it did, the quantum under each head of damage claimed namely: general damages, past loss of income opportunity, loss of future earning capacity, diminished housekeeping capacity, and cost of future care. Entitlement to special damages and the amount has been agreed to by the parties. III. Background [ 9 ] Mr. Grewal grew up in Surrey, BC. He was a good student in elementary school. He developed symptoms of depression in Grade 9 or Grade 10 which carried on through high school. He did not complete his Grade 12 requirements and did not graduate. He

attributes his depression to this. [ 10 ] Following high school in 1999 he assisted his father for a few months in his delivery business. He then returned to high school to complete the courses he needed to graduate. Unfortunately, he dropped out and did not complete the courses. From August 2000 to January 2001, he worked for a jean manufacturer as a sandblaster/sorter; from July 2001 to November 2001, he worked as a sales representative selling vacuum cleaners; and from June 2003 to September 2003, he worked as a production worker for a glass and ceramics company.

In November 2003 he found work as a cashier at a fast food restaurant and worked there to March 2006. More recently he learned that, as a result of the courses he took for one semester in 1999 at Vancouver Film School, he had enough credits to receive his adult high school diploma and he has now obtained it. [ 11 ] In 2000, his family physician Dr. Singh diagnosed Mr. Grewal with major depression which included extended bouts of insomnia. He began to see a psychiatrist (Dr. Sandhu) in 2000 or 2001. He was prescribed antidepressants and received therapy for about two years. Mr.

Grewal described that he had been suffering from depression for several years, starting in Grade 9 or Grade 10, prior to seeing Dr. Sandhu and that by the time he saw the psychiatrist things had gotten “bad”. In the summer of 2002 he stopped taking antidepressants on his own decision. He stated he did so because of side effects and that his mood had improved. He attributed his improvement to lifestyle changes such as regular exercise - running and weight lifting, proper nutrition and mediation. He would run 2 to 3 times a week. He would weight train 3 to 6 times a week.

Socially, he described himself as an introvert but had a small tight group of friends he would socialize with. [ 12 ] Mr. Grewal was involved in two motor vehicle accidents prior to the Accident, 1999 and 2003. They were low speed and did not require any physiotherapy or massage therapy treatments. [ 13 ] In October 2006, Mr. Grewal found full time work as a security guard for Core Specialized Investigations. He worked at events, pubs and hotels. Around this time, Mr. Grewal and Mr. Gill, his friend of many years, discussed careers including a mutual interest in policing. Mr.

Gill several years later took the RCMP written exam in around early 2011 and passed, by this time Mr. Gill held a teaching position. He took a practice physical exam. He did not do well and did not take further steps towards a policing career. [ 14 ] In February 2007, Mr. Grewal left Core Specialized Investigations and began working full time as a Mobile Security guard for United Protection Services (“United”). [ 15 ] As a mobile security guard he earned a higher hourly rate than a static security guard.

The position required a good level of fitness, frequent stair climbing, driving, getting in and out of vehicles, and significant walking. Mobile patrollers during a shift travel by car between several client locations to ensure security. Mobile patrollers are also first responders to emergencies like residential and commercial alarms. The gist of Mr. Horne’s evidence (Mr. Grewal’s manager at United) was that the position involved a higher level of fitness and of responsibility than that of a static guard who essentially “sit there and watch something to make sure it is secure”. [ 16 ] Mr. Horne viewed Mr.

Grewal as a very good mobile patroller. He credited Mr. Grewal’s diligence with significantly reducing the crime on his assigned route and improving customer good will by paying attention to the details throughout his patrol shifts. He testified that Mr. Grewal’s prospects for promotion to field manager were very good before the Accident. [ 17 ] Mr. Grewal has always lived with his parents and does so to this day. He assisted with food preparation, cooking, mowing the lawn, and doing other general housework such as vacuuming.

He says he does so now but in a much more limited way because of his injuries. [ 18 ] Mr. Grewal prior to the Accident was physically fit. He weight lifted in his home gym and also frequently went jogging. He had no trouble with sitting or driving and had no limitations for standing, crouching or climbing. He would play with his younger nieces and nephews. He lived a quiet life. [ 19 ] Around the time of the Accident Mr. Grewal had not determined his career aspirations.

He testified that his goals were not clear but that he was weighing options which included returning to school to complete Grade 12 to and pursue a degree. His considerations included a career in policing, firefighting and fitness instructing. In the months prior to the Accident, Mr. Grewal borrowed from the public library three books on policing. He stated that he did so to gain insight and knowledge about the area. [ 20 ] He weighed 165 to 170 lbs prior to the Accident. Today he weighs between 155 to 160 lbs.

His height is 5 feet 9 inches. [ 21 ] As stated at the outset, on June 28, 2007 while on his shift the plaintiff was involved in the Accident. [ 22 ] The injuries suffered by the plaintiff in the Accident were fractures to three ribs, the right 10 th , 11 th and 12 th ; internal injuries to his kidney and duodenum. At the hospital the plaintiff began to notice right knee and right shoulder pain. Further, details are discussed later in these Reasons. [ 23 ] He was hospitalized for his injuries for four nights and five days at Langley Memorial Hospital.

He remained completely off work until January 28, 2008. [ 24 ] For the first few months after the Accident, Mr. Grewal rarely left his home. He spent his days either in bed or on the sofa or, according to his father, lying on the floor. By the time he began physiotherapy in August 2007, he estimated a walking tolerance of 150 metres. Mr. Grewal began physiotherapy on August 23, 2007 and attended 33 treatments through to January 7, 2008. The treatments were focused on his shoulder, knee, neck and back pain. Initially he attended three times a week.

The treatment focused on pain control using various modalities and mobilization. By January 2008 his attendances were once every few weeks. He terminated his treatments on January 27, 2008. He was in pain and maintained a very low activity level. Sleep was difficult because of the pain caused from his injuries particularly his damaged ribs. [ 25 ] His rib fractures healed by September 2007 and by the end of 2007 his rib pain began to lessen and Mr. Grewal started to regain some of his mobility.

[ 26 ] Mr. Grewal returned to work in January 2008 on a graduated basis which lasted until April 2008. At first he spent a few half- shifts riding with a mobile patroller but thereafter was assigned static guard work at a high-rise apartment building in Burnaby. Mr. Horne had concluded at the time of his return that Mr. Grewal as a result of his condition would not be suited for mobile security work. In May 2008, Mr. Grewal was working full time as a static security guard - 40 hours/week. [ 27 ] He was then assigned to the Triton Transport site. He worked there 5 days a week at 8 hours/day. Mr.

Horne assigned this site to Mr. Grewal because compared to other sites it could be patrolled with less physical effort and there was a lower chance of encountering an emergency. Mr. Horne testified that he had to negotiate with the lot owners of Triton to maintain Mr. Grewal’s pre- Accident mobile security guard rate of $12.00 per hour. There was little opportunity for overtime contrasted to his job as a mobile patroller. [ 28 ] By the summer of 2008 Mr. Grewal had resumed weight training and was working out two to three times per week.

The weights were lighter than he lifted before the Accident and the workouts focused on cardiovascular and overall body fitness. [ 29 ] Throughout 2008, Mr. Grewal on multiple occasions sought treatment from Dr. Singh for right knee pain, right shoulder and upper back pain, neck pain, low back pain and right wrist pain. In September 2008, Dr. Singh referred Mr. Grewal to Dr. Jaworski, a physiatrist, because of the ongoing nature of the symptoms. At the end of 2008, Dr. Singh referred Mr. Grewal to Dr. Lui, an orthopedic surgeon regarding his right knee complaints. [ 30 ] Throughout 2008, Mr.

Grewal continued to work and continued his gym exercises. He also required regular pain and anti- inflammatory medications. He was taking two doses of Tylenol 3 on working days until the summer when he switched to over-the- counter Tylenol and Advil on the advice of Dr. Singh. His evidence was that he took the maximum dose of over-the-counter Tylenol (two pills, four times per day) and Advil a few times per week. [ 31 ] Mr. Grewal had been prescribed Meloxicam as an anti-inflammatory from the time of the Accident through his graduated return to work. When he returned to work full time, Dr.

