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2011 bcsc 762 bouchard v. brown bros. motor lease canada ltd.

2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
IN THE SUPREME COURT OF BRITISH COLUMBIA
Bouchard v. Brown Bros. Motor LeaseCanada Ltd., Maurice Bouchard
Brown Bros. Motor Lease Canada Ltd.,
United Scaffold Supply Company Inc., and Antoine Naudi
Before: The Honourable Mr. Justice Pearlman Reasons for Judgment

INTRODUCTION
[1] The plaintiff, Maurice Bouchard, claims damages for personal injuries sustained in a motor vehicle accident which occurred on February 26, 2005. The plaintiff, who was 26 years old at the time, was seated in the front passenger seat of his brother’s parked truck when it was struck from behind by a pick-up truck http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
owned by the defendants, Brown Bros. Motor Lease Canada Ltd. and United Scaffold Supply Company Inc., and operated by the defendant, Antoine Naudi. At the time of impact, the plaintiff was turned in his seat, facing to his left, as he moved some objects on the front passenger seat. He was not wearing a seatbelt [2] The plaintiff claims that as a result of the motor vehicle accident he suffered injuries to his neck, mid back and lower back, including an injury to the L4-L5 disc, which was largely asymptomatic until October 2007. Since then, the plaintiff has suffered intense low back pain with pain radiating to his lower legs.
[3] Mr. Bouchard, who was a talented special effects technician employed in the motion picture industry, has not been employed since July 2008. He contends that he is permanently disabled as a result of the injuries to his low back sustained in the motor vehicle accident of February 26, 2005.
[4] The defendants admit liability. However, while they admit that the accident caused some soft tissue injuries to Mr. Bouchard, they say that the significant change to his symptoms in October 2007 was not caused by the motor vehicle accident. The defendants submit that at the time of the motor vehicle accident the plaintiff suffered from pre-existing degenerative changes to his low back, and that the motor vehicle accident of February 26, 2005, did not cause, aggravate or accelerate those degenerative changes.
[5] The first question for determination is whether the February 26, 2005 motor vehicle accident caused or contributed to the severe and continuing low back pain that the plaintiff has experienced since October 2007.
[6] The second issue is whether the award of damages should be reduced to take into account a measurable risk that Mr. Bouchard’s pre-existing degenerative changes would have detrimentally affected him, even if the motor vehicle accident had not occurred.
[7] The plaintiff claims damages for non-pecuniary loss, past wage loss, loss of earning capacity, cost of [8] The plaintiff was born in January 1979, and married his wife, Sondra, in 1999. They have a son, born in 2001, and a daughter, born in November 2005. Mr. Bouchard and his wife met as students at the Emily Carr Art School in 1998. Mr. Bouchard withdrew from the program at the end of his first year, but completed a one-year diploma in film and television studies at the Interior Film and Television School in Kelowna by the [9] Following their marriage, the plaintiff and his wife returned to Vancouver where Mr. Bouchard embarked upon his career as a special effects technician. After completing one year of a robotics program at the British Columbia Institute of Technology in the spring of 2001, the plaintiff applied his skills to the construction of electronic special effects devices for the motion picture industry.
http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
In 2002, Mr. Bouchard incorporated his own company, Orb Design Inc., as the vehicle through which he performed contract work for the design and construction of special effects equipment. In addition, as a member of the International Alliance of Theatrical Stage Employees (I.A.T.S.E.), Mr. Bouchard was employed as a special effects technician on motion picture and television projects. His employment as a special effects technician on film production sets often involved 12 to 16-hour work days. Designing and building the electronics for special effects required sustained concentration and the ability to achieve a high [11] Work on the production sets was at times physically demanding, involving both lifting and bending. In a field where work assignments depended upon word of mouth referrals, Mr. Bouchard developed a reputation as a highly skilled and productive technician who was well regarded by his supervisors and co- workers. Prior to the motor vehicle accident of February 26, 2005, the plaintiff was able to cope with all of the [12] Before the accident, Mr, Bouchard enjoyed playing with his son, working in his garden, and family camping, hiking, and fishing trips. He also carried out home renovation projects and assisted his wife with [13] Mr. Bouchard was involved in two earlier motor vehicle accidents.
[14] In or about April 1998, Mr. Bouchard was the front seat passenger in a vehicle driven by his wife. After they had come to a stop at a stop sign, they were struck from behind by another vehicle. Mr. Bouchard’s principal complaints were low back pain and neck discomfort, for which he received physiotherapy. Between July 2000 and January 2001, Mr. Bouchard received 11 chiropractic treatments from Dr. Sidney Sheard for low back pain. Dr. Sheard found the straight leg raising test and other tests he performed were positive for nerve root tension, and attributed the plaintiff’s lower back pain in the summer of 2000 to degenerative [15] The plaintiff was also referred to the Canadian Back Institute in the summer of 2000. An x-ray of the plaintiff’s lumbar spine performed on July 19, 2000 showed mild disc space narrowing at L5-S1, which the radiologist interpreted as a sign of early degenerative disc disease. Mr. Bouchard’s symptoms of low back [16] The second accident occurred on August 27, 2003, when the vehicle the plaintiff was operating collided with another car attempting a U-turn ahead of him. Four days after the accident, Mr. Bouchard attended a walk-in clinic where he saw Dr. K.S. Gill for complaints of left neck, shoulder and low back pain.
Dr. Gill’s clinical notes confirm that straight leg testing was normal, and that he found no sign of nerve root involvement. Mr. Bouchard did not seek further medical treatment, and lost no time from work following the [17] The plaintiff recovered quickly. He experienced no low back pain between the fall of 2003 and http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
The February 26, 2005 accident
[18] On the evening of February 26, 2005, Mr. Bouchard had climbed into the front passenger seat of his brother’s pick-up truck to see the new stereo system his brother had installed. The pick-up was parked on 248th Street, near the plaintiff’s home. Mr. Bouchard had turned to his left and was reaching to move some objects on the front passenger seat when the pick-up was struck from behind by another pick-up truck operated by the defendant Naudi. The defendant was proceeding south on 248th Street, and was attempting to retrieve a package of cigarettes from the floor of his vehicle when the collision occurred. Mr. Bouchard has little recollection of the impact, but recalls seeing the tail-lights of the defendant’s vehicle as it drove away.
Also, in order to obtain the licence number of the other vehicle, he got out of the truck and ran after the defendant’s vehicle until it came to a stop about a block and a half away.
[19] There is no reliable evidence of the speed at which Mr. Naudi’s vehicle was travelling. However, I infer from the fact that the defendant did not apply his brakes before the collision, the rear of Mr. Bouchard’s brother’s vehicle sustained damage of $1,400, and the rear and passenger side of Mr. Naudi’s vehicle sustained $8,700 in damage, that the force of the impact was at the very least moderate.
[20] Mr. Bouchard testified that on the evening of the accident, he experienced pain in his low back, shoulders and neck. Sondra Bouchard recalls that the plaintiff was complaining about neck and low back pain a couple of days after the accident, and that, following the collision, her husband became guarded in his movements and would avoid bending down.
[21] In his direct examination, the plaintiff testified that, following the February 2005 motor vehicle accident, he experienced periods of deep sharp pain in his low back. In addition, Mr. Bouchard suffered from pain in his mid back, as well as sharp pain and periods of numbness in his upper back.
[22] According to Mr. Bouchard, from the time of the accident until the fall of 2007, his low back pain became progressively worse, and then suddenly deteriorated in October 2007. At that time, the plaintiff was working on special effects for the television series “Supernatural”. He had started work on that project in June [23] Mr. Bouchard came home from work one Friday evening in October 2007 and fell asleep in a slumped position on a love seat. His upper back rested against one arm of the love seat, his lower back was flexed on the seat, and his legs extended over the other arm, flexed at the knees. When the plaintiff awoke, he experienced what he described at trial as “constant, horrid, stabbing pain”. He had intense pain in the lower back, which spread down the back of his left leg. When Mr. Bouchard returned to work on the following Monday after this incident, he found that the intense low back pain interfered with his ability to function at work. The plaintiff took some time off from work in early November, and ultimately quit the Supernatural project on December 5, 2007, as a result of his low back pain.
[24] Mr. Bouchard next returned to work in March 2008 as a special effects technician for “A Night at the Museum II”. The plaintiff testified that he had to take painkillers at work due to his continuing severe low back http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
pain. He was unable to concentrate, and made mistakes in his work. His supervisor, Mr. William Orr, became concerned for Mr. Bouchard’s safety when he learned how much medication the plaintiff was taking, and terminated his employment on July 11, 2008. The plaintiff has not worked since then.
[25] On December 24, 2008, Mr. Bouchard underwent bilateral discectomies and foraminotimies at the L4- L5 and L5-S1 levels performed by Dr. Heran in an attempt to relieve pressure and compression of the discs at L5 and S1. While the surgery resolved the pain Mr. Bouchard had experienced in his feet, he continued to experience severe pain in his lower back radiating to his legs, accompanied by severe cramping. The plaintiff was also left with post operative epineural scarring around the L5 and S1 nerve roots, for which there is no treatment at the present time. Dr. Hunt has opined that as a result of the epineural scarring, the plaintiff will most likely continue to experience neuropathic pain in his lower extremities, which will be aggravated by [26] The plaintiff complained of increasingly severe chronic low back pain and intermittent severe leg [27] In March 2010, the plaintiff was admitted to the St. Paul’s Hospital’s Inpatient Pain Management Clinic for a further assessment of his intractable low back pain. His dosage of Cesamet, a synthetic cannabinoid prescribed to assist in controlling the plaintiff’s chronic pain, muscle spasm, and sleep disorder, was increased. Upon his discharge from the Inpatient Pain Clinic, Mr. Bouchard stopped taking his sleeping medication, had several sleepless nights, and displayed manic behaviour.
[28] On April 13, 2010, the plaintiff was certified under the Mental Health Act, and confined in the Psychiatric Assessment Ward of St Paul’s Hospital for eight days. He was assessed as suffering from a substance induced mania, resulting from the increase in the dosage of cannabinoids during his admission to the Inpatient Pain Clinic, combined with his increased use of marijuana following his discharge from the Clinic. Mr. Bouchard was diagnosed as suffering from bi-polar disorder. His medications were adjusted and he was prescribed a neuroleptic for the treatment of his bi-polar disorder.
