Supreme Court

SUPREME COURT OF Nova Scotia

Citation: Blenus v Fraser, 2021 NSSC 79

Date: 20210302

Docket: Ken No.  441592

Registry:  Kentville

 

Between:

Donald Blenus

Plaintiff

 

v.

Charles Fraser

Respondent

Judge:	The Honourable Justice Gregory M. Warner
Heard:	January 2 to 4, 7 to 9, 2019, in Kentville, Nova Scotia
Counsel:	Ali Raja with Angeli Swinamer, counsel for the Plaintiff Joshua Martin with Chad Horton, counsel for the Defendant

 

Introduction

[1]             The Plaintiff, Donald Blenus, was riding his motorcycle on Bennett’s Bay Road on the North Mountain near Canning, Nova Scotia, on July 28, 2013, when an oncoming vehicle turned left into a driveway in front of him. In the resulting collision the plaintiff was thrown some distance into a ditch. He suffered serious physical injuries. Liability for the accident is not in dispute. This decision is concerned with damages alone. Mr. Blenus claims non-pecuniary damages, damages for loss of housekeeping and valuable services, cost of future care and loss of income and diminished earning capacity as a result of the closure of his general contracting business in April 2017.

[2]             The Defendant disputes various aspects of the damage claims. In particular, the defence disputes (1) whether the claimed losses and damage from the injuries suffered in the accident, including the closure of the Plaintiff’s business, were in fact caused by the accident; (2) the quantum of damages; and (3) whether the Plaintiff did all he reasonably could to recover from his injuries and mitigate his damages.

Background to the trial evidence

[3]             At trial, the Plaintiff led evidence from the following witnesses: (1) himself; (2) his son Evan Blenus, (3) his daughter Terri Lee Eaton; (4) his bookkeeper, Sharon Hirtle; (5) Dr. Peter Segato, his family doctor; (6) Dr. Daniel Lazaric, an anesthesiologist; (7) Dr. Max Kleinman, a physiatrist who carried out an independent medical assessment in August 2016, and gave opinion evidence on causation; and (8) Jarett Reaume, a chartered professional accountant with a specialty in investigation and forensic accounting, who provided an opinion report and evidence with respect to Mr. Blenus’ alleged loss of income as a result of the closure of his business.

[4]             At trial, the Defendant called no witnesses. He tendered excerpts from the discovery transcript of Mr. Blenus, pursuant to Civil Procedure Rule 18.20. The Plaintiff successfully moved to tender a three-page portion of his own discovery evidence as context for one of the Defendant’s excerpts.

[5]             At the opening of the trial, the parties tendered, as Exhibit 1, a joint exhibit book (the JEB) with 23 tabs and an agreement regarding the purposes for which this evidence was provided. The agreement respecting the clinical files and records of health care treatment providers contained in Tabs 1 to 16 states as follows:

Tab 1 through Tab 16 of the Joint Exhibit Book contains the clinical files of various healthcare and treatment providers. The parties agree that all of the documents contained in these Tabs may be used for the fact that statements, observations or diagnoses were made, but the parties would ask that any opinion with respect to any causal connection between any reported symptoms, limitations, or diagnoses and the subject motor vehicle accident be disregarded by the Court.

 

As to Tab 1 (containing the clinical file of Dr. Segato) and Tab 3 (containing the clinical file of Dr. Lazaric) the Plaintiff intends to call Dr. Segato and Dr. Lazaric to speak to their diagnoses and treatment, noting that the defendant is objecting to these Doctor’s [sic] being permitted to give opinion evidence in this regard, as the Plaintiff has not filed any Rule 55 Reports or Treating Physician’s Narratives. Accordingly, the parties will require an evidentiary ruling in this regard in advance of any testimony at trial by Dr. Segato or Dr. Lazaric.

[6]             Tab 17 contained the independent medical examination (IME) report of Dr. Kleinman under Civil Procedure Rule 55, upon which the parties agreed Dr. Kleinman could provide expert opinion evidence, including with respect to causation of the reported symptoms, limitations, and diagnoses regarding the accident. Tab 18 contained original and updated forensic accounting reports by Mr. Reaume, upon which the Defendant, at trial, agreed Mr. Reaume could offer expert opinion evidence pursuant to Civil Procedure Rule 55. Tabs 19 to 23 contained documents for which the parties dispensed with the requirement for authentication.