Singh noted increased symptoms (right knee, right ankle, ribs and low back) so she prescribed Naproxen and Diclofenac (Voltaren) in April 2008. Dr. Singh increased the Diclofenac dose in June from 50 mg to 75 mg. [ 32 ] Sleep disturbance became an issue in the summer of 2008 as finding a comfortable sleeping position was a challenge. Dr. Singh began prescribing the antidepressant Elavil (Amitriptyline), to help him sleep. By the end of 2008, Mr. Grewal was complaining of low energy. [ 33 ] Through summer 2008 and into early 2009, Mr. Grewal had been maintaining a workout regime and was back at work full time.

His pain had been improving over the previous year and a half; however by early 2009, he noticed it was no longer improving. [ 34 ] Dr. Singh again referred the plaintiff to Dr. Jaworski, a physiatrist. Examinations and x-rays and tests were conducted. In March 2009, Dr. Jaworski diagnosed Mr. Grewal with chronic musculoskeletal pain and advised him to do regular exercises, maintain a positive frame of mind and to use plain analgesics as needed. [ 35 ] From June 2009, Mr. Grewal and Dr. Singh began regularly prescribing Cipralex for depression as well as Clonazepam for sleep. Mr.

Grewal has remained on antidepressant medication since. [ 36 ] Throughout 2009 Mr. Grewal’s right knee continued to be a persistent problem. Through this time he ranked it among his most troubling physical symptoms. Dr. Lui suspected a meniscal tear and contusion of the knee cartilage. An MRI done in April 2009 was inconclusive in this respect and continued conservative measures were recommended. [ 37 ] Over the second half of 2009, Mr. Grewal’s dosage of Cipralex was increased from 10 mg to 15 mg and then to 20 mg. He also was being prescribed Ativan. [ 38 ] Through 2010, Mr.

Grewal’s depression was medically managed under the care of Dr. Singh with Cipralex and Clonazepam. After an unsuccessful attempt to lower the Cipralex dose in January 2010, it was moved back up to 20 mg and stayed there through the year. [ 39 ] Mr. Grewal gave evidence that his mental health seemed to stabilize somewhat in 2010, particularly toward the end of the year – that it was no longer getting worse. However, his physical injuries, particularly his right knee pain continued. Dr. Lui administered three injections of hyaluronic acid in July, September and October in 2010.

Other than some temporary relief on the first try, Mr. Grewal said the injections did not alleviate the knee pain. [ 40 ] In November 2010, Dr. Singh was prescribing Tylenol 3 again for pain and in December she added Diclofenac back to Mr. Grewal’s prescription. [ 41 ] In 2010, one of the lot owners at Triton went bankrupt and the hours available to Mr. Grewal at that site were cut to three days a week. [ 42 ] Mr. Horne was in charge of scheduling and site assignments during this time. Mr. Grewal had advised that he was available for work at other locations “twenty four – seven” but advised Mr.

Horne that he was not comfortable with assignments that involved significant driving. Mr. Horne testified that due to physical demands at other sites, Mr. Grewal could not simply be reassigned to make up the hours elsewhere. [ 43 ] Where opportunities arose that were within Mr. Grewal’s capacity, he took advantage of them. He obtained temporary assignments at a downtown site during the Olympics in early 2010. He worked a number of one-off assignments as well. After 2010 he took some short-lived temporary assignments. [ 44 ] Mr.

Grewal agreed in cross-examination that he worked all the shifts made available to him after his hours were cut at Triton.

[ 45 ] By January 2011, Dr. Lui was recommending surgery for Mr. Grewal’s knee. In May 2011, Mr. Grewal agreed to the procedure and was placed on the waiting list. [ 46 ] Through early 2011 Mr. Grewal’s right sided musculoskeletal complaints continued. Dr. Singh continued to prescribe Tylenol 3 and Diclofenac. [ 47 ] In April 2011, Dr. Singh suspected a return of major depression and anxiety. He had presented to her that month in a state of anxiety, his mind racing. She changed his medication to Effexor. In June of 2011, Dr. Singh increased the dose to 150 mg and referred Mr. Grewal to Dr.

Mallavarapu, a psychiatrist. [ 48 ] Dr. Mallavarapu saw Mr. Grewal in October 2011 and diagnosed a major depressive disorder and a chronic pain disorder. He prescribed Effexor at 225 mg. [ 49 ] Mr. Grewal had been back on Effexor for six months by this time. Mr. Grewal had experience with Effexor in about 2000 during his earlier depression. His experience was that after a certain time it was only effective at higher doses and it tended to blunt the highs and lows of life.

He was experiencing this muted feeling again so in about November 2011, he attempted to discontinue his antidepressant medication without obtaining medical advice. While Dr. Mallavarapu testified that he had likely told Mr. Grewal to “come off” the Effexor, this evidence is inconsistent with the consult report he provided to Dr. Singh. In any event, Mr. Grewal by the next appointment with Dr. Mallavarapu on December 1, 2011 was “feeling slightly better as far as his mood”. Dr. Mallavarapu noted that Mr. Grewal was at that time not taking any psychotropic medications. In September 2012, Dr.

Mallavarapu stated that Mr. Grewal’s sleep was “good”. [ 50 ] In February 2012, Dr. Mallavarapu started Mr. Grewal on a new antidepressant, Cymbalta (30 mg.). Dr. Mallavarapu’s opinion was that Mr. Grewal’s condition included longstanding chronic pain and that, if not properly addressed, would continue to activate the depression in a vicious cycle. Cymbalta was a drug that could address both conditions. [ 51 ] The prescribed dose of Cymbalta went from 30 mg to 60 mg in March 2012, then from 60 mg to 90 mg in September and from 90 mg to 120 mg in November 2012. [ 52 ] At the higher doses, Mr.

Grewal’s evidence was that the depression was “still there” but he started to feel better. Instead of being focused only on his pain he began to focus on his future and career plans. His levels of motivation and interest and energy were not at their pre-Accident level but were better than they had been in some time. [ 53 ] On February 17, 2012, Mr. Grewal underwent arthroscopic knee surgery with Dr. Lui. It involved “shaving off” rough cartilage at the distal part of the patella as well as cutting away a torn area on the meniscus. [ 54 ] Mr.

Grewal was off work for about a month recovering from the surgery and was not paid in that time. Mr. Grewal continued to do home exercises for his knee as instructed by Dr. Lui and he believes that he had recovered from the surgery by summer of 2012. [ 55 ] Mr. Grewal’s evidence is that the symptoms in his right knee did improve following the surgery but it was not a drastic improvement and not a complete recovery. His evidence was that the symptoms were the same and were triggered by the same types of activities but that the pain levels had decreased. [ 56 ] Dr. Lui followed Mr.

Grewal’s progress after surgery seeing him on three more occasions that year. He noted that the surgery was free of complications but opined that Mr. Grewal would continue to have symptoms and would likely have continued difficulty with function such as squatting, kneeling and climbing. He also noted that the reduction of the meniscus rendered Mr. Grewal more vulnerable to a further tear than he otherwise would have been and put him at increased risk of osteoarthritic degeneration requiring a full knee replacement. [ 57 ] By the end of 2012 there had been little to no progress with Mr.

Grewal’s other musculoskeletal symptoms. With improvement to the knee, Mr. Grewal’s right shoulder was now his most painful area, followed by continuing pain in his right wrist and right ankle and, to a lesser extent, his neck and lower back. [ 58 ] Through 2012, Mr. Grewal continued to take Tylenol 3 and Diclofenac for pain and inflammation. He continued to take Clonazepam for sleep difficulties as well. [ 59 ] After Mr. Grewal recovered from his knee surgery in 2012, he was able to increase the length of his walks which had become his only regular exercise.

