Noori v. Hughes, 2018 BCSC 965

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Noori v. Hughes, 2018 BCSC 965 Date: 20180613 Docket: M171943 Registry: New Westminster Between: Ali Noori Plaintiff And Stephen E. Hughes and Hallmark Ford Sales Limited Defendants Docket: M171685 Registry: New Westminster Between: Ali Noori Plaintiff And Suzanne Puskas Defendant Before: The Honourable Mr. Justice Milman Reasons for Judgment Counsel for the Plaintiff: S. Brooks G. Morrison Counsel for Defendants: M. von Antal S. Vefghi Place and Dates of Trial: New Westminster, B.C.

April 16-19, 2018 and April 23-27, 2018 Place and Date of Judgment: New Westminster, B.C. June 13, 2018 Table of Contents I. Introduction .. 3 II. The Facts .. 4 A. Mr. Noori’s Pre-Accident Biography and State of Health . 4 B. The First Accident and its Aftermath . 6 C. Mr. Noori’s Work Status between the Accidents . 7 D. The Second Accident and its Aftermath . 9 E. The Abandonment of the Restaurant 10

III. The Issues .. 12 A. What injuries were caused by the accidents? . 12 B. General Damages . 23 C. Did Mr. Noori fail to mitigate his damages? . 24 D. Past Loss of Earning Capacity . 26 E. Future Loss of Earning Capacity . 31 F. Cost of Future Care . 35 1. The Legal Framework . 35 2. The Parties’ Positions . 36 3. Discussion . 38

a) Housekeeping/Gardening/Snow Removal/Yoga . 38

b) Physiotherapy/Massage . 38

c) Active Rehabilitation . 39

d) Footwear 39

e) Psychological Counseling . 40

f) Occupational Therapy . 40

g) Medications . 41

h) Vocational and Ergonomic Assessments . 41

i) Conclusion on Cost of Future Care . 41 G. Special Damages . 41 IV. Conclusion .. 42 I. Introduction [ 1 ] In these two actions that were tried together, the plaintiff, Ali Noori, seeks to be compensated for injuries he sustained in two motor vehicle accidents that occurred almost exactly one year apart. In each case, Mr. Noori’s vehicle was stationary and was struck from behind by another vehicle driven by one of the defendants. [ 2 ] Liability has been admitted in both actions. The defendants do not contest that they are jointly and severally liable for Mr.

Noori’s injuries, insofar as they were caused by either or both of the accidents. What is contested is the nature, extent and duration of Mr. Noori’s accident-related injuries and his resulting losses. [ 3 ] Mr. Noori claims damages in the range of $886,275 - $936,275, comprised as follows: GENERAL DAMAGES: $150,000 - $200,000 PAST LOSS OF EARNING CAPACITY: $98,533 FUTURE LOSS OF EARNING CAPACITY: $500,000 SPECIAL DAMAGES: $7,742 FUTURE CARE: $130,000 [ 4 ] The defendants’ tally of Mr. Noori’s compensable losses is, needless to say, much more modest.

They contend that to the extent he has established a causal link between the accidents and his injuries, Mr. Noori is entitled to general damages in the range of $40,000- $60,000, no more than $40,000 for future loss of earning capacity and only part of the special damages claimed. In addition, they say, Mr. Noori failed to mitigate his losses by refusing to follow the advice of his treating physicians and for that reason his general damages should be reduced by a factor of 15%. [ 5 ] After reviewing the facts and setting out my findings on credibility, I will address each of the heads of damage claimed in turn.

II. The Facts

A. Mr. Noori’s Pre-Accident Biography and State of Health [ 6 ] Mr. Noori was born in Afghanistan on August 1, 1986. During his childhood years, he and his family moved back and forth between Afghanistan and Iran. His native language is Dari, which is related to Farsi. [ 7 ] When he was seven or eight years old he remembers being struck by a car and knocked down in the street. He went to the hospital and got stitches on his head. He remembers being released from the hospital after a few hours and having no lasting problems as a result of that incident. Two of the expert witnesses recorded that Mr.

Noori told them during his interviews with them that he had been in a coma for a period lasting between one and three days after this accident. [ 8 ] In 2003 or 2004, when Mr. Noori was 16 or 17 years old, he and his family moved to Norway. While there, he completed the equivalent of grade 11. [ 9 ] In 2007 he married his wife, Samera Nikju, who was and is a Canadian citizen. After they married, the couple lived in Norway for about four years during which they had their first two children. Mr. Noori worked in Norway as an automobile upholsterer for approximately two years until he was laid off.

After that, he managed two sushi restaurants with his wife before they elected to join Ms. Nikju’s family in Canada, hoping for a better life in this country. They arrived in the Lower Mainland in November 2011. [ 10 ] In October 2012, Mr. Noori and his wife purchased a Fresh Slice Pizza franchise in Port Coquitlam for $250,000. To pay that price, they used $80,000 from savings accumulated in Norway and took out a loan from the franchisor at 9% interest, which required them to make payments of $2,500 per month. [ 11 ] The franchise was acquired in the name of a company owned by Ms. Nikju. Mr.

Noori worked in the restaurant but was limited in what he could do due to his limited facility in English. [ 12 ] Since arriving in Canada, Mr. Noori had sought medical attention on only one occasion prior to the first accident that is the subject of these actions. On March 18, 2013 he saw his family physician, Dr. Patel, as a patient for the first time. Dr. Patel’s note from that visit indicates that he had an acute onset of low and mid back pain from lifting boxes. On examination he appeared to be suffering from spasms and displayed a limited range of motion. Dr. Patel diagnosed an acute back strain.

She prescribed a topical cream and sent him for an x-ray. She testified that she was concerned about possible kidney stones, although this is not reflected in her notes. She advised him to return in two weeks if his symptoms did not improve. Mr. Noori testified that he used the topical cream once and his symptoms completely vanished within a week or two. The x-ray revealed some degenerative disc disease at T-11 to T-12, with some left lateral osteophyte formation. [ 13 ] Although they had managed restaurants in Norway, neither Mr. Noori nor his wife had formal training in running a business.

The location they were given for the Fresh Slice restaurant was not a propitious one because it was located near a Costco supermarket where fresh pizza was available at a lower price. [ 14 ] Mr. Noori did not get off to a good start in his relationship with the franchisor. He testified that the district manager “was always yelling at me” for not following instructions properly and making the pizzas incorrectly. Mr. Noori was dismayed to learn that the business he and his wife had purchased was not entirely theirs to run as they pleased.

The reality of the franchise relationship left him feeling more like an employee. As a result of the frustration born of that revelation, Mr. Noori says he decided in October 2013 to leave work temporarily to stay at home and look after the children. He intended to study English, leaving Ms. Nikju, whose English was better, to run the restaurant herself. [ 15 ] By the time Mr. Noori took that step, it was too late to register for the English language course he wished to take. He had to wait another four months for the next course to start.

He testified that it was his intention to go back to work at the restaurant in six months time, after improving his English. [ 16 ] Around the same time that he stopped working at the restaurant, Mr. Noori’s 1998 Toyota Corolla was damaged while he was parked in a parking lot at a fast food restaurant. A truck that had been parked in an adjacent stall scraped the left (driver’

s) side of the vehicle while it was pulling out. Neither Mr. Noori nor his children, who were with him in the vehicle at the time, were injured although the children were upset by the experience. When Mr. Noori tried to get the Corolla repaired, he was told that it would cost more to repair than to replace it, so he opted to keep the vehicle because he considered the damage to be minor. [ 17 ] Apart from the back strain he received from lifting boxes that caused him to see Dr. Patel for the first time, Mr.

Noori appears to have been in reasonably good health prior to the first accident that is the subject of these actions. He testified that he was physically active, although not as much as he had been in Norway. In Norway he had been going to a local gym to do bodybuilding five or more days a week but since coming to Canada his workouts had become less frequent. Nevertheless, he asserts that he played soccer and tennis. He went camping and hiking. He regularly took his children to play in the park. B. The First Accident and its Aftermath [ 18 ] On November 23, 2013, Mr.

Noori’s Corolla was struck from behind by a Ford F150 King Cab pick-up truck driven by the first defendant, Mr. Hughes. Both cars were seeking to merge from Ottawa Street onto the Lougheed Highway in Port Coquitlam. Mr. Noori’s head was turned to the left waiting for a gap in the traffic and his hands were on the steering wheel. Mr. Hughes was also waiting to merge and he thought Mr. Noori had already gone. He was looking to the left and accelerating for about one to one and a half car lengths when the front end of his vehicle hit the rear bumper of Mr. Noori’s Corolla. Mr.

