Green v. Giurleo, 2024 BCSC 219

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Green v. Giurleo, 2024 BCSC 219 Date: 20240212 Docket: M230415 Registry: New Westminster Between: Jason Brock Green Plaintiff And Patricia Leanne Giurleo Defendant Before: The Honourable Justice Lamb Reasons for Judgment Counsel for the Plaintiff: A. Grewal M. Naimi Counsel for Defendant: P. Gill J. Dassan, Articled Student Place and Dates of Trial: New Westminster, B.C. January 8-12, 2024 Place and Date of Judgment: New Westminster, B.C.

February 12, 2024 Table of Contents Introduction .. 3 Background facts .. 3 The accident and aftermath .. 4 Findings regarding injuries .. 6 Damages .. 8 Loss of earning capacity . 8 Past loss of earning capacity . 8 Future loss of earning capacity . 10 Loss of housekeeping capacity . 16 Non-pecuniary loss . 16 Future cost of care . 18 Special damages . 19 Conclusion .. 19

Introduction [ 1 ] Jason Green was injured when his car was rear-ended on November 22, 2018. The defendant admits liability for the accident. At issue is the appropriate award of damages to compensate Mr. Green for losses caused by the accident. [ 2 ] As a result of injuries from the accident, Mr. Green continues to have constant tightness in his neck and mid and low back and intermittent pain in those areas. These symptoms interfere with his leisure activities, limit how much yard work he does and make it difficult to drive or sit for long periods of time.

He is seeking an award of damages in the range of $500,569 to $745,866. Although he did not miss any time off work after the accident, Mr. Green is claiming $120,000 to $180,000 for past loss of earning capacity and $100,711 to $256,008 for future loss of earning capacity. [ 3 ] The defendant acknowledges that Mr. Green is entitled to be compensated for his losses but disputes the quantum of damages claimed. The defendant says and I accept that Mr. Green’s current complaints of right shoulder, right elbow and right hip pain are unrelated to the accident. The defendant says that Mr.

Green has not sustained a loss of earning capacity as a result of the accident. [ 4 ] I will briefly review the background facts before explaining why I find that Mr. Green is entitled to damages totalling $216,299.07. Background facts [ 5 ] Mr. Green is 54 years old. He lives in Summerland, B.C. with his common-law wife, Starlla Ikari. Together they have three children from previous relationships. Ms. Ikari’s teenagers spend every second week with Mr. Green and Ms. Ikari. Mr. Green’s 12-year- old son lives primarily with his mother in Chilliwack. Mr.

Green drives from Summerland to Chilliwack every second weekend to pick his son up to bring him back to Summerland for parenting time. [ 6 ] Prior to the accident, Mr. Green enjoyed various activities with his children, including swimming, laser tag, and fishing. He golfed and snowboarded. In closing submissions, the defendant conceded that Mr. Green had no pre-existing conditions that affect the assessment of damages. [ 7 ] As a young man, Mr. Green worked various labour jobs before completing his plumbing apprenticeship. He was certified as a Red Seal plumber and Class B gas fitter in 2007.

From 2007 to 2018, he worked as an instructor, a safety officer on major projects, a piping supervisor, and (briefly) as a plumber and gas fitter. At the time of the accident, he was working as a technical training developer for Technical Safety B.C. (“TSBC”). This was a desk job in Kelowna that required bi-monthly trips to Burnaby. He was in Burnaby for work when the accident happened. The accident and aftermath [ 8 ] On November 22, 2018, Mr. Green was returning to his hotel after his workday when he was rear-ended. Mr. Green says he had his arms extended and his feet firmly planted when the impact happened.

His car was pushed forward a few feet, and he believes he was thrown around a bit in the car. Shortly after the accident, Mr. Green noticed tightness in his neck, mid-back and left elbow and pain down his left leg from his hip to his ankle. He worked the next day in Burnaby before driving three hours home to Summerland. [ 9 ] Mr. Green saw his family doctor two days after the accident. His doctor prescribed medication and recommended physiotherapy. [ 10 ] Mr. Green’s post-accident neck pain and tension was constant for at least a year after the accident.