[29] In June 2010, Mr. and Mrs. Bouchard separated. The plaintiff attributes the separation to the frustration and anger he experienced as a result of his continuing and severe pain and the extent to which it has altered his life. Mrs. Bouchard testified that the plaintiff is now almost unrecognizable as the man she married. The plaintiff, who was formerly dedicated to his work and his family, is no longer positive or outgoing, is disabled from employment in his chosen field, withdrawn, and dependent upon his medications [30] Mr. Bouchard has moved out of the family home, and lives alone in a small apartment. He has recently developed an interest in music, which he says provides some diversion from his pain.
[31] Defence counsel argued that Mr. Bouchard’s testimony respecting the onset and severity of his low back pain before October 2007 is unreliable. Counsel contended that Mr. Bouchard’s ability to exit his brother’s vehicle and run after the defendant’s vehicle immediately following the collision is inconsistent with any significant injury to his lumbar spine caused by the motor vehicle accident. Mr. Bouchard testified that he http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
experienced low back pain later that evening. Mrs. Bouchard gave evidence that her husband was complaining of low back pain within a couple of days of the accident. Although Mr. Bouchard’s initial complaints to his family doctor, Dr. Surgenor, focused on his upper back and neck, he also complained of [32] The collision did not result in an immediate impairment of Mr. Bouchard’s mobility. However, the question of whether the plaintiff sustained an injury to his lumbar spine that caused or contributed to the severe low back pain he experienced after October 2007 is one that may only be answered upon consideration of all of the relevant evidence, including the medical evidence of the plaintiff and the [33] Before turning to the medical evidence, I make these observations respecting the reliability and credibility of Mr. Bouchard’s testimony at trial. In his direct examination, Mr. Bouchard said that between February 2005 and October 2007 he experienced “horrid awful pain” in his low back and also suffered pain radiating into his legs before October 2007. In cross-examination, Mr. Bouchard conceded that he no longer had an accurate recollection of his symptoms before 2007.
[34] I am satisfied that Mr. Bouchard did not seek to deliberately mislead the court. During the trial, Mr.
Bouchard was taking both narcotic and non-narcotic medications to control his low back pain. By the time of trial, he had lived with persistent, severe low back pain since October 2007. In these circumstances, it is hardly surprising that Mr. Bouchard no longer had a clear or entirely accurate recollection of his pre-October [35] In cross-examination, Mr. Bouchard agreed that his evidence on discovery was more accurate than his recollection at trial. The plaintiff was examined for discovery in September 2007, approximately one month before the sudden deterioration of his lower back.
[36] On his discovery, Mr. Bouchard gave evidence that he had experienced low back pain intermittently following the February 26, 2005 accident, and that he had not experienced low back pain for several years prior to that accident. Mr. Bouchard also gave evidence on discovery that at times his low back pain had improved substantially since the accident; that during the 12 months prior to his discovery, his low back pain bothered him several times a month; and that he also experienced pain in his left buttock and thigh [37] I accept that Mr. Bouchard experienced low back pain of varying intensity intermittently between the time of the accident and October 2007, but find that Mr. Bouchard’s recollections at trial that he suffered from constant and severe low back pain and pain radiating into his legs before October 2007 are mistaken.
THE MEDICAL EVIDENCE
[38] Dr. Hannah Surgenor is the plaintiff’s family physician. When Dr. Surgenor first saw the plaintiff on February 28, 2005, she noted that Mr. Bouchard was complaining of back and neck pain and that he also suffered a loss of concentration after the accident. From his first visit until October 2007, Mr. Bouchard’s http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
predominant complaints of back pain as recorded by Dr. Surgenor concern upper back pain, sharp pain between the shoulder blades and numbness in his upper back. However, Dr. Surgenor also noted that Mr.
Bouchard reported sharp lumbar pain on March 7, 2005. In her Form CL19 medical report to the Insurance Corporation of British Columbia dated March 10, 2005, Dr. Surgenor reported: Little improvement in pain. Neck movements - stiffness and decreased range of movement.
Back - unable to stand straight due to pain and stiffness. Pain between shoulder blades onmoving arms.
Dr. Surgenor testified that her note concerning the plaintiff’s inability “to stand straight due to pain and stiffness” referred to the plaintiff’s lower back pain. Initially, Dr. Surgenor recommended Ibuprofen, massage [39] On March 14, 2005, Mr. Bouchard reported that his back was improving but that he was experiencing a high level of stress associated with his work. Dr. Surgenor prescribed Celexa for treatment of depression.
[40] In early April 2005, after the plaintiff reported a recurrence of back pain, Dr. Surgenor prescribed Tylenol 3, Naproxsen, an anti-inflammatory, and Flexeril, a muscle relaxant. On Dr. Surgenor’s recommendation, the plaintiff saw Dr. Rahmany, a chiropractor and message therapist, 13 times between [41] On June 10, 2005, Mr. Bouchard complained that he was still experiencing upper back pain. He had returned to work full-time on the set of the movie “RV” at the beginning of May. Dr. Surgenor requisitioned an MRI study of the plaintiff’s thoracic and lumbar spine, which was performed on June 11, 2005, by Dr. William Siu, a radiologist. In Dr. Siu’s opinion, the medical imaging report revealed a bulging disc in the lumbar spine at L4-L5, and mild disc space narrowing with circumferential disc bulging at L4-S1. Dr. Siu reported that there was a “central disc protrusion at L4/5 level which may be causing some impingement on the traversing L5 nerve roots. Degenerative disc changes at L5/S1 level.” [42] In June 2005, Dr. Surgenor also referred Mr. Bouchard to a neurologist, Dr. Sadowski, because she was concerned that his complaints of numbness in his upper back might indicate a neurological problem.
When Mr. Bouchard saw Dr. Sadowski in September 2005, he reported that he was experiencing daily low back pain aggravated by increased activity including lifting, and that his low back pain had not changed in [43] Mr. Bouchard did not see Dr. Surgenor between August 24, 2005, and January 13, 2006. At that time, the plaintiff complained of having experienced six weeks of back pain with no relief from four sessions of chiropractic treatment between December 16, 2005, and January 4, 2006.
[44] On May 6, 2006, Dr. Surgenor provided the plaintiff with a note that he was not medically fit to work. At trial, Dr. Surgenor, after referring to her clinical records, which note complaints of upper back pain and numbness on that date, thought her note related to the plaintiff’s upper back pain.
[45] Between February and May 2006, Mr. Bouchard received four chiropractic treatments. He also saw a http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
physiotherapist on four times between May 6 and 16 for treatment of both upper back and low back pain.
[46] Dr. Surgenor next saw Mr. Bouchard about his back problems on January 24, 2007, at which time he complained that his back pain had been worse for awhile and that he was experiencing sharp pains between the shoulder blades. Dr. Surgenor also diagnosed depression. Mr. Bouchard had stopped taking Celexa for two months. He complained that when he took that medication, he experienced side effects, including drowsiness and anger. The plaintiff was also reluctant to take medications at work. He expressed reluctance to leave his house and felt depressed and lethargic. Dr. Surgenor attributed the depression to Mr.
Bouchard’s worsening back pain. At the time, his main complaint was shoulder pain.
[47] Although Dr. Surgenor referred Mr. Bouchard to a psychiatrist, Dr. Matthew, the plaintiff never made [48] On September 30, 2007, Dr. Surgenor noted that Mr. Bouchard had re-injured his mid-thoracic spine a week previously and that he still experienced lower back pain and neck pain. She renewed the plaintiff’s prescriptions for Naproxsen and Tylenol 3. Dr. Surgenor had not prescribed painkillers or muscle relaxants for the plaintiff since April of 2005.
[49] On October 4, 2007, Mr. Bouchard reported waking up on the morning of October 1 and experiencing back spasms and numbness in his upper back. He did not complain of low back pain on that occasion.
However, on October 18, 2007, Dr. Surgenor noted that Mr. Bouchard was complaining of lower back pain [50] On October 23, 2007, when Mr. Bouchard saw Dr. Surgenor, he complained of pain radiating down into his left calf and very severe lumbar back pain. For the first time in her treatment of Mr. Bouchard, Dr.
Surgenor noted that straight leg-raising induced some pain in the lumbar spine. Her impression was that the plaintiff had suffered a herniated disc. In cross-examination, Dr. Surgenor testified that she had not seen that severity of low back pain in the plaintiff before and that it was very possible that the severity of the plaintiff’s thoracic back pain had masked his low back pain.
[51] The frequency of Mr. Bouchard’s visits to Dr. Surgenor increased through October and November of 2007. The plaintiff resumed chiropractic and physiotherapy treatments, and was referred for acupuncture, which initially provided some relief. As Mr. Bouchard’s complaints of severe low back pain and pain and cramping of his legs continued, Dr. Surgenor prescribed stronger pain medications, including Oxycet on October 26, and Tramacet, a narcotic pain killer, on November 1, 2007. She also prescribed Diazepam for muscle spasm and to assist the plaintiff in sleeping.
[52] On October 29, 2007, Dr. Surgenor made a note of her opinion that the plaintiff’s back pain was secondary to injuries he sustained in the February 26, 2005 motor vehicle accident. She referred the plaintiff to Dr. Chan, a neurosurgeon to determine whether surgery might relieve his lower back pain.
[53] By December 19, 2007, Mr. Bouchard was increasing his consumption of painkillers, was complaining of pain radiating into his foot and of a cramp in his left hamstring muscle. He had finished all of his http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
prescribed medications. Dr. Surgenor prescribed Tylenol 3 with codeine, Percocet, and Naproxsen.
[54] Mr. Bouchard was off work from December 2007 until March 2008. During February 2008, the plaintiff purchased an inversion table to build up his upper back strength in preparation for his return to work.