Hughes testified that the impact shattered Mr. Noori’s bumper but caused little, if any, damage to his truck. [ 19 ] Mr. Noori says he was shocked by the collision. His hands were shaking. He remembers having a headache immediately. Nevertheless, he drove the vehicle home. Over the next day or two, in addition to his headache, pain developed in his neck, low back and

right shoulder. Two days later, he attended at a walk-in clinic seeking treatment for the pain. [ 20 ] Ten days after the accident, on December 3, 2013, he went to see Dr. Patel and reported pain in his neck, tenderness at the mid and base of his head, headaches at night, low back pain, shoulder pain, and right forearm pain. On examination Dr. Patel noted paraspinal muscle spasms in the neck, mid back, and low back. She noted that his range of motion (flexion and extension) of the neck was very limited and that his low back range of motion was very limited.

She prescribed massage therapy, Voltaren gel, and extra strength Advil. [ 21 ] Mr. Noori received massage therapy in December 2013. He then returned to Dr. Patel on December 23, 2013 continuing to complain of pain, especially in his lower sacroiliac joint. Dr. Patel diagnosed him with “acute lumbar spasm, especially on the right side” and referred him for physiotherapy. [ 22 ] From January through May 2014, Mr. Noori continued to see Dr. Patel. His main complaint continued to be mid and low back pain and he continued to demonstrate spasm and restricted range of motion in his low back on examination.

She prescribed pain medication and ongoing physiotherapy. She referred him to a physical medicine and rehabilitation specialist, Dr. Bohorquez, whom he continued to see regularly thereafter. [ 23 ] In the weeks following his assessment with Dr. Bohorquez, Mr. Noori was seen twice by Dr. Patel. He continued to report pain in his mid to low back, and Dr. Patel prescribed medication for pain relief. C. Mr. Noori’s Work Status between the Accidents [ 24 ] While Mr. Noori was away from work to improve his English, the Fresh Slice franchise was unable to increase its sales to a level sufficient to render it profitable.

Recognizing that the business was not going to succeed in its current location, the franchisor offered them a new location in Port Moody, where Ms. Nikju had done her training, in exchange for a transfer fee of $50,000. Another condition that the franchisor imposed was that Mr. Noori was now required to guarantee the indebtedness of the business personally. Despite Mr. Noori’s reluctance, the couple opted to proceed. The move occurred in February 2014. [ 25 ] Mr. Noori had been away from work since the previous October.

He testified that he did not take the English course in January or February of 2014 as he had planned because, he says, he had trouble sitting in class due to his back pain. In fact, he did not enrol in any English classes until September 2017. [ 26 ] In April 2014, Mr. Noori returned to Norway for three weeks to visit his family there. He recalls having back pain on the long flight and having to get up and walk in the aisle. [ 27 ] He was forced to resume working shortly after he came back to Canada because Ms. Nikju had by then given birth to their third child, on May 27, 2014.

The baby was born by Caesarian section. Ms. Nikju returned to work herself only 40 days later. [ 28 ] Mr. Noori testified that he continued to work in the restaurant until the second accident occurred in November 2014. He says he was able to work only two to three hours per day, however, due to his back pain. [ 29 ] There is no reliable record of the hours that Mr. Noori actually worked in the restaurant. When the business moved locations in February 2014, the computer storing the employees’ work

schedule was left behind. At the new location, they initially used a laptop computer owned by the franchisor, but it was replaced in May 2014 with a desktop computer. As a result, the only record of the hours that Mr. Noori worked while he was at the restaurant covers the period from May 2014 to the abandonment of the business in December 2016. [ 30 ] That record is not reliable, however. Both Mr. Noori and Ms. Nikju testified that it was deliberately falsified to show that Mr. Noori was working when he was not, because the franchisor required managers like Mr.

Noori to be present in the restaurant for a certain number of hours every day. Ms. Nikju, who maintained the record, testified that she had been told by one of the franchisor’s representatives to falsify her entries in that way. As a result, Mr. Noori was often paid for periods when he was not working. In addition, Mr. Noori was also paid most of the wages actually earned by Ms. Nikju. The couple decided that it would be advantageous for them to build up Mr. Noori’s credit rating in that way so they could be in a better position to qualify for a loan to purchase a home. Ms.

Nikju had a poor credit rating because she had been through a previous bankruptcy. D. The Second Accident and its Aftermath [ 31 ] Mr. Noori testified that by the time of the second accident, which occurred on November 21, 2014, he was still suffering from low back pain from the first accident, although it had improved to some extent. [ 32 ] On that occasion, Mr. Noori was driving a Toyota Sienna. Once again, he was at a complete stop, intending to merge from Shaughnessy Street onto the Lougheed Highway in Port Coquitlam. His vehicle was struck from behind by a Toyota Tercel driven by the defendant, Ms. Puskas.

Ms. Puskas recalls that it was dark and rainy and her breaks failed, causing her to hit Mr. Noori’s vehicle. [ 33 ] According to Mr. Noori, he had no warning of the accident before it occurred. He was facing forward with his right hand on the wheel and his right foot on the brake. The impact pushed his car forward about a metre, he recalls. He pressed his foot down on the brake to avoid hitting the car in front of him. His body lurched forward and back. His hands and legs were shaking. He felt a numbness in his right knee and increased pain in his back. [ 34 ] He went to a walk-in clinic and then home to rest.

His headaches and back, shoulder and neck pain grew worse. His right knee was sore and his leg felt weak.

[ 35 ] According to Mr. Noori, his pain in the ensuing months and years has grown worse. His back pain in particular has become almost constant. He says it is aggravated by standing, sitting, and walking. He can stand for about 45 minutes to an hour and then he has to rest. He can sit for 45 minutes to an hour before the pain starts to increase. He can walk for up to an hour. He is unable to drive for more than an hour. His neck pain comes and goes. [ 36 ] He has been to see Dr. Patel and Dr. Bohorquez regularly at three month intervals for trigger point injections and other medications. [ 37 ] Mr.

Noori testified that after the second accident his increased level of pain began to affect his mood. He now argues with his wife more frequently than before. He often loses his temper. He yells at his children and they are consequently afraid of him. He has broken two television sets by knocking them over. During such bouts of temper, he has thrown objects against the wall of his home, breaking them and leaving holes in the wall. He testified that he later regrets his behaviour and feels ashamed of himself. [ 38 ] Mr. Noori is now seeing a psychologist and taking anti-depressant medication.

He has trouble sleeping and must take medication to help him sleep. [ 39 ] Mr. Noori returned to work in April or May 2015. Initially he was working 20 or 30 hours per week but in September or October 2015 he began working longer hours, increasing his work to 40 or 50 hours per week due to his wife’s unplanned pregnancy with their fourth child. Mr. Noori says they had to hire extra staff in the restaurant to do the work that he could no longer do. E.

The Abandonment of the Restaurant [ 40 ] Although sales steadily increased each year at the new location in Port Moody, the restaurant was never able to turn a profit. [ 41 ] The relationship with the franchisor deteriorated for a number of reasons. Ms. Nikju and Mr. Noori were unable to keep the loan current and had to ask for forbearance, which was forthcoming for a period of time. By letter dated May 12, 2015, the franchisor gave notice of ten violations of the franchisor’s operating procedures manual.

It was the policy of the franchisor that the franchise agreement could be terminated if three such notices were given within a one-year period. A second such notice was sent on March 3, 2016. In early 2016, Ms. Nikju and Mr. Noori asked the franchisor to buy back the franchise or to assist them in selling it to someone else. The franchisor refused. [ 42 ] The most serious challenge that the business faced, and the one that ultimately proved to be fatal, was the accumulation of an unpaid tax debt. From 2014 on, Ms. Nikju had stopped remitting GST and payroll tax.

In December 2016, the Canada Revenue Agency froze the company’s bank account. Again they asked the franchisor for help, which was refused. They ultimately abandoned the business without notice to the franchisor. The franchisor pursued them for their outstanding debt of $210,000 which, together with the $37,000 owed in unpaid tax, forced both Mr. Nikju and Mr. Noori into personal bankruptcy. [ 43 ] On October 29, 2015, an incident occurred that appears to have compounded Mr. Noori’s difficulties. Mr. Noori testified that he was violently assaulted by a stranger outside the restaurant. According to Mr.