He continues to have constant neck tension of varying degrees and pain with prolonged sitting or driving. Chiropractic treatments reduce his neck symptoms. [ 11 ] Mr. Green suffered pain and tightness in his mid and low back following the accident. Over the first year post-accident, his back symptoms improved with physiotherapy, chiropractic treatments and injections. Mr. Green continues to complain of almost constant mid and low back stiffness, which progresses to back pain with extended sitting or driving. His back pain is aggravated by his recreational activities. [ 12 ] Mr.

Green experienced sharp pain in his left elbow following the accident. The pain would be triggered when he used his elbow and would radiate up into his left shoulder. His elbow was treated with IMS and heating pads. Pain flare-ups were infrequent by 2021 and are now rare. [ 13 ] Following the accident, Mr. Green had pain and stiffness down his left leg, including in his left hip and groin area, that was constant for at least a year. His leg pain was aggravated by long drives and improved with physiotherapy, chiropractic, a topical anti- inflammatory and a roller.

His left leg pain essentially resolved in 2020; however, he can experience some reaggravation of this injury, such as when unexpectedly stepping off a curb and jarring it. [ 14 ] After the accident, Mr. Green attended physiotherapy and massage therapy. He tried prolotherapy and injections in his neck. He continues to see a chiropractor and occasionally has massage therapy for his injuries. Since the accident, Mr. Green has taken medications for his pain. As of the trial date, he continues to take 900mg of Gabapentin daily, and he takes Robaxacet and Mersyndol when his neck and back symptoms flare up. Mr.

Green regularly stretches his neck and back, and he uses a foam roller for his low back.

[ 15 ] Mr. Green did not miss any time off work following the accident. [ 16 ] Mr. Green has returned to most of his recreational activities, but he engages in them less frequently and at a lower intensity level. He has golfed a few times but on shorter courses. He finds golf aggravates the pain and stiffness in his neck and back for a few days after he participates, and he worries that he will not be able to golf as often in retirement as he had planned. He has snowboarded a few times post-accident, but he sticks to green and blue runs and stops after a few hours. Mr.

Green no longer goes to remote fishing lakes with his daughter, as he finds the bumpy roads and lifting his boat on and off the truck to be taxing. He no longer spots his daughter on the trampoline to avoid risking further injury. He goes on shorter motorcycle tours than he did prior to the accident. Mr. Green and Ms. Ikari provided different accounts regarding laser tag: he says he has not played since the accident for fear of injury; she says that he plays but no longer runs around while doing so. Findings regarding injuries [ 17 ] I accept that Mr.

Green has ongoing myofascial pain in his neck and upper shoulder region and ongoing pain in his mid and low back as a result of the accident. The pain in these areas is intermittent and does not currently impair his function to a significant extent. These symptoms are likely to continue. As a result of the accident, Mr. Green also suffered injuries to his left elbow and his left leg that have resolved. [ 18 ] I find that the right shoulder pain, right elbow and right hip pain that he currently experiences are not caused by the accident. [ 19 ] Mr. Green was assessed by Dr.

Gaurav Gupta, physiatrist, at his counsel’s request and by Dr. James Filbey, physiatrist, at the request of the defendant. Both physiatrists prepared reports that were filed in evidence, and both attended for cross-examination. Both physiatrists found that the plaintiff has ongoing pain in his neck and back as a result of the accident and accident-related injuries to his left elbow and left leg that have resolved. Both physiatrists say the right elbow pain and right hip pain that the plaintiff now has intermittently are unrelated to the accident. [ 20 ] Based on Mr.