[55] When Dr. Surgenor saw the plaintiff on March 25, 2008, he had returned to work, felt positive about restoring his health, but continued to experience daily back pain. On April 26, 2008, the plaintiff reported that by taking Endocet, Tylenol, Supeudol and Naproxen, he could perform his daily activities, but still felt pain.
[56] In May and June of 2008, Mr. Bouchard’s symptoms of low back pain and numbness and cramping in his legs worsened. In June 2008, Dr. Surgenor referred Mr. Bouchard to the pain clinic at St. Paul’s Hospital.
Following that referral, Dr. Hunt assumed the principal care of Mr. Bouchard, although the plaintiff continued [57] On July 24, 2008, Dr. Surgenor noted that the plaintiff was no longer working, and was experiencing sharp pain down his legs and numbness in his feet. Mr. Bouchard was now “eating” 10 to 12 Endocets and as many Supeudols each day for pain relief.
[58] Between October 2007 and August 2008, Dr. Surgenor referred Mr. Bouchard to three neurosurgeons, Drs. Chan, Turnbull, and Heran. Neither Dr. Chan nor Dr. Turnbull recommended surgery. The L4-L5 and L5-S1 discectomies and foraminotimies performed by Dr. Heran in December 2008 were not successful.
Mr. Bouchard continues to suffer from severe lower back pain, and pain radiating into his legs.
[59] Dr. Rhonda Shuckett , a rheumatologist, saw Mr. Bouchard on May 12, 2010, at the request of plaintiff’s counsel. Based on the history she took from Mr. Bouchard, her physical examination of the plaintiff and her review of the MRI reports, Dr. Shuckett diagnosed: 1. Headaches, probably cervicogenic in nature, as well as initial neck pain.
2. Thoracolumbar pain, likely musculo-ligamentous.
3. Mechanical low back pain with disc protrusions and an annular tear in the lower lumbar 4. Chronic pain syndrome and psychosocial issues deriving from events following the February 26, 2005 motor vehicle accident.
She noted that Mr. Bouchard was on multiple narcotic drugs, and had suffered from depression.
[60] In her opinion, Mr. Bouchard’s soft tissue injuries were, for the most part, caused by the motor vehicle accident. She believed that the mechanical low back pain and herniated disc at the L4-L5 level were probably caused by the motor vehicle accident .
[61] In cross-examination, Dr. Shuckett acknowledged that she made an error in her report in stating that the plaintiff had suffered from pain radiating down his legs in 2005. However, that error did not change her opinion concerning the role of the February 26, 2005 motor vehicle accident in the marked deterioration in http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
the plaintiff’s condition in 2007. Although Dr. Shuckett agreed that degenerative changes do progress without trauma, she did not agree that the exacerbation of Mr. Bouchard’s symptoms in October 2007 was simply a function of his pre-accident degenerative disc disease. Dr. Shuckett agreed that the longer the time interval between an acute event - in this case the motor vehicle accident - and the onset of symptoms, the more it calls into question causation. However, Mr. Bouchard’s lower back had not been completely asymptomatic before the episode of October 7, 2007. In Dr. Shuckett’s opinion, it was unlikely that the progression of what she described as “minimal” disc degeneration in Mr. Bouchard would spontaneously develop as a disc protrusion, or that disc degeneration would progress to the point that led to the episode of severe pain experienced by Mr. Bouchard in October 2007.
[62] At the conclusion of her cross-examination, Dr. Shuckett maintained that there was a “considerable possibility” that the disc herniation at L4-L5 was caused by the motor vehicle accident.
[63] Dr. Hershler is a specialist in physical medicine and rehabilitation who saw Mr. Bouchard in September 2008 and May 2009. Dr. Hershler provided the plaintiff with three medical/legal reports, dated September 10, 2008, June 2, 2009 and June 17, 2010.
[64] Dr. Hershler provided the following diagnosis in his medical/legal opinion of September 10, 2008: Based on the history, the physical examination and description of the accident, it is my opinionthat the motor vehicle accident on February 26, 2005 caused a pre-existing arthritic ordegenerative condition of the spine to become symptomatic. The accident probably caused aworsening of the degeneration and likely also led to the tear in the annulus fibrosis at L4/5 andthe disc bulging at L4/5 and L5-S1.
It is my opinion that the irritation of the nerve roots has led to increased back pain and thesymptoms in the legs, which have prevented Maurice from working in an appropriate manner.
The fact that he had a sudden deterioration in October 2007 is not uncommon. An injury andweakening of the discs can occur and then unconscious twisting of the back in bed can lead toan acute increase in pain.
[65] In his third report, dated June 17, 2010, Dr. Hershler agreed that the February 26, 2005 accident and Mr. Bouchard’s pre-existing degenerative condition of the spine were both factors that led to Mr. Bouchard’s symptoms of October 2007. However, he did not accept that Mr. Bouchard would have become as symptomatic as he did without the motor vehicle accident. In Dr. Hershler’s opinion, the motor vehicle accident “was a significant factor in that it led to both worsening of the degenerative condition and the onset [66] In cross-examination, Dr. Hershler acknowledged that his neurological examination of the plaintiff was within normal limits. In Dr. Hershler’s opinion, spinal degeneration is usually asymptomatic. Trauma, rather that gradual development of degenerative changes is the most common trigger of acceleration in the degenerative change and the onset of symptoms. Mr. Bouchard’s body was rotated and not restrained when the vehicle in which he was sitting was struck from the rear. In Dr. Hershler’s opinion, Mr. Bouchard’s body position at the time of the collision put his spine at a higher risk of injury. Dr. Hershler did not believe it likely that the plaintiff had suffered a disc injury before February 26, 2005. Mr. Bouchard had been able to work http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
long hours in difficult positions before the motor vehicle accident. In forming his opinion, Dr. Hershler relied on Mr. Bouchard’s history of his symptoms and the plaintiff’s report that following the motor vehicle accident [67] According to Dr. Hershler, the motor vehicle accident caused a weakening of the disc at L4-L5. In Dr.
Hershler’s opinion, two and one-half years was not an unusually long period of time for the triggering event to manifest the underlying damage. According to Dr. Hershler, the motor vehicle accident started a process by which injury to the disc developed over time. Wear and tear from the plaintiff’s weakened disc and then the further event in October 2007, probably involving an annular tear, resulted in the dramatic worsening of [68] Dr. David Hunt, a specialist in emergency medicine with over 20 years’ experience in the treatment and management of complex pain disorders, prepared two expert reports for the plaintiff.
[69] In his first report dated September 4, 2009, Dr. Hunt opined at page 22: The sudden acute deterioration of Mr. Bouchard’s low back condition, with the development of
bilateral leg pain in early October 2007, was commented on by Dr. Hershler in his medical legal
report of September 10, 2008. I would concur that Mr. Bouchard most probably suffered
significant disc injuries to the L4-5 and L5-S1 discs in the stated motor vehicle accident.
However, the L5 and S1 nerve roots were not initially impacted and consequently, Mr.
Bouchard did not complain of peripheral nerve root symptoms nor did he show peripheral
nerve root sign.
However, when Mr. Bouchard assumed the flexed lumbar sleeping position in early October2007, this created significant inter-discal pressure to most likely cause the release ofinflammatory mediators from the already previously injured and weakened L4-5 and L5-S1discs. Once the inflammatory process was initiated, then the combination of pressure fromedema, pressure from the associated disc herniations, and ongoing chemical irritationperpetuated his condition with worsened pain and peripheral nerve root symptons and signs.
[70] In his second report dated May 28, 2010, Dr. Hunt provided the following explanation of the plaintiff’s low back condition between the motor vehicle accident of February 26, 2005, and the significant deterioration When an individual is exposed to the forces associated with a rear-end collision, such as the
one Mr. Bouchard was involved in on February 26, 2005, they may suffer soft tissue injuries
involving the muscles and ligaments of various levels of the spine (cervical and lower lumbar
levels being the most vulnerable). These paraspinal muscles and ligaments are attached to the
individual vertebra at multiple levels. However, injuries also occur to other soft tissues in this
region namely capsular fibres of the facet joints at multiple levels and the
annular fibres of the intervertebral discs at multiple levels.
It was formerly thought that all the injury and associated damage occur at the very moment of
impact of the MVC [motor vehicle collision]. However, studies on the pathophysiology of
traumatized intervertebral discs confirm that the process may take place over time. Initially, the
annular fibres of the intervertebral discs are damaged as a consequence of the forces of the
MVC. Some of the annular fibres will be disrupted outright, however, others may be
http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
weakened, but not completely torn. This process of disrupted and weakened annular fibres
may produce early bulging of the disc. However over time with regular use of the spine or
especially if new forces are applied which suddenly increase intradiscal pressure, the
remaining damaged annular fibres may gradually and/or suddenly break and this
allows nuclear material and the associated inflammatory agents to either gradually or suddenly
push out (herniate). The important concept is that the disc may herniate post injury at a time
considerably beyond the initial trauma as a consequence of continual wear and tear
or a sudden event like just bending over or assuming some other posture which increases
intradiscal pressure inordinately.
In my experience of treating hundreds of spine patients - the herniation of a disc is not an all
or nothing phenomenon, but can be delayed for months to years. As there had been a
continuity of low back pain symptoms in Mr. Bouchard’s case from the time of the
MVC in February 2005 to the prolonged period of abnormal lumbosacral flexion during sleep in
October of 2007, this explanation is certainly plausible.
[71] In cross-examination, Dr. Hunt agreed that at the time of the February 26, 2005 motor vehicle accident, Mr. Bouchard had degenerative changes to his spine, which he described as mild deterioration at L4-L5 and more moderate deterioration at L5-S1. He explained that the narrowing of the L5-S1 disc depicted in the June 11, 2005 MRI was a normal sign of degeneration or aging. He agreed that the narrowing of the disc and loss of disc height results from the loss of water as a part of normal aging and was not caused by [72] Dr. Hunt also agreed that disc bulging is part of the degenerative process. In Dr. Hunt’s opinion, all of the bulging at L5-S1 may have been there before the motor vehicle accident, however, the disc herniation at L4-L5 was likely caused by the motor vehicle accident. Later in his cross-examination, it was again suggested to Dr. Hunt that the disc bulging at L4-L5 resulted from degenerative changes. His answer was as A Well, what - you’ve missed a step. With the loss of disc height, increased torsional - - the disc is less capable of handling torsional stresses and compressive stresses, leading tofissures in the annulus, and then these little fissures can coalesce into actual tears,providing a weakness and a route if the person’s subjected to sudden force or arepetitive force causing disc herniation.