Evidence

Donald Blenus

[7]             The Plaintiff, Donald Blenus, was born in May 1962. He completed Grade 7. He married at age 17. He is the father of seven children, aged between eight and 38 years old as of the time of the trial. He lives alone at Canning, NS.

[8]             As a teenager, Mr. Blenus worked in construction for his father, then fished lobster. Around the age of 21, he started a general construction company, which he operated from his home until April 2017. He testified that ninety percent of his work involved construction of agricultural buildings. He owned excavators, dozers, dump trucks, and several pick-up trucks. Shortly before shutting down the business, Mr. Blenus designed a new type of steel-framed chicken barn, which, the evidence indicates, led to a growth in his business. Prior to that, Mr. Blenus employed about six people, including his son Evan Blenus and his daughter Terri-Lee Eaton. Shortly before closing the business, he had 11 or 12 employees.

The accident

[9]             On July 28, 2013, Mr. Blenus had just left his daughter’s home on Ross Creek Road on his motorcycle when the Defendant’s vehicle turned left into his driveway. According to the EHS record, Mr. Blenus was thrown about 30 feet into the ditch. At trial, Mr. Blenus said he lost consciousness and remembered nothing about the impact. He also suggested that he was thrown further than 30 feet. (His son Evan testified that he had “guessed” that his father was thrown about 50 feet, and later took measurements and decided it was about 80 feet. Beyond the testimony, there was no evidence to substantiate these estimates or measurements.) When he awoke, he was alone in the ditch. After 20 to 25 minutes, he dragged himself onto the road. A passer-by stopped. Mr. Blenus was taken to the hospital. He testified that his helmet was damaged in the accident, and that he threw it into his garage with “20 other helmets” and later threw it away.

[10]         There was evidence about the aftermath of the accident from Mr. Blenus’ son Evan Blenus, and from his daughter Terri-Lee Eaton. Ms. Eaton said she and her husband heard over a scanner that an accident had occurred shortly after her father left their home on his motorcycle. They went to the scene, where they found her father in the ditch with another man holding his head. Her husband went for her brother Evan. On direct she testified that the ambulance had left before Evan arrived, but on cross-examination, she corrected her direct evidence and agreed that her father was still in the ditch when Evan arrived at the scene.

[11]         Mr. Blenus gave evidence at trial that he lost consciousness for a period of time after the collision. However, there is no record of any such claim for several years after the accident. The EHS report stated that Mr. Blenus “denies any loss of consciousness and is able to recall the MVC” (JEB, p. 80). A chart note by Dr. Peter Segato on August 27, 2013, likewise reports “no LOC” (JEB, p. 1), a statement which, he confirmed at trial, would have been based on Mr. Blenus’ subjective report at the time. Both the claimed loss of consciousness and the related suggestion that his helmet was damaged only emerged several years after the accident, when, Mr. Blenus, suggests, he concluded that he in fact had lost consciousness. I reject this evidence. The evidence does not permit a finding that Mr. Blenus lost consciousness in the accident.   

Injuries and treatment

[12]         Mr. Blenus testified that the doctor at the hospital told him he had “a punctured lung and five broken ribs and a broken scapula and two bones broke in my spine with the punctured lung.” The doctor told him his shoulder had “shattered into a thousand pieces” and he needed surgery. The surgery on Mr. Blenus’ right shoulder, an “open reduction internal fixture of his right clavicle”, was performed by Dr. James Laughren on August 3, 2013 (JEB, pp. 103-104). As a result, a plate was inserted into the shoulder.

[13]         There is some question as to some of the precise injuries the plaintiff suffered in the collision. The evidence is clear that he suffered a right clavicle and scapula fracture, which required shoulder surgery and insertion of a plate. There is no dispute that he suffered several right rib fractures (3-8), a collapsed lung, and experienced subsequent soft tissue and back pain. A CT scan taken on the day of the accident also indicated thoracic spinal fractures, specifically, right T5 and T6 transverse process fractures. However, the defendant submits, later imaging failed to identify any thoracic spine fractures. An x-ray of the thoracic spine, taken on January 30, 2018, showed multiple old rib fractures on the right side, but indicated that the T5/T6 region fracture referenced in the clinical history was not visible (JEB, p. 183). Similarly, an MRI on February 20, 2018, did not identify any fractures (JEB, p. 184-185), nor did a CT scan of the thoracic spine on May 3, 2018 (JEB, p. 187).