Noori, the man had been in the restaurant before and behaved inappropriately. Mr. Noori reported the incident to the police and was advised to take the man’s picture. When he attempted to do so the man punched him in the throat, and Mr. Noori fell to the ground. Mr. Noori sustained an injury to his throat that made it difficult for him to talk for approximately two weeks afterwards. He does not recall aggravating his back, but the medical note of Dr. Patel states “This has aggravated his back”. The note also indicates, “Now better.” [ 44 ] Since the business closed, Ms. Nikju has been working full time.

Whereas before Mr. Noori helped occasionally with the vacuuming, she now does all of the housework herself. [ 45 ] Mr. Noori says he has been unable to work at all since the second accident. Since September 2017, he has been attending English language classes twice per week in the evening. He has difficulty sitting for the 3.5 hours and must leave the room after 90 minutes. He has achieved the third of seven levels, but recently failed level four and must redo it. [ 46 ] Mr. Noori says he is unsure about his career plans.

He believes that his personality has changed since the accidents and that his resulting inability to control his temper has jeopardized his relationship with his family. III. The Issues A. What injuries were caused by the accidents? [ 47 ] Mr. Noori alleges that the accidents caused him the following injuries: (

a) injury to the upper, mid, and low back areas; (

b) injury to the neck; (

c) injury to the right shoulder; (

d) injury to the right knee; (

e) headaches; (

f) adjustment disorder with depressed mood; and

(

g) generalized anxiety disorder. [ 48 ] Mr. Noori contends that these injuries are permanent and at least partially disabling and that they have restricted his ability to work in many occupations or on a full time basis in any occupation. In support of his argument on causation, Mr. Noori relies on the opinions of Dr. Patel and Dr. Adrian, a physiatrist. [ 49 ] The defendants respond that although Mr. Noori was injured in the accidents, his accident-related injuries have long since healed.

They say that his lingering symptoms, particularly his financial and psychological problems, are unrelated to the accidents and would have manifested themselves in any event given his degenerative disc condition and the other stressors in his life that arose independently of the accidents. Relying primarily on the expert medical opinion of Dr. Maloon, an orthopedic surgeon, they contend that his back pain is attributable to degenerative wear and tear rather than trauma caused by the accidents. [ 50 ] The defendants contend that Mr. Noori has exaggerated his symptoms and their connection to the accidents.

In arguing that he is not credible, the defendants point in particular to several inconsistencies in the descriptions of his background and medical history that he gave to the experts who assessed him in connection with this litigation. These inconsistencies, they say, render all of his accounts, including his testimony at trial, inherently suspect. [ 51 ] They also refer to instances where he and Ms.

Nikju engaged in deceitful conduct, such as deliberately misleading the franchisor about his hours of work, deliberately misleading the government about his work history in order to secure employment insurance benefits and deliberately misleading prospective employers about his qualifications on his resume. [ 52 ] In general, however, I have concluded that Mr.

Noori’s description of his symptoms is reliable, despite the submissions that the defendants have made. [ 53 ] The inconsistencies in the accounts he reportedly gave of his medical history to the various consulting and treating experts generally involved peripheral matters and are better explained by language difficulties compounded by the interposition of an interpreter. I agree with Mr.

Noori’s counsel that his account of his symptoms has generally been consistent over the years and that at least some inconsistencies are to be expected in a case such as this, where a plaintiff has undergone multiple interviews over many years in a language that is not his or her native one: Jawanda v. Samra , 2013 BCSC 138 at para. 117 ; Johal v. Conron , 2013 BCSC 1924 at para. 7 . [ 54 ] On the other hand, I share the defendants’ concern about the capacity that both Mr. Noori and Ms. Nikju demonstrated to produce and rely upon false or misleading records.

Even if, as they explained, they were directed or encouraged by others to engage in that behaviour, they willingly went ahead with it and sought to benefit from it without any apparent compunction. [ 55 ] Given that concern, I have exercised caution before accepting Mr. Noori and Ms. Nikju’s evidence unless it is supported by other more objective evidence in the case. Fortunately for Mr. Noori, there is such evidence. I agree with the submission made on his behalf that Mr. Noori’s symptoms have been objectively verified through functional testing, such as that conducted by Ms.

Ditson, as well as the physicians who have repeatedly noted restricted range of motion, spasms and pain on palpation. [ 56 ] Ms. Ditson, an occupational therapist, conducted a functional capacity evaluation and prepared a cost of future care report. Her evaluation of Mr. Noori lasted more than six hours. She stated as follows with respect to Mr. Noori’s level of effort during that testing: Throughout the assessment Mr.

Noori underwent formal screening procedures during functional strength testing, repeated testing, heart rate monitoring and biomechanical observations in order to establish the level and consistency of his effort. Based on the test results in combination with clinical observations it is my opinion that Mr. Noori put forth a consistent and high level of physical effort during testing and therefore, the assessment findings are an accurate measure of his present functional capacity. [ 57 ] Her overall conclusion was that Mr.

Noori’s: … overall ability to compete for work in an open job market is reduced due to his ongoing physical and functional limitations related to his neck, right shoulder and lower back and right lower extremity. [ 58 ] Mr. Kowalik is a kinesiologist who prepared a report for the defendants in rebuttal to that of Ms. Ditson. He did not examine Mr. Noori himself. After reviewing Ms. Ditson’s report, he “identified a number of concerns in [Ms.

Ditson’s report] with respect to the objectivity and methodology used in drawing conclusions in regards to functional capacity, activities of daily living, work tolerance and future care recommendations.” Most of the concerns he identified arose from his description of the background narratives and opinions of the physicians who were retained by the defendants, which I ordered struck from the report as inadmissible and improper argument in the guise of opinion. Where he did raise concerns about Ms.

Ditson’s conclusions based on his own expertise, he did not go so far as to contend that she was wrong, but only that further investigation is warranted. The only direct challenge to Ms. Ditson’s conclusions in his report concerned her assertion that “Mr. Noori had minimal to moderate limitations with activities such as stooping and bending.” Mr. Kowalik took issue with that particular conclusion on the basis that on one of the tests Mr.

Noori “was able to achieve 96%, 127% and 102% of the industry standard in Valpar 9 tests of transfer 2 and 3 which require work in the low reaching, stooped or bent over position.” He did not specifically dispute Ms. Ditson’s broader conclusion that Mr. Noori otherwise demonstrated various functional limitations and that he had put forth genuine effort during the testing. The one specific discrepancy he did raise was not put to Ms. Ditson in cross examination. [ 59 ] Considering Ms. Ditson’s report as a whole in light of Mr.

Kowalik’s limited critique of it, I am not persuaded that the singular discrepancy he raised, of itself, undermines Ms. Ditson’s broader conclusions as to the state of Mr. Noori’s functional capacity and level of effort, based on all of the other data she analysed in her report. [ 60 ] In any event, there does not appear to be a serious dispute between the parties that Mr. Noori suffers from persistent pain, primarily in his back, neck and shoulders. The more salient controversy between the parties lies in the cause of that pain.

[ 61 ] On that narrower question of causation, I find the explanation of Dr. Patel and Dr. Adrian - attributing the pain at least in part to the accidents - more convincing than that of Dr. Maloon, who attributes it solely to pre-existing degenerative disc disease. I have reached that conclusion for a number of reasons. [ 62 ] First, I find some support for the existence of a causal relationship between the pain and the accidents in the fact that Mr. Noori’s reported pain in his back, neck and shoulder happened to manifest itself suddenly in the immediate aftermath of the first accident. Dr.

Adrian expressed his opinion on causation in the following way: Mr. Noori's mechanical neck and lower back pain symptoms are causally related to the accidents. Leading up to the first accident, Mr. Noori was not physically limited with his activities. It is unlikely that Mr. Noori would have spontaneously developed persistent regularly occurring and physically limiting problems affecting his back had it not been for the accidents. [ 63 ] It is important to bear in mind the distinction between a pre-existing condition that would have manifested itself in any event and a pre-existing vulnerability to injury.

I find support for the proposition that this case involves the latter rather than the former in the opinion of Dr. Adrian that: “[d]ue to his history of pain affecting his spine, Mr. Noori’s spine was probably vulnerable to injury.” [ 64 ] Second, I am not persuaded that Mr. Noori’s pre-accident medical history supports the defendants’ contention that his post- accident symptoms would have manifested themselves in the same way regardless of the subject accidents. I am satisfied that the earlier accident in the parking lot in October 2013 did not cause him any injury. The minor back strain reported to Dr.