Q And that’s all part of the degenerative process? A Yes, it would all be in the process.
[73] Dr. Hunt also agreed that the osteophytes shown in the medical imaging of the plaintiff’s spine, which he described as little extra chunks of calcium that develop on bone, are part of the degenerative process; that degenerative changes in the spine may or may not be accompanied by symptoms, and that the symptoms may come and go; and that Mr. Bouchard did not experience radiating pain until he suffered neurological impairment in October 2007.
[74] Dr. Hunt understood from the history he took from Mr. Bouchard that he had suffered fluctuating back pain since the motor vehicle accident of February 26, 2005, and that before October 2007, Mr. Bouchard’s http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
shoulder and neck symptoms were his most significant complaints, rather than lower back pain. However, Mr. Bouchard told Dr. Hunt that he had ongoing low back pain that was related to his level of activity from the time of the accident until October 7, 2007, when the low back pain “took off”.
[75] In cross-examination, Dr. Hunt acknowledged that gaps of six months or more between Mr.
Bouchard’s visits to Dr. Surgenor were not consistent with a long-standing history of low back pain. Dr. Hunt also agreed that the PharmaNet record, which reveals no prescriptions for Mr. Bouchard for Tylenol #3, Naprosyn or Flexoril between the spring of 2005 and September 2007, was not consistent with a history of low back pain. However, Dr. Hunt said that the absence of pain medication could be consistent with an injury to the disc where the initial injuries were not sufficient to create a lot of pain, except with increased activity, and which the plaintiff was able to manage conservatively until he put his disc into severe fluxion in the incident of October 2007. However, Dr. Hunt also accepted that it was possible that the disc simply continued to deteriorate and that the motor vehicle accident was simply one of many factors at play.
[76] While Dr. Hunt agreed that it was possible that Mr. Bouchard’s symptoms were the result of a progression of degenerative changes, he was sure that the accident had a significant impact upon that progression. Dr. Hunt agreed with defence counsel that Mr. Bouchard’s symptoms were consistent with either a soft tissue injury to his low back or damage to the disc.
[77] Defence counsel also cross-examined Dr. Hunt on his opinion that the episode in October of 2007 represented an acute inflammatory change superimposed on an already chronic pain condition. Dr. Hunt testified that his information about the “already chronic pain condition” came from Mr. Bouchard and from his review of Dr. Surgenor’s clinical records. With respect to the reliability of the medical history from Mr. Bouchard, Dr. Hunt testified that most of his patients tell him the truth.
[78] With respect to Mr. Bouchard’s future needs for medication, Dr. Hunt advised that the plaintiff was prescribed Risperidone, a neuroleptic, for the treatment of his bi-polar disorder, but that he will not need to take that medication for life. Mr. Bouchard had already stopped taking Gabapentin. Dr. Hunt also thought the plaintiff was no longer on anti-depressants. He explained that if a patient with bi-polar disorder was not on a mood-stabilizer, anti-depressants may actually trigger a bi-polar episode. Mr. Bouchard is no longer prescribed cannabinoids due to his manic reaction to those medications.
[79] When Mr. Bouchard was discharged from the psychiatric assessment ward at St. Paul’s Hospital, his medications included methadone and hydromorphone for pain, Baclofen, a muscle relaxant, and Topimax and Risperidone in place of an anti-depressant.
[80] The defendants rely upon two expert reports of Dr. Andrew Hepburn, an orthopaedic surgeon, in support of their position that the plaintiff’s low back complaints were caused by pre-existing degenerative conditions, and are unrelated to the February 26, 2005 motor vehicle accident.
[81] Dr. Hepburn conducted independent medical examinations of Mr. Bouchard for the defendants on April 19, 2007, and then again on July 16, 2009, about seven months after the plaintiff’s spinal surgery. On http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
April 19, 2007, Mr. Bouchard told Dr. Hepburn that shortly after the 2005 motor vehicle accident he had developed sharp pain in his low back. At the time of Dr. Hepburn’s first examination, Mr. Bouchard’s symptoms included both pain in the lower lumbar area and sharp pains down to the buttock at times, as well as sharp pain between his shoulder blades and pain and numbness in his upper back.
[82] Dr. Hepburn noted that Mr. Bouchard seemed to have disc changes through the L-5 and lumbosacral level, but on examination, found no indication of nerve root impairment in his lower extremities. On his first examination, Dr. Hepburn described the plaintiff’s range of lumbar movement as “rather good”. Dr. Hepburn’s overall impression was that the plaintiff’s back pain was probably mechanical and was likely related to his physical deconditioning, for which he recommended weight reduction, swimming and core strengthening [83] In cross-examination, Dr. Hepburn acknowledged that pain in the lower back going down to the thigh or buttock, but not radiating down to the lower leg could be discogenic pain, meaning pain from a disc. He also agreed that it is very difficult to tell the difference between discogenic pain and mechanical back pain.
[84] In his first report, Dr. Hepburn said this respecting causation: As regards causation, it appears that though Mr. Bouchard may have had previous symptomsin relation to his spine, these had subsided by about 2002 or 2003, and his currentsymptomotology appears therefore to most likely relate to his involvement in this accident, andperhaps also exacerbated by deconditioning occurring in the last two years.
[85] In Appendix D to his report of April 19, 2007, Dr. Hepburn sets out Mr. Bouchard’s past medical history. Mr. Bouchard told Dr. Hepburn that he developed extremely sharp lower back pain following his 1998 motor vehicle accident, and that by 2002 he had made a full recovery from that accident. Dr. Hepburn also reported that the plaintiff understood that investigations performed following the 1998 motor vehicle accident had shown a hernia at L4-L5. The medical record does include an x-ray study of the plaintiff’s lumbar spine dated July 20, 2000, in which the radiologist found mild disc space narrowing at L4-S1, but found that Mr.
Bouchard’s lumbar spine was otherwise unremarkable, and that both sacroiliac joints were normal. The radiologist’s impression was early degenerative disc disease.
[86] There is no radiology report or other admissible expert medical evidence confirming that the plaintiff had suffered a herniated disc prior to the February 26, 2005 accident.
[87] Dr. Hepburn provided a second report dated October 27, 2009, about 10 months after Mr. Bouchard’s spinal surgery. At that time, Mr. Bouchard was complaining of a constant burning in both legs, sharp pain in his low back, as well as a constant dull pain in the low back, extending into the upper back and toward the left hamstring. He was using a cane, and only walked short distances. To cope with his pain, Mr. Bouchard was taking methadone, oxycontin and oxycocet, as well as Nabalone for cramps, Nortriptyline and Gabapentin. The plaintiff was also using marijuana for relief for the burning in his legs. Mr. Bouchard’s neck was asymptomatic and his upper back symptoms had largely resolved. On examination, the plaintiff’s range of lumbar movement was limited. Testing for nerve root tension induced some back pain.
[88] Dr. Hepburn referred to the CT scan of the plaintiff’s lumbar spine performed on November 27, 2007, http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
and an MRI scan performed on January 18, 2008. The CT scan showed mild posterior disc space narrowing and disc bulging at L4-L5. At L5-S1, the CT scan revealed mild disc space narrowing, moderate disc bulging and the presence of osteophytes that were compressing the nerve roots at L5 and S1. The radiologist’s impression was “spondylosis at L4-L5 and L5-S1, with moderate bilateral osseous compression of the exiting L5 nerve roots bilaterally and at least moderate thecal sac compression.” [89] The MRI scan of January 18, 2008, showed mild disc space narrowing and moderate disc drying at L4-L5, and moderate disc space narrowing and moderate disc drying at L5-S1. The radiologist, Dr. Fenton, identified disc protrusion and an annular tear at L4-L5 and a protruding disc at L5-S1. His impression was lower lumbar spondylosis with super imposed disc protrusions at L4-L5 and L5-S1. Dr. Fenton also noted that the “S1 nerve roots are displaced by focal disc/osteophyte complex without appreciable thickening of the [90] In his direct examination, Dr. Hepburn attributed the disc bulging to the degenerative process. He said that most people’s discs degenerate with time. As discs dry out, the vertebrae tend to collapse a little, causing the discs to bulge. Dr. Hepburn said that the bulge in the disc was the first stage. Next, the disc starts to protrude and, it does, the annular ligament, a ring around the vertebrae, stretches. When the disc at L4-L5 ruptures, material extrudes, and pinches the nerves to the leg, inducing symptoms of sciatica. In Dr.
Hepburn’s view, herniation of the disc was the final step in a sequential process of degeneration.
[91] In his second report, Dr. Hepburn attached less significance to the 2005 accident as a cause of Mr.
Bouchard’s injuries than he did in his first report. Dr. Hepburn opined at p. 9 that: At worst, the collision may have been one episode in a chain of episodes that seemed to dateback to April 1998 when Mr. Bouchard was seen at the Maple Medical Clinic following a M.V.A.
on 10th April, 1998.
[92] In Dr. Hepburn’s opinion, the motor vehicle accident of February 26, 2005 may have been one factor among many necessitating the surgery performed by Dr. Heran in December 1998. In his view, the episode of October 2007 appeared to have been a large contributing factor. Additionally, Dr. Hepburn thought that because the plaintiff had chronic disc degeneration at the lumbosacral level when he was 20, it was likely that he would ultimately have had the severe back and left leg pain that led to his surgery.
[93] In cross-examination, Dr. Hepburn was argumentative and, at times, dismissive of the opinions of the other experts. He did agree that most people at age 30 or 40 will have some disc degeneration and that many will not develop symptoms. He also agreed that the rate of degeneration is variable and that the course of disc degeneration is unpredictable.
[94] In cross-examination, Dr. Hepburn testified that the 1998 motor vehicle accident was likely involved in the changes to Mr. Bouchard’s lumbosacral disc, which made it more liable to injury.