[14]         I do not have evidence that spinal fractures initially identified on the day of the accident would necessarily be visible on imaging performed nearly five years later. As such, I accept the initial finding that the Plaintiff did experience right T5 and T6 transverse process fractures.  

[15]         Mr. Blenus said he was “kicked ... out” of the hospital after ten days, despite not being fit to go home. On August 27, 2013, he went to his doctor for pain killers, complaining of shoulder pain. He thought he had shingles. Dr. Peter Segato, who later became his family physician, was covering for his regular doctor, Dr. William Dolan. According to Mr. Blenus, Dr. Segato did not think it was shingles, but prescribed pain killers (hydromorphone) (JEB, p. 1).

The Truro trip-and-fall and subsequent treatment

[16]         On September 20, 2013, some seven weeks after the July 27 accident, and (according to his trial evidence) against his own better judgment, Mr. Blenus travelled with a friend (with the friend driving) to an annual auction in Truro, which he said he had been attending for some 30 years. At the venue, parking spots were marked off by ropes, one of which he tripped over, falling onto his right arm and injured shoulder. An ambulance was called. At trial Mr. Blenus confirmed that he downplayed his condition, because he did not want to go the hospital. The EHS incident indicates that he was aware of his injuries, that he understood the EHS concern about his refusal to receive medical attention, and released EHS from liability (JEB, pp. 90-95). In reality, he was in extreme pain.

[17]         Mr. Blenus agreed on cross-examination that he had taken a lot of morphine to deal with pain before he went to the auction. He acknowledged that it was serious fall on his right shoulder. He felt that he had rebroken his shoulder and “bent and messed up the plate” in his surgically-repaired shoulder. He acknowledged that he was triaged by EHS, and that he lied to them, downplaying his injuries. He did not want to tell them that he was on morphine, or why he did not want to go to the hospital, even though he was (in his own words) “dying in pain.” He also described the pain as “excruciating”.

[18]         After the July accident and before and after the Truro fall, Mr. Blenus was under the surgical care of Dr. Nadia Murphy. According to Dr. Murphy’s records, an x-ray did not reveal any issue with the shoulder hardware on October 22, 2013, about a month after the trip-and-fall; her note on that date was that “[h]is clavicle fracture is healing, as is his scapular fracture” (JEB, p. 38). Mr. Blenus said on cross-examination that he did not recall the specifics of his conversation with Dr. Murphy that day. He acknowledged that her chart notes do not mention the trip and fall in Truro.

[19]         On March 20, 2014, an updated x-ray showed that the plate had been pulled off the bone. Dr. Murphy advised the Plaintiff that his shoulder plate was loose and would have to be re-plated, which she did on March 22 (JEB, pp. 39-41). Mr. Blenus testified that the re-plating resolved about 60% of his shoulder pain. Dr. Doran’s chart notes of March 24, 2014, recounts that the surgery had occurred, and adds that Mr. Blenus “relates this to a fall last October” (JEB, p. 5). While this may have been the Plaintiff’s subjective view, as it appeared from his evidence, the contemporaneous evidence of Dr. Murphy’s charts indicate that as of a month after the fall, the shoulder hardware was intact and the shoulder was not re-broken, as Mr. Blenus testified he believed had happened. Although Mr. Blenus experienced great pain after the fall, the evidence does not allow any specific finding as to when the plate became loose, other than that it clearly happened by March 2014.  

[20]         Mr. Blenus testified that Dr. Murphy referred him to physiotherapy. He went to about a dozen physiotherapy sessions in the Autumn of 2013 (JEB, pp. 202-206). He abandoned the physiotherapy treatment. He said he stopped going because he could not handle the pain.

[21]          Mr. Blenus testified that he began taking marihuana butter after the Truro fall, in November 2013, due to the pain in his shoulder and spine. He would keep it in his vehicle and take it through the day to help him keep working. The part of the spine in pain depended on what he was doing. After the March 2014 surgery, he testified, neither Dr. Murphy nor his family physician, then Dr. Doran, listened to his complaints, but rather referred him back to physiotherapy.

[22]         Dr. Murphy referred Mr. Blenus to Dr. Daniel Lazaric for his lower back pain, his primary concern at the time. It appears that it was after his third post-surgery visit, July 23, 2014, and after a CT scan showed