Patel on March 18, 2013 appears to have resolved very quickly. It appears to have had no subsequent effect on Mr. Noori’s life. He did not return for medical treatment as he was advised to do if his symptoms persisted. Moreover, as Dr. Adrian noted in his rebuttal report, the x-ray image that was taken in April 2013, in the wake of the March 2013 incident, showed minimal degenerative changes “in an area where Mr. Noori is not experiencing his current symptoms.” The altercation on October 29, 2015 in which Mr.

Noori was punched in the throat was clearly stressful and may have exacerbated his condition, in which case it would be just another contributor to what I have found to be an indivisible injury. [ 65 ] Third, I have difficulty with a number of the assumptions upon which Dr. Maloon’s conclusions appear to rest. Dr. Maloon expressed his opinion in the following terms: [Mr. Noori’s] neck and back symptoms have failed to resolve within the normal expected time for soft tissue healing (six to eight weeks).

His ongoing symptoms are vague and nonspecific and are consistent with those of mild mechanical or activity-related neck and back pain. Symptoms of this nature are extremely common in the general population and are usually the result of mild wear and tear changes in the joints of the neck and back. He denies problems with his neck and back prior to the motor vehicle accident but clinical records indicate that he did complain of neck and back pain before the accident. Radiographs of his thoracic and lumbar spines done in April 2013 were reported to reveal mild degenerative changes in the thoracolumbar junction.

Clinical evaluation today revealed no evidence of structural injury to his neck or back. There was no objective evidence of injury to the spinal cord or exiting cervical or lumbar nerve roots. No radiographs of his neck and back have been obtained since the first motor vehicle accident. In the absence of structural injury I do not believe that any mild soft tissue strain that Mr. Noori may have sustained in the motor vehicle accidents would have been significant enough to alter the natural history of his pre-existing neck or back condition. [ 66 ] In rendering that opinion in those terms, Dr.

Maloon appears to rely on the following assumptions: (

a) if either or both of the accidents had caused strain to the soft tissues in Mr. Noori’s neck and back, any resulting damage to those tissues would normally have healed within six to eight weeks; (

b) if Mr. Noori’s current symptoms were attributable in whole or in part to the accidents, Dr. Maloon’s examination on May 9, 2016 would have yielded evidence of “structural damage to the neck or back”; (

c) if Mr. Noori’s current symptoms were attributable in whole or in part to the accidents, there would be other “objective evidence of injury to the spinal cord or exiting cervical or lumbar nerve roots”; (

d) Mr. Noori’s symptoms were “vague and non-specific”; (

e) Mr. Noori’s symptoms were “extremely common in the general population;” and (

f) the clinical records reflect prior complaints by Mr. Noori of neck and back pain. [ 67 ] Those assumptions did not hold up well under critical scrutiny. [ 68 ] With respect to the assumption enumerated at sub-paragraph (a), Dr. Adrian prepared a rebuttal report dated December 29, 2017 responding to Dr. Maloon. In it, Dr. Adrian expressed the following contradictory opinion: I agree with Dr. Maloon that in most cases individuals suffering from mechanical spinal pain following an injury recover over time, usually within 3 months.

In my experience and review of the literature, however, there are some individuals who do not recover over this timeframe. In some individuals recovery can up to two years. Beyond this time frame, further recovery is unlikely. A certain percentage (roughly 10-15%) based on the literature do not fully recover over this time frame and experience ongoing symptoms . [Emphasis added]. [ 69 ] With respect to sub-paragraphs (

b) and (c), Dr. Adrian expressed the following contradictory opinion in the same rebuttal report: In general, individuals suffering from mechanical spinal pain do not suffer from involvement of the nervous system. Objective findings , such as muscle wasting, strength loss, reflex abnormality, or sensory disturbance are not required or expected in individuals diagnosed

and suffering from mechanical spinal pain, as in the case of Mr. Noori . The tissues capable of being injured and sources of chronic mechanical neck and lower back pain are deep tissues and are not amenable to direct observation or detailed palpation. Scientific studies have shown that despite normal radiologic findings (imaging), the tissues responsible for chronic mechanical spinal pain can be damaged. … Dr. Maloon's conclusion that his clinical evaluation revealed no evidence of structural injury to the neck or lower back is not consistent with the history provided by Mr.

Noori, or the physical examination findings. I agree with Dr. Maloon that there is no objective evidence of injury to the spinal cord or exiting cervical or lumbar nerve roots; however, these findings would not be typical of an individual suffering from mechanical spinal pain . [Emphasis added]. [ 70 ] Those contradictory opinions of Dr. Adrian were not challenged on cross-examination. Moreover, Dr. Maloon prepared a supplemental report dated March 19, 2018 ostensibly in response to Dr. Adrian’s rebuttal report of December 29, 2017. Dr. Maloon’s only answer to Dr. Adrian’s critiques was simply that Dr.

Adrian failed “to document evidence of specific musculoskeletal or neurological injury.” This misses Dr. Adrian’s central point, however, which was that such evidence is “not required or expected” to support his diagnosis and would not be “typical” in cases like Mr. Noori’s. Dr. Maloon also did not address Dr. Adrian’s other point that between 10 and 15% of patients do not recover from an injury causing mechanical pain within the time frame assumed by Dr. Maloon. Dr. Adrian’s critiques of Dr. Maloon’s conclusions were therefore left largely unanswered. [ 71 ] With respect to sub-paragraphs (

d) and (e), the wider body of evidence before me does not support Dr. Maloon’s premise that Mr. Noori’s complaints are “vague and non-specific” or that his symptoms are “extremely common in the general population.” [ 72 ] Finally, with respect to sub-paragraph (f), Dr. Maloon conceded in cross-examination that he was mistaken in his assertion that the medical records reflect a prior complaint about both neck and back pain. In fact, the prior complaint recorded in Dr.

Patel’s notes of March 18, 2013, to which he was referring, was about low back pain only. [ 73 ] In light of these concerns with the soundness of many of Dr. Maloon’s central assumptions, I find the opinions of Dr. Patel and Dr. Adrian, to the effect that injuries sustained in the two accidents in issue caused or materially contributed to Mr. Noori’s ongoing back, neck and shoulder pain, to be more persuasive. [ 74 ] I am also satisfied that the same injuries caused or materially contributed to the headaches, anxiety and depression that are also part of Mr. Noori’s claim.

That latter connection is the subject of an expert report by Dr. Wiseman, a psychiatrist. Dr. Wiseman examined Mr. Noori on January 13, 2017 and diagnosed him with “Adjustment Disorder with Depressed Mood” and “Generalized Anxiety Disorder.” Dr. Wiseman’s opinion was that “… in the absence of these accidents, Mr. Noori would likely have not developed any significant psychiatric symptomatology or condition between 2013 and now.” [ 75 ] Dr. Wiseman distinguished between the first and second accidents in terms of their psychiatric impacts on him. With respect to the first accident, Dr.

Wiseman offered the following opinion: Psychiatrically, Mr. Noori remained reasonably intact following the first accident. He does describe some driving-related anxiety afterwards, with associated higher vigilance levels while driving but no apparent physiological arousal and no specific recollection of intrusion phenomena such as nightmares, images or flashbacks.

There is no suggestion of significant functional limitation arising on account of these issues, and overall it is my opinion that these symptoms were probably distressing to an extent but likely fell short of representing a formally diagnosable psychiatric condition. It is clear from Mr. Noori’s description and from the medical records I have reviewed that he developed significant myofascial (“soft- tissue”) pain and associated headaches on account of his first accident. From a mental health perspective, this is significant on account of how this problem laid the foundations for future distress.

One aspect of this stems from the chronic pain itself; over time, in the absence of meaningful and sustained improvement, such a condition wears at an individual’s resilience and stamina and ultimately becomes a significant risk factor for the development of secondary psychiatric conditions such as clinical depression and anxiety. Another aspect pertains to the loss of function caused by such pain – which in this case appears to mainly be Mr. Noori’s belief that he was unable to continue to work at his physically-demanding managerial job on account of his pain.

As he describes it to me, this set up a scenario in which his wife had to run their restaurant and pay for added help and support, creating a negative cash-flow situation which was allowed to grow and ultimately gave rise to extreme financial stress. In Mr. Noori’s case, I would also opine that his sense of expectation of himself as a man and as a provider was severely strained when he became unable to work – hence the guilt, shame, and externalizing/angry behaviour also began to play a role in his mental outlook. It appears that Mr.

