Latham v. Latham, 2024 BCSC 171

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Latham v. Latham, 2024 BCSC 171 Date: 20240202 Docket: M184680 Registry: New Westminster Between: Derik Latham Plaintiff And Parminderpal Dhillon, Kuldip Dhillon, Angela Latham and Metro Motors Ltd. Defendants Before: The Honourable Justice Tucker Reasons for Judgment Counsel for the Plaintiff: E.S. Hong Counsel for the Defendants Angela Latham and Metro Motors Ltd: R. Basra I.S. Gill Place and Date of Trial: New Westminster, B.C. March 27-30 and April 3-6, 2023 Place and Date of Judgment: New Westminster, B.C. February 2, 2024 Table of Contents I.

Introduction .. 4 II. Facts and Evidence .. 5 A. Pre-Accident 5 B. The Accident 11 C. Post-Accident – Lay Evidence . 12 The Plaintiff 12 Delores Latham .. 14 Ben Latham .. 15 Angela Latham .. 15 D. Post Accident – Medical Evidence . 16 Dr. Anna Chodyra, Family Physician (Plaintiff Witness) 16 Dr. Richard Hearn, Psychologist (Plaintiff Expert) 17

Dr. Robin Rickards, Orthopaedic Surgeon (Plaintiff Expert) 18 Dr. Pankaj Dhawan, Physiatrist (Plaintiff Expert) 20 Deborah Scott-Kerr, Occupational Therapist (Plaintiff Expert) 21 Dr. Manoj Bhargava, Orthopaedic Surgeon (Defendant Expert) 22 Dr. Kim Waspe, Physiatrist (Defendant Witness) 24 Dr. Eugene Okorie, Psychiatrist (Defendant Expert) 26 Dominic Shew, Occupational Therapist (Defendant Expert) 27 III. Credibility .. 27 IV. Causation – Legal Principles .. 30 V. Injuries .. 32 A. Pre-Accident Condition .. 32 Pre-Existing – Manifested . 32 Pre-Existing Condition – Latent 35 B.

Post-Accident 36 Mental Health .. 36 Physical Health .. 37 C. Injuries Caused by the Accident 40 VII. Past & Future Loss of Earning Capacity .. 41 A. Legal Framework . 41 B. Overview of the Plaintiff’s Claim .. 42 C. Additional Evidence – The Consultant Witnesses . 42 Thomas Tass . 42 John Harrison .. 43 Royston Colbourne . 43 Mike Toddington .. 43 D. Findings . 44 With Accident 44 Without Accident 45 VIII. Household-Related Capacity Claims .. 48 IX. Non-Pecuniary Damages .. 50 X.

Cost of Future Care .. 54 Multi-disciplinary Pain Clinic . 57 Exercise Program and Related Costs . 57 Psychological Counselling . 58 Occupational Therapy . 58 Foot Care . 58 Miscellaneous Equipment 59 Medications . 59

XI. Special Damages .. 59 XII. Disposition .. 60 I. Introduction [ 1 ] The plaintiff, Derik Latham, was born in 1952. He was 62 years old at the time of the accident in question and 70 years old at the time of trial. [ 2 ] He lives with his wife, Dolores Latham, and daughter, Angela Latham. He also has a son, Ben Latham. As all of the family members testified, I will refer to Derik Latham as the plaintiff, and to the other family members by their first names.

This is for clarity only, and no disrespect is intended. [ 3 ] The plaintiff was a passenger riding in the front passenger seat of Angela’s car when she rear-ended the motor vehicle in front of them on October 23, 2014 (the “Accident”) . [ 4 ] Liability has been admitted by Angela and Metro Motors Ltd. The trial dealt only with damages. [ 5 ] The parties’ positions on damages are disparate.

The plaintiff seeks: Non-Pecuniary Damages $200,000.00 Past Loss of Earning Capacity $356,749.00 Future Loss of Earning Capacity $74,499.00 Loss of Housekeeping Capacity $66,615.00 Future Cost of Care $122,149.00 Special Damages $7,598.40 Total: $827,610.40 [ 6 ] The defendants say only the following damages are appropriate: Non-Pecuniary Damages $50,000.00 Past/Future Loss of Earning Capacity Nil Loss of Housekeeping Capacity Part of Non-Pecuniary Future Cost of Care Nil Special Damages $3,008.40 Total: $53,008.40 [ 7 ] This disparity reflects the parties’ positions on the central factual dispute: the plaintiff’s condition and capabilities at the time of the 2014 Accident. [ 8 ] The plaintiff has an extensive history of medical problems and injuries.

He had not worked since 2011 and was in receipt of Canada Pension Plan (“CPP”) disability benefits at the time of the Accident. [ 9 ] The defendants say the plaintiff already had significant chronic pain and functional impairment at the time of the Accident. It is their position that he would have never have returned to work and that his pain and impairment would have progressively worsened over time in any event of the Accident.

They concede that the Accident contributed to his injuries, but submit that the contribution was minor. [ 10 ] In contrast, the plaintiff claims he was very significantly recovered from his earlier injuries and, further, was on the cusp of returning to the active workforce at the time of the Accident. [ 11 ] I have concluded that the plaintiff did have pre-existing conditions, impairments and chronic pain at the time of the Accident. However, the Accident aggravated those and added a new injury to the plaintiff’s right knee.

Further, I find that the plaintiff was effectively recovered from his earlier psychological disorders at the time of the Accident, and that the Accident caused those to present at a diagnosable level again, although the plaintiff was once again largely recovered. The plaintiff has failed to establish that there was any real and substantial probability of his returning to work and earning income at the time of the Accident. II. Facts and Evidence A. Pre-Accident [ 12 ] The plaintiff, Delores and Angela all live in a rental unit in a co-op housing complex.

Angela lived with them at the time of the Accident, and has lived with them continuously pre- and post-Accident with the exception of a few years spent abroad. [ 13 ] The plaintiff held the following positions over the years 1969 through 2009:

a) from 1969 to 1975: military service in the British Army (including some bomb disposal work);

b) from 1976 to 1981: Corrections Officer with BC Corrections;

c) from 1986 to 1999: Security Officer at the Port of Vancouver;

d) from 1999 to 2003: Ship Security Specialist;

e) from 2003 to 2007: Chief Inspector for Passenger Transportation Department of BC;

f) from 2007 to 2008: Head of Shipboard Security at Vancouver’s Canada Place cruise ship port; and g) 2008: International Police Trainer in Afghanistan (on a one year contract). [ 14 ] The plaintiff also has a number of qualifications. He has a 2007 “master level” certificate awarded for completing 18 correspondence courses with the “United Nations Institute for Training and Research Programme of Correspondence Instruction in Peacekeeping Operations”. This certificate was taken in preparation for his work in Afghanistan.

The evidence does not establish the nature or level of the coursework involved, but the certificate appears to have been obtained in a relatively short period of time. [ 15 ] The plaintiff also has a 2013 “Certificate of Membership” in the Institute of Leadership & Management from The City and Guilds of London Institute. The evidence did not establish the criteria for joining as a member. [ 16 ] The evidence established that the plaintiff has a particular area of expertise involving knowledge of the international maritime regulations developed by the International Maritime Organization (“IMO”).

The IMO is a United Nations agency responsible for the safety, security and some environmental aspects of shipping. [ 17 ] The plaintiff joined two industry associations related to his port-based employment and his interest in the IMO. Both of these associations were focused on sharing practical knowledge about border security across industry participants with the goal of increasing border security. The plaintiff became a member of the International Association of Airport and Seaport Police (“IAASP”) in around 2000, and worked as the assistant to the Executive Director (Mike Toddington) for a period of time.

The IAASP was essentially a two- person volunteer operation. In 2007, he stepped down as the assistant to the Executive Director (remaining a member-at-large) of IAASP. [ 18 ] Through his involvement in the IAASP, the plaintiff also came to have an association with BORDERPOL, a similar association generally interested in border security matters (i.e., as opposed to port security). He joined BORDERPOL in 2004 and became IAASP’s liaison with BORDERPOL. In recognition of that role, he was named as BORDERPOL’s “Director of Maritime Security” in 2008.

He stepped down from that role following the Accident, but remains a member-at-large. [ 19 ] Both IAASP and BORDERPOL publish industry circulars for their members, and the plaintiff contributed newsletter quality pieces for inclusion. [ 20 ] In January 2009, the plaintiff started a job as a Security Manager at the British Columbia Institute of Technology (“BCIT”). From March to August 2010, the plaintiff was on leave from BCIT as a result of interpersonal difficulties in the workplace. In March 2011, he was dismissed from BCIT without cause and with severance pay.