Green’s self-reported functional limitations, Dr. Filbey described Mr. Green as having a “low symptom burden” from his accident-related injuries. In saying this, he did not mean that Mr. Green has no symptoms, but that the symptoms he has are not particularly bothersome. Dr. Filbey anticipates that Mr. Green’s accident-related symptoms will remain stable or likely improve with time. They will definitely not get worse. I accept Dr. Filbey’s categorization of Mr. Green’s symptoms and his prognosis. I found Dr. Filbey to be a careful witness who chose his words deliberately. Dr.

Filbey explained his opinion clearly when challenged on cross- examination. His opinion is founded upon facts as I have found them. [ 21 ] In closing submissions, the defendant argued the plaintiff has actually demonstrated greater function than he reported based on his continuous employment since the accident and the considerable walking he does for his current job. However, the defendant failed to cross-examine Mr. Green or his wife on his physical limitations and the pain consequences of his activities. In the absence of cross- examination, it would not be fair to Mr. Green or Ms.

Ikari to reject their evidence. [ 22 ] The plaintiff has failed to prove on a balance of probabilities that his current right hip pain is caused by the accident. The right hip pain started a year or two ago, long after the accident. In his written report, Dr. Filbey opined that the plaintiff’s right hip pain was not accident-related. On cross-examination, Dr. Gupta agreed that Mr. Green’s current right hip pain is unrelated to the accident. [ 23 ] At trial, Mr.

Green testified that his right hip pain happens occasionally when he swings his right leg out to the side, for example, to board his motorcycle or to exit a bus seat. On the other hand, he told Dr. Filbey that his right hip pain was “the most physically limiting pain and problem for him”. Mr. Green told Dr. Filbey that his right hip is very painful when he twists or pivots while walking. He told Dr. Gupta that he had no difficulty “walking in a straight plane”. The nature and extent of Mr.

Green’s right hip pain and its impact on his current function were not clarified on cross-examination. [ 24 ] The plaintiff has failed to prove on a balance of probabilities that his current right shoulder pain is accident-related. Dr. Gupta opined that the plaintiff’s right shoulder pain was caused by the accident. However, I prefer the opinion of Dr. Filbey over that of Dr. Gupta regarding causation of the right shoulder injury. Dr. Filbey found that Mr. Green had right acromioclavicular (“AC”) joint pain on examination. Dr. Filbey opined that the right shoulder injury is not accident-related because Mr.

Green’s right shoulder pain started approximately two years after the accident. Dr. Filbey explained that if this AC joint injury had been accident-related, then Mr. Green would have had pain in that area immediately following the accident, which he did not have. Dr. Gupta did not explain how he concluded that the right shoulder pain was accident-related despite the absence of a temporal connection. [ 25 ] In his direct evidence at trial, Mr. Green downplayed the significance of his right shoulder pain.

He testified that he rarely has symptoms in his right shoulder, as long as he continues with regular chiropractic treatments. On the other hand, Mr. Green told Dr. Filbey that his right shoulder/arm pain is constant and that this pain is the second most limiting or problematic area for him, after the right hip. This apparent inconsistency was not put to Mr. Green in cross-examination, nor was he challenged on cross-examination regarding the severity and frequency of his right shoulder complaints.

In these circumstances, I accept his evidence at trial regarding the infrequent nature of his right shoulder symptoms. [ 26 ] Mr. Green’s right elbow pain is associated with the right shoulder pain. I find that this pain is not accident-related for the same reasons that the right shoulder pain is not accident-related. [ 27 ] I will now turn to the assessment of damages for these accident-related injuries. Damages

Loss of earning capacity [ 28 ] In order to assess whether Mr. Green suffered a loss of earning capacity as a result of the accident, it is necessary to assess both what his earning capacity was prior to the accident and what impact the accident had on that capacity. Past loss of earning capacity [ 29 ] Compensation for past loss of earning capacity is 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 . [ 30 ] At the time of the accident, Mr.