Noori was rendered extremely vulnerable to further psychiatric deterioration by the first accident. While he had not yet broken through into more overt symptomology by the time of the second accident, there is a substantial possibility that this would have occurred eventually even absent the 2014 event. [ 76 ] According to Dr. Wiseman, matters became more acute as a result of the second accident, which led to “significant mood and anxiety symptoms.

In my opinion, these reflect two separate psychiatric conditions: Adjustment Disorder with Depressed Mood (AD); and Generalized Anxiety Disorder (GAD).” [ 77 ] With respect to the long-term prognosis for Mr. Noori’s Adjustment Disorder, Dr. Wiseman’s opinion is that it “will likely wax and wane in intensity until he has fashioned a more definitive direction for himself.” Dr. Wiseman offers a similar opinion with respect to long-term prognosis for the Generalized Anxiety Disorder.

His opinion is that it will “likely remain a chronic condition, but one that can present as relatively intrusive and severe in the face of stressors or one that can be relatively benign if things are going somewhat

better.” [ 78 ] More generally, Dr. Wiseman concludes that “Mr. Noori’s prognosis is quite guarded …” [ 79 ] The defendants argue, relying in part on the responding report of Dr. Solomons, another psychiatrist, that Mr. Noori’s proven symptoms do not meet the diagnostic criteria for those or any other recognised psychiatric disorders. In any event, they say, there were many other stressors in Mr. Noori’s life that could account for his mood-related symptoms, many of which Dr. Wiseman was not made aware of, thereby calling the soundness of his opinion into question. Those stressors are said to have included the following: (

a) Mr. Noori’s arguments with the franchisor prior to the first accident, which were significant enough to cause him to quit work in frustration; (

b) the prior accident on October 16, 2013 and the argument he had at the time with the other driver; (

c) having to move the restaurant to the new location despite Mr. Noori’s reluctance to continue with that business and his having to guarantee the business debt personally; (

d) the loss of the business and the ensuing personal bankruptcies; (

e) the strains on the couple’s marriage; (

f) the strains associated with increasing the size of the family from two to four children; and (

g) the strains associated with this litigation. [ 80 ] In his report, Dr. Solomons concluded that Mr. Noori suffered no psychiatric impairment due to the accidents. His conclusion in that regard is explained as follows: Based on the available clinical information it is my opinion that Mr.

Noori was likely stressed after the first accident, particularly by his pain and ensuing sleep disruption, and that his stress after the second accident was due largely to family, work and financial circumstances, whereby he found himself having two more children, business stresses ending in bankruptcy and becoming the primary stay-at-home parent of his children. There is no indication that these stressful events were causally related to his motor vehicle accidents, and it is my opinion that they would occurred even if the accidents had not . Accordingly, it is my opinion that Mr.

Noori was not psychiatrically impaired by either of these accidents. [Emphasis added]. [ 81 ] The italicized words were the subject of an objection by Mr. Noori’s counsel when Dr. Solomons’ report was tendered into evidence. The objection was based on the concern that Dr. Solomons was not drawing here on his specialised knowledge or expertise but rather simply advancing an improper argument about the absence of a causal link between the accidents and Mr. Noori’s “family, work and financial circumstances.” I agree with the defendants that Dr. Solomons was merely responding in kind to the opinion of Dr.

Wiseman on causation and that his opinion is admissible on that basis. [ 82 ] Although I have found Dr. Solomons’ entire opinion on causation admissible, I prefer the opinion of Dr. Wiseman over that of Dr. Solomons precisely because Dr. Solomons appears to assume, erroneously in my view, that there was no causal link between the accidents and Mr. Noori’s “family, work and financial circumstances.” I have found that the evidence supports the existence of such a link – given how Mr.

Noori’s injuries impacted on his relationships with his family, his ability to work and the impact of the latter on the couple’s finances. [ 83 ] I have concluded that the injuries attributable to the accidents, particularly Mr. Noori’s chronic back and neck pain, did cause or at least contribute materially to the mood-related symptoms that he has experienced since the first accident. It is not necessary for Mr. Noori to establish the correctness of any particular medical diagnosis to make out that causal link: Saadati v. Moorhead , 2017 SCC 28 at para. 31 . Moreover, while the other stressors in Mr.

Noori’s life may and probably did indeed also contribute to those symptoms as the defendants argue, the fact that there were other contributing causes does not detract from the causal connection that has been demonstrated between the symptoms and the accidents. [ 84 ] In

summary, I am satisfied that the injuries that are the subject of Mr. Noori’s claims were caused at least in part by the accidents, as he alleges. B. General Damages [ 85 ] In assessing general damages, I have considered the factors set out by the Court of Appeal in the leading case of Stapley v. Hejslet , 2006 BCCA 34 , leave to appeal refused [2006] SCCA No. 100, in light of Mr. Noori’s particular circumstances. [ 86 ] Mr. Noori cites the following cases in support of his submission that general damages lying in the range between $150,000- $200,000 would be appropriate: Marois v.

Pelech , 2009 BCCA 286 ; Redmond v. Krider , 2015 BCSC 178 ; Risling v. Riches-Glazema , 2016 BCSC 2423 ; Myers v. Gallo , 2017 BCSC 2291 ; Sebaa v. Ricci , 2015 BCSC 1492 ; and Felix v. Hearne , 2011 BCSC 1236 . [ 87 ] The defendants submit that the appropriate range is between $40,000 and $60,000, relying on: Nish v. McLaughlin , 2014 BCSC 1366 ; Gupta v. Doe , 2015 BCSC 608 ; Kim v. Morier , 2013 BCSC 673 , reversed on other grounds 2014 BCCA 63 ; and Rahimi v. Ma, 2014 BCSC 710 . [ 88 ] I am satisfied that this case lies closer to the range demarcated by the cases cited by Mr. Noori.

The defendants’ cases do not

display the more aggravating features of this case, including the permanent disabilities and poor prognosis suggested by the medicalopinion evidence that I have accepted. [89] Dr. Adrian’s opinion was that “the prognosis for further recovery of injuries suffered in the accidents into the future is poor.”He added as follows: Mr. Noori will probably continue to experience difficulty performing activities that place physical forces onto the painful and injuredstructures involving his neck and lower back.

Specifically, he will probably continue to experience difficulty performing employment,household and recreational activities that require prolonged sitting, standing and stooping; heavy or repetitive lifting or carrying; andimpact activities, such as running. These physical limitations are unlikely to improve into the future. In my opinion, Mr. Noori isprobably permanently partially disabled due to injuries suffered in the accidents. [90] I accept that opinion as an accurate description of Mr. Noori’s condition.

I am mindful that the value of any expert medicalopinion may be undermined if founded on inaccurate information obtained from the patient: Andrusko v. Alexander, 2013 BCSC 985, atpara. 49. In this case, however, I find that the history relied upon by Dr. Adrian is supported elsewhere in the evidence, includingMs. Ditson’s functional testing and the testimony of Mr. Noori’s other family members, whose evidence I generally accept on this point,despite my concerns alluded to earlier, with respect to Mr. Noori and Ms. Nikju’s credibility. [91] I also accept that the accidents have had a significant impact on Mr.

Noori’s life. Mr. Noori was relatively young when he wasinjured and so will have to endure the symptoms from which he now suffers for a large part of his life. He suffers from frequent pain inhis back, neck and shoulder as well as headaches. I also accept that his pain has left him partially disabled so as to prevent him fromworking full time or at all in certain vocations, engaging in certain recreational activities and parenting his children in the way he didbefore the accidents. [92] As a result of his chronic pain, moreover, Mr.

Noori has experienced significant changes in his personality, including a morevolatile temper, which have negatively impacted on his marriage and his relationship with his children. [93] Having regard to the foregoing, I have concluded that an award of $125,000 is appropriate in this case. C. Did Mr. Noori fail to mitigate his damages? [94] The defendants submit that the award of general damages I have made should be reduced by a factor of 15% because some ofthe loss could have been avoided had Mr. Noori followed the medical advice he received.

The defendants refer in this regard to hisfailure to attend physiotherapy on a consistent basis, as suggested by Dr. Patel, and his having forgot to bring his medications with himwhen he went to Norway. [95] A plaintiff has an obligation to take all reasonable measures to reduce his or her damages, including undergoing treatment toalleviate or cure injuries: Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111, at para. 234. [96] The onus to prove a failure to mitigate is on the defendants. The test is two-fold. As the Court of Appeal stated in Chiu v.

Chiu,2002 BCCA 618: [57] The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss. In a personal injury case inwhich the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things:(1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff’sdamages would have been reduced had he acted reasonably. These principles are found in Janiak v.