[95] Initially, when pressed, Dr. Hepburn only conceded that it was “possible” that the February 26, 2005 accident was involved in changes to Mr. Bouchard’s discs at L4-L5 and L5-S1. Ultimately, however, Dr.
Hepburn agreed that the accident was a factor in the chain of events that led to Mr. Bouchard having his http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
[96] He also agreed that of the three motor vehicle accidents, the 2005 accident seemed to be the most DISCUSSION AND ANALYSIS
Causation
[97] In Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333 at paras. 21-23, the Supreme Court of Canada [21] First, the basic test for determining causation remains the “but for” test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that “but for” the negligent act or omission ofeach defendant, the injury would not have occurred. Having done this, contributory negligence maybe apportioned, as permitted by statute.
[22] This fundamental rule has never been displaced and remains the primary test for causation innegligence actions. As stated in Athey v. Leonati, at para. 14, per Major J., “[t]he general, but notconclusive, test for causation is the ‘but for’ test, which requires the plaintiff to show that the injurywould not have occurred but for the negligence of the defendant”. Similarly, as I noted in Blackwaterv. Plint, at para. 78, “[t]he rules of causation consider generally whether ‘but for’ the defendant’sacts, the plaintiff’s damages would have been incurred on a balance of probabilities.” [23] The “but for” test recognizes that compensation for negligent conduct should only be made“where a substantial connection between the injury and the defendant’s conduct” is present. Itensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well bedue to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327,per Sopinka J.
[98] As the Supreme Court of Canada explained in Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 17: [17] It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’snegligence was the sole cause of the injury. There will frequently be a myriad of other backgroundevents which were necessary preconditions to the injury occurring. To borrow an example fromProfessor Fleming (The Law of Torts (8th ed. 1992) at p. 193), a “fire ignited in a wastepaper basketis . . . caused not only by the dropping of a lighted match, but also by the presence of combustiblematerial and oxygen, a failure of the cleaner to empty the basket and so forth”. As long as adefendant is part of the cause of an injury, the defendant is liable, even though his act alone was notenough to create the injury. There is no basis for a reduction of liability because of the existence ofother preconditions: defendants remain liable for all injuries caused or contributed to by theirnegligence.
[99] At para. 23, the Court in Athey explained that apportionment between tortious and non-tortious causes is contrary to the principles of tort law because the defendant would escape full liability even though he or she caused or contributed to the plaintiff’s entire injuries. The plaintiff would not be adequately compensated because he or she would not be placed in the same position that he or she would have been in absent the defendant’s negligence. The Court held that where there is a single indivisible injury, any defendant found to have negligently caused or contributed to the injury will be fully liable for it: at para. 25.
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[100] It follows that, if Mr. Bouchard’s disabling low back pain was caused or contributed to by the actions of the defendant Naudi, the plaintiff is entitled to recover all of the damages attributable to that injury from the defendants, regardless of whether there are other tortious or non-tortious causes that contributed to his injury. If the motor vehicle accident of February 26, 2005, caused or contributed to the severe exacerbation of the plaintiff’s low back problem that occurred on October 2007, then the defendants are liable for the [101] Finally, in Bradley v. Groves, 2010 BCCA 361, leave to appeal ref’d 2011 CarswellBC 890, the Court [37] We are also unable to accept the appellant’s submission that “aggravation” and “indivisibility” arequalitatively different, and require different legal approaches. If a trial judge finds on the facts of aparticular case that subsequent tortious action has merged with prior tortious action to create aninjury that is not attributable to one particular tortfeasor, then a finding of indivisibility is inevitable.
That one tort made worse what another tort created does not automatically implicate a thin orcrumbling skull approach (as in Blackwater), if the injuries cannot be distinguished from one anotheron the facts. Those doctrines deal with finding the plaintiff’s original position, not with apportioningliability. The first accident remains a cause of the entire indivisible injury suffered by the plaintiffunder the “but for” approach to causation endorsed by the Supreme Court of Canada in ResurficeCorp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333. As noted by McLachlin C.J.C. in that case,showing that there are multiple causes for an injury will not excuse any particular tortfeasor found tohave caused an injury on a “but-for” test, as “there is more than one potential cause in virtually alllitigated cases of negligence” (at para. 19). It may be that in some cases, earlier injury and laterinjury to the same region of the body are divisible. While it will lie for the trial judge to decide in thecircumstances of each case, it is difficult to see how the worsening of a single injury could be dividedup.
[102] I find that Mr. Bouchard has met the “but for” test and has established on the balance of probabilities that both the injuries to his neck, upper back, and mid-back, and the injuries to his lower back were caused by the motor vehicle accident of February 26, 2005. But for the negligence of Mr. Naudi, the plaintiff would [103] With respect to the soft tissue injuries to the plaintiff’s neck, upper back, and mid-back, the defendants do not dispute that those injuries would not have occurred but for the negligence of Mr. Naudi.
[104] With respect to Mr. Bouchard’s lower back injuries, I accept the opinions of Drs. Hershler, Hunt and Shuckett that the February 26, 2005 accident was a significant factor in the weakening and ultimate herniation of Mr. Bouchard’s L4-L5 disc. The defendants have raised significant issues concerning the pre- existing degenerative condition affecting Mr. Bouchard’s lumbar spine, and the two and a half year gap between the motor vehicle accident and the sudden deterioration of the plaintiff’s low back symptoms in October 2007. However, for the reasons that follow, I find it more probable than not that injuries to Mr.
Bouchard’s low back would not have occurred but for the February 26, 2005 accident.
[105] Mr. Bouchard did have pre-existing degenerative changes to his lumbar sacral spine, which were first diagnosed in 2000. He had also sustained previous injuries to his lower back, particularly in the motor vehicle accident of April 19, 1998. However, he had experienced no low back symptoms since 2003.
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[106] I accept Dr. Hershler’s opinion that the February 26, 2005 motor vehicle accident and Mr. Bouchard’s pre-existing degenerative condition were both contributing factors to the onset of severe and continuing low back pain in October 2007. As Dr. Hershler explained, trauma, rather than gradual degeneration, is the most common trigger for the acceleration of degenerative changes. The position of Mr. Bouchard’s body at the time of impact placed him at a higher risk for injury than if he had been seated in the vehicle facing forward [107] Both Dr. Hershler and Dr. Hunt agreed that two and a half years was not an unusually long time for a spinal injury to manifest itself. I accept Dr. Hershler’s evidence that the weakening of the L4-L5 disc in the motor vehicle accident, and subsequent wear and tear combined with the event of October 2007 resulted in the sudden deterioration of the plaintiff’s symptoms.
[108] Dr. Hunt shared Dr. Hershler’s opinion that the plaintiff’s disc was injured in the motor vehicle accident. He explained that a weakened disc may herniate as a result of continuing wear and tear combined with intradiscal pressure of the kind that occurred when the plaintiff fell asleep with his lower back flexed in early October 2007. I accept the evidence of Dr. Hunt, who has over 20 years’ experience in the treatment of such cases, that herniation of a weakened disc may be delayed for months or even years.
[109] Although Dr. Hunt agreed that degenerative changes in the plaintiff’s lumbar spine were a factor in the disc herniation, he maintained in cross-examination that he was sure the motor vehicle accident had a significant impact on the progression of the plaintiff’s degenerative changes. Dr. Hunt agreed in cross- examination that it was possible that the disc continued to degenerate and that the motor vehicle accident was simply one of many factors at play. However, he remained of the opinion that the motor vehicle accident had a significant impact on the progression of events leading to the disc herniation. Dr. Hunt’s opinion makes sense when one considers the evidence that at the time of impact, Mr. Bouchard’s body was in a position where he was particularly vulnerable to injury to his low back. Further, all of the experts, including Dr.
Hepburn, considered the 2005 accident to be the most significant of the plaintiff’s three motor vehicle [110] I find that the trauma caused by the February 26, 2005 accident weakened the L4-L5 disc, exacerbating and accelerating the plaintiff’s pre-existing degenerative changes. Thus, I conclude, that the plaintiff’s low back injury, including the disc herniation and its consequences, was an indivisible injury.
[111] Although most of Mr. Bouchard’s complaints of back pain recorded in Dr. Surgenor’s clinical records until October 2007 related to his mid back, upper back and neck, Dr. Surgenor’s clinical notes do contain references to lower back pain subsequent to the motor vehicle accident and preceding the sudden deterioration in the plaintiff’s lower back in October 2007. Mr. Bouchard received chiropractic treatments in May 2006 for his low back pain. Furthermore, when Dr. Hepburn took Mr. Bouchard’s history in April 2007, the plaintiff recalled having sharp low back pain after the accident. His symptoms in April 2007 included low [112] As the defendants point out, there were gaps between August 2005 and January 2006, May 2006 and http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
January 2007, and April and September 2007 in the plaintiff’s visits to Dr. Surgenor, and a period of about two years when Mr. Bouchard did not renew his prescriptions for painkillers and muscle relaxants.
[113] Mr. Bouchard acknowledged that there were times when his low back symptoms improved. The plaintiff saw Dr. Surgenor regularly during the six months following the accident. He received the chiropractic treatments and physiotherapy recommended by his family physician, although by 2006 he found that they only provided temporary relief. In May 2006, the Insurance Corporation of British Columbia ceased funding Mr. Bouchard’s therapies. The plaintiff continued to perform the exercises recommended by Dr. Surgenor. I find that from the time of the accident through October 2007, the plaintiff saw Dr. Surgenor when he thought medical treatment would benefit him, or when there were significant changes in his symptoms. As Gerow J observed in Meyers v. Leng, 2006 BCSC 1582 at para. 50: . If continuous medical treatment can cure you, or make you feel better, then it is worthwhile toattend on a regular basis. If it cannot, there really is no point in taking the doctor's time. The purposeof a seeing a doctor is not to create a chronicle of complaints for the purpose of proving that youhave ongoing pain from an injury arising from a motor-vehicle accident [sic] .