Green had been working for TSBC as a technical training developer for approximately five months. His role involved developing training for gas-fitting inspectors, maintaining exam banks for the gas-fitter qualifying exams and evaluating curricula from instructional facilities to ensure they were consistent with the relevant regulatory codes. Prior to the COVID-19 pandemic, Mr. Green commuted daily from his home in Summerland to TSBC’s office in Kelowna and occasionally to TSBC’s Burnaby office for a few days at a time. During the COVID-19 pandemic, Mr.

Green worked from home before transitioning to a hybrid situation where he worked one or two days in the Kelowna office and the balance at home. Once COVID-19 travel restrictions eased, Mr. Green resumed twice-monthly visits to TSBC’s Burnaby office. [ 31 ] Mr. Green did not miss any time from work following the accident, even in the immediate aftermath. [ 32 ] Mr. Green eventually left TSBC in July 2022. Mr. Green described a conflict with his manager as being a reason for his departure. He felt that his manager was unfairly critical of him. Mr.

Green’s co-worker and friend, Gurvir Sekhon, testified at trial and validated Mr. Green’s perspective on his departure from TSBC. When thinking about it in retrospect, Mr. Green feels that his ability to handle constructive criticism from his manager was reduced because he was also dealing with ongoing pain and frustration as a result of his accident-related injuries. [ 33 ] In my view, the evidence does not establish that sequelae from the accident caused Mr. Green to leave his position at TSBC. Mr.

Green acknowledged that he had a conflict with his manager at TSBC and that his role changed partway through his employment. I am not able to find on the evidence that there is a real and substantial possibility that his reaction to stress at work would have been different absent his injuries from the accident. It is not clear whether his skills were suited to his changed role at TSBC. There was no evidence from Mr. Green’s manager about his post-accident job performance and to clarify the reason for his departure. It is significant, in my view, that Mr.

Green continued to work at TSBC for almost four years after the accident, during which time his symptoms continued to improve. In short, it is mere speculation to suggest that Mr. Green would have continued working at TSBC if the accident had not happened. [ 34 ] In closing submissions, the plaintiff argued that he should receive an award of $120,000 to $180,000 for past loss of earning capacity because he no longer does plumbing jobs on the side.

In my view, the plaintiff failed to prove there was a real and substantial possibility that he would have earned income from side jobs between November 2018 and the trial date if the accident had not happened. First, there was no evidence that Mr. Green was ever paid for any of the plumbing jobs he did on the side, before or after the accident. Second, there was no evidence that he stopped doing plumbing jobs on the side as a result of injuries from the accident. Mr.

Green testified in direct that he “weaned away” from doing side jobs in 2019; however, in cross-examination, he acknowledged that he continued to do some small jobs on the side post-accident. Either way, Mr. Green did not suggest that the number of side jobs he did was affected by his injuries from the accident, and he conceded that COVID-19 had an impact on the availability of side jobs. Further, there was no medical evidence to suggest that Mr. Green was prevented from doing plumbing jobs on the side for friends because of his injuries. [ 35 ] In

summary, I am not satisfied on the evidence that Mr. Green would have earned more income between November 22, 2018 and the trial date if the accident had not happened. Future loss of earning capacity [ 36 ] Before an award can be made for loss of future earning capacity, a plaintiff must demonstrate “that there is a real and substantial possibility of a future event leading to an income loss”: Perren v. Lalari , 2010 BCCA 140 at para. 32 . [ 37 ] In Rab v. Prescott , 2021 BCCA 345 , Justice Grauer distilled a three-step test for assessing claims for loss of future earning capacity.

The first step requires proof of a potential future event that could lead to a loss of capacity. In this case, Mr. Green continues to suffer pain in his neck, mid and low back regularly but intermittently, and the medical prognosis is that he can expect these symptoms to continue. His neck and back symptoms were aggravated when he worked as a commercial service plumber for two months in late 2022, and his symptoms are aggravated with prolonged driving and sitting. I accept that Mr.