His gross salary at the end of his tenure at BCIT was $69,431. [ 21 ] After leaving BCIT, the plaintiff lived off his severance for a time. In late 2012/ early 2013, he began receiving Canada Pension Plan (“CPP”) disability benefits backdated to 2011. In 2017, the plaintiff turned 65 and began receiving regular CPP benefits and the Old Age Supplement. [ 22 ] The plaintiff has a lengthy medical history. The parties agree that he had the following medical conditions before the Accident:

a) Factor V Leiden deficiency;

b) Asthma;

c) Deep vein thrombosis;

d) Pulmonary embolism;

e) Type II diabetes;

f) Depression;

g) Anxiety; and

h) Chronic pain. [ 23 ] It is also agreed that at the time of the Accident, the plaintiff was taking the following prescription medications:

a) Metformin;

b) Insulin;

c) Inhaler (asthma);

d) Apo-Ramipril;

e) Crestor;

f) Warfarin;

g) Citalopram;

h) Flonase; and

i) Endocet. [ 24 ] In or around 2004 to 2007, the plaintiff injured his left shoulder and neck after he slipped and fell on a flight of concrete steps (“2007 fall”). He attended physiotherapy and acupuncture to address his related injuries, but did not fully recover. He lost no work due to these injuries. [ 25 ] During his period of leave from BCIT in 2010, the plaintiff was diagnosed with anxiety and depression. He attended four counselling sessions with Dr. Simon Hearn, a registered psychologist, over the spring and summer of 2010.

He returned to work in the fall. [ 26 ] On November 26, 2010, while at work at BCIT, the plaintiff fell into a deep hole in a concrete floor (“BCIT Accident”). He injured his neck, shoulder, elbow, back, hip and knee, all on the left side. The plaintiff testified that he made a claim to WorksafeBC, but was denied benefits. (The WorksafeBC decisions were not provided to the Court.) Following the BCIT Accident, he began using a cane. [ 27 ] The plaintiff returned to work within days of the BCIT Accident. He testified that he had no choice as he had just returned from leave.

He worked until March 2011, at which time he was dismissed without cause. [ 28 ] The plaintiff saw Dr. Hearn for his mood-related issues again on June 8, 2011. Between 2011 to 2014, the plaintiff tried a number of mood medications and found Citalopram helpful. He has taken Citalopram ever since. [ 29 ] The fact that the plaintiff took Warfarin and had limited financial means restricted his options for pain medications following the BCIT Accident. In 2012, his family physician, Dr. Anna Chodyra, prescribed Percocet for daily use. The plaintiff testified that the Percocet only took the edge off his pain.

He successfully applied for CPP disability benefits based on his pain and impairment following the BCIT Accident. On August 16, 2013, Dr. Chodyra referred the plaintiff to a physiatrist, Dr. Waspe, for a consultation regarding his pain issues and for a follow-up appointment on March 17, 2014. [ 30 ] The pre-Accident facts set out above are non-contentious. I will now move into the plaintiff’s testimony regarding his condition and plans at the time of the Accident, which are very much in dispute. [ 31 ] The plaintiff testified that by 2013 he was no longer using a cane and was able to walk and hike.

He testified that his mood issues had also improved significantly by 2013 and that he had been taking active steps to return to the workforce before the 2014 Accident. [ 32 ] The plaintiff testified that he sent out dozens of resumes for salaried positions.

Dolores testified that she sent some of these out on his behalf using the fax machine at her workplace. [ 33 ] The plaintiff testified that as a result of these efforts he was interviewed for a position with the City of Vancouver, but that he concluded that they were simply trying to get free information or training from him under the guise of an interview process. He also testified to having spoken with the Vancouver Commissionaires about helping them expand into port security.

He testified that a contract with the Commissionaires was “in the works” at the time the Accident occurred. [ 34 ] The plaintiff testified that he was also in serious discussions with his son, Ben, to start a security consulting company together. He said that this was something they had had in mind since the early 2000s, but that in 2013, they began planning in earnest.

As Ben had a business management diploma and business experience, Ben would manage the business and the plaintiff would be the principal consultant and do fieldwork such as conducting security audits. [ 35 ] The plaintiff testified that in the spring of 2013, he and Ben began to execute the various steps needed to form the company, which they intended to call “The Latham Group”. The plaintiff and Ben testified that their plans included developing a business plan, applying for security clearances, printing business cards and renewing the plaintiff’s passport.

They testified that the plan was that the plaintiff would take a salary of $70,000 per year for a few years and then the financial arrangements would be revisited. They both suggested that Angela might eventually perform security training work with the company. [ 36 ] The plaintiff and Ben testified that The Latham Group was close to finalizing a contract, with an individual named Johan Abdullah, to perform security and maritime police training for ports in two different Caribbean countries (the “Abdullah Project”).

They testified that the Abdullah Project work was anticipated to take about six months to one year to complete and to have a value of around $200,000. The testimony on this point was extremely vague. Ben testified that the contract discussions were entirely conducted over the telephone. There are no related documents of any kind in evidence. [ 37 ] However, the plaintiff and Ben testified that when Ben and his family began seriously considering a move to Saskatchewan, they put their plans for launching The Latham Group on pause.

Not long before the Accident, Ben took an in-house position doing customer service relations management for a car dealership and bought a house in Abbotsford. The plaintiff and Ben testified that this development put them in a position to again move forward with The Latham Group and that they were looking to move forward at the time of the Accident. B. The Accident [ 38 ] The plaintiff was seat-belted in the front passenger seat of Angela’s car when they struck the vehicle in front of them. The plaintiff testified that he was half-asleep, leaning against the window and taken unaware by the impact.

He believes his knees hit against the dashboard.

[ 39 ] Immediately after the Accident, the plaintiff experienced pain to his head, right arm, back and right knee. Notwithstanding the pain, he and Angela continued to his ophthalmology appointment. After the appointment, they attended Eagle Ridge Hospital emergency, but there was no doctor available to see him. They went home with a plan to return the next day. [ 40 ] The plaintiff woke up the next day stiff and in pain.

He had a throbbing headache, neck pain (especially on the right side of his neck), pain to his right shoulder, pain to his right back area, a very painful lower back, pain to his thighs and right knee pain. He went back to the emergency department, but was referred to his family physician. [ 41 ] The plaintiff saw Dr. Chodyra on October 29, 2014. He was sore and stiff in his neck, shoulders and lower back. His right knee was painful and he was having throbbing headaches daily. She testified that she wouldn’t have prescribed anything for pain as he was already on Percocet. C.

Post-Accident – Lay Evidence The Plaintiff [ 42 ] The plaintiff testified that he suffered the following injuries as a result of the Accident:

a) headache;

b) right neck pain;

c) right shoulder pain;

d) right back pain;

e) right hip pain;

f) right knee pain;

g) right knee giving way unexpectedly and frequently (beginning a few months after the Accident);

h) sleep issues; and

i) mood issues. [ 43 ] After the Accident, the plaintiff’s mood spiraled downwards. Dr. Chodyra advised him to see Dr. Hearn again. From August 2015 to August 2017, the plaintiff saw Dr. Hearn six times. In 2019, ICBC funded ten further sessions that took place that year. He has not seen Dr. Hearn for treatment since the last of those sessions.

The plaintiff testified that the sessions were helpful and that he now feels better, but that he has recently started having sleep issues again, which he associates with mood issues. [ 44 ] After the Accident, the plaintiff received physiotherapy and massage therapy between November 1, 2014, to June 28, 2016. [ 45 ] The plaintiff testified at trial that he continues to regularly perform exercises at home that he learned from physiotherapy.

These include walking on his treadmill and using a medicine ball. [ 46 ] The plaintiff received a series of trigger point injections from December 2016 through to February 2017, and then again in May and June 2018.

He took a depo-medrol injection to his right knee on January 30, 2018, one to his right shoulder on March 27, 2018, and two to his left hip on April 12, 2018 and March 12, 2019. [ 47 ] In 2019, the plaintiff had a hip replacement surgery on his left hip, which he described as successful and leading to a good recovery. [ 48 ] The plaintiff testified that as of trial his right knee continues to give way regularly, and that he continues to experience pain in his right neck, his right shoulder, his left shoulder (as aggravated by falls due to his knee), aching in his right hip and pain and stiffness in his right back that makes it difficult to bend. [ 49 ] Dr.

Chodrya’s clinical notes provide contemporaneous support for the plaintiff’s testimony with respect to some of these falls and she referred him to a Falls Prevention Clinic (which he attended). [ 50 ] The plaintiff continued with daily Percocet until 2019, but then opted to discontinue taking it. He began using Tylenol No. 3 as needed for headaches, but eventually stopped taking as well a few years before trial. Currently, he uses over-the-counter pain medication as needed for his headaches and a prescription pain cream.