He walks usually for an hour or longer, several times per week. He also does daily stretching for his back, neck, legs, arms, wrists, knees and shoulders. He weight trains about twice a month. He is able to drive. His longest drive has been about 1.5 hours. He continues to assist in the kitchen; however chopping and peeling vegetables, stirring, washing dishes and taking things in and out of the oven cause him pain in his wrist and shoulders. He has back, right shoulder pain when vacuuming. He is unable to do the entire house at one time compared to the past.

Yardwork such as mowing the lawn, sweeping and shovelling cause him difficulties in his shoulders. [ 60 ] Mr. Grewal also says experiences pain in his back, shoulders and knees with daily activities such as brushing his teeth, shaving, washing hands, sitting at a computer and reading. [ 61 ] Mr. Grewal says the things that cause him difficulties today relate predominantly with pain in his right shoulder.

He says that he has full to almost full range of motion but at certain positions he has pain at the front of his shoulder joint such that he has limited duration of extending his right arm out, such as driving or vacuuming. He has to take breaks in order to do these things. He has never tried to use his left arm for things as an alternative. [ 62 ] In May 2013, Mr. Grewal enrolled in an online Canadian Securities course provided by the Canadian Securities Institute. His goal was to become a financial advisor. He stated that his interest in this area was to assist the many people who needed help in

financial planning. His intention is to provide a service which protected people’s investments through ethical advice and service. He stated that he had been planning to enroll in the program for some time. He passed the required two exams with good marks, 77% and 82%, a passing grade is 60%. His second exam was in March 2014. As a result he now holds a certificate of completion which allows him to sell mutual funds in Canada. Immediately following this he started studying a second course, Investment Management Techniques. He hopes to complete the course in a few months.

Following this he intends to take a portfolio management techniques course. Thereafter he hopes to attain the designation of a chartered investment manager. [ 63 ] In June 2013, United became insolvent and shut down. As a result, Mr. Grewal lost his job. The shut down and loss of work came without warning and abruptly. He learned of his job loss when he arrived at his work location and was told by a security guard from another company on shift there that United had been replaced.

Upon visiting United’s office the next day he found it locked with a notice of bankruptcy on the window. [ 64 ] Since then he has not worked but has continued with his Canadian Securities Institute studies. [ 65 ] It has been about 16 months to trial since Mr. Grewal last worked. [ 66 ] In terms of seeking out employment, Mr. Grewal stated that he intends to apply for an entry level job in the financial industry after the end of this trial. He stated that he had hoped to have started his search earlier this past summer but felt too stressed by the litigation to do so and is awaiting the end of trial. [ 67 ] Mr.

Grewal’s annual gross income has been as follows: Year Amount 2005 $15,687 2006 $9,103 2007 $12,702 2008 $17,490 2009 $24,813 2010 $15,259 2011 $18,425 2012 $17,957 2013 $8,622 [ 68 ] In addition to the plaintiff’s testimony of his injuries and their effects on his life, as well as his plans, the plaintiff called his father, cousin, his uncle and a friend who testified as to their observations of the plaintiff before and after the Accident. [ 69 ] Mr. Gill has known the plaintiff since high school and during that time said that they “hung out” daily at school. He stated that Mr.

Grewal worked out in his home gym and that the plaintiff was in “good shape” and had a fairly muscular physique. After high school they continued to have frequent contact by phone. By 2008, contact was usually monthly and has in the last three years reduced to three or four times a year. [ 70 ] Following the Accident, the two men would get together about every month. They would get together for dinner or watch UFC televised events at a pub. Mr. Gill noticed that Mr. Grewal would be talkative but would then suddenly get quiet. He stated that Mr. Grewal would express his worry about his body and knee pain.

He observed Mr. Grewal getting up from the table to stretch his arms, shoulders and legs. This carried on 2010. He also noted that Mr. Grewal walked in the same way as pre-Accident but now slower. He also stated that Mr. Grewal appeared to have lost muscle around his chest and had “bit more of a stomach showing”. [ 71 ] Ms. Johal is the plaintiff’s cousin. She saw the plaintiff often during high school years. She described him as friendly and polite. She stated that he was close to his mother and helped in the kitchen and around the house. She stated that Mr.

Grewal did not participate in sports but worked out with weights in his home gym and was thin and in good shape. She was not aware of Mr. Grewal’s depression prior to the Accident. She saw Mr. Grewal once or twice within six months of the Accident and noted that he was walking slower, had lower energy, and did not make tea or do dishes anymore. After six months, she observed him sleeping most of the time and also would see him stretching his neck, shoulders and arms. She acknowledged that his sleeping could be related to graveyard shift work.

She observed that he was now more irritable, had lower energy than before the Accident and did not help around the house. When she learned of Mr. Grewal’s depression in the summer of 2013, she spoke to him about it and shared with him her own experience with it. [ 72 ] Mr. Mahal is the plaintiff’s uncle. Prior to the Accident, he spoke of the walks he would take with the plaintiff of about two times a month of approximately 1 to 1.5 hours, that he observed the plaintiff working out in his basement, that the plaintiff was pretty cheerful, that he helped in food preparation, cooking, vacuuming and doing yard work.

He also testified that the plaintiff spoke of returning to school mentioning criminology and teaching but that the plaintiff was uncertain about what his plans were. Following the Accident, Mr. Mahal testified to hearing the plaintiff complaining about his knee and observing the plaintiff stretching his legs and arms and rubbing his knee regularly. The two would still walk regularly but the duration has lessened to 20 to 30 minutes. Mr. Mahal has also noticed that Mr. Grewal facially appears mostly sad now and has less energy. However, he noted that Mr. Grewal seemed interested in his computer studies. [ 73 ] Mr.

Avtar Grewal is the plaintiff’s father. He is truck driver. He spoke of noticing changes in the plaintiff’s mood in about Grade 11. He stated that after high school the plaintiff appeared to be fine and happy. He stated that prior to the Accident the plaintiff assisted with cooking, washing dishes, cleaning and vacuuming the house, cutting the lawn and keeping the yard tidy. He would also assist his mother in her seamstress business by folding garments and putting them in bags. Mr.

Grewal also stated that the plaintiff spoke of his son thinking of going back to school, and the mention of studying criminology as well as becoming a teacher or police officer. He spoke of the plaintiff’s frequent and regular weight training and runs prior to the Accident and the changes after it. He spoke of the plaintiff’s constant pain, his stretching, live rubbing of his knee, his irritable mood, lack of energy, no ability to work out, absence of

running, trouble with walking up the stairs, inability to mow the lawn, infrequent assistance in the kitchen, and limited vacuuming after the Accident. He stated that his son studies at his computer 4 to 5 hours a day, five times a week. Mr. Grewal and his wife went to India in 2006, 2009, and 2013. They left for two months each time. IV. Medical Evidence A. Dr. Hershler [ 74 ] Dr. Hershler provided a report dated January 5, 2012 and an addendum report dated May 20, 2014. Dr. Hershler saw the plaintiff on January 5, 2012 and May 12, 2014. He opined that Mr.

Grewal had suffered fractures to his 10 th , 11 th and 12 th ribs on the right rib cage and renal contusion. He also found soft tissue injuries due to the Accident at the insertion of the right bicipital tendon to the right shoulder capsule and in the soft tissue of the right wrist. He also found pain affecting the lateral joint space of the right knee and the lateral aspect of the patellofemoral joint. At the January 5, 2012 assessment, he found that the plaintiff was “limited in full sustained squatting by pain that started to develop in the right knee”. Dr.

Hershler also wrote that: Movements of the lumbar spine, and neck, were fluid, pain free and attained full range. He did not complain of any particular pain during these movements, except for mild tightness which was evident in neck movement and low back movements. [ 75 ] Dr. Hershler testified that there were no complaints of pain in the neck and back areas. He found a mild reduction in right hand grip. He also found some tightness in the muscles of the neck, shoulders and low back. Dr. Hershler found no evidence of radiculopathy or neuropathy.