Green’s ongoing myofascial pain syndrome in his neck and ongoing intermittent back pain satisfy the first step of the Rab test. [ 38 ] The second step of the Rab test requires evidence of a real and substantial possibility that the future event will cause a pecuniary loss. In this case, the question is whether there is a real and substantial possibility that Mr. Green’s ongoing neck and back symptoms will cause him pecuniary loss in the future. Although there are some inconsistencies between Mr. Green’s evidence at trial and what he told the physiatrists who assessed him for litigation purposes, I accept that Mr.

Green’s neck and back symptoms negatively affect his ability to work full-time as a plumber. When he worked as a commercial plumber and gas-fitter for two months in late 2022, he found that his neck and back symptoms were aggravated, particularly when using power tools. At his next job in early 2023, Mr. Green found the lengthy travel to and from Fort McMurray and the physical work on the job site took a toll: he generally required at least two days to recover from a two-week stint in the field. Mr.

Green’s current position combines field work and desk work, which minimizes symptom aggravation; however, his current job is project-based and may end within a few months or a few years. His current bi-weekly commute between Summerland and Fort St. John aggravates his symptoms, and he requires a day or two to recover when he arrives home.

[39] Mr. Green has changed jobs on a regular basis over the course of his career. Even before the accident, he had demonstrated apreference for non-physical roles within his area of expertise, including as an instructor and technical training developer. That said,before the accident, he returned intermittently to field work as a plumber and gas fitter. Ideally, Mr. Green would like to find a job closerto home so that he is not away from his family for weeks at a time.

He would like to work as a supervisor or an instructor or to use hisClass A gas fitter certification to design commercial boiler systems, jobs that would be less physically demanding than working as aplumber. [40] I find that the evidence satisfies the second step of the Rab analysis. I accept that there is a real and substantial possibility thatMr. Green will have periods of unemployment in the future because he is not able to accept or continue in a labour-intensive job as aplumber or gas fitter because of his accident-related neck and back symptoms.

I accept that there is a real and substantial possibility thatMr. Green will not be able to work as many hours as a plumber or gas fitter because of his accident-related neck and back symptoms. Iaccept that there are plumber and gas fitting jobs that Mr. Green is no longer able to do competitively that he would have been able to doif the accident had not happened. [41] In finding there is a real and substantial possibility that his neck and back symptoms may restrict his employment options, I notethat Mr. Green had some pre-accident complaints of back pain when he worked physical jobs.

However, he required very infrequentchiropractic treatment for such back pain, and the pain did not otherwise limit his activities or require medication. [42] Once a future loss of capacity is established, the third step of the Rab test involves the quantification of that loss by using the“earnings approach”, as in Pallos v. Insurance Co. of British Columbia (1995), 100 B.C.L.R. (2d) 260, (C.A.), or the“capital asset approach” from Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353, (S.C.). Both of these approaches arecorrect.

The earnings approach will be more useful when the loss is easily measurable: Perren at para. 32. [43] In this case, both parties argued that a capital asset approach is preferable if a loss of capacity is found, and I agree. Mr. Greensays that an award equivalent to two years of earnings is reasonable, which he says should be based on his 2022 earnings of $128,004.Alternatively, he proposes an award of $100,711, which is 10% of his estimated residual earnings to age 65 based on income of $100,000per year.

The defendant says that if a loss of a capacity is found, then a reasonable award is $80,000 (approximately one year’s earnings),reduced by 15% to account for non-accident-related symptoms. [44] While assessing an award for future loss of income is not a purely mathematical exercise, the court should endeavour to usefactual mathematical anchors as a starting foundation to quantify such loss: Jurczak v. Mauro, 2013 BCCA 507 at paras. 36–37.

Whenusing a capital asset approach to the assessment of the plaintiff’s loss of earning capacity, it is necessary to consider the relevanteconomic evidence when measuring the loss: McKee v.