He testified that although he has reduced his use of medications because he did not want to be taking them, he has never been pain-free from his Accident-related injuries. [ 51 ] The plaintiff testified that after the Accident, he advised BORDERPOL and his peers that he would not be doing much anymore. The Latham Group never got off the ground. [ 52 ] The plaintiff testified that prior to and at the time of the Accident he was doing most of the housework and cooking, as well as gardening and yard maintenance, but that since the Accident, Angela has done the bulk of the house and yard work. Delores Latham

[ 53 ] Dolores worked full-time since about 1985 until 2016. [ 54 ] Delores confirmed that when the plaintiff sent out resumes in 2013, she assisted him by faxing some from her workplace. Dolores testified that she knew about a plan, prior to the Accident, to open a family business, but that she did not attend any meetings and did not know any of the details. [ 55 ] Sometime between 2011 and the date of the Accident, the plaintiff installed a raised garden bed in their townhouse yard and began gardening.

At the time of the Accident, he was regularly socializing with friends and family. [ 56 ] She also testified that at the time of the Accident, the plaintiff was performing most of the household tasks. (As it happens, Dolores herself was in a car accident the month prior (in September 2014) to the Accident.) [ 57 ] She testified that in the year or so prior to the Accident, the plaintiff started going for walks more and had stopped complaining about left shoulder and left knee issues. The plaintiff was able to take hour-long walks in the neighbourhood and around nearby lakes.

He did not use a cane regularly, but she had him use it on these longer walks just to be safe. [ 58 ] Dolores testified that in the months following the Accident, the plaintiff went to physiotherapy for his right shoulder, neck, back and hip. His knee kept giving way, leading to him falling occasionally. She testified that all of his pre-Accident mood difficulties were back again after the Accident. She stated that it took a while for the plaintiff to get into a better state of mind again following the Accident.

She said that after a couple of years, his mental state was much improved, but had not improved “completely”. Ben Latham [ 59 ] Ben is 44 years old. He manages customer relationship management issues for an automotive sales group. He runs two small e- commerce businesses on the side, both of which re-sell products on sites like Amazon and eBay. [ 60 ] With respect to The Latham Group, Ben testified that he was prepared to fund the start-up costs for the business, as they did not intend to rent offices, making the costs fairly minimal.

He said he had started on the process of obtaining business licences and security consultant licences, and had looked into getting liability insurance and a group health plan. Ben stated that once The Latham Group was up and running, he anticipated committing 20-25 hours per week of his own time to the business. [ 61 ] Ben testified that he lost all of the documents pertaining to The Latham Group when a fire destroyed his family home in 2019 or 2020. In addition to the fire and water damage, asbestos was found, so even the surviving items had to be destroyed. Angela Latham [ 62 ] Angela is 42 years old.

Angela worked with the plaintiff in Afghanistan when he was doing training work there in 2008. She subsequently became qualified as a high school math teacher and has been employed in that capacity since 2013. [ 63 ] She testified that in the year or so leading up to the Accident, the plaintiff was able to walk long distances. He gardened and did a lot of the household chores.

He was able to walk without assistance and was no longer using a cane by the time of the Accident. [ 64 ] She testified that prior to the Accident, the plaintiff did not complain of headaches, right knee pain, or about his right knee giving way.

She described his state of mental health at the time of the Accident as being fine. [ 65 ] Angela testified that she was aware that her father and brother intended to start a business, but said that she did not know any details and was not at all involved. [ 66 ] Angela testified that she could barely recall anything from the day of the Accident. [ 67 ] After the Accident, Angela observed the plaintiff’s mobility decline. He used his cane again. He did not go for walks anymore. If he tried to garden, he could do it for a short time, but would “pay for it” the next day.

He struggled with tasks that required standing, walking for a long time, or using stairs. His moods worsened. His ability to focus was poor and he did not seem like the same person. [ 68 ] Angela now performs the majority of the significant household chores. D. Post Accident – Medical Evidence Dr. Anna Chodyra, Family Physician (Plaintiff Witness) [ 69 ] Dr. Chodyra was been the plaintiff’s family physician from about 2007 through to June 2022 (at which time she moved to New Zealand). She treated him for his various pre-existing medical conditions. She was called as a fact witness at trial. [ 70 ] Dr.

Chodyra’s clinical notes from August 2013 indicate that the plaintiff reported that he “be might be leaving to Middle East to work s (sic) a contractor” and had an inquiry about travel vaccinations. [ 71 ] Dr. Chodrya testified that the plaintiff’s main pain concerns prior to the Accident were his left shoulder, left hip and diffuse back pain. She confirmed that she prescribed him Percocet for his pain following the BCIT Accident and that he continued to take that medication after the Accident.

She filled out the physician forms for his CPP disability benefits application in or about November 2012. [ 72 ] She confirmed that she referred him to a physiatrist (Dr. Waspe) for his chronic pain issues at some point in 2013. She was taken through her 2014 clinical notes pre-dating the Accident. She confirmed that he had reported a “lots of pain” in his left groin over the last two weeks on March 6, 2014. On June 20, 2014, he reported right-sided neck pain and tenderness radiating down his arm and right

lateral chest resulting in throbbing pain, with pain also coming from his upper back. He reported that neck movements sometimes made the pain worse and that it sometimes caused him to have problems moving his right arm and sometimes to have stiffness and pain in his right hand. She observed pain with movement of his right shoulder, and ordered an x-ray of the cervical spine and right shoulder.

On June 25, 2014, the x-rays taken revealed moderate to severe degenerative disc disease. [ 73 ] On September 18, 2014, the plaintiff continued to report right neck pain that was relieved by the application of pressure to the area. [ 74 ] On June 15, 2015, Dr. Chodyra completed a CL19 medical report for ICBC. She noted that the plaintiff had already been diagnosed with left side spine degenerative changes and chronic left-sided shoulder, back and hip pain.

She noted that after the Accident, the plaintiff reported stiffness and pain in his neck, shoulders and lower back, right knee pain and related knee issues, and throbbing headaches. As the plaintiff’s subjective report at the date of the report she wrote “pain level overall ‘back to baseline’; persistent right shoulder and right knee pain, headaches and right side of body keeps flaring up”. She reported observed tenderness over the right knee and restricted range of motion in the right shoulder.

She checked off the boxes indicating Grade II soft tissue injuries to the neck/ upper back and to the lower back areas. [ 75 ] She testified that the plaintiff reported his right shoulder as being worsened by the Accident. He also reported mood issues following the Accident and returned to seeing Dr. Hearn. She continued his prescription for Citalopram. Dr. Richard Hearn, Psychologist (Plaintiff Expert) [ 76 ] As noted above, Dr. Hearn was the plaintiff’s treating psychologist both before and after the Accident. He provided an expert report dated October 6, 2019. [ 77 ] In Dr.

Hearn’s opinion, the plaintiff suffered from major depressive disorder after the BCIT Accident, but improved and ceased to be clinically depressed prior to the Accident. He diagnosed the plaintiff as again suffering from major depressive disorder when he saw him after the Accident in 2015 and through to 2018. However, he found him to be no longer depressed when he saw the plaintiff on October 6, 2019 . [ 78 ] In his view, the plaintiff likely had other specified trauma- and stress-related disorder for about a year following the BCIT Accident, but then recovered.

After the Accident, he diagnosed the plaintiff with this disorder again. As of October 6, 2019, the plaintiff’s symptoms were decreased. [ 79 ] Dr. Hearn also diagnosed the plaintiff with panic disorder with agoraphobia as of October 24, 2018. As of October 6, 2019, he viewed the plaintiff as no longer having panic disorder, but having some vestigial agoraphobia. [ 80 ] Dr. Hearn made the following recommendations in his report:

a) continuing with an anti-depressant (if supported by his family physician);

b) attendance at a pain management program; and

c) five to ten further therapy sessions. Dr. Robin Rickards, Orthopaedic Surgeon (Plaintiff Expert) [ 81 ] Dr. Rickards assessed the plaintiff on June 25, 2019, and provided an expert report dated July 3, 2019. [ 82 ] Dr. Rickards made the following diagnoses:

a) probable medial plica in the right knee;

b) possible labral tear in the left hip; and

c) probable lumbar facet joint syndrome. [ 83 ] A plica is a fold in the tissue that lines the knee joint. The mid-line (or medial) plica can become inflamed by a knee trauma. [ 84 ] The plaintiff reported to Dr. Rickards that prior to the Accident he had never had any problems with his hips or low back areas and that at the time of the Accident, he had no ongoing difficulties from the BCIT Accident. Dr. Rickard’s report concludes that the plaintiff’s right knee symptoms were caused by the Accident and would not have likely occurred but for the Accident.