He was of the opinion that the plaintiff had likely developed chronic soft tissue pain. He opined that Mr. Grewal’s symptoms were caused by the Accident. Mr. Grewal’s neck, back, shoulder, wrist, and ankle symptoms, being in existence for seven years at this point are chronic, are extremely likely to be permanent, and will not resolve of their own accord over time. [ 76 ] Dr. Hershler in his second report noted that Mr.

Grewal stated to him that following his knee surgery that “he noticed an improvement in his right knee, but not completely and that he was able to sit, stand and walk indefinitely, but had difficulty with driving. After thirty minutes of using the right foot (on the brake pedal or accelerator), he begins to experience pain diffusely over the knee cap (patella). Dr. Hershler found improvement in the plaintiff’s condition from the first assessment. By example he reported that Mr.

Grewal was able to squat fully and did not complain of pain in the right knee revealed full range of motion, with no evidence of effusion or discolouration. However, downward pressure on the patellofemoral joint and pressure at the insertion of the patella to the tendon caused the plaintiff to indicate pain. The plaintiff was similarly tender with pressure into the anterior region of the right shoulder capsule. He had regained strength in the right handgrip compared to the previous finding. He had full shoulder movements and there was no pain response to palpation of soft tissues in the right wrist. Dr.

Hershler recommended a referral to a vocational counsellor, three sessions; an activity based rehabilitation program; and a trial of anti-inflammatory gel for six weeks with a review. B. Dr. Mallavarapu [ 77 ] Dr. Mallavarapu is the plaintiff’s treating psychiatrist and saw the plaintiff on October 27, 2011; May 9, 2012; September 4, 2012; November 14, 2012; February 19, 2013; May 6, 2013; July 30, 2013; December 5, 2013; March 17, 2014; May 22, 2014; and August 21, 2014. He wrote two reports dated December 10, 2012 and August 11, 2014. [ 78 ] Dr. Mallavarapu opined that when he first saw Mr.

Grewal he diagnosed him with a major depression disorder and that it was associated with the trauma of the Accident. With further treatment overtime he found that the major depression had gradually improved, was in remission by December 5, 2013 and that Mr. Grewal had returned to a stable happy mental state and that the next stage was to begin reducing the level of Cymbalta prescribed and hopefully eliminating its use completely. The period of remission, except on one occasion, had been for a period of 1.5 years to August 2014 (his last visit with the plaintiff). Dr.

Mallavarapu testified that this was a positive prognosticator. However, he opined that Mr. Grewal is at greater risk to suffer a recurrence of symptoms of anxiety and depression when compared to the general population who did not suffer from major depressive disorder and chronic pain disorder as a result of a motor vehicle accident. C. Dr. Gouws [ 79 ] Dr. Gouws, an occupational physician, assessed Mr. Grewal on June 11, 2013. [ 80 ] Findings from his physical examination based on his report and testimony included: (

a) sensory systems: no functional limitation (

b) cardiorespiratory: no functional limitation (

c) Chest: no functional limitation (

d) cervical spine: neck movements were somewhat guarded but was in the functional range of motion. Neck flexion was to 40 ° . Extension was to 45 ° . Lateral flexion was 35 ° bilaterally. Rotation was 70 ° bilaterally. There was tenderness on palpation of the right nuchal strap and into the superior border of the right trapezius muscle. He had mild tenderness over the base of the scalene muscle on the right. (

e) Shoulders: he had a full range of motion of both shoulders. His shoulders were symmetrical and he was able to shrug his shoulders equally. There was no functional limitation.

(

f) Upper arms: Upper arm girths were symmetrical. There was no functional limitation. (

g) Wrists and hands: Maximum grip strength was 42 KgF on the left and 36 KgF on the right. Mr. Grewal demonstrated weaker hand grip strength compared to population norms of 50.1 KgF on the left and 55.2 KgF on the right. He has essentially normal ulnar and radial deviation and normal wrist extension and flexion. (

h) Back - thoracic/lumbar/sacral: Mr. Grewal stands with a level pelvis. He has normal thoracic and lumbar curves. Back flexion brought his fingertips to 3 inches from the floor with normal segmental excursion on Modified Schober’s Test. Lateral flexion brought his fingertips to the upper pole of the patellae bilaterally. Extension was to 15° with no complaints of pain. Straight leg raising was 70° bilaterally. Femoral stretch test was negative. (

i) Hips: Hip flexion was to about 135° bilaterally. Hip extension was 25° bilaterally. Hip external rotation was 40° bilaterally. Hip internal rotation was 15° bilaterally. Sacroiliac joint stress testing was negative. There was good strength against resistance of the hip movements in all axes. There was no functional limitation. (

j) Legs and knees: Knee flexion was full bilaterally. Knee extension was zero degrees bilaterally. Mid thigh girths and mid calf girths were symmetrical. There was no wasting of the quadriceps muscles. McMurray’s testing is negative. All major ligaments were intact. He was mildly tender over the articular surface of the right patella more on the lateral aspect and medially. Patellar Test was negative. Mr. Grewal was able to squat, rise from a squat and duck walk. (

k) Ankles and feet: He was able to toe raise and heel walk. Heel to toe walk was normal. There were no abnormalities of the feet. There was no functional limitation. (

l) Central and peripheral nervous system: Deep tendon reflexes were normal. There was no impairment of tone, power or feeling. Romberg testing was normal. There was no functional limitation. [ 81 ] His opinion by this stage was that: (

a) The Accident had left Mr. Grewal with much reduced occupational options and opportunities and he was not as competitively employable as he otherwise would have been; (

b) Mr. Grewal would never be suited to work requiring heavier strength demands or sustained and repetitive crouching and stooping; (

c) Mr. Grewal was confined to light strength work with occasional low medium strength demands; and that (

d) Given the chronicity of his symptoms to that point, Dr. Gouws was of the view that Mr. Grewal would not return to his pre- Accident level of function. [ 82 ] Dr. Gouws opined as well that: Mr. Grewal continues to have a functional impairment as a result of his chronic pain condition and associated emotional comorbidities. It is my opinion that he does have room for improvement of his physical abilities with aggressive management of his pain condition and physical rehabilitation.

His relatively young age will hopefully also allow him to improve his strength and endurance over time, pursue more suitable career options and is considered a positive prognostic factor. His ongoing physical impairment and the extent and chronicity of his symptoms are poor prognostic factors for a recovery to the point where he will be able to return to his pre-accident level of function. [ 83 ] Dr. Gouws saw the plaintiff only two weeks after his knee surgery. He also was not aware the plaintiff had obtained his high school diploma. [ 84 ] In cross examination, Dr.

Gouws agreed that his impression of the employability and chronic pain of Mr. Grewal would change if he understood that his depression had gone into remission on a sustained basis. His view was that employability would improve as would the chronic pain. He also agreed that his view of employability opinion would be more positive had he known that Mr. Grewal had obtained high school graduation diploma as well as his successful completion of two securities courses. D. Dr. Lui [ 85 ] Dr. Lui was Mr. Grewal’s treating orthopedic surgeon for his right knee. Mr.

Grewal had been referred to him by his family physician, Dr. Singh. He acknowledged in his video deposition that his comments in his report are in relation specifically to the plaintiff’s right knee. Dr. Lui opined that Mr. Grewal suffered direct injuries of his right knee which is the main intra articular damage to his joints. His disability was related to and is the result of the MVA impact, with damage to the patellofemoral joint as well as the medial meniscus with a tear of the anterior horn with extension to the body of the meniscus. [ 86 ] Dr. Lui treated Mr. Grewal for his knees. Initially, Dr.

Lui recommended a strengthening exercise program as well as analgesics for pain. In July 2010 because of unresolved knee pain, he started hyaluronic acid injections but this led to only short term relief. Because of the continued complaint of pain in the right knee Dr. Lui recommended arthroscopic surgery to determine the cause. He performed arthroscopic surgery in February 17, 2012. Unlike the finding in an MRI report that had been ordered by the plaintiff’s family physician; Dr. Lui found a meniscus tear and repaired it. He found also chondromalacia patella.