Hicks, 2023 BCCA 109 at paras. 82–84. [45] In Pallos, the Court of Appeal identified three acceptable methods for assessing loss of earning capacity using the capital assetapproach: [43] The cases to which we were referred suggest various means of assigning a dollar value to the loss of capacity to earn income.One method is to postulate a minimum annual income loss for the plaintiff's remaining years of work, to multiply the annual projectedloss times the number of year[s] remaining, and to calculate a present value of this sum. Another is to award the plaintiff's entire annualincome for one or more years.

Another is to award the present value of some nominal percentage loss per annum applied against theplaintiff's expected annual income. [46] In this case, the economic evidence is fairly limited. For example, neither party led evidence regarding Mr. Green’s 2023earnings. I have no idea how much Mr. Green earned while working as a plumber in Fort McMurray in 2023. According to his 2022 T4,Mr. Green earned $11,238.50 working as a commercial plumber in late 2022. Mr.

Green testified that he worked there from November toDecember 20, 2022, i.e. roughly equivalent to an annual salary of $83,500, which is similar to his annual earnings in 2016 ($83,682), thelast full year Mr. Green worked as a plumber or supervisor in the field. [47] Mr. Green says the starting point for assessing his future loss of capacity should be his 2022 annual earnings of $128,004.However, in my view, this is not a reasonable mathematical anchor for the assessment of his loss of capacity. Between 2019 and 2021,Mr. Green earned an average of $109,326 working full-time for TSBC.

In 2022, TSBC paid him $99,297 in employment income forworking until July and $16,558 as an RRSP transfer. In addition, he earned $11,238.50 working as a commercial plumber and $910 fromOkanagan College. I am not satisfied that 2022 was a typical year for earnings for Mr. Green. In any event, there is no evidence tosuggest that his TSBC earnings are reflective of what he might expect to earn as a commercial plumber and gas-fitter. [48] I accept that Mr. Green is likely to continue working to age 65, which is unaffected by his injuries from the accident. Mr.

Greentestified that, prior to the accident, he and his wife were open to retiring at age 60, but he now anticipates working to age 65 or 70 forfinancial reasons. Although he did not provide direct evidence on this point, I infer that his pre-accident retirement

schedule has changedbecause he no longer works for TSBC, a position that came with a pension and a higher salary than he earned before working at TSBC.As I have already determined his departure from TSBC is not accident-related, I find that his change in anticipated retirement date isunaffected by the accident. There is no medical evidence that Mr. Green’s career will be cut short by reason of the injuries from theaccident. On that basis, I anticipate that Mr. Green will likely work for another ten and a half years. [49] Taking all of these factors together, I find that $80,000 is a reasonable assessment of Mr. Green’s future loss of earning capacitybased on the following:

a) There is a real and substantial possibility that Mr. Green will not be able to work full-time on an ongoing basis as a plumber and gasfitter because such work aggravates his ongoing neck and back symptoms;

b) There is a real and substantial possibility that, as a result of his accident-related injuries, Mr. Green will not be able to work longenough as a plumber and gas fitter to be promoted to a supervisory position, which would be a less physically demanding job morecompatible with his accidental-related injuries;

c) There is a real and substantial possibility that Mr. Green will not be able to work full-time on an ongoing basis in a job that requires a lengthy commute;

d) There is a real and substantial possibility that Mr. Green will be unemployed for periods of time due to his limitations, particularly because his current position is likely to conclude before his anticipated date of retirement;

e) The starting point for assessing his without-accident residual earning capacity is not his TSBC salary, as his departure from TSBC was not caused by the accident;

f) Based on the evidence at trial, his potential annual earnings as a plumber are approximately $83,500;

g) There is a risk that Mr. Green would not be able to work full-time as a plumber and gas fitter for reasons unrelated to the accident, including his right shoulder and right hip injuries; and

h) Mr. Green would prefer to work as an instructor or primarily at a desk rather than in the field, an affinity he had prior to the accident, which means that his physical limitations might not affect his actual earning capacity. [ 50 ] The ultimate step in the Rab analysis is consideration of whether the assessment of the loss of earning capacity is reasonable: Lo v. Vos , 2021 BCCA 421 at para. 117 ; Rab at para. 47 . In this case, an award of $80,000 reflects a loss of approximately 10% of his residual earning capacity as a plumber.