Notwithstanding the plaintiff’s reporting to the contrary, Dr. Rickards concluded, on review of the medical records, that the plaintiff’s left hip and lumbar symptoms were pre-existing and likely aggravated by the Accident. [ 85 ] On examination, Dr. Rickards noted symmetrical diminished active and passive motion in both shoulders. He reached the following opinion with regard to both of the plaintiff’s shoulders: Mr. Latham also has diffuse aches and pains with diminished passive and active range of motion of both shoulders.

This shoulder presentation is effectively the presentation of frozen shoulder, a not uncommon difficulty seen in patients with diabetes. [ 86 ] On cross-examination, Dr. Rickards confirmed that it was his view that the plaintiff’s right (and left) shoulder issue was the result of frozen shoulder and that this was diabetes-related and not due to the Accident. He said the frozen shoulder would be expected to result in restriction in the ability to reach over the head and to put one’s arms behind the back (e.g., when putting on a shirt).

He testified that frozen shoulder is not a condition requiring any interventionist treatment and that it can, at times, simply abate on its own.

[ 87 ] Dr. Rickards recommended an arthroscopic evaluation of the right knee and, if the plica was inflamed, a possible excision. He also recommended an MRI scan to explore the possible labral tear in the left hip, with possible surgical treatment. With respect to the probable lumbar facet joint syndrome diagnosis, he noted that, in the majority of cases, lumbar facet joint syndrome can be improved without surgical intervention. Dr.

Rickards recommended manipulative treatments such as chiropractic, massage, and physical therapy, as well as muscle strengthening to address the shoulder girdle, neck, low back and pelvic girdle musculature. He noted that while non- steroidal anti-inflammatory medications form the “cornerstone” treatment for all inflammatory and soft tissue issues, those medications are contraindicated for a person, such as the plaintiff, using anticoagulant medications. [ 88 ] Dr. Rickards expressed the view that the plaintiff’s difficulties would persist on a permanent basis.

He noted the significant obstacles to proceeding with surgical correction and even to further investigating the plaintiff’s current symptoms, given the plaintiff’s bleeding propensity, anticoagulation medication and diabetes. [ 89 ] Dr. Rickards recommended an exercise program directed by a personal trainer, kinesiologist or physical therapist for one to three sessions, to be followed by an independent exercise regime done four to six times per week.

If the facet joint symptoms led to persistent, ongoing and disabling symptoms, he recommended medial branch blocks or radiofrequency ablation for long-term symptom relief. [ 90 ] In Dr. Rickards’ view, unless the right knee and possible left hip difficulties were to subside, it is likely that recurrent collapse of the lower extremities will occur with increasing disability and diminished ability to bear weight. [ 91 ] With respect to the plaintiff’s ability to work, it was Dr.

Rickards’ opinion that the plaintiff would be unable to perform any physical work and would be best suited to a job where he is seated, but not for prolonged periods, and is able to stand and stretch as needed. [ 92 ] When cross-examined about how the plaintiff’s pre-existing medical conditions might have continued to affect him absent the Accident, Dr. Rickards indicated that if the plaintiff’s blood pressure and diabetes issues continued into old age without improvement, they would likely adversely impact his longstanding hip, back and neck pain issues.

He also expressed the view that the plaintiff’s pre- existing symptomatic low back and neck degenerative issues were likely to generally progress over time and were likely to have given rise to issues with housekeeping and gardening activities in any event of the Accident. Dr. Pankaj Dhawan, Physiatrist (Plaintiff Expert) [ 93 ] Dr. Dhawan assessed the plaintiff on May 10, 2017, and provided a brief expert report the same day. [ 94 ] In Dr. Dhawan’s opinion, the Accident caused soft tissue injuries to the following areas:

a) cervical spine;

b) right shoulder girdle;

c) lower back; and

d) right knee. [ 95 ] In his view, the plaintiff’s neck and shoulder pain had become chronic. [ 96 ] With respect to the plaintiff’s right knee, Dr. Dhawan wrote: … in my opinion his giving way of the knee and pain as well as examination findings of positive patellar compression signs suggest that he may have struck the kneecap against a blunt surface such as a dashboard, suffering cartilage injury behind the kneecap causing chondromalacia patellae. [ 97 ] Dr. Dhawan also diagnosed the plaintiff with somatic symptom disorder with respect to his chronic neck, back and right knee pain. [ 98 ] As to prognosis, Dr.

Dhawan’s opinion was that the plaintiff’s somatic symptom disorder with chronic neck and back pain and right knee symptoms was likely to remain. Dr. Dhawan opined that the plaintiff would have to “learn to live with this pain and modify his lifestyle accordingly.” [ 99 ] To manage the plaintiff’s low back pain, Dr. Dhawan recommended weight loss, core strengthening and a stretching program. He said that weight loss along with a quadriceps strengthening program would also help him to manage his knee symptoms. [ 100 ] On cross-examination, Dr.

Dhawan testified that notwithstanding the plaintiff’s extensive pre-Accident medical history, he had no reason not to believe the plaintiff’s report that he was attempting to return to work at the time of the Accident. Deborah Scott-Kerr, Occupational Therapist (Plaintiff Expert) [ 101 ] Deborah Scott-Kerr is an occupational therapist who assessed the plaintiff on June 13, 2022 for purposes of a functional evaluation and preparing a cost of future care report. Her specific findings will be canvassed under the cost of future care analysis. [ 102 ] Ms.

Scott-Kerr also had the plaintiff fill out a number of self-reporting questionnaires regarding mental health issues. She has offered an opinion, based on her

interpretation of the results, that the plaintiff suffered from “moderate depression” and a “severe level of anxiety” as of her assessment date. I do not accept her evidence on these matters. In my view, these are matters beyond her scope of expertise.

Dr. Manoj Bhargava, Orthopaedic Surgeon (Defendant Expert) [ 103 ] Dr. Bhargava assessed the plaintiff on July 12, 2018, and provided an expert report dated August 6, 2018. Dr. Bhargava was not requested for cross-examination. Dr. Bhargava’s report was prepared for the defendants’ (then) counsel. The plaintiff adopted and served back the report, and relies on it in support of his case. [ 104 ] In Dr. Bhargava’s opinion, the plaintiff continues to have symptoms consistent with the following:

a) chronic whiplash-associated disorder (WAD 2);

b) chronic lumbar spine myofascial sprain/strain;

c) chronic right shoulder tendinopathy/impingement syndrome;

d) right medial meniscal injury; and

e) exacerbation of bilateral hip arthritis. [ 105 ] Dr. Bhargava’s diagnoses above were made without regard to the source of the injuries and impairments.

He went on to state, however, that the plaintiff had pre-existing chronic pain relating to his neck, lower back, left shoulder and left hip. [ 106 ] He stated with respect to causation: … Current ongoing complaint, related injuries and related degree of impairment and disability was caused by the accident (related to his right knee and right shoulder) or aggravated by same (as it relates to his neck, lower back, left shoulder and left hip). [ 107 ] With respect to the plaintiff’s ability to work, Dr.

Bhargava considers the plaintiff to be partially disabled and unable to perform tasks requiring him to work at or above shoulder height, bend, left, carry, stoop, crouch or sit, as well as stand or walk for prolonged periods. [ 108 ] Dr. Bhargava made the following treatment recommendations:

a) A comprehensive interdisciplinary chronic pain program comprising: i. optimized pharmacotherapy; ii. pain education; iii. education on hurt versus harm; iv. psychosocial counselling, including psychotherapy; v. supervised graded exercise; vi. exposure; vii. aquatherapy; and viii. supportive manual therapy as indicated.

b) An MRI of his right shoulder to help determine the underlying pathology for this issue. [ 109 ] Dr. Bhargava noted that the plaintiff’s psychosocial counselling recommendation was based on concerns in documentation he had reviewed, and that he would defer to an appropriate specialist. Dr. Kim Waspe, Physiatrist (Defendant Witness) [ 110 ] Dr. Waspe was called as a lay witness by the defendants. She had examined the plaintiff on two occasions prior to the Accident. [ 111 ] The plaintiff was referred to Dr. Waspe for assessment by Dr. Chodyra.

She assessed the plaintiff on August 16, 2013, and provided a consultation letter to Dr. Chodyra dated August 28, 2013. She saw the plaintiff again on March 17, 2014. [ 112 ] Dr. Waspe’s consultation letter indicated that the plaintiff reported chronic left shoulder, hip and back pain as a result of his 2007 fall, but having been able to work nonetheless.