He opined that the cause of these injuries was the Accident. Following the surgery Dr. Lui reported that Mr. Grewal told him that there was improvement in the knee — less pain, more mobility and function of the joint. [ 87 ] In terms of the future regarding the plaintiff’s right knee Dr. Lui, he opined:

The damage being intra articular in nature, would likely progress in time and can cause osteoarthritis in the end, more likely than not. The meniscal tear, although it was treated at this time, has rendered the meniscus weak and exposing it for further tearing in the future for which the patient might require further surgery. The risk of this occurring is greater than an uninjured knee. With losing the cushioning effect of the meniscus, the knee would therefore be exposed to the possibility increasing osteoarthritis to require knee replacement surgery a lot sooner than normally anticipated without any incident.

A knee replacement surgery would imply an open surgery by removing part of the knee and replacing it with artificial parts. [ 88 ] In cross-examination Dr. Lui stated that the risk of requiring a knee replacement in the case of Mr. Grewal was only slightly more than a person who had not suffered a tear as the plaintiff. E. Dr. M. Boyle [ 89 ] Dr. Boyle is an orthopedic surgeon who has been retired from active practice since 2009. Since then he only performs medical- legal examinations and then exclusively for I.C.B.C. He performs so many of these examinations that he is unable to estimate how many.

He examined Mr. Grewal at the Defendant’s request on August 13, 2013. [ 90 ] In terms of Mr. Grewal’s upper body, Dr. Boyle diagnosed mild soft tissue strains to the cervical and lumbar spine areas which he ranked as “grade 1”. In cross examination he explained that grade 1 simply denoted no elongation or tearing of the ligaments surrounding the vertebrae in these areas. [ 91 ] Dr. Boyle further explained that this grading system was based of the degree of stretching of ligaments and was geared at determining how much spinal stability remained following the trauma.

It is submitted that this is a very narrow criteria for diagnosing a soft tissue injury. [ 92 ] With respect to the other longstanding upper body symptoms Mr. Grewal reported having experienced since the Accident (right shoulder, right wrist) Dr. Boyle diagnosed no injury because, as he explained, he could not identify any organic findings or “objective evidence” to support them. Interestingly, he did find tenderness at the right shoulder in the same place Dr. Hershler found on both of his assessments and did note tenderness to palpation at the dorsoradial border in Mr. Grewal’s wrist. Dr.

Boyle also neglected to consider the post-Accident examination findings of Dr. Singh and Mr. Grewal’s physiotherapist, each of whom noted loss of strength and reduced range of motion in the months immediately following the Accident. [ 93 ] Dr. Boyle agreed that as an orthopedic specialist he was not qualified to evaluate or comment on the mechanism of soft tissue pain described by Dr. Hershler as central sensitization. He did admit, however, that pain can persist after soft tissues have healed and even in the complete absence of examination findings. [ 94 ] Dr.

Boyle also admitted, in the face of his prognosis that the neck and back strains he found would likely resolve completely, that if a person has suffered from soft tissue pain for 7 years, resolution “is not going to happen”. [ 95 ] Regarding Mr. Grewal’s right knee, Dr. Boyle gave an opinion that the condition of Mr. Grewal’s patellofemoral joint was degenerative and that the degeneration within that joint was likely to spread within that joint, in that the cartilage will continue to break down over time. He also agreed that to the extent that the condition of Mr.

Grewal’s knee affected his ability to squat, climb, stand and walk, those functions would further diminish as the degenerative process progressed over time. F. Dr. K. Singh [ 96 ] Dr. Singh is the plaintiff’s family physician. She has been his physician since 1989 though she has his medical records that date back to March 1981. She reported that he has a significant history of depression and was diagnosed with major depression on February 12, 2000 at the age of 19. She noted that he had told her that he had been depressed for the past five years.

He was referred then to a psychiatrist who saw him on a regular basis and prescribed an antidepressant. Dr. Singh reported that to the best of her knowledge Mr. Grewal had been in in remission for his major depression for more than five years at the time of the Accident. [ 97 ] Dr. Singh did not disagree with anything contained in the medical-legal report of Dr. Lui and deferred to his prognosis. Dr. Singh agreed with the conclusions of Dr. Mallavarapu. She agreed with his opinion that Mr.

Grewal had reached a plateau and with the prognosis is guarded as the plaintiff “continues to be depressed after more than six years from the date of the accident.” She has referred Mr. Grewal to a pain clinic is awaiting an appointment. [ 98 ] She reviewed the functional capacity report of Ms. Craig and the reports of Dr. Gouws and Dr. Hershler. She opined that Mr. Grewal’s job choices are “limited by his lack of education and skills as he had yet to complete Grade 12. Mr. Grewal is certainly capable of doing jobs similar to those that he has held in the past since leaving high school. Mr.

Grewal’s job choices will be limited by his ongoing knee pain. He should avoid jobs that require prolonged standing (more than two hours), or repeated crouching and stair climbing. He is able to drive for 30-45 minutes at a time. Mr. Grewal should be able to handle jobs with light to moderate physical demands. V. Functional Capacity Evaluation [ 99 ] Ms. Craig conducted a functional capacity evaluation on June 3, 2013. [ 100 ] She reported that Mr.

Grewal “would not tolerate occupations with repetitive bending (for instance, getting in and out of cars repeatedly), repetitive reaching/gripping, or heavier physical demands.” In respect to work as a static security guard, “the concern is that the cumulative effect of working daily on a full time basis may cause symptom aggravation, sufficient to require time off to manage symptoms.” In respect to his move to the area of finance and a sedentary role, Ms. Craig commented that “he will have to manage

lumbar stiffness and pain with proper ergonomic set up and with breaking/stretching at regular intervals.” [ 101 ] Ms. Craig found that Mr. Grewal “demonstrates limitations to his knee, low back and upper left arm that reduce his options to work at more physically demanding jobs. Sedentary occupations will need to be accommodated with frequent positional and task changes, regular stretching and with proper ergonomics to reduce lumbar stiffness and symptom aggravation. As such, the scope of occupations once viable from a physical perspective for Mr.

Grewal, is now significantly reduced leaving him with reduced competitive employability. [ 102 ] Ms. Craig listed Mr.

Grewal’s limitations/abilities as follows: • the capacity for light and some medium physical strength demands. • right knee symptoms increase with lifting/lowering to lower levels (waist to floor); • limited for crouching and kneeling due to right knee symptom aggravation; • right knee is bothered by single leg stance (balancing) on the right and with stair climbing; • increase in right knee symptoms when starting to walk; • low back symptom increase with stooping and sustained sitting; • limited for repetitive gripping and handling/twisting with right hand due to symptom increase including longer periods of writing; • limited for upper level reaching due to symptom increase in right shoulder; • right shoulder pain is increased with work intensive sitting and completing paper work; • increased right shoulder pain increase with forceful pushing, carrying and lifting at upper levels; • loss of speed of movement of low back and right knee, asymmetrical movement, reduced fluidity/smoothness of movement of low back and right knee, reduced strength and endurance. [ 103 ] Ms.

Craig reported that Mr. Grewal in a self-report of abilities and limitations described himself as severely limited in kneeling down, crouching down, jogging or running. [ 104 ] She opined that: Mr. Grewal is faced with ongoing physical challenges, which are not expected to significantly improve as based on the medical information provided. Further treatment is suggested to at least maintain or prevent deterioration in Mr. Grewal’s condition. The goal of further treatment is to maximize residual function but I do not expect significant functional gains to occur.

He has participated in a course of physiotherapy but has not had specific treatment of his right knee. He reports the only treatment for his shoulder was IMS. He continues to be quite stiff in the low back. Further manual treatment to the low back is suggested to improve lumbar mobility (approximately 12-15 treatments). HE may also benefit from treatment and rehabilitation to the right knee using the McConnell approach which targets the patella-femoral joint using taping and muscle retraining techniques (approximately 12-15 treatments).