[114] Further, during 2006 and 2007, the plaintiff made a determined effort to keep working, and was under some financial pressure to do so. Mr. Bouchard found that painkillers affected the concentration critical to his work. It is probable that there were periods of time prior to October 2007 when Mr. Bouchard was able to cope with his low back pain without recourse to painkillers, and did so in order to avoid the negative side [115] In his report of April 19, 2007, Dr. Hepburn agreed that the symptoms the plaintiff was then experiencing, which included intermittent low back pain were most likely related to the February 26, 2005 motor vehicle accident. In cross-examination, Dr. Hepburn acknowledged that motor vehicle accident was the most significant of the plaintiff’s three accidents, and was a factor in the plaintiff’s low back injuries.
[116] Dr. Shuckett also thought the plaintiff’s low back pain and herniated disc were caused by the motor vehicle accident. In cross-examination, she maintained that there was “a considerable possibility” that Mr.
Bouchard’s disc hernation was caused by the motor vehicle accident.
[117] I find that the motor vehicle accident was a significant factor contributing to the herniation of the plaintiff’s disc at L4-L5, and the development of the plaintiff’s symptoms of severe and disabling lower back pain, and that there is a substantial connection between Mr. Bouchard’s low back injuries and the motor Adverse inference regarding medical evidence
[118] The defendants invite the court to draw an adverse inference from the failure of the plaintiff to call Dr.
Heran, the neurosurgeon who operated on Mr. Bouchard in December 2008. The defendants submit that Dr.
Heran was in the best position to provide opinion evidence concerning the extent of the degeneration of the plaintiff’s lumbar spine, and an opinion on the issues of causation and future treatment. They say that the court should infer from the plaintiff’s failure to call Dr. Heran that his evidence would have been a detriment http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
[119] In Buksh v. Miles, 2008 BCCA 318 at paras. 31-33 and 35, Saunders J.A., for the Court, discussed the factors the court should consider in determining whether an adverse inference may reasonably be drawn from the failure of a party to call a medical witness: [31] The general proposition long applied in British Columbia, stated by Mr. Justice Davey inBarker v. McQuahe (1964), 49 W.W.R. 685 (B.C.C.A.), is that an inference adverse to a litigant maybe drawn if, without sufficient explanation, that litigant fails to call a witness who might be expected togive supporting evidence. Further, said Mr. Justice Davey at 689, a plaintiff seeking damages forpersonal injuries “ought to call all doctors who attended him in respect of any important aspect of thematters that are in dispute, or explain why he does not do so”.
[32] It seems to me that the tactic of asking for an adverse inference is much over-used in today’slegal environment, and requires, at the least, a threshold examination by the trial judge before suchan instruction is given to the jury.
[33] A judge trying a case with a jury is bound to instruct the jury as to the applicable law, andthereby to assist the jury in its consideration of the evidence and determination of the facts. Whetheran adverse inference is drawn from failure to call a witness is a question for the trier of fact. In thiscase, I cannot say the trial judge erred in the content of the instruction she gave the jury on thematter of adverse inferences. However, it bears reminding that the delivery of medical care is notnow as it was in 1964 when Mr. Justice Davey made his comments in Barker. .
[35] In this environment, and bearing in mind the position of a lawyer bound to be truthful to thecourt, it seems to me there is a threshold question that must be addressed before the instruction onadverse inferences is given to the jury: whether, given the evidence before the court, given theexplanations proffered for not calling the witness, given the nature of the evidence that could beprovided by the witness, given the extent of disclosure of that physician’s clinical notes, and given thecircumstances of the trial (e.g., an initial agreement to introduce clinical records that work contrary tothe inference, or incorporation of that witness’s views or observations in the report of a witness calledby the other side) a juror could reasonably draw the inference that the witness not called would havegiven evidence detrimental to the party’s case. . In this case, in my view, the judge herself shouldhave heard the explanations, considered the degree of disclosure of that witness’s files and theextent of contact between the party and the physician, received submissions and determined whethera reasonable juror could draw the inference sought before giving the instruction to the jury for itsconsideration in its fact finding role. If not, the instruction had no place in her charge to the jury.
[120] In Djukic v. Hahn, 2006 BCSC 154 at para. 60, Mr. Justice Josephson declined to draw an adverse inference from the plaintiff’s failure to call three physicians who she had not consulted on a regular basis. In reaching that decision, Mr. Justice Josephson took into account the fact that both parties had produced “volumes of medical evidence from a number of doctors”; that the complete clinical records of the three doctors were disclosed to the defence; that those records were considered in the opinions of doctors whose reports were before the court; and that it was open to the defence to have interviewed and called the three [121] Here, there has been full disclosure of Dr. Heran’s consultation reports and his operative procedure report. Those records were available to the defendant when Dr. Hepburn prepared his second report of October 27, 2009. It was open to the defendants to interview and call Dr. Heran if they chose to do so.
Furthermore, in my view, Dr. Hunt, whose practice is devoted to the treatment of patients with chronic pain, http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
and who was directly involved in the ongoing testing, management, and treatment of the plaintiff’s symptoms from October 2008 through May 2010, was in a better position than Dr. Heran to provide an opinion on the extent of the plaintiff’s disability and his requirements for future care. Finally, I also take into account the explanation of counsel for the plaintiff that obtaining an expert report from Dr. Heran would have put Mr.
Bouchard to additional expense, and would have involved yet another review of all of the reports and clinical records of those doctors who did testify at trial. For all of these reasons, I decline to draw an adverse [122] I conclude that there is no basis to infer that the plaintiff chose not to call Dr. Heran because his evidence would have been detrimental to Mr. Bouchard’s case.
Should the plaintiff’s damages be reduced to account for any measurable risk that the
pre-existing degenerative condition would have detrimentally affected Mr. Bouchard in
any event of the accident?
[123] In Athey at para. 35, the Supreme Court of Canada held that “if 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, then this can be taken into account in reducing the overall award.” The Court explained that this is consistent with the general rule that the plaintiff must be returned to his original position, with all of its risks, [124] In T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA 670 at para. 48, the Honourable Mr.
Justice Smith, writing for the Court, stated: [48] . Whether manifest or not, a weakness inherent in the plaintiff that might realistically cause orcontribute to the loss claimed regardless of the tort is relevant to the assessment of damages. It is acontingency that should be accounted for in the award. Moreover, such a contingency does not haveto be proven to a certainty. Rather, it should be given weight according to its relative likelihood.
[125] Here, the defendants submit that if the plaintiff establishes on the balance of probabilities that the February 26, 2005 motor vehicle accident caused his injuries, his damages should be reduced by 40 percent to take into account the measurable risk that Mr. Bouchard's pre-existing degenerative condition would have detrimentally impacted him at some point, even if the motor vehicle accident had not occurred. The defendants rely upon Sanders v. Janze, 2009 BCSC 1059.
[126] In Sanders, the plaintiff suffered from neck and back pain following a motor vehicle accident that occurred in 2002. She underwent one surgery for her cervical spine and three operations for her lumbar spine. Six years before the motor vehicle accident, Ms. Sanders had undergone a discetomy and fusion at the C4-C5 levels of her cervical spine. She was still recovering from her pre-accident injuries at the time of the motor vehicle accident. The Honourable Mr. Justice Butler found that there was a measurable risk that the plaintiff would have suffered serious problems with both her neck and low back if the accident had not occurred. After finding that the risk that the cervical spine would have developed serious problems absent the accident was much greater than 50 percent, and the risk that the lumbar spine would have developed serious problems was less than 40 percent, the court, after taking all of the evidence into account, found that the percentage discount to apply to the damage awards in that case was 40 percent.
http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
[127] Here, Mr. Bouchard had a pre-existing degenerative condition of his lower back, which, when first detected in 2000, involved mild disc space narrowing at L5-S1. Dr. Hunt agreed that the MRI of June 11, 2005, showed signs of mild deterioration at L4-L5 and more moderate deterioration at L5-S1. While Dr. Hunt thought the impact of the accident had a significant impact on the progression of the degenerative changes to the plaintiff’s lumbar spine, he agreed that it was possible that Mr. Bouchard’s disc could simply have continued to deteriorate as part of the degenerative process that was already in play in his back.
[128] The CT scan of November 27, 2007, and the MRI report of January 2008, also showed evidence of the degenerative process, including the presence of osteophytes compressing the S1 nerve roots.
[129] Although Dr. Hepburn agreed in cross-examination that the February 26, 2005 collision was one factor in the chain of events leading to Mr. Bouchard’s disc surgery, in his opinion the plaintiff’s chronic disc degeneration at the lumbosacral level would ultimately have caused the plaintiff to experience the severe low [130] In my view, the defendant has established that there was a measurable risk that the degenerative condition of Mr. Bouchard’s lumbar spine would have detrimentally impacted the plaintiff absent the accident.
Both the pre-existing degenerative condition of the plaintiff’s lumbar spine and the previous injury to the lumbar spine sustained in the 1998 motor vehicle accident made the plaintiff more vulnerable to injury to his [131] Here, taking into account all of the evidence, and bearing in mind that there was no measurable risk that the plaintiff would have suffered his upper back and neck injuries absent the accident, but a very significant risk that he would have gone on to suffer serious low back problems, I find that the appropriate percentage discount to apply to the damage awards is 40 percent.
Non-pecuniary damages
[132] As a result of the February 26, 2005 accident, Mr. Bouchard sustained soft tissue injuries to his mid- back, upper back, shoulders and neck, which caused him significant pain and intermittently prevented him from work during the two and a half years following the accident.
[133] Since October 2007, Mr. Bouchard’s low back has been the predominant source of his pain and suffering. I find that by 2008, Mr. Bouchard’s symptoms of mid back, neck pain, and occasional numbness in his shoulders were largely resolved. I note that when Dr. Hunt examined Mr. Bouchard in October 2008, the focus of his examination, and his objective findings of reduced ranges of motion and pain on testing all related to the plaintiff’s lumbar spine. When Dr. Shuckett examined the plaintiff in May 2010, she found that he had good range of motion in his neck and shoulders.