He reported having aggravated the 2007 fall injuries in the BCIT Accident. [ 113 ] With respect to the plaintiff’s reported left shoulder, lower back off-midline and groin to hip pain, her letter recorded this as: … He has radiation of the pain in the general diffuse area of the localized back and hip, which is as 9-10/10 on the numeric analogue scale. There is always a background pain at 4/10 which is never completely gone.

His pains typically are an aching and throbbing character, but there are sharp lancinating effects on occasion. ... [ 114 ] Walking and going up and down stairs were said to be aggravating, but rotation movements were not particularly so. The plaintiff reported that his groin pain was worse at night. He also reported that his daughter, Angela, lived at home and assisted with activities such as grocery shopping, but that he was independent in his activities of daily living.

[ 115 ] With regard to walking, the plaintiff reported that within a minute of walking the pain stopped, but that he had to typically “stop every 100 metres”, resulting in intermittent limping. He reported that he was typically able to alleviate his discomfort by discontinuing the aggravating activity and either relaxing or lying down on his back. [ 116 ] Dr. Waspe did a detailed assessment of the plaintiff’s gait, describing it as an abnormal antalgic gait with a limp noted on the left side.

Her physical examination also resulted in the following observations: Shoulder examination reveals a painful arc between 120-80°, but no evidence of drop arm. He is able to abduct his arms through most of the range; however, abduction and external rotation was to C6. Adduction and internal rotation is to T12. … Point tenderness was noted with acromioclavicular joint, maximally. …. He is tender over the CMC joints. ... Hip flexion restricted in part by his abdominal girth and symmetric bilaterally at 100°.

External rotation and internal rotation is restricted, bilaterally but end point could not be reached due to antalgia especially on the left. ... Sensory examination reveals a length-dependent sensory neuropathy to the ankles and over a patch of hemosiderin deposition on the left anterior shin. Pinprick sensation was normal, particularly at L5 and J1 today. Vibration was decreased to the hallicus, bilaterally. Proprioception was within normal range. Power is best effort 5- throughout. There is a lot of give-way weakness antalgic movement.

He is able to plantar flex his feet, invert and evert, as well as knee flexion at Grade 5 to 5-. Straight leg raise was negative today. [ 117 ] In her testimony, Dr. Waspe said that except where stated otherwise, the observations in her report were bilateral.

She explained antalgic to mean “gingerly, due to pain”. [ 118 ] She noted in her consultation letter that a neurosurgeon had already been investigating whether the plaintiff’s ongoing pain involved “a L5 nerve root on the left with implicating pathology,” but that neurosurgical intervention had not been recommended. [ 119 ] The “Evaluation” portion of her consultation letter reads: Mr. Latham is an unfortunate gentleman who has multiple issues on the go, concurrently.

He seems to have two areas of tendinosis as well as obvious osteoarthritis, demonstrated on physical examination as well as imaging and investigation. At this point, we do not see a clear irritation of the left L5 or S1 nerve root, but we do demonstrate length-dependent sensory neuropathy. We also note there is evidence of possible obstructive sleep apnea and a metabolic syndrome, which may be complicating treatment matters. Overall, we have spent some time providing some chronic pain and peripheral neuropathic pain education and have discussed the following plan at length. [ 120 ] Dr.

Waspe’s treatment plan for pain management observed evidence of osteoarthritis in the plaintiff’s joints, particularly at the left acromioclavicular (shoulder) joint, and the presence of “strong features” that could be indicative of diabetic sensory neuropathy. She recommended a modern antidepressant appropriate for the treatment of neuropathic pain be considered by Dr. Chodrya and/or Dr. Hearn. She also recommended that Dr. Hearn assess the plaintiff for cognitive behavioural therapy as a mood management treatment.

She also recommended a follow-up, especially with regard to possible ongoing irritation to the L5/S1 nerve root. [ 121 ] In a letter following the March 17, 2014 assessment, Dr. Waspe noted that the plaintiff reported a bad weekend and fluctuating symptoms. She wrote that the evidence of length-dependent sensory change was not as prominent as in the earlier assessment. However, other findings were broadly consistent with her earlier assessment and her treatment plan remained the same.

She indicated that an ultrasound of the plaintiff’s left hip had been scheduled to see if there was tendinosis that could be further managed. [ 122 ] In testimony, Dr. Waspe confirmed that the plaintiff did not complain of headaches at either visit. She also confirmed that she did not observe him to be using a cane nor did he report that he was using a cane. [ 123 ] I note that there is a fax from Dr. Chodrya to Dr. Waspe following the delivery of the August 2013 consultation letter in which Dr. Chodyra indicated that the plaintiff could not afford the modern mood medications that Dr.

Waspe had recommended for neuropathic pain. Dr. Eugene Okorie, Psychiatrist (Defendant Expert) [ 124 ] Dr. Okorie did not assess the plaintiff, but rather conducted a review of the plaintiff’s medical records and prepared a response to Dr. Hearn’s report. Dr. Okorie agreed with Dr. Hearn’s assessment and conclusions regarding depressive disorder, trauma-and-stressor related disorder, and panic disorder with agoraphobia, and also with the assessment that these had remitted. [ 125 ] In Dr.

Okorie’s view, however, there is no evidence of any ongoing functional limitation from the remitted disorders and it is his opinion that the plaintiff does not need any further treatment for these conditions. Dr. Okorie made no comment with respect to Dr. Hearn’s observation that the plaintiff had some “vestigial” agoraphobia as of October 2019. Dominic Shew, Occupational Therapist (Defendant Expert) [ 126 ] Mr. Shew did not assess the plaintiff. His August 8, 2022 report is a critique of the Scott-Kerr report. His comments will be addressed in context rather than summarized. III.

Credibility [ 127 ] In Lindemann v. Pabbi , 2021 BCSC 703 , the Supreme Court summarized the guiding principles applicable to evaluating a

plaintiff’s complaints of pain and assessing injuries: [153] The defendants rely on the comments of McEachern C.J. (as he then was) in Price v. Kostryba (1982), (BC SC),70 B.C.L.R. 397 (S.C.). As noted recently by Justice Sharma in Rabiee v. Rendleman, 2015 BCSC 595 at paras. 64–66: [64] The defendants emphasize that Ms. Rabiee’s injuries were very mild and that there is little “objective” evidence of her injuries.They rely on Price v. Kostryba … where McEachern C.J. quoted his own words in Butler v. Blaylock, [1981] B.C.J.

No. 31 (B.C.S.C.)that “the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints ofpain persist for long periods extending beyond the normal or usual recovery” and that no one can expect citizens to be responsible forcompensating a plaintiff “in the absence of convincing evidence.” [65] I do not take these quotes to mean that a stricter standard of proof applies where the main evidence about injury comes from aplaintiff’s subjective reports to doctors and testimony in court.

The standard of proof does not change and it does not matter if theevidence is “objective” or “subjective”. In fact, after considering the above quotation, the Court of Appeal in Butler v. Blaylock, [1983]B.C.J. No. 1490 (B.C.C.A.) clarified: “It is not the law that if a plaintiff cannot show objective evidence of continuing injury that hecannot recover.

If the pain suffered by the plaintiff is real and continuing and resulted from the injuries suffered in the accident, theplaintiff is entitled to recover damages.” [66] The key consideration is whether the evidence, as a whole, establishes that the plaintiff’s injuries were caused by the defendant’snegligence on a balance of probabilities … [128] This assessment examines the trustworthiness of a witness’ testimony based upon both the veracity or sincerity of a witness(credibility) and the accuracy of the evidence they provide (reliability).

Factors that are relevant to this assessment include: the abilityand opportunity to observe events, the firmness of the witness’ memory, their ability to resist the influence of interest to modify theirrecollection, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changestheir testimony during direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely,whether a witness has a motive to lie, and the demeanour of a witness generally: Bradshaw v.

Stenner, 2010 BCSC 1398 at para. 186,aff’d 2012 BCCA 296. [129] The defendants ask me to closely scrutinize the testimony given by the Latham family members. With regard to the plaintiff, theynote in particular the contrast in his portrayal of himself to the CPP in 2013 and his portrayal of himself in 2013 and 2014 in histestimony. The defendants also take issue with the credibility of testimony given by Ben and Angela. They contend, for example, thatBen simply would not have had 20 to 25 hours a week to commit to The Latham Group given his

schedule and that Angela’s testimonythat she can barely recall the day of the Accident is inexplicable and should be considered evasive. [130] I agree with the defendants that the plaintiff was often argumentative on the stand. He had to be directed to leave it for his counselto object to questions posed to him on cross-examination. However, I am inclined to see that as a personality characteristic. It is moretroubling that he was at times evasive. [131] That said, it is the content of his evidence that is most problematic.