An individualized rehabilitation program guided by a physiotherapist is suggested after pursuing the above treatment to maximize/maintain strength and functional capacity as follows: • 4-6 weeks individualized program; • 2-3 days per week; • 2-3 hours per day. It is recommended that the rehabilitation program address muscular strength, endurance, flexibility and aerobic fitness. *** Mr. Grewal is independent with activities of self-care. Mr. Grewal does not require home help for regular household cleaning at present. Mr.

Grewal currently resides in his parent’s home with little responsibility for household chores/tasks. Should this situation change and he is required to help at home, he will need to pace himself or perform aggravating tasks for short intervals at a time thus extending the time to complete tasks. Should he elect to live on his own or start his own family, he may have difficulty with repetitive bending/reaching cleaning tasks, leading him to require regular outside help to maintain his own home (mopping, sweeping, cleaning bathroom, vacuuming). Again, Mr.

Grewal does not have responsibilities in the yard or garden at present. Should Mr. Grewal move away from the family home he will require assistance for seasonal cleaning (approximately 10-15 hours per year). Mr. Grewal will require assistance for heavier or very repetitive garden and yard care. VI. Vocational Assessment [ 105 ] Dr. Powers conducted vocational testing of the plaintiff on September 16, 2013 and provided an assessment on the

employability of Mr. Grewal. His report is dated September 30, 2013. Dr. Powers opined that the plaintiff’s unresolved medical issues following the Accident have rendered him unfit for the physical demands as a security guard, or other similar employment in the fields of security and law enforcement, such as police officer and private investigator, two occupations identified by Mr. Grewal on the career interest inventory administered as part of the assessment. Dr.

Powers concluded that the plaintiff was not employable at a competitive or sustainable level as a mobile security guard and nor as a stationary security guard. [ 106 ] Dr. Powers also opined that a substantial number of alternative occupations were also now closed to Mr. Grewal given his unresolved medical condition. The employment options open to Mr. Grewal were from a vocational capacity viewpoint were predominantly light work strength demand occupations. Dr. Powers stated that to access lighter work strength demand careers, educational upgrading is needed in order for Mr.

Grewal to attain the hiring requirements of careers in this category. Dr. Powers identified the careers included legal assistant, addictions counsellor, and securities analyst. Retraining for a suitable career/occupation was advised. Dr. Powers stated that Mr. Grewal would benefit with vocational counseling services to assist in identifying alternative careers suitable to his medical condition and in determining pre-hire educational requirements. He further said that Mr.

Grewal would benefit with vocational rehabilitation services which typically includes mining employment leads with potential employers, assisting with interviews, as well as negotiating with employers and providing education, monitoring and mentoring at the work site to assist with ergonomics and other concerns. [ 107 ] Dr. Powers testified that Mr. Grewal had the academic ability and physical capability to work as a financial analyst or a bank employee. VII. Economic Evidence [ 108 ] Two reports authored by Mr. Carson were entered by the plaintiff.

The first provided evidence with respect to the quantification of future care costs. [ 109 ] The second report addressed the quantification of past and future income loss. Assumptions were provided by counsel. The economic scenarios he was requested to produce were as follows: 1. Future Scenario 1: Mr. Grewal would have worked with earnings equal to the averages of earnings among high school graduates; 2. Future Scenario 2: Mr. Grewal would have worked with earnings equal to the average of police force members to retirement; 3. Future Scenario 3: Mr.

Grewal would have earned as much as the average post secondary certificate or diploma holder. With regard to his with-accident earnings, Mr. Grewal is currently finishing courses related to his goal to work as chartered investment advisor, I have produced an earnings projection, in Table 3 , in which it is assumed that Mr. Grewal will return to the paid labour force in 2014, at about the time of the trial date. The earnings values in Table 3 are based on level of educational attainment (college diploma, more than one year) and not on occupational earnings.

I comment on employment and earnings information in occupations related to investment and financial management in

Section 2.3. [ 110 ] Mr. Carson’s estimates of the above scenarios are summarized in a table in his report reproduced below: Table A Estimates of Past and Present Values of Future Wages and Benefits Source Table Full Time Full Year Earnings Earnings Net of Contingencies Net Plus 10% or 15% for Benefits (1) (2) (3)

(4) Table 1 - High School Graduation Certificates or Equivalents Sum of past: $210,376 $181,534 $199,700 Present Values: $1,697,953 $1,243,582 $1,367,900 Table 2 - Police Officers Sum of past: $357,422 $327,303 $370,300 Present Values: $2,501,177 $2,017,836 $2,313,800 Table 3 - College Program of 1 to 2 years, Completed by Mid 2014 Sum of past: $157,278 $135,112 $148,600 Present Values: $1,733,111 $1,248,880 $1,373,800 Table 4 - College Programs of 1 to 2 Years, Completed by Mid 2017 Present Values: $1,528,881 1,070,907 $1,178,000 Note: Values in column 4 are rounded to the nearest $100. [ 111 ] Mr.

Carson also discussed earnings for individuals in the financial advisory area. He noted the difficulties with the data in that there is an unusual distribution of earnings for occupations in the area.

[112] Mr. Hildebrand wrote two reports in response to Mr. Carson’s reports which deal with the cost of future care and past and futureincome loss. [113] Mr. Hildebrand’s report sets out projected earnings tables that line up with the various scenarios in Mr. Carson’s report. Theresults for reasons set out in the report are lower. [114] His report also contains projected earnings tables for occupations in the financial industry. VIII. Discussion A.

Findings on Injuries [115] The key issue, as argued by the plaintiff, is whether the pain from the plaintiff’s injuries suffered in the Accident will everresolve and may even worsen; or whether as submitted by the defendants that the plaintiff’s complaints of continued pain in his neck,lower back, right shoulder, right wrist, right knee and right ankle, along with psychological complaints in the form of depression areminor, have largely resolved, and are exaggerated or have little effect on his ongoing vocation or avocational capabilities [116] The defendant’s arguments include: the late appearance of Mr.

Grewal in his case as opposed to being the first witness. Thedefence points to the fact that most of the lay and expert evidence in the plaintiff’s case was called before the plaintiff took the stand. Inthe context of a case substantially focused on soft tissue, the defence argued that the plaintiff’s credibility, the weight of his evidenceand the medical should be considered with the caution expressed by Madam Justice Humphries in Yeung v. Dowbiggin, 2012 BCSC 206and by Mr. Justice McEwan in Charles v.

Dudley, 2012 BCSC 1301. [117] I agree with the general view that a plaintiff should be called if not first then early on in the case. In this case, the fact that asubstantial part of the plaintiff’s case including cross-examination of his witnesses had occurred before his appearance created somedifficulty on my

part in considering the evidence in context and raised in my mind questions as to whether there were difficulties with theplaintiff’s own evidence thus requiring his late appearance. I note however the defence did not in any significant way confront theplaintiff on credibility. I have kept all of the foregoing in mind in my analysis of the case. [118] I am also mindful of the general approach that in the absence of objective evidence of continuing injury when complaints of painpersist for long periods extending beyond the normal or usual recovery, the court “should be exceedingly careful”: Price v.

Kostryba(1982), (BC SC), 70 B.C.L.R. 397 (S.C.) at 399. Though there has been significant focus in medicine and a greaterunderstanding on chronic pain since that decision, the caution as identified in that case remains applicable. There are no objectivemeasures to prove the complaints or the degree of the pain they are subjective. Each case is to be determined on its own specific thefacts and circumstances. [119] In considering the evidence of the observations of the plaintiff by Mr. Horne, Mr. Grewal (his father), Mr. Mahal, Ms. Johal andMr.

Gill, spoke of the difficulties the plaintiff had with pain, his need to stretch, his emotional state, limitation in activities; however, thisevidence requires assessment against such things as the observations and findings of the experts, the frequency and the time period theobservations were made, the occasions when the observation was made and the degree of sympathy of the witnesses towards theplaintiff. In certain aspects, the witnesses observations of limitations were greater than what the plaintiff stated them to be.