[134] While Mr. Bouchard’s mid back and neck injuries are resolved, the low back injuries he suffered have altered his life. In February 2005, the plaintiff was building a successful career as a special effects technician, http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
whose skills in the design and construction of electronic devices were in high demand in the film industry.
Following the motor vehicle accident, Mr. Bouchard lost about two months’ work as a result of his injuries.
The plaintiff’s back injuries also caused him to turn down work in January, February, March and June of 2007, and to lose a further three months’ work between December 2007 and March 2008. Since July 2008, Mr. Bouchard’s severe low back pain has disabled him from working as a special effects technician entirely, and the plaintiff has been unemployed.
[135] Before the accident, Mr. Bouchard assisted his wife with household chores, did home renovation projects, and participated in various physical activities, including hiking, fishing and camping trips. Mr.
Bouchard is no longer capable of performing heavy physical tasks and relies upon his wife, from whom he has now separated, for assistance with the cleaning and upkeep of the apartment where he now resides [136] The plaintiff is no longer physically active. He relies upon a cane and is only capable of walking short distances. He cannot engage in active physical play with his young children. He continues to experience daily pain in his low back and intermittently suffers from pain radiating into his lower legs. The range of movement in his lumbar spine is restricted. Mr. Bouchard controls his pain through the use of both narcotic [137] The plaintiff who was formerly outgoing with a wide range of interests, is now preoccupied with his low back pain, reclusive, and has few interests other than music. Emotionally, he suffers from frustration and anxiety as a result of his inability to support himself and his family.
[138] Mr. Bouchard’s chronic pain, frustration, and anxiety all contributed to the breakdown of his marriage, [139] Mr. Bouchard continues to suffer from chronic pain syndrome as a result of the February 26, 2005 accident. His sleep and cognitive functions have been impaired by his chronic pain and the medications he [140] Mr. Bouchard, who is still a young man, has a prognosis that is far from promising. Despite the surgery performed in December 2008, he is likely to continue to suffer from severe low back pain and intermittent pain and cramping in his legs for the foreseeable future.
[141] The plaintiff is permanently disabled from performing his former work as a special effects technician on either a full-time or part-time basis. In Dr. Hershler’s opinion, which is shared by the occupational therapists who have assessed the plaintiff’s work capacity, even if Mr. Bouchard were able to re-train, his ability to work in a competitive environment would be limited and would require part-time employment in a position that gave him some control over his posture and activity levels.
[142] The plaintiff submits that an award of non-pecuniary damages in the amount of $225,000 is appropriate compensation for Mr. Bouchard’s pain, suffering, loss of enjoyment of life and loss of amenities.
For their part, the defendants submit that if, as is the case, the court finds that the February 26, 2005 http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
accident caused Mr. Bouchard’s severe low back pain, then non-pecuniary damages should fall within the [143] Counsel for the plaintiff referred to Boyd v. Harris, 2004 BCCA 146, and Bransford v. Yilmazcan, 2010 BCCA 271. In Boyd, the Court of Appeal upheld a jury’s non-pecuniary award of $225,000 to a 36-year-old plaintiff who suffered a fractured neck and permanent spinal cord injury. In my view, the injuries suffered by the plaintiff in Boyd were more serious than those sustained by Mr. Bouchard. In Boyd, the plaintiff suffered a fractured neck and a permanent spinal cord injury. There was expert evidence that the plaintiff had suffered accelerated disc degeneration at multiple levels of his spine as a result of the accident.
[144] In Bransford, a jury had awarded $385,000 for non-pecuniary damages to a 26-year-old female plaintiff who suffered from thoracic outlet syndrome as the result of a motor vehicle accident. Although the trial judge reduced the award of non-pecuniary damages to the then current maximum of $327,350, the Court of Appeal concluded that the award of non-pecuniary damages was sufficiently anomalous to warrant appellate intervention, and substituted an award of $225,000 for this head of damage.
[145] Counsel for the plaintiff also referred to Prasad v. Sedivy, 2008 BCSC 443, where the 36-year-old plaintiff suffered facial lacerations, soft tissue injuries to his neck and back, a mild concussion, chronic pain syndrome, depression and cognitive deficits as a result of a motor vehicle accident. He was able to return to work, in a reduced capacity, as a clerk in an IGA store, but no longer had the potential to be a manager. He was awarded non-pecuniary damages of $135,000.
[146] In Ayoubee v. Campbell, 2009 BCSC 317, the plaintiff suffered a disc herniation at L5/S1, but continued to work full-time and took only non-prescription pain medications. The plaintiff received $100,000 for non-pecuniary damages. His injuries were less severe than those sustained by Mr. Bouchard.
[147] I have also considered the authorities on non-pecuniary damages cited by counsel for the defendants, including Djukic v. Hahn, 2006 BCSC 154, aff’d 2007 BCCA 203; Gill v. Probert, [1999] B.C.J. No. 2436 (S.C.), aff’d 2001 BCCA 331; Hicks v. GMAC Leaseco Limited et al, 2001 BCSC 1091; Kosugi v. Krueger, 2007 BCSC 278; Sanders; and Smaill v. Williams, 2010 BCSC 73.
[148] In Hicks, the court assessed non-pecuniary damages of $35,000 for the plaintiff’s low back injuries, which were significantly less severe than those sustained by Mr. Bouchard. While Ms. Hicks suffered some impairment of her functionality, unlike Mr. Bouchard, she was not disabled by her injuries.
[149] In Djukic, a 37-year-old female plaintiff with a pre-existing degenerative condition suffered an L4-L5 disc herniation which the court found was directly and causally linked to both motor vehicle accidents in issue. Discectomy surgery alleviated some but not all of the plaintiff’s severe pain. The court assessed non- [150] The court in Gill awarded non-pecuniary damages of $110,000 to a 29-year-old plaintiff who suffered injuries to his neck and a disc herniation at L5-L6 which left him with ongoing pain and permanently disabled him from performing heavy work or strenuous activities, and resulted in emotional consequences including http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
the development of chronic pain syndrome, depression and anxiety.
[151] In Kosugi, a 39-year-old physically active female plaintiff who suffered a disc herniation that required surgery, depression, and chronic low back pain, that left her partially disabled, received non-pecuniary [152] In Sanders, the plaintiff who had suffered injuries to both her cervical and lumbar spine, experienced daily pain in her low back, neck and shoulders, and was permanently partially disabled by her injuries, was awarded $150,000 for non-pecuniary damages.
[153] In Smaill, a 43-year-old plaintiff who suffered fractures of the transverse processes at L3 and L4 and back pain from previously asymptomatic disc protrusions as a result of two motor vehicle accidents, received non-pecuniary damages of $100,000. The court found that although the plaintiff suffered pain from his physical injuries, he was not entitled to any damages for emotional suffering and depression, which were pre- existing conditions that had manifested themselves before the motor vehicle accidents. Here, Mr. Bouchard has developed chronic pain syndrome and suffers from the frustration of not being able to pursue his former career as a result of the February 26, 2005 accident.
[154] Although Dr. Surgenor referred Mr. Bouchard to a psychiatrist in early 2007, the plaintiff chose not to attend. Mr. Bouchard has not pleaded a claim for damages for depression. While Mr. Bouchard did see a psychiatrist before trial, the plaintiff has not adduced any expert psychiatric evidence to support a claim that he suffered, or continues to suffer from depression caused by the February 26, 2005 accident. In these circumstances, the plaintiff has failed to establish that he has suffered from depression attributable to the [155] The assessment of non-pecuniary damages depends upon the particular circumstances of the plaintiff in each case. The factors that the court must consider include the plaintiff’s age, the nature of his injury, the severity and duration of pain, disability, emotional suffering, impairment of marital and social relationships, impairment of physical and mental abilities, and loss of lifestyle: Stapley v. Hejslet, 2006 BCCA 34 at para.
46, leave to appeal ref’d 2006 CarswellBC 2598 (S.C.C.). Here, I find that the appropriate award for Mr.
Bouchard in all of the circumstances is $160,000.
Past wage loss
[156] The assessment of damages for past loss of income is properly characterized as an assessment of damages for loss of past earning capacity: Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at para. 153, leave to appeal ref’d 2009 CarswellBC 2892 (S.C.C.). As a result of the injuries he suffered in the February 26, 2005 motor vehicle accident, Mr. Bouchard lost some opportunities for employment. Between August 2004 and February 2005, the plaintiff had worked intermittently on film sets, but had devoted most of his time to the performance of a contract with Visual Mechanics for the construction of a motion control device.
Although Mr. Bouchard was able to deliver the product to his client in March 2005, he found that his back pain interfered with his concentration and he was unable to complete the motion control device to his satisfaction. The plaintiff discounted his invoice to Visual Mechanics by $7,000 because he was unable to http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
deliver a fully functional product. During March 2005, as a result of back pain caused by the accident, Mr.
Bouchard declined four calls for work from I.A.T.S.E. In late April 2005, the plaintiff returned to work building special effects for the film “RV”. Bearing in mind that if Mr. Bouchard had not been injured, he would likely have spent some time looking for work following completion of the motion control project, and that any work he accepted before the RV project would likely have been short term, I assess damages for his loss of income for the two months following the accident at $10,000.
[157] It is common ground that, as a result of his injuries, the plaintiff also lost an opportunity to work on the replacement of the B.C. Place roof in January, February, March and June of 2007. Mr. Bouchard’s brother, who replaced him, earned $35,000 for that work. During that time, the plaintiff was able to work occasionally and earned approximately $12,000. I would assess his gross loss of income for January, February, March [158] In late 2007, the plaintiff was working on “Supernatural”. His back pain caused him to quit that project on December 5, 2007. Mr. Bouchard was unable to return to work until early March 2008. I assess Mr.
Bouchard’s total loss of income for the months of December 2007, and January and February 2008, at $25,000 gross, based on the plaintiff’s demonstrated capacity, prior to the onset of his disabling lower back pain, to earn about $100,000 a year.
[159] Mr. Tidball’s loss of income report prepared for the defendants shows the total amounts received by Mr. Bouchard for both hourly film production work and contract work by calendar year: [160] The plaintiff’s income fluctuated from month to month and from year to year depending upon the amounts of hourly work and contract work he performed. For the hourly film production work, which Mr.