In my view, given the nature of his accident-related symptoms, their impact on his function, his pre-accident career path, and his residual working life, I am satisfied that an award of $80,000 for future loss of earning capacity is reasonable in the circumstances. Loss of housekeeping capacity [ 51 ] In closing submissions, counsel for the plaintiff acknowledged that it would be appropriate to compensate Mr. Green for his loss of housekeeping capacity either as part of the award for non-pecuniary loss or as a separate award. [ 52 ] I find that Mr.

Green’s claim for loss of housekeeping capacity is properly considered as part of the assessment of his non- pecuniary loss. In this case, it would not be unreasonable to expect Mr. Green to perform his pre-accident chores given the nature of his accident-related injuries and their impact on function: McKee at para. 112 . He acknowledged that he is able to cut the grass using the lighter lawnmower, though is son and wife often undertake this chore. I accept that Mr.

Green’s neck and back symptoms may be exacerbated by cutting the grass and doing yard work, which will be reflected in his award for non-pecuniary loss. Non-pecuniary loss [ 53 ] An award for non-pecuniary loss is intended to compensate a plaintiff for his pain and suffering, his loss of enjoyment of life, and his loss of amenities, both to the date of trial and into the future. In assessing Mr. Green’s non-pecuniary loss, I have considered the factors set out in Stapley v. Hejslet , 2006 BCCA 34 at paras. 45–46 , leave to appeal to SCC ref’d, 31373 (19 October 2006). [ 54 ] Mr.

Green has suffered and continues to suffer from tension and pain in his neck and back. His left leg, left hip and left elbow injuries have resolved. These physical injuries interfered with Mr. Green’s participation in his recreational activities. In particular, these injuries have interfered with the family activities he enjoyed with his children. Playing golf, snowboarding and riding his motorcycle aggravate his neck and back pain. He continues to engage in these activities but less frequently and at a lower intensity level because of his injuries.

Long drives and sitting for extended periods aggravate his neck and back pain. Mr. Green is frustrated that his neck and back injuries continue to affect him. He feels that his ongoing pain has at times made him less patient, adversely affected his interpersonal skills and reduced his capacity to deal with constructive criticism at work. [ 55 ] Mr. Green has right shoulder pain, right elbow pain and right hip pain that are not accident-related. According to the evidence at trial, his right hip affects how he gets on and off his motorcycle, but otherwise these unrelated injuries do not limit Mr.

Green’s leisure activities. [ 56 ] Mr. Green’s injuries from the accident interfered with his ability to cut the lawn and do yard work, his primary contributions to chores around the house. His son and wife now do more of the lawn cutting, but Mr. Green is able to use the lighter push mower. He reported to Dr. Filbey that his right hip and shoulder limit him the most at this time, injuries that are unrelated to the accident; however, he was not cross-examined on this point. [ 57 ] Mr. Green seeks an award of $120,000 to $150,000 for non-pecuniary loss.

He relies upon the following cases (with their inflation-adjusted awards in brackets):

a) Grant v. Ditmarsia Holdings Ltd. , 2020 BCSC 1705 ($156,000);

b) Ratelle v. Barton , 2022 BCSC 22 ($150,000); and

c) Erdem v. O’Brien , 2023 BCSC 1233 ($120,000). [ 58 ] In my view, the nature and extent of the injuries suffered by the plaintiff in each of these cases and the impact of the injuries on function is more significant than in Mr. Green’s case. For example, in Grant , the trial judge found that the plaintiff had ongoing severe arm pain and psychological injuries five years post-accident. In Ratelle , the plaintiff required knee surgery and faced the prospect of future knee surgery as a result of his injuries from the accident.