In March 2013, he told a CPP representative that he was usinga cane, experiencing flare-ups and found it “excruciating” to walk 50 feet. His signed November 29, 2012 CPP application that states thathe can only stand for only a few minutes and sit for only 20 minutes without needing to stand, that he can barely walk one block withoutneeding to take a break due to groin pain, and can only carry 5 to 20lbs. It states that he cannot bend, requires help with his socks andshoes and that his only contribution to household maintenance is shopping.

I am satisfied that the plaintiff exaggerated his limitationssomewhat in his dealings with CPP in order to support his application for benefits. Such is human nature. However, even discountedaccordingly, the CPP application paints a picture drastically at odds with hiking and heading out to conduct security audit. [132] While such a discrepancy might be lessened by evidence that the plaintiff’s baseline condition improved over the course of 2013and 2014, nothing in Dr. Chodrya’s clinical notes between November 2012 and the date of the Accident suggests improvement. To thecontrary, the referral to Dr.

Waspe in 2013 and the introduction of complaints of right-sided radiating pain as of mid-2014 suggest thatthere was no improvement in 2013 and things were getting worse in 2014. [133] I am satisfied on the whole of the evidence that the plaintiff provided evidence at trial and reported to experts in a manner thatwas calculated to advance his position in this litigation. Among other things, I am satisfied that his portrayal of his condition andcapabilities in the months prior to the Accident is fundamentally inconsistent with his contemporaneous 2014 reporting to Dr. Chodryaand Dr.

Waspe. [134] It is noteworthy that he informed a CPP representative in March 2013 that he was looking for work, but that he did not believethat he was capable of working and did not believe that any employer he disclosed his condition to would hire him. In my view, that wasa relatively fair and honest appraisal of the situation at the time he said it. In my view, it remained the case at the time of the Accident.The plaintiff’s trial testimony, however, put quite a different gloss on the fact that he was looking for work and put quite a different spinon his condition.

I conclude that the trial gloss is misleading. [135] This is also reflected in the plaintiff’s markedly inconsistent self-reporting with respect to his pre-Accident state to the variousexpert witnesses. He appears to have been fairly candid with Dr. Bhargava (who was the only defence expert he saw and also apparentlythe first expert who asked him to provide a detailed description of his condition at the time of the Accident). Later, he adopted a differenttack, as seen in his reporting to Dr. Rickards and Ms. Scott-Kerr.

I am persuaded that the plaintiff decided at some point that he waswilling to colour the facts in his favour. [136] In evaluating the plaintiff’s testimony and claims, I have therefore looked to whether it aligns with other credible evidence. I havetaken the plaintiff’s flawed self-reporting into account in according weight to the expert evidence. I have considered in particularwhether, and if so what, objective assessments were made by the particular expert. [137] As set out under the heading of loss of earning capacity, I am also satisfied that much of the plaintiff’s and Ben’s testimony with

respect to The Latham Group, its anticipated operation and its potential work prospects is not reliable. [138] Finally, I am satisfied that Dolores and Angela adjusted their evidence in order to either support or at least avoid contradicting theplaintiff’s self-serving testimony, either by being vague or by claiming to lack any personal knowledge.

In particular, their testimonysuggesting that The Latham Group may well have been on the brink of being operational but that they were not keeping up on the matteris not credible. [139] I will address credibility further in the context of making findings. [140] I pause to echo, however, Justice Stephens’ recent observation that “it does not necessarily follow that because the plaintiff’sevidence is unreliable, his position is untenable”: Davie v. Hill, 2022 BCSC 2074 at para. 76.

There may be merit to a claim for damageseven where the plaintiff’s testimony lacks credibility, provided there is other reliable evidence. IV. Causation – Legal Principles [141] To obtain an award for damages, the plaintiff must establish on a balance of probabilities that the defendants’ negligence causedor materially contributed to an injury. The defendants’ negligence need not be the sole cause of the injury so long as it is part of the causebeyond the range of de minimus. Causation need not be determined by scientific precision: Athey v. Leonati, [1996] 3 S.C.R. 458, atparas. 13–17, (SCC); Farrant v.

Laktin, 2011 BCCA 336 at para. 9. [142] In Beardwood v. Sheppard, 2016 BCSC 100, the Supreme Court set out the established principles for assessing liability oncecausation is found: [76] Once factual causation is found, liability may still be limited in the assessment of damages: Blackwater v. Plint, 2005 SCC 58atparas. 78 - 81.

I note the well-established principle of tort law that the defendant need not place the plaintiff in a better position than hisoriginal position and should not compensate the plaintiff for damage he would have suffered in any event, otherwise known as thecrumbling skull rule, which was set out by the Supreme Court in Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458 atparas. 34-35, as follows: It is named after the well-known “thin skull” rule, which makes the tortfeasor liable for the plaintiff’s injuries even if the injuries areunexpectedly severe owing to a pre-existing condition.

The tortfeasor must take his or her victim as the tortfeasor finds the victim, and istherefore liable even though the plaintiff’s losses are more dramatic than they would be for the average person. The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position”. The defendant need not put the plaintiff in a position better than his or her original position.

The defendant is liable for the injuriescaused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which theplaintiff would have experienced anyway. [143] In T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA 670, the Court of Appeal held that a “plaintiff is entitled to ‘fullrecovery’ only for the damage caused by the defendant’s wrongful conduct, and not for loss and damage that would have occurredanyway” (para. 52).

The extent of the risk of damage relating to the pre-existing condition does not need to be proven on a balance ofprobabilities, but instead is given weight according to its relative likelihood. [144] Pre-existing injuries and medical conditions should be considered in assessing causation. Where these factors are found tocontribute to the plaintiff’s injuries, this may be reflected in a percentage discount: see, for example, Andrews v. Mainster, 2014 BCSC541 at para. 203, Grewal v. Sanghera, 2021 BCSC 621 at para. 129; MacGregor v.

Bergen, 2019 BCSC 315 at para. 105; Booth v.Gartner, 2010 BCSC 471 at para. 31; Beardwood v. Sheppard, 2016 BCSC 100 at para. 105. It may also be possible, on the facts of agiven case, to make a tailored assessment of damages that excludes damage due to non-tortious factors: see, for example, Zahedi v.Rotzetter, 2022 BCSC 1415 at para. 97. V. Injuries A. Pre-Accident Condition Pre-Existing – Manifested [145] As set out above, I am satisfied that the plaintiff’s self-reporting done in the context of this litigation is suspect. As a result, hisreporting to Dr. Chodrya and Dr.

Waspe, and their objective assessments done in the year or so prior to the Accident are particularlyinformative. Notably, the plaintiff had already been granted CPP benefits by March 2013. Thus, when he was seeing Dr. Chodrya andDr. Waspe in 2013 and 2014 pre-Accident, he had no agenda beyond improving his condition. [146] Dr. Waspe’s consultation report indicates that the plaintiff reported his symptoms were sometimes better and sometimes worse.Those fluctuations appear to consistent be with the nature of his injuries and his 2013-2014 reporting to Dr. Chodrya.

He does not appearto have been either generally improving or generally worsening at the time of Dr. Waspe’s assessment. That is, expected fluctuationsaside, he had plateaued in terms of his recovery from the BCIT Accident. I am satisfied that the plaintiff’s general condition at the timeof the Accident was the same or similar to that at the time of Dr. Waspe’s assessment. [147] Based on Dr. Chodrya's notes and Dr. Waspe’s assessment in particular, I find as following with respect to the plaintiff’s pre-existing condition:

a) He had significant ongoing chronic pain in his neck, shoulder, low back, and left hip/groin.

b) His neck, shoulder, low back and hip conditions had bilateral aspects, but were significantly more prominent on the left.

c) His left shoulder joint issues were already significant and symptomatic osteoarthritis was present.

d) He was experiencing right shoulder issues and, as of mid-2014, some pain with right shoulder movement at times.

e) His gait was abnormal and antalgic. While he could walk without a cane, he had to stop every 100 metres or so and would begin to limp on the left side.

f) In addition to symptomatic osteoarthritis and tendinosis, he had symptoms of diabetic sensory neuropathy and possible left L5/S1 nerve root irritation.

g) He was taking Percocet daily for pain. [ 148 ] With respect to the plaintiff’s functional limitations at the time of the Accident, there is his CPP Application as a pre-Accident statement (and which I have already concluded is somewhat exaggerated in favour of disability). His most detailed retrospective reporting on his pre-Accident functional limitations was provided to Dr. Bhargava on July 12, 2018. [ 149 ] Dr. Bhargava sets it out as follows: Activities of Daily Living and Housekeeping Prior to the subject accident, Mr.