Bouchard obtained through I.A.T.S.E., he was paid at daily rates of $450 to $500. Mr. Orr testified that Mr.
Bouchard’s skills and abilities placed him in the top 10 percent of special effects technicians, and that when he had work, he would want to offer it to Mr. Bouchard. In 2004, Mr. Bouchard did not work during the months of June and July. From August 2004 until February 2005, the plaintiff concentrated on contract work for the motion control device. His contract work proved less remunerative than the hourly work. As we have seen in 2005, the plaintiff lost two months’ work following the motor vehicle accident and in 2007, he lost the opportunity to work on the B.C. Place roof replacement project.
[161] In July 2008, Mr. Orr terminated the plaintiff’s employment on “Night at the Museum II” because Mr.
Bouchard was unable to meet production deadlines, and his design work was faulty. Mr. Bouchard’s severe low back pain and his heavy use of painkillers had interfered with his cognitive functions to the point he was no longer able to perform his duties as a special effects technician. Bearing in mind the plaintiff’s previous annual earnings from 2003 onward, and allowing for some fluctuation from year to year to reflect the http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
availability and mix of his work, I find that it is probable that Mr. Bouchard would have earned a gross income of $100,000 a year (or on average $8,333 per month) from August 1, 2008, to August 23, 2010, the first day of trial. Accordingly, I would assess past loss of income for the period August 1, 2008, through July 31, 2010, at $200,000, and would award an additional $6,000 for the period August 1 to August 23, 2010.
[162] The gross amount of damages for the plaintiff’s past wage loss, allocated by calendar year, is [163] Under s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, damages for income loss suffered after the accident and before the first day of trial are restricted to the net income loss suffered by the plaintiff in that period as a result of the accident. Here, because the net income loss may be determined for each year from 2005 to the date of trial, s. 95 of the Insurance (Vehicle) Act requires deductions from the gross income loss to take into account the provisions of the Income Tax Act of British Columbia, the Income Tax Act of Canada, and the Employment Insurance Act for the relevant years: Lines v. Gordon and Laxdal v. Robbins, 2010 BCCA 565 at paras. 20 and 26. The plaintiff has requested, and is granted leave to work out the net loss calculation following the delivery of these Reasons for Judgment. In the event that the parties are unable to agree upon that calculation, they may make further submissions in writing.
Loss of future earning capacity
[164] The standard of proof for the evaluation of hypothetical events that may affect an award of damages for future loss of earning capacity is simple probability, rather than the balance of probabilities: Athey v. Leonati. As the Court of Appeal held in Rosvold v. Dunlop, 2001 BCCA 1 at para 9: [9] . Possibilities and probabilities, chances, opportunities and risks must all be considered, so longas they are a real and substantial possibility and not mere speculation. These possibilities are to begiven weight according to the percentage chance they would have happened or will happen.
http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
[165] In Rosvold at paras. 10 and 11, the Court of Appeal described the task of the trial judge as follows: [10] The trial judge's task is to assess the loss on a judgmental basis, taking into consideration all therelevant factors arising from the evidence: Mazzuca v. Alexakis, [1994] B.C.J. No. 2128 (S.C.) (Q.L.)at para. 121, aff'd [1997] B.C.J. No. 2178 (C.A.) (Q.L.). Guidance as to what factors may be relevantcan be found in Parypa v. Wickware, supra, at para. 31; Kwei v. Boisclair (1991), 60 B.C.L.R. (2d)126 (C.A.); and Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J. They include: [1] whether the plaintiff has been rendered less capable overall from earning income from alltypes of employment; [2] whether the plaintiff is less marketable or attractive as an employee to potential employers; [3] whether the plaintiff has lost the ability to take advantage of all job opportunities whichmight otherwise have been open to him, had he not been injured; and [4] whether the plaintiff is less valuable to himself as a person capable of earning income in acompetitive labour market.
[11] The task of the court is to assess damages, not to calculate them according to somemathematical formula: Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248(C.A.). Once impairment of a plaintiff's earning capacity as a capital asset has been established, thatimpairment must be valued. The valuation may involve a comparison of the likely future of the plaintiffif the accident had not happened with the plaintiff's likely future after the accident has happened. As astarting point, a trial judge may determine the present value of the difference between the amountsearned under those two scenarios. But if this is done, it is not to be the end of the inquiry: Ryder(Guardian ad litem of) v. Jubbal, [1995] B.C.J. No. 644 (C.A.) (Q.L.); Parypa v. Wickware, supra. Theoverall fairness and reasonableness of the award must be considered taking into account all theevidence.
[166] In Perren v. Lalari, 2010 BCCA 140, Garson J.A., after reviewing the authorities, identified the basic principles articulated in Athey and Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, as: 1. A future or hypothetical possibility will be taken into consideration as long as it is a real andsubstantial possibility and not mere speculation [Athey at para. 27], and 2. It is not loss of earnings, but, rather, loss of earning capacity for which compensation must bemade [Andrews at 251].
[167] Mr. Bouchard is 31 years old. He has a grade 12 education and two years’ post-secondary training, which equipped him for his career as a special effects technician. Mr. Hohmann’s vocational assessment confirms that Mr. Bouchard is innovative and has advanced mechanical aptitude. Before the accident, Mr. Bouchard’s skills and abilities equipped him for employment not only as a special effects technician but also, with further training, for employment in industrial instrument technology, mining engineering technology, and environmental technology, or as a plumber, electrician or other skilled construction tradesman.
[168] As a result of his low back injuries, Mr. Bouchard has been left with persistent disabling pain, the prognosis for which is extremely guarded. The work capacity evaluation performed by Mr. Padvaiskas indicates that Mr. Bouchard’s ability to perform tasks involving bending, stooping or strength are limited by his low back pain, and that he is restricted to light strength tasks. The plaintiff’s limited work endurance restricts him to half-time hours in a setting that would permit flexibility for unscheduled time off to accommodate the aggravation of his symptoms. When Mr. Padvaiskas tested Mr. Bouchard in June 2009, he http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
concluded that pain and the impairment of the plaintiff’s cognitive functioning due to high dosages of narcotic and analgesics rendered him incapable of meeting the minimum requirements for dependable work [169] Mr. Hohmann also found that Mr. Bouchard would be best suited for half-time sedentary employment with a flexible work schedule. Mr. Hohmann testified that the limitation to sedentary or light work eliminates about 50 percent of the potential job market for Mr. Bouchard, and that part-time work and the requirement for flexible hours further restricts his opportunities for employment. According to Mr. Hohmann, if Mr. Bouchard were able to re-train, he would be suitable for part-time employment in architectural, mechanical or electrical drafting, industrial design, computer programming or website design. Average annual earnings for part-time employment in those fields range from $24,000 to $36,000. At present, Mr.
Bouchard’s level of pain and his pain medications interfere with his cognitive abilities and affect his ability to re-train. Mr. Hohmann reported that with improved cognitive functioning, Mr. Bouchard could pursue further training; however, he might only be capable of doing so on a half-time basis, which would double the time necessary to complete any training program.
[170] If Mr. Bouchard is not able to re-train, then he will likely be limited to part-time employment in such fields as bicycle or small engine repair, where he could expect to earn about $24,000 a year. Mr. Hohmann also identified part-time employment as an equipment rental clerk as another post-accident opportunity for Mr. Bouchard, which would pay approximately $15,000 per year.
[171] At trial, Mr. Hohmann was more pessimistic. He thought that Mr. Bouchard was effectively unemployable. Mr. Hohmann reached that conclusion after considering Dr. Hunt’s second medical report, which post-dates Mr. Hohmann’s vocational assessment, and in which Dr. Hunt opines that it is unlikely that Mr. Bouchard will be able to perform any part-time work of a sedentary nature.
[172] Mr. Bouchard has not yet attended the St. Paul’s pain management program, which is likely to produce some improvement in his level of functioning and a reduction in his dependency on medication for pain control. Further, Mr. Bouchard wants to contribute to his own support, and possesses both creative and technical abilities that were universally praised by the witnesses who worked with him in the film industry. In my view, it is likely that Mr. Bouchard will earn some income in the future from part-time employment.
[173] I have found that Mr. Bouchard’s pre-accident earning capacity was in the range of $100,000 a year.
As a result of the injuries caused by the February 26, 2005 accident, Mr. Bouchard is disabled from full-time or part-time employment as a special effects technician and is no longer capable of securing employment in the range of occupations that were available to him before the accident. I find that Mr. Bouchard has been rendered less capable overall from earning income from all types of employment, and that his restriction to part-time employment with significant physical limitations means that he is less marketable as an employee to potential employers. Because Mr. Bouchard has lost the capacity to pursue a promising career as a special effects technician and is left with a severely restricted range of part time employment opportunities, the plaintiff is also less valuable to himself as a person capable of earning income in a competitive labour http://www.courts.gov.bc.ca/jdb-txt/SC/11/07/2011BCSC0762.htm[10-Feb-12 7:34:34 AM] 2011 BCSC 762 Bouchard v. Brown Bros. Motor Lease Canada Ltd.
[174] As a starting point for the assessment of Mr. Bouchard’s loss of earning capacity, I begin by considering the present value of the income Mr. Bouchard would likely have earned to retirement at age 65, if the accident had not happened. Mr. Benning provided future income loss multipliers, which are not adjusted for any contingency other than the risk of premature death. Mr. Benning calculates the future income loss multiplier for each $1000 of income earned annually to age 65 as $22,016. Based on an annual income of $100,000, and Mr. Benning’s estimate, the present value of Mr. Bouchard’s future loss of earning capacity from the trial date to age 65 would be $2,201,600.
[175] Mr. Hohmann identified various positions suited to Mr. Bouchard’s skills and aptitude where, with some retraining, he would be able to earn between $24,000 and $36,000 a year from part-time employment.
There is a real and substantial possibility that Mr. Bouchard will be capable of earning some part-time income in the future. If one assumes that Mr. Bouchard is capable of earning $30,000 from alternative part- time employment, then using Mr. Benning’s future income loss multiplier, the present value of the plaintiff’s

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