In suchcircumstances, I accept that the plaintiff’s own evidence. [120] My findings of the injuries suffered by the plaintiff from the Accident are: (

a) three fractured ribs two of which were comminuted, and internal injuries which physically healed by January 2008; (

b) chondromalacia patella and a small tear to the anterior horn of medial meniscus; which was repaired by surgery; there is somerisk of arthritic degeneration but only slightly greater than the general population. The range of motion in his right knee has always beennormal; though at times there has been the presence of fluid buildup which has never been assessed as more than minimal. (

c) soft tissue injuries to neck, right shoulder, lower back, right wrist and right ankle. (

d) chronic pain. While I find that there is chronicity to some of Mr. Grewal’s reported pain. I find that the pain is at the low endof the range. (

e) the recurrence of a major depression which is now in remission. Mr. Grewal had a pre-Accident history of depression, includingmajor depression and that the Accident caused him to experience significant depression and anxiety. The Accident related depressionarose in around June 2009 and became a major depression in April 2011, gradual improvement was occurring which by February 2013no depression was detected and was deemed to be in remission by December 2013 where Mr. Grewal was found to be in a “happy stablestate”. Mr. Grewal’s sleep was said to be “good” by September 2012.

He has remained in remission since and that reducing hismedications is a potential. Mr. Grewal however is at higher risk to suffer from recurrence of anxiety and depression as a result of theAccident. [121] Notwithstanding his injuries and chronic pain, the evidence establishes that he has full range of motion in his right shoulder; hehas had full range of motion in his lower back since January 2008; he also has full function of this lower back; and he can stand and walkindefinitely. He is pain-free in neck and lower back with full range of motion. He also has full knee function, can squat and duck walk.

He also has full function in his wrist. [122] Mr. Grewal is able to drive a car, mow the lawn, climb and descend stairs (his main complaint is that he has trouble with goingup stairs but not down), prepare meals, and sit. The difficulty he has with some of these activities is that he cannot do some of them for aprolonged period of time and needs at times to take a break to rest. He also needs to get up and do stretches for relief. I do not find that

this pain to be as debilitating as submitted by the plaintiff and his limitations are not as great as submitted and is stabilized by medication. I say this recognizing that chronic pain can continue past the physical recovery of an injury. [ 123 ] I accept the medical evidence that Mr. Grewal as at trial was physically deconditioned with a low aerobic fitness level; that his maximum physical rehabilitation has not been reached; that this can be improved with rehabilitation and exercise and that by doing so his chronic pain can be decreased.

I find that with physical rehabilitation and cognitive behavioural therapy, his chronic pain condition can be improved, that his physical limitations can be improved, and that he will be physically capable of performing some medium strength demand jobs and will not be limited to just lighter work with occasional mid-range strength demands. [ 124 ] I accept Dr.

Lui’s opinion that there is an increased possibility of osteoarthritis and knee replacement surgery “sooner than normally anticipated without any incident” but that the risk is only “slightly” more than a person who had not suffered a tear. [ 125 ] I do not find that the plaintiff’s condition is so debilitating as to reduce his ability to succeed in his chosen career in financial planning. B. General Damages [ 126 ] Assessments under this head are guided by many factors. A non-exhaustive listing of factors to considerations was listed in Stapley v.

Hejslet , 2006 BCCA 34 : • age of the plaintiff; • nature of the injury; • severity and duration of pain; • disability; • emotional suffering; • impairment of life; • impairment of family, marital and social relationships; • impairment of physical and mental abilities; • loss of lifestyle; and • the plaintiff's stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton , 2005 BCCA 54 ). [ 127 ] The plaintiff submits that given Mr.

Grewal’s relative young age (26 years old at the time of the Accident), the prognoses which in effect provide that his pain will almost certainly never resolve and may very well worsen in the years to come (at least in terms of Mr.

Grewal’s knee); the long past and projected future battles with depression; and the fact that pain and limitation have detrimentally affected virtually all aspects of his life, from recreation, to work, to housekeeping, to even his sleep, $120,000 - $150,000 would constitute an appropriate award with respect to the plaintiff’s non-pecuniary damages. [ 128 ] The plaintiff cites the following cases as guides in assessing damages under this head: Bruno v. Diamzon , 2014 BCSC 1270 ; Morena v. Dhillon, 2014 BCSC 141 ; Cook v. Symons, 2014 BCSC 1781 ; Khosa v. Kalamatimaleki, 2014 BCSC 2060 ; and Cumpf v.

Barbuta, 2014 BCSC 1898 . [ 129 ] In these cases all of the plaintiffs suffered from constant pain and depression as a result of motor vehicle accidents. These ailments were found to impact on almost all aspects of the plaintiffs’ lives. In Khosa , Saunders J. awarded $140,000 in non-pecuniary damages emphasizing that while the plaintiff was likely to make an eventual recovery there was a distinct possibility that symptoms would persist indefinitely. The long-term poor prognosis of full recovery was also a significant factor in Morena justifying a non- pecuniary award of $130,000.

In Cook , the plaintiff was awarded $140,000 for non-pecuniary general damages; as with Mr. Grewal, the plaintiff in Cook suffered a serious knee injury that required surgery as well as a significant depressive disorder. [ 130 ] The defendant submits that an appropriate award for non-pecuniary damages is $55,000. The defendant cites the following cases as guides in assessing damages under this head: Hillman v. Esaryk , 2014 BCSC 170 ; Grudzien v. Hu , 2013 BCSC 720 ; Yip v. Saran , 2014 BCSC 1283 ; Cabrera v. Sandhu , 2009 BCSC 1321 ; and Daitol v.

Chan , 2012 BCSC 209 . [ 131 ] In Hillman , the Court found that the plaintiff’s soft tissue injuries were “not particularly troubling”, there was also a question of whether knee surgery was even medically necessary. In Grudzien , the plaintiff had a very low amount of chronic pain in his lower back, although the Court did find that this was likely to persist indefinitely. In Yip , the plaintiff suffered mild soft tissue injuries and there were emotional and psychological problems associated with the accident but these had been effectively treated.

In both Cabrera and Daitol , the plaintiffs suffered from serious knee injuries with persistent pain after the accident. All of these cases awarded non-pecuniary damages in the $40,000-$60,000 range. There are some similarities between the injuries in these cases and those sustained by Mr. Grewal. However, in none of these cases is there a plaintiff who has suffered from the confluence of a significant knee injury, chronic pain and depression. [ 132 ] Based on my findings of Mr.

Grewal’s injuries from the Accident including the likelihood of future effects, my view is that the defence cases cover injuries which are not as extensive as the plaintiff’s and that the injuries approximate closer to the cases handed up by the plaintiff. However, his depression continued for some time before going into remission; the knee injury and resulting surgery,

and ongoing chronic pain (though at the low end) are factors which require added recognition. [133] I assess damages at $110,000. IX. Diminished Earning Capacity - Past and Present [134] The essential purpose of an award for past loss of opportunity and diminished earning capacity is to provide the plaintiff withfull compensation for all of his pecuniary losses, subject to rules of remoteness and mitigation: Andrews v. Grand & Toy Alberta Ltd.,(1978), (SCC), 83 D.L.R. (3d) 452, [1978] 2 S.C.R. 229, [1978] 1 W.W.R. 577, 8 A.R. 182, 3 C.C.L.T. 225, 19 N.R. 50.

It is to restore, as best as is possible with a monetary award, an injured plaintiff to the same position he or she would have been in had thenegligence not occurred. It is the difference between the plaintiff’s original position just before occurrence of the negligent act oromission, and the injured position after and as a result of such act or omission, that comprises the plaintiff’s loss: Athey v.

Leonati, (SCC), [1996] 3 S.C.R. 458 at paras. 34-35. [135] As an initial threshold issue, the plaintiff must demonstrate both impairment to his or her earning capacity and that, in this case,there is a real and substantial possibility that the diminishment in earning capacity will result in a pecuniary loss. It is not to be anexercise in the abstract though at the same time is described in Andrews v. Grand & Toy Alberta Ltd., as “gazing deeply into the crystalball”. If established, quantification of the loss can be by either an earnings approach or a capital asset approach: Perren v.