Latham had difficulties with donning and doffing shoes and socks as well as difficulty showering. He estimates that he performed 75% of his self-care tasks independently . In terms of housekeeping and household tasks, his main responsibility was cooking. He cooked three to five times per week. He did not perform any cleaning tasks . Currently, Mr. Latham is no longer able to don or doff his shoes and socks. He now showers sitting down due to reported balance difficulties. He estimates that he performs 25% of his self-care tasks independently. Mr. Latham has not returned to his pre-accident cooking. Mr.

Latham has not returned to his walking due to reported balance difficulties. He only walks to the grocery with his wife while accompanying her for shopping. Mr. Latham has not returned to his volunteer work or writing due to symptoms of depression. He has returned to driving but only short distances. Recreation/ Hobbies Prior to the accident, in terms of recreation and social activities, Mr. Latham enjoyed working with veterans on a volunteer basis. He enjoyed writing novels as well as writing for law enforcement magazines. In terms of physical activities, he walked approximately three miles daily at a slow pace.

He tries to avoid using his cane as much as possible during these walks . Additionally, he performed exercises using therapy bands as taught to him by his previous physiotherapist as well as balance exercise. [Emphasis added] The level of functional limitations the plaintiff reported to Dr. Bhargava is at least moderately consistent with, but considerably less extreme, than what he stated in his CPP Application. However, I am also satisfied that the plaintiff exaggerated the degree of his disability for purposes of the CPP application. Further, the description he provided to Dr.

Bhargava is generally consistent with his 2014 reporting to Dr. Waspe and Dr. Chodrya. I conclude that the plaintiff’s contributions to housework and engagement in other activities prior to the Accident was approximately as reported to Dr. Bhargava and Dr. Waspe as reflected in their respective reports. [ 150 ] Based on all of the evidence, I make the following findings with respect to the plaintiff’s functional capabilities at the time of the Accident:

a) The plaintiff was at least 25 percent impaired in terms of his ability to carry out activities of daily living. He already had difficulties with some functional tasks relating to self-care, including challenges with dressing and showering.

b) The plaintiff was able to complete relatively long walks with little use of his cane, but at a slow pace and with some limping and frequent stopping. While this may have included using paths at locations like Buntzen Lake, it was by no means “hiking”.

c) The plaintiff was capable of some light gardening (of the sort done in a small, raised bed) and some light household tasks. This included cooking some dinners each week. Pacing was likely required in doing these things.

d) Angela was already doing most of the medium and heavy household tasks prior to the Accident. [ 151 ] Dr. Chodrya’s evidence was that the right shoulder pain the plaintiff experienced in mid-2014 was only at times and only with movement. Dr. Rickards testified that the right shoulder issue is a frozen shoulder condition related to the plaintiff’s diabetes. In his

testimony, Dr. Rickards explained why he had concluded the issue was a diabetes complication. The nature of the impairment he described as resulting from frozen shoulder fits the nature of the plaintiff’s restrictions. I find his explanation persuasive and it aligns with the fact that he found, at the time of his examination, a symmetrical restriction in both shoulders. I accept Dr. Rickard’s evidence that the plaintiff’s right shoulder is at least in part a frozen shoulder issue. However, given Dr.

Chodrya’s evidence that it was only painful at times prior to the Accident, I accept that the Accident likely accelerated the presentation. [ 152 ] I accept this evidence in preference to Dr. Dhawan’s opinion that the plaintiff sustained a soft tissue injury to the right shoulder girdle in the Accident. I note that while Dr.

Bhargava included a right shoulder injury in his list of injuries sustained in the Accident, he did so without revisiting his earlier observation that the x-ray suggested a pre-existing issue and subsequently stated that an MRI would be required to determine the actual nature of the shoulder injury. [ 153 ] Dr. Waspe noted bilateral hip issues in 2014 and Dr. Bhargava’s diagnoses included “exacerbated” bilateral hip arthritis. I take from Dr. Bhargava’s comment that he accepted that the existing right hip arthritis may have been exacerbated by the Accident.

There is, however, no evidence that any exacerbation to the right hip was significant. Pre-Existing Condition – Latent [ 154 ] I also find, based on Dr. Rickards’ evidence, that the plaintiff’s pre-existing condition at the time of the Accident had latent characteristics. I accept Dr.

Rickards’ evidence that the plaintiff’s pre-existing degenerative symptoms and longstanding pain issues would likely have increased with time in any event of the Accident and resulted in increased housekeeping and gardening challenges. [ 155 ] These latent conditions meet the standard of “measurable risk” for the crumbling skull doctrine. An explanation of that standard, and how it applies, is found in Zacharias v.

Leys , 2005 BCCA 560 at para. 16 : [16] The crumbling skull rule is difficult to apply when there is a chance, but not a certainty, that the plaintiff would have suffered the harm but for the defendants’ conduct.

Major J. addressed this issue in Athey when he wrote, at paragraph 35, that damages should be adjusted only when there is a “measurable risk that the pre - existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant's negligence.” Such a risk of harm need not be proved on a balance of probabilities, which is the appropriate standard for determining past events but not future ones. Future or hypothetical events should simply be given weight according to the probability of their occurrence.

At paragraph 27, Major J. wrote that “if there is a 30 percent chance that the plaintiff's injuries will worsen, then the damage award may be increased by 30 percent of the anticipated extra damages to reflect that risk.” In the same paragraph, he went on to say that a future event should be taken into account as long as it is a “real and substantial possibility and not mere speculation.” B. Post-Accident Mental Health [ 156 ] I accept Dr. Hearn’s opinion regarding the plaintiff’s diagnoses and recovery, both pre- and post-Accident. I note that Dr. Okorie concurred with Dr.

Hearn’s diagnoses and opinions regarding recovery (although he disagreed with Dr. Hearn’s recommendations for ongoing treatment). [ 157 ] The plaintiff had ceased to be clinically depressed prior to the Accident. Following the Accident, the plaintiff was depressed again through to October 2018, but was in remission by October 6, 2019. [ 158 ] The plaintiff recovered from other specified trauma- and stress-related disorder following the BCIT Accident, but was again at a diagnosable level after the Accident. He had decreased symptoms by October 6, 2019 (the date of his last visit to Dr.

Hearn). [ 159 ] I also accept Dr. Hearn’s diagnosis of panic disorder with agoraphobia as of October 24, 2018, with only some vestigial agoraphobia as of October 6, 2019. [ 160 ] As the plaintiff had recovered from his prior disorders prior to the Accident, I regard this as either a new injury or a thin skull issue, but not as a crumbling skill issue. [ 161 ] I do not accept Dr. Dhawan’s diagnosis of somatic symptom disorder. Dr. Dhawan is a physiatrist and assessed the plaintiff on a single occasion in 2017. Dr. Hearn is the plaintiff’s treating psychologist.

He saw the plaintiff numerous times both before and after the Accident. Dr. Hearn was far better positioned to make such a diagnosis and did not. [ 162 ] As already noted, I place no weight on Ms. Scott-Kerr’s opinions with respect to depression or anxiety. Physical Health [ 163 ] The opinions of Dr. Bhargava, Dr. Dhawan and Dr. Rickards regarding the physical injuries sustained in the Accident are not entirely consistent. [ 164 ] One point of difference relates to the right shoulder issue.

I have already addressed that point. [ 165 ] There are also some minor differences of opinion regarding the nature of the right knee injury. I accept Dr. Rickards’ evidence that the issue is most likely with the plica. [ 166 ] There is agreement that the plaintiff had lower back injuries that were worsened by the Accident. There is disagreement as to the precise nature of that injury. Dr. Bhargava diagnosed a chronic lumbar sprain myofascial sprain, whereas in Dr. Rickards’ view, it is

probably lumbar facet joint syndrome. I accept Dr. Rickards’ opinion with regard to the lumbar facet joint issue (although I note that there was no argument that it made any meaningful difference either way in terms of treatment or prognosis). [ 167 ] In

summary, I find that the plaintiff:

a) had pre-existing bilateral neck, lower back, shoulder and hip issues that were aggravated by the Accident;

b) suffered an injury to his right knee that he would not have suffered but for the Accident; and

c) had significant pre-existing chronic pain that was increased by the aggravated and new injuries sustained in the Accident. [ 168 ] Based on Dr. Rickards’ evidence, I accept that further exploration may reveal that surgery would likely improve the plaintiff’s right knee. While Dr. Rickards’ noted that the plaintiff has other health issues relevant to his surgery risks, the plaintiff had a successful left hip replacement surgery later in 2019.