Ippolito, (SCC),[1985] 1 S.C.R. 146. [97] With respect to the first branch of the Chiu test, the defendants say that Mr. Noori was advised by Dr. Patel and her colleagueDr. Khangura to undergo physiotherapy. They say the plaintiff stopped doing so from February 2015 to November 2015. They add thatMr. Noori’s excuse for not attending during that period was his inability to afford the sessions, but they say this excuse was contradictedby the explanation he gave to Dr.

Patel, to the effect that he could not attend physiotherapy due to his need to be at work. [98] With respect to the second branch of the test, the defendants say Dr. Khangura and Dr. Patel recommended physiotherapy.Dr. Patel testified that it was her opinion that physiotherapy would be beneficial for the plaintiff’s injuries. It follows that his failure toattend must have worsened his symptoms. [99] I am not persuaded that Mr. Noori’s general damages should be reduced due to his alleged failure to mitigate those damages. [100] Although Mr.

Noori acknowledges that additional physiotherapy may have benefited him (and indeed, he seeks to becompensated for the cost of future physiotherapy sessions as part of his claim for the cost of future care), it was not necessarilyunreasonable of him to interrupt his physiotherapy when he did. Although he did stop attending physiotherapy for a period of time, forthe most part he consistently attended on a regular basis for over two and a half years. Dr. Patel confirmed that Mr. Noori was generallycompliant with her treatment recommendations. [101] Mr.

Noori testified that he had difficulty affording the ongoing therapy and at times he was busy with work. There is ampleevidence of his financial difficulties, which were a significant cause of stress for him. In assessing the reasonableness of his failure toconsistently attend physiotherapy, it is appropriate to consider his financial limitations: Spurgeon v. Smith, 2009 BCSC 1526 at paras 63-70; and Olynyk v. Turner, 2012 BCSC 1138 at paras. 56-57. [102] Moreover, Mr. Noori argues that there is no evidence that the physiotherapy sessions he missed would have provided any long-term benefit. Dr.

Patel testified on cross examination that no one could say how much benefit he would have obtained from attending asinstructed. Mr. Noori testified that he obtains only temporary benefit from physiotherapy, as opposed to long-term improvement.

Dr. Maloon expressed the opinion that passive modalities such as physiotherapy are unnecessary, and he told Mr. Noori this in April2016. A month later Mr. Noori stopped attending, although he has recently returned. [103] In

summary, I am not satisfied that the defendants have met their onus of showing that Mr. Noori’s failure to attendphysiotherapy consistently or that his having forgotten to bring his medication with him on his trip to Norway affected his symptoms in asignificant way. I therefore reject the defendants’ argument that the amount awarded for special damages should be reduced by virtue ofhis failure to mitigate those damages. D.

Past Loss of Earning Capacity [104] The object of an award of damages for past loss of earning capacity is to compensate the plaintiff for what he would have (not“could have”) earned but for the injury: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30. [105] In Kallstrom v.

Yip, 2016 BCSC 829, Kent J. set out a two-step process that should be followed in determining a plaintiff’sentitlement to such damages: [393] There is a discrete, two-step process that is required with respect to these past and future loss of earning capacity claims: 1. the court must first determine whether, as a result of the injuries sustained in the accident(s), the plaintiff's past or future earningcapacity has been or will likely be impaired, such that there has been an actual loss of income in the past and/or a real and substantialpossibility of a loss of income in the future; and 2. if so, then the court must then determine the amount of past loss that has been incurred to the date of trial and, on a present valuebasis, assess the amount to be awarded for any possible future financial loss. [106] Justice Kent then distinguished between simpler cases (where the plaintiff was before the injury engaged in steady, long-term,permanent employment) and more complicated cases such as this one: [396] Most cases are not as simple as the scenario described above.

Young persons who have not settled into a career, those with anirregular or no history of employment income, self-employed entrepreneurs, and those involved in unconventional income-earningenterprises are all examples where any past or future loss of earning capacity can be very difficult to both establish and measure. So toowhere an injured plaintiff has returned to work (usually with a sympathetic employer), but whose future remains uncertain. [397] In these difficult cases, step one in the analysis, entitlement, is often informed by the factors listed in Brown v.

Golaiy (1985), (BC SC), [1997] 26 B.C.L.R. (3d) 353 (S.C.) at para. 8, namely 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, bearing in mind that mere inability to perform an occupation that is not a realistic alternative occupation is not proof of a future loss: Perren v. Lalari, 2010 BCCA 140. [107] Although the defendants argue that Mr. Noori has failed to prove any damages under this head, I am satisfied that Mr. Noori’sincome-earning capacity has been impaired by the accidents such that there has been a compensable loss. [108] In seeking to quantify that loss, I must compare what Mr.

Noori actually earned from the date of the first accident until thepresent with what he would have earned but for the accidents. The issue is complicated in this case by a number of factors. [109] First, Mr. Noori had voluntarily elected to stop working prior to the first accident because of his arguments with the franchisorand associated frustration with the franchise arrangement. Mr. Noori urges me to conclude that he would have returned to work after sixmonths, in April 2014. I am not convinced that is so. Mr.

Noori’s frustrations with the franchise arrangement would have persisted and itis therefore possible that he would not have returned to work unless and until he had to, such as when his wife was herself unable to workdue to childbirth. It is also possible that he would have continued to pursue English language training beyond that six month period, as hedid when he finally did begin English language classes in 2017. [110] Second, there are, for the reasons discussed earlier in this judgment, no reliable records of the hours that Mr. Noori actuallyworked.

It is admitted that he was paid for many hours that he did not work. Ms. Nikju testified that she usually paid one salary to eitherMr. Noori or herself, but occasionally both of them were paid simultaneously. [111] Third, Mr. Noori alleges that even when he was working, he was unable to perform his duties adequately so it was necessary tohire extra staff to assist him. [112] On that basis, Mr. Noori seeks to be compensated for the hours he did not work, but allegedly would have had he not beeninjured, as well as for the cost of the staff who did the work he would otherwise have done. [113] Mr.

Noori has calculated the number of “lost” working hours between April 2014 and the end of 2016 at 3,640, based on histestimony as to the approximate number of hours he did work compared with those he says he would have worked but for the accident.He seeks to be compensated for those lost hours at $12 per hour for a total of $43,680. In addition, Mr. Noori seeks $10,000 per year

over three years for the cost of the additional staff that had to be hired to assist him. This yields a total claim for the period from April2014 to December 2016 of $73,680. [114] For the period following the abandonment of the business in December 2016 to the trial, Mr. Noori relies on the expert report ofan economist, Mr. Lakhani, who has calculated Mr. Noori’s loss of earning capacity during that period at $24,583. [115] On that basis, Mr.

Noori claims a total of $73,680 + $24,583 = $98,263 under this head. [116] With respect to the period while he was still working at the pizza franchise, I am not persuaded that Mr. Noori would haveworked all of the additional hours that he claims he would have worked but for the accident, or that $30,000 in extra staffing cost wasincurred to replace the work that Mr. Noori would otherwise have been doing. [117] I prefer to base my quantification of the loss under this head on the assumption that Mr.

Noori would, but for the accidents, havebeen capable of working 50% more hours than he actually worked in the years 2014, 2015 and 2016. [118] In assessing the damages on that basis, I have assumed that the value of Mr. Noori’s actual earnings during this period can beestimated as roughly equivalent to half of the salary that was paid to both Mr. Noori and Ms. Nikju as a team. [119] The salaries that were actually paid to Mr. Noori and Ms.

Nikju during those years were as follows: 2014 2015 2016Ali Noori $13,444 $18,750 $32,794Samera Nikju $3,960 $33,010 $8,966Total $17,404 $51,760 $41,760 [120] Using those figures, I have calculated the value of Mr. Noori’s lost earning capacity as follows: Mr. Noori’s half share of thecombined salary $8,702 $25,880 $20,880 Value of “lost” 50% $4,351 $12,940 $10,440 [121] The total loss for all three years is $27,731. From this figure, I have deducted 20% to reflect the contingency that Mr. Nooriwould have opted not to work for part of that time in any event.