Erdem is not a useful comparator, as the trial judge found that the plaintiff’s evidence regarding the severity and duration of his symptoms was not entirely reliable nor his claim persuasive. In any event, in Erdem , the plaintiff’s most significant injury was to his shoulder, which likely required surgery, and the plaintiff had not returned to work after the accident: circumstances different from Mr. Green’s situation.

[59] The defendant submits that the appropriate range for an award for non-pecuniary loss is $65,000 to $75,000, after applying a15% discount to reflect the probability that the plaintiff would have suffered ongoing symptoms and limited function due to pain in hisright shoulder, right elbow and right hip. The defendant relies on the following cases:

a) Naseem v. Dhami, 2022 BCSC 602 ($85,000);

b) Torchia v. Siegrist, 2015 BCSC 57 ($65,000); and

c) Finley v. Chang, 2021 BCSC 179 ($70,000). [60] I have not adopted the defendant’s proposed method of assessing Mr. Green’s non-pecuniary loss. In my view, it is appropriate toaward damages for Mr. Green’s loss rather than assessing his overall condition and allocating damages between accident-related andnon-accident-related injuries. [61] Mr. Green had no pre-existing injuries that are relevant to the assessment of his non-pecuniary loss.

For that reason, Naseem andFinley are not useful comparators, as the plaintiffs in these cases had pre-existing injuries that affected the quantum of non-pecuniarydamages awarded. Torchia is not particularly helpful because the plaintiff’s pain complaints were different, the prognosis included theprospect of further improvement and the plaintiff’s employment was not physically demanding. [62] Based on the Stapley factors, I find that Mr. Green is entitled to non-pecuniary damages in the amount of $100,000.

Future cost of care [63] An award for future care costs is based on “what is reasonably necessary on the medical evidence to promote the mental andphysical health of the plaintiff”: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 78, (S.C.), aff’d (1987), 49 B.C.L.R.(2d) 99, [1987] B.C.J. No. 1833 (C.A.). [64] I accept that it is reasonably necessary to award damages for the cost of ongoing massage therapy and chiropractic treatments.Dr. Gupta recommended such ongoing treatment.

I accept the plaintiff’s evidence that such treatment helps him with symptommanagement, which in turn allows him to carry on with working and to participate in his other activities. Using the cost and frequency ofhis 2023 treatments as the starting point, I award $750 per year for massage therapy treatments and $1150 per year for chiropractictreatments to age 65, his anticipated year of retirement. Applying the present value multiplier in CLEBC’s Civil Jury Instructions for tenand a half years (9.3847) results in an award of $17,830 for massage therapy and chiropractic treatments. [65] Dr.

Filbey suggested that Mr. Green might benefit from a self-guided exercise program, which a kinesiologist might help design.I accept such a program is reasonably necessary given his ongoing symptoms. I estimate the cost of an eight-week program to be $720based on the cost of Mr. Green’s physiotherapy treatments. [66] The plaintiff sought to include the cost of medication in the award for future cost of care. However, the evidence was inadequateto establish the frequency of use of each medication or the cost of one of the medications.

I find that the plaintiff has failed to prove thisaspect of his claim for future care. [67] As a result, the plaintiff is entitled to an award of $18,550 for future cost of care. Special damages [68] The parties agree that the plaintiff is entitled to an award of $17,749.07 for special damages. Conclusion [69] To summarize, the defendant is liable to pay the following damages to Mr. Green: Head of Damage AwardNon-pecuniary damages $100,000Future loss of earning capacity$80,000Future costs of care $18,550Special damages $17,749.07TOTAL $216,299.07 [70] Mr.

Green is also entitled to his costs, subject to any offers or other matters that may require an adjustment to his costsentitlement. If the parties wish to address costs, they may arrange with court scheduling in the next 30 days to make submissions beforeme for this purpose. “Lamb J.”