Lalari, 2010BCCA 140 at para. 32. [136] In Brown v. Golaiy, (1985), (BC SC), 26 B.C.L.R. (3d) 353 (S.C.), Finch J. as he then was stated: 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 theconsiderations 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 notbeen injured; and 4.

The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market. [137] Under any approach to assessing damages, the court is to make an assessment as opposed to applying a mechanicalmathematical or statistical exercise. [138] Ultimately, the court must base its decision on what is fair and reasonable in all the circumstances: Parypa v. Wickware, 1999BCCA 88. [139] The position of the plaintiff is that but for the psychological and physical injuries that he suffered in the Accident, Mr. Grewal: (

a) most likely would not have been forced to transition from work as a mobile security guard to a static security guard in 2008; (

b) most likely would not have continued working in a low-paying and occasionally a part-time static security job until June 2013and would have instead transitioned to work as a police officer, or a similar class of jobs such as a court sheriff, or at the very least wouldhave soon either upgraded his education and accessed jobs requiring a diploma or certificate or moved to a job that at least wouldproduce earnings equivalent to average earnings for a high school graduate; (

c) most likely would not have been affected by United’s bankruptcy and thereby lost earnings since June 2013, having transitionedaway from United years prior, or alternatively, if he did stay with United until June 2013, he would have been far more employable bothat United and within a much wider range of fields following United’s bankruptcy; (

d) most likely would not have contemplated the financial advisor or investment management fields which he now finds himselfstudying, and thus would most likely would not be subjected to a strong likelihood of finding himself unable to succeed in his chosenfield, or alternatively, if he did choose to seek employment in the financial advisor or investment management fields, he would have triedand likely failed with this endeavour far earlier in his career and by now would likely be settled in a suitable career. [140] It is submitted on behalf of Mr.

Grewal that he will pursue work in the financial advisor or investment management fields untilhe realizes that he is not reasonably suited to perform the work required to accomplish his goal. At that point, a further bout ofdepression is not just a foreseeable risk but, combined with Mr. Grewal’s lingering symptoms, is likely to persist, thereby requiringanother course of aggressive treatment and management and time. From there, assuming a well-managed psychological state, it issubmitted that the most likely with Accident scenario has Mr.

Grewal finding work at or near his current capacity as demonstratedthrough his work at United, namely a job in security earning about $12-$15 per hour. [141] While Mr. Grewal acknowledges having the capacity to work as a static security guard essentially full time, at least withaccommodations that allow him to avoid overly extensive walking or stair-climbing and at least until or unless the condition of his rightknee degenerates to such an extent that walking and standing become much more painful, it is submitted that the evidence does notdemonstrate Mr.

Grewal having the current capacity to perform much more. [142] It is further submitted that his knee condition can only worsen and his psychological state is at great risk of getting worse,thereby affecting his long-term employability significantly.

A. Past Loss of Income Opportunity [ 143 ] The plaintiff submits that a reasonable range for past loss is $300,000 - $350,000. His actual earnings from the date of the Accident at the end of 2014 is $102,566. Thus it is between $197,434 to $247,434 (gross). [ 144 ] Plaintiff submits that the range in earnings represents a reasonable assessment of Mr. Grewal’s potential earnings between the date of the Accident and the end of 2014.

Such an award it is argued falls a fair ways short of the potential earnings which suppose a January 2010 transition into a position as a Sheriff/Bailiff or a Police Officer position, but fall squarely within the potential earnings within a conservative scenario which would have seen Mr. Grewal work at United until sometime between 2009 and 2011 without the Accident but then, at age 28-30, act as a rational economic worker would act and transition into a job which would have permitted him to obtain at least average earnings of a B.C.

High School Male. [ 145 ] The plaintiff submits that this projects a very conservative scenario as it essentially assumes an equal likelihood of Mr. Grewal having become a police officer in the most optimistic but realistic scenario, and his having simply remained as a mobile patrol officer but for the Accident, in the most pessimistic realistic scenario. [ 146 ] My assessment is that the more conservative scenarios are appropriate in this case. I find it likely based on Mr. Horne’s evidence that Mr.

Grewal would have been promoted at some point to a field manager position which came with a higher hourly rate of pay. My view is that a reasonable assessment of his potential earnings is $310,000. After deducting his actual earnings for the same period, the net figure is $207,434. [ 147 ] In my view, I do not find the lack of income for the entire period from June 14, 2013, when he lost his job as a result of the United insolvency, to the date of trial as justified by the plaintiff. I can see based on Mr.

Grewal’s psychological circumstances that a period would be required to adjust to the shock of losing his job and the manner how he learned of it; however, to not take action to seek out employment for 1.5 years is inordinate. I do not find persuasive his need to focus on his Canadian Securities courses. Mr. Grewal has worked as a static security guard since his return to work despite being diagnosed with a major depression and with chronic pain since at least April 2011. His major depression has been at an improved state since February 19, 2013.

His depression was in remission since December 2013, where in addition the plaintiff was said by Dr. Mallavarapu to be mentally, in a “happy and stable state”. In my view, he could have found work as a static security guard or some equivalent type work and concurrently studied for his Canadian Securities courses. While I accept the plaintiff’s argument that it was reasonable for Mr. Grewal to continue as a static guard during the period, I do not accept his decision not to work after United’s insolvency. In my view, Mr.

Grewal should have been able to earn $20,000 during that period. [ 148 ] Accordingly, in regard to a reasonable assessment of Mr. Grewal’s actual earning capacity from the date of the Accident to the present. The amount awarded under this head is $187,434. X. Loss of Future Income Capacity [ 149 ] The plaintiff submits that loss of future income opportunity falls in the range of $650,000 - $750,000. This is based upon the plaintiff’s submissions that on a capital asset approach and the comparable case of Stevanovic v.

Petrovic , 2011 BCSC 2 , where $600,000 was awarded for diminished earning capacity to a photocopier technician, age 30 at trial, who suffered a serious right knee injury, chronic pain, anxiety, headaches and sleep difficulties. [ 150 ] The plaintiff submits that the $650,000 to $750,000 range approximates a scenario whereby Mr.

Grewal would have worked as a court sheriff to age 60 and with average earnings for a graduate from a 3-12 month college program to age 70 but for the Accident, and instead because of the Accident has a residual capacity to earn average earnings for a graduate of a 1-2 year college program after a delayed entry to mid-2017. Such assessment it is submitted also reasonably balances the negative contingencies with contingencies that would increase Mr. Grewal’s assessment of diminished earning capacity, such as Mr.

Grewal’s potential to have been a police officer, his potential to have earned much greater than average earnings for a certificate or diploma holder by accessing more physically demanding and thus more remunerative unskilled and semi-skilled work but for the Injuries, the potential because of the Accident, he will be unable to retrain adequately and will thus be limited to essentially entry-level positions such as work as a bank teller, cashier, or a return to work as a static security officer, and the potential of Mr.

Grewal’s knee will degenerate quicker than anticipated and thereby significantly damage his residual earning capacity in the decades to follow. [ 151 ] The plaintiff’s evidence on economic loss did not include scenarios or projections of income for the career in finance being pursued by Mr. Grewal. However, Mr.

Carson’s report, did discuss three occupational groups in finance: • financial investment advisors (includes chartered financial planners); • securities agents, investment dealers and brokers (includes sellers of stock, bonds, and other securities); and • other financial officers (includes financial planners). [ 152 ] Mr. Carson reports that based on 2010 data: (

a) the average income for males in British Columbia in the first category was $109,408 (equivalent to $120,000 in 2014 dollars), the median value was $89,264. In 2014 the equivalent amount according to his calculations would be $97,906. (

b) for the second category the average of full time full year earnings was $134,850 (the 2014 equivalent value is $147,660) and the median was $69,926 (equivalent to $76,570). (

c) for the third category, those with college diplomas

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