This yields a net award for the period of $22,184.80. [122] With respect to the subsequent period from the abandonment of the business until trial, the defendants have adduced a report byMr. Szekely, also an economist, in response to Mr. Lakhani’s report. Mr. Szekely’s assumptions differ from those of Mr. Lakhaniprimarily in the following ways: (

a) Mr. Szekely factored in projected increases to the minimum wage; and (

b) Mr. Szekely used an average labour force participation rate corresponding with Mr. Noori’s level of education, rather than that forthe general population. [123] I agree with the defendants that Mr. Szekely’s set of assumptions are the more realistic of the two, particularly givenMr. Noori’s voluntary absence from work prior to the first accident. On that basis, I accept that Mr. Noori’s past “without accident”income would have been $22,005 for the period from January 2017 to the trial, as calculated by Mr. Szekely using the projected earningsbased on the occupational weighting taken from Mr.

Nordin’s report. [124] I also agree with the defendants that Mr. Noori should have been working on a part-time basis during that period, despite hisinjuries. According to Dr. Adrian, Mr. Noori is only partially, not completely, disabled. I recognise that his injuries have made it moredifficult for Mr. Noori to find work, and therefore I have accounted for that difficulty by assuming that Mr. Noori should have beenworking during this period on only a half-time basis. According to Mr. Szekely, Mr. Noori’s projected income at minimum wage for thepast period is $19,635. I am therefore awarding Mr.

Noori $22,005 – (1/2 x $19,635) = $12,187.50. [125] The total award for past loss of earning capacity is therefore $22,184.80 + $12,187.50. = $34,372.30. E. Future Loss of Earning Capacity [126] In Pololos v. Cinnamon-Lopez, 2016 BCSC 81, Voith J. summarised the legal principles applicable to the assessment ofdamages for loss of future earning capacity as follows at para. 133:

a) To the extent possible, a plaintiff should be put in the position he/she would have been in, but for the injuries caused by thedefendant’s negligence: Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at para. 185, leave to appeal ref’d [2009] S.C.C.A. No. 197;

b) The central task of the Court is to compare the likely future of the plaintiff’s working life if the Accident had not occurred with theplaintiff’s likely future working life after the Accident: Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 atpara. 32;

c) The assessment of loss must be based on the evidence, but requires an exercise of judgment and is not a mathematical calculation:Rosvold v. Dunlop, 2001 BCCA 1 at para. 18;

d) The two possible approaches to assessment of loss of future earning capacity are the “earnings approach” and the “capital assetapproach”: Brown v. Golaiy (1985), (BC SC), 26 B.C.L.R. (3d) 353 at para. 7 (S.C.); and Perren v. Lalari, 2010

BCCA 140 at paras. 11-12;

e) Under either approach, the plaintiff must prove that there is a “real and substantial possibility” of various future events leading to anincome loss: Perren at para. 33;

f) The earnings approach will be more appropriate when the loss is more easily measurable: Westbroek v. Brizuela, 2014 BCCA 48 atpara. 64. Furthermore, while assessing an award for future loss of income is not a purely mathematical exercise, the Court shouldendeavour to use factual mathematical anchors as a starting foundation to quantify such loss: Jurczak v. Mauro, 2013 BCCA 507 atparas. 36-37.

g) When relying on an “earnings approach”, the Court must nevertheless always consider the overall fairness and reasonableness of theaward, taking into account all of the evidence: Rosvold at para. 11. [127] In Hoy v. Williams, 2014 BCSC 234, Kent, J. described the capital asset approach at paras. 158-160: [158] The capital asset approach involves considering factors such as

i) whether the plaintiff has been rendered less capable overall ofearning income from all types of employment; ii) whether the plaintiff is less marketable or attractive as a potential employee; iii)whether the plaintiff has lost the ability to take advantage of all job opportunities that might otherwise have been open; and iv) whetherthe plaintiff is less valuable to herself as a person capable of earning income in a competitive labour market: Brown v. Golaiy (1985), (BC SC), 26 B.C.L.R. (3d) 353 (S.C.); Gilbert v. Bottle, 2011 BCSC 1389 at para. 233; Morgan v.

Galbraith, 2013BCCA 305 at paras. 53 & 56. [159] Though the capital asset approach is not a “mathematical calculation”, the trial judge must still explain the factual basis of theaward: Morgan v. Galbraith, 2013 BCCA 305 at para. 56. [160 The principles that apply in assessing loss of future earning capacity were summarized by Low J.A. in Reilly v. Lynn, 2003BCCA 49 at para. 101: The relevant principles may be briefly summarized.

The standard of proof in relation to future events is simple probability, not thebalance of probabilities, and hypothetical events are to be given weight according to their relative likelihood: Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458 at para. 27. A plaintiff is entitled to compensation for real and substantial possibilities of loss,which are to be quantified by estimating the chance of the loss occurring: Athey v. Leonati, supra, at para. 27, Steenblok v. Funk (1990),46 B.C.L.R. (2d) 133 at 135 (C.A.).

The valuation of the loss of earning capacity may involve a comparison of what the plaintiff wouldprobably have earned but for the accident with what he will probably earn in his injured condition: Milina v. Bartsch (1985), (BC SC), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the end of the inquiry; the overall fairness andreasonableness of the award must be considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995] B.C.J. No. 644(C.A.) (Q.L.). Moreover, the task of the Court is to assess the losses, not to calculate them mathematically: Mulholland (Guardian adlitem of) v.

Riley Estate (1995), (BC CA), 12 B.C.L.R. (3d) 248 (C.A.). Finally, since the course of future events isunknown, allowance must be made for the contingency that the assumptions upon which the award is based may prove to be wrong:Milina v. Bartsch, supra, at 79. [128] Mr. Noori relies on various alternative calculations of his loss that are set out in Mr. Lakhani’s report. Mr. Lakhani has modeledthe loss of future “without accident” earnings assuming that Mr. Noori could, but for the accident, have worked full time in a variety ofoccupations which were identified based on Mr.

Noori’s “without accident” qualifications by Mr. Nordin, a vocational consultant. Thoseoccupations were: (

a) food counter attendant, kitchen helper and related support; (

b) light duty cleaner; (

c) upholsterer; and (

d) landscaping / grounds maintenance labourer. [129] Mr. Lakhani weighted the likelihood that Mr. Noori would engage in these occupations by drawing on the number of maleworkers in British Columbia engaged in those occupations as of 2011. [130] Using that data, Mr. Lakhani calculated the present value of Mr. Noori’s “without accident” future income to age 67 as $816,099(prior to an allowance for court order interest and net of income-tax and EI premiums). [131] To quantify Mr. Noori’s loss, Mr. Lakhani deducted from that figure the present value of Mr. Noori’s “with accident” futureincome to age 67, assuming Mr.

Noori will be working part time at minimum wage at one third, one half or two thirds of a full timeposition. Mr. Lakhani calculates minimum wage at $11.675 per hour in anticipation of a future increase. These calculations yield “withaccident” future income estimates of $189,836 (one third time), $284,755 (half time) and $379,673 (two thirds time). [132] Mr. Lakhani estimates Mr. Noori’s loss on the basis of the difference between the “without accident” scenario and one of thethree “with accident” scenarios, as follows: Assuming Mr. Noori will work one third of full time hours: $626,623 Assuming Mr.

Noori will work one half of full time hours: $531,345 Assuming Mr. Noori will work two thirds of full time hours: $436,426 [133] On that basis, Mr. Noori submits that an award of $500,000 would be appropriate.

[ 134 ] The defendants argue that Mr. Noori has not met his burden of showing a substantial possibility of a future loss of earning capacity. They say he was not working before the first accident and is likewise voluntarily choosing not to work today – he has opted instead to learn English and tend to his children. They note that he was able to work essentially full time for over a year from May 2015 to December 2016. [ 135 ] The defendants submit in the alternative that the “capital asset” approach is to be preferred in this case because Mr. Noori does not have a long earning history to rely on.

In the event that Mr. Noori has established a substantial possibility of a future loss of earning capacity, they submit that an award no greater than $40,000 is appropriate. [ 136 ] I agree with Mr. Noori that he was able to work for a year in the pizza business following the accidents because it was a family business that was prepared to accommodate his post-accident constraints in a way that an arms-length employer may not be as willing to do. I also accept Mr.

Noori’s submission, supported by the weight of medical opinion that I have accepted, that the accidents have left him partially disabled and facing barriers to steady employment in many occupations. [ 137 ] I have concluded that Mr. Noori is limited as a result of the accidents to working at minimum wage and then only at three quarters of full time hours. [ 138 ] I also agree with the defendants, however, that a substantial contingency must be applied to account for the possibility that Mr.