Accordingly, I find that there is a real and substantial possibility that the plaintiff may have surgery and that the surgery, if completed, would probably improve his knee pain and stability issues. [ 169 ] I accept Dr. Rickards’ evidence that, in the majority of cases, lumbar facet joint syndrome can be improved without surgical intervention. [ 170 ] This brings me to the question of the plaintiff’s degree of functional limitation and impairment after the Accident. [ 171 ] Ms. Scott-Kerr assessed the plaintiff as having the following as of June 2022:

a) reduced tolerance for sitting and static standing;

b) adequate walking ability for mobility around the home and ability to perform stair climbing during daily routine, but having a reduced tolerance for outdoor walking and balancing on uneven surfaces;

c) ability to perform tasks that require occasional bending, such as accessing lower cupboards, picking up items off the floor, and changing the linens on the bed, but having difficulties with repetitive performance and with intermittent performance being recommended;

d) restricted in his ability to perform activities of daily living that involved significant use of bending/crouching and working below knee level, including some home management tasks such as cleaning the bathrooms, and washing the floors;

e) full range of motion in both of his hands, with his ability to complete handling tasks during his activities of daily living being within normal limits;

f) ability to reach with his left arm meets daily living needs, but recommended to avoid frequent reaching to an over-the-shoulder level; and

g) restricted in his ability to reach an overhead level with both hands (e.g., placing or retrieving heavier items from higher shelves) and limited in ability to perform tasks that require a significant amount of reaching (including some household cleaning tasks). [ 172 ] Ms. Scott-Kerr concluded that the plaintiff’s limitations did not allow for “energy-efficient and safe” completion of the following:

a) self-care tasks including upper body dressing, grooming, and bathing;

b) transfers into and out of the bathtub;

c) bending, crouching and kneeling tasks that are required for some home, yard, and vehicle maintenance tasks; and

d) tasks that require longer periods of static standing such as meal preparation. [ 173 ] However, there are reliability issues with Ms. Scott-Kerr’s report. As Ms. Scott-Kerr herself noted, the plaintiff’s reported pain ratings at assessment were inconsistent and unreliable. Accordingly, the subjective bases are undermined. Further, as noted by Mr. Shew, the testing done did not optimally measure whether the plaintiff was providing the level of effort needed to provide accurate results. Finally, as noted in the report, Ms.

Scott-Kerr’s findings cannot account for changes that would have occurred in any event during the eight years between October 2014 and her June 2022 assessment. [ 174 ] In the circumstances, I am only prepared to placelimited weight on Ms. Scott-Kerr’s assessment. [ 175 ] Ms. Scott-Kerr’s report must also be considered in light of my findings regarding the plaintiff’s pre-Accident condition and impairments. C.

Injuries Caused by the Accident [ 176 ] The plaintiff is only entitled to recover for the damage caused by the defendant’s wrongful conduct, and not for loss and damage he would have suffered from in any event. [ 177 ] I am satisfied that the Accident made the plaintiff worse off. His pre-existing injuries and conditions have been aggravated, including exacerbation of issues with his right shoulder and, to a limited extent, his right hip. [ 178 ] He has an injury to his right knee that he would not otherwise have. His right knee is significant. It affects his ability to crouch

and his ability to use his right side to balance his left. The right knee gives way and poses a risk of further injury due to falls. However,there is a real and substantial possibility that his knee condition might be improved by surgery. [179] The degree of chronic pain he suffers has been increased. [180] There is also a measurable risk that the plaintiff’s pre-existing pain and limitations would have increased over time in any event ofthe Accident. [181] I am alive to the fact that determining precisely what injuries were caused by the Accident is an imperfect exercise.

However, inthis case, it is made far more challenging by the plaintiff’s failure to provide reliable evidence with respect to his before and afterpositions. As this Court has oft-notedthat a plaintiff, who by his own unreliable testimony makes it difficult to assess a loss, has onlyhimself to blame should that loss be undervalued: Druskin v. Cassidy,

(1995) B.C.J No. 717, (BCSC) at para. 23;Medeiros v. Vuong and Duong, 2000 BCSC 1404 at para. 79. [182] Here, the impacts of the Accident are not capable of being teased out and addressed separately. This is a case in which theplaintiff’s overall current condition should be considered and then a percentage value attributed to represent the degree to which theplaintiff’s condition can be said to be due to the Accident. [183] The plaintiff’s pre-Accident condition forms a very significant proportion of his current position.

On the facts before me, I findthat the evidence establishes no more than a 35 percent increase in his pain and physical functional impairment that can be attributed tothe Accident. I note that in landing on 35 percent, I have also taken into consideration the measurable risk that the plaintiff’s pre-existingconditions would have worsened with time in any event. [184] I note that this percentage finding has no bearing on his psychological injuries following the Accident, as I have found that hisprior psychological injuries were resolved before the Accident. VII. Past & Future Loss of Earning Capacity A.

Legal Framework [185] The burden of proof of actual past events is a balance of probabilities, whereas assessing future loss of earning capacity involves aconsideration of hypothetical events. Hypothetical events are not required to be established on a balance of probabilities. Instead, theyare given weight according to their relative likelihood. A hypothetical possibility will be taken into consideration as long as it is a realand substantial possibility, and not mere speculation: Athey at para. 27; Morlan v. Barrett, 2012 BCCA 66 at para. 38. [186] In Rab v.

Prescott, 2021 BCCA 345 at para. 47, the Court of Appeal set out a three-step analysis to be applied in assessingdamages for future loss of earning capacity:

(1) Does the evidence disclose a potential future event that could give rise to a loss of capacity?

(2) Is there a real and substantial possibility that the future event will cause a pecuniary loss to the plaintiff?

(3) What is the value of that possible future loss, given the relative likelihood of it occurring? [187] If the analysis proceeds to the third step in Rab, a decision must be made as to the appropriate means for assessing the value ofthe future loss in the circumstances, using either an “earnings approach” or “capital asset approach”: Sendher v. Wong, 2014 BCSC 140. [188] In Hobbs v.

Rozon, 2022 BCSC 2178, Justice Edelmann commented on how the Rab analysis applies to past lost earningcapacity: [20] The principles applicable to a claim of past lost earning capacity are the same as the principles applicable to a claim of future lostearning capacity: Grewal v. Naumann, 2017 BCCA 158 [Grewal] at para. 46, citing Smith v. Knudsen, 2004 BCCA 613 at para. 29. Theplaintiff must establish (

i) impairment of earning capacity, and (ii) a real and substantial possibility of an event resulting in a loss:Grewal at para. 48. [189] While in many cases the actual lost income will be the most reliable measure of the loss, it is not the actual lost income but thelost capacity which is compensable (see Ibbitson v. Cooper, 2012 BCCA 249 at para. 19). That being said, compensation for past loss ofearning capacity is to be based on what the plaintiff would have, not could have, earned but for the injury that was sustained: Rowe v.Bobell Express Ltd., 2005 BCCA 141 at para. 30; M.B. v.

British Columbia, 2003 SCC 53 at para. 49. B. Overview of the Plaintiff’s Claim [190] The plaintiff submits that he would have returned to work but for the Accident and would have earned between $70,000 and$100,000 per annum either in a management position in the security industry or as the principal consultant for The Latham Group. Healso contends that but for the Accident, he would have continued to work until he was 73 years of age. C. Additional Evidence – The Consultant Witnesses [191] The plaintiff called four witnesses to give evidence about their own security and policing consultant work.

With the exception ofMr. Toddington, all four were people the plaintiff met through his involvement in IAASP.

Thomas Tass [ 192 ] Mr. Tass worked for the federal government in Canada and overseas for more than 20 years. After that, he worked as a consultant focussed on border control, including as lead on major projects for major international associations (e.g., the European Union). Since 2019, he has been consulting out of Canada doing work for large intergovernmental organizations and state actors. [ 193 ] Mr. Tass is the executive director of BORDERPOL. Mr. Tass and the plaintiff used to speak once or twice a month when the plaintiff was involved in BORDERPOL.

He was unaware of what the plaintiff had been doing since about 2011. John Harrison [ 194 ] Dr. Harrison is an Associate Professor for the Homeland Security and Intelligence Program at a United Arab Emirates university. He met the plaintiff around 2003 when he contacted some industry organizations for input regarding a research project and the plaintiff responded for the IAASP. [ 195 ] Dr. Harrison vaguely recalled the plaintiff mentioning something about doing private investigation work in or around 2010 to 2011.

He said that if the plaintiff had a business providing security audit services, he would recommend his services. Royston Colbourne [ 196 ] Mr. Colbourne is a former Borough Commander with Scotland Yard. He later consulted as a terrorism expert for Middle Eastern and European governments. In 2003, he began doing private security consulting work out of Ca

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