Noori would not have worked on a continuous basis, just as he had voluntarily chosen not to work for at least six months beginning in the month prior to the first accident. [ 139 ] In his responding report, Mr. Szekely notes that Mr. Lakhani has assumed that Mr. Noori would be likely to participate in the labour force at a rate that is far above the average indicated for males with his level of education. Mr. Szekely suggests that it would be more appropriate to apply a contingency of 20.5% to reflect such non-participation, rather than Mr. Lakhani’s figure of 99%. I agree. [ 140 ] Second, Mr.

Szekely suggests that Mr. Lakhani’s projections are distorted because they fail to incorporate anticipated increases in the minimum wage. Rather than the $11.675 figure used by Mr. Lakhani, Mr. Szekely has calculated Mr. Noori’s posited future earnings assuming that the minimum wage will rise to $18 or $19 over his working life. I have adopted that version of the relevant calculation. [ 141 ] Based on those assumptions, Mr. Szekely calculates the present value of Mr. Noori’s “without accident” future income at $670,710, assuming Mr. Noori would have worked in the occupations identified by Mr.

Nordin, with the weighted likelihood calculated by Mr. Lakhani. Mr. Szekely has calculated the present value of Mr. Noori’s future earnings at minimum wage at $502,127. [ 142 ] Using a modified version of Mr. Szekely’s calculations, I have assessed Mr. Noori’s damages for future loss of earning capacity as follows: $670,710 – (3/4 x $502,127), for a net loss of $294,114.75. F. Cost of Future Care 1. The Legal Framework [ 143 ] In Dzumhur v.

Davoody , 2015 BCSC 2316 at para. 244 , the Court summarized the law on awards for cost of future care as follows: [244] The principles applicable to the assessment of claims and awards for the cost of future care might be summarized as follows: • the purpose of any award is to provide physical arrangement for assistance, equipment and facilities directly related to the injuries; • the focus is on the injuries of the innocent party...

Fairness to the other party is achieved by ensuring that the items claimed are legitimate and justifiable; • the test for determining the appropriate award is an objective one based on medical evidence; • there must be: (1) a medical justification for the items claimed; and (2) the claim must be reasonable; • the concept of "medical justification" is not the same or as narrow as "medically necessary"; • admissible evidence from medical professionals (doctors, nurses, occupational therapists, et cetera) can be taken into account to determine future care needs; • however, specific items of future care need not be expressly approved by medical experts......

It is sufficient that the whole of the evidence supports the award for specific items; • still, particularly in non-catastrophic cases, a little common sense should inform the analysis despite however much particular items might be recommended by experts in the field; and • no award is appropriate for expenses that the plaintiff would have incurred in any event. 2. The Parties’ Positions [ 144 ] Mr. Noori seeks damages for the cost of future care as follows:

Item Amount Supportive Footwear $3,900 Housekeeping (indoor and outdoor, including gardening and snow removal) $30,000 Medication $2,300 Physiotherapy and Massage $75,000 Active Rehabilitation $750 Psychology $3,090 Occupational Therapy $1,000 Antidepressant Medication $7,500 Vocational Assessment and Counseling $5,250 Ergonomic Assessment $1,000 $129,790 [ 145 ] The defendants respond as follows: Item sought Commentary Supportive/Orthopedic athletic and casual footwear Not supported by the medical evidence. Not reasonably necessary Regular Indoor Housekeeping The plaintiff’s wife takes care of the household.

The plaintiff’s evidence was that his wife may not allow it. Lawn mowing The plaintiff’s family assists him with this. Gardening and Landscaping The plaintiff has a small yard. Not reasonably necessary. Snow removal Seasonal and not reasonably necessary. His children take care of it. Physiotherapy Passive modality that is unlikely to assist. Active Rehab One to two sessions may assist. Massage Therapy Passive modality that is unlikely to assist. Psychological treatment Not causally related to the Accidents.

Occupational Therapy services Not reasonably necessary Yoga The plaintiff’s evidence was that he is not likely to participate Prescription medication The defendants submit that the plaintiff is not entitled to any cost of future care of sleep medication. The plaintiff has experienced sleep disruptions unrelated to the accidents and has not proven that his sleep disturbance is causally linked to the accidents. May be covered by Fair Pharmacare (Ditson report page 16) Non-prescription medication Not reasonably necessary.

The defendants submit that the plaintiff is not entitled to any cost of future antidepressant medication. The plaintiff has led evidence that he experienced many unrelated stressors in his life, and has not proven that any emotional or psychological disturbances are causally linked to the accidents. Vocational assessment Mr. Noori has already had a vocational assessment with Mr. Nordin. He has indicated a preference for certain occupations. It is unclear why this is necessary. Ergonomic Assessment Not essential as it depends on the type of work that Mr. Noori finds. 3. Discussion

a) Housekeeping/Gardening/Snow Removal/Yoga [ 146 ] Mr. Noori’s list is derived from the recommendations made by Ms. Ditson in her report. When Ms. Ditson’s recommendations were put to Mr. Noori in his examination in chief, he expressed interest in getting the recommended care but doubted he or his wife would want to have someone else cleaning their home. He expressed no need for lawn care or snow removal, given the resources available to him through other family members. He was not interested in pursuing yoga. I am therefore not prepared to award damages for those items.

b) Physiotherapy/Massage [ 147 ] The largest single item on Mr. Noori’s list is the cost of physiotherapy and massage ($75,000). Ms. Ditson did not make any recommendation with respect to the frequency of the massage or physiotherapy sessions that she recommended. Mr. Noori testified he would like to attend physiotherapy three times per week if he could afford it, and massage therapy twice per week. He testified that when he is getting such therapy it helps reduce his symptoms and his ability to function improves. Mr.

Noori’s counsel submits that one hour of physiotherapy per week would cost $9,880 per year, while one hour of massage per week would cost roughly $5,500 per year. Using a multiplier of 24,477 to age 65 results in a total cost of $144,500. On that basis, Mr. Nooris seeks an award of $75,000. [ 148 ] The defendants submit that the cost of future physiotherapy and massage sessions ought not to be awarded because they are “passive” modalities that are “unlikely to assist.” That submission appears to be based primarily on the rebuttal report of Mr. Kowalik, who responded to Ms.

Ditson’s recommendation in favour of those items as follows: A recommendation is made for ongoing physiotherapy and massage with the indication these passive modalities have been utilized for over 2 years with no long term benefit. As it is clearly that “ It is unlikely, however, treatments will lead to long term improvement of his condition ” in [Ms. Ditson’s report], ongoing regular treatment does not appear indicated.

It is important to note that there is strong clinical research (Level 1 evidence) that patients who participate in non-evidence based forms of treatment such as Physiotherapy/Massage commonly experience poor clinical outcomes and prolonged disability. They can also be prone to therapist dependence, illness behaviour and a false sense of fragility, all of which can prolong recovery. Given the MVA occurred in 2013, it is clinically improbable that such a passive modality will be of any benefit, as such treatment is most commonly utilized in the acute phase of the injury. [Emphasis in original]. [ 149 ] But then Mr.

Kowalik adds this: While I am in agreement with this modality for occasional flare ups, the typical frequency recommended is 6-12 sessions per year, and the average of 9 should be considered when calculating costs, not the maximum 12 sessions. This serves to aid in symptom control as flare ups occasionally occur from clinically proven progressive activity such as normal home activities or exercise. [ 150 ] On that basis, I accept that the need for approximately nine physiotherapy and massage sessions per year to control “occasional flare ups” has been demonstrated.

This is significantly less than the frequency suggested on behalf of Mr. Noori. I am therefore allowing this claim but only in the amount of $20,000.

c) Active Rehabilitation [ 151 ] This item is not contested and is valued at $750. I am allowing the claim in that amount.

d) Footwear [ 152 ] Mr. Kowalik offered the following opinion with respect to this item: Ms. Ditson has recommended supportive athletic shoes for Mr. Noori. There does not appear to be any objective medical indication for this recommendation. Typically, custom orthotic insoles are recommended by a physiotherapist or physician to correct alignment of gait pattern. There does not appear to be clear medical justification for this item nor is there relevant literature rationale listed for this item, therefore, further clarification is needed to justify the need for such an item. [ 153 ] I agree with the defendants that there is inadequate evidentiary support for this item.

e) Psychological Counseling [ 154 ] Ms. Ditson did not specify how frequently Mr. Noori should attend for psychological counseling. Dr. Wiseman recommended 20-24 sessions in his own language. Mr. Noori has attended 13 sessions so far, although the sessions have been in English. A further 11 sessions would be $2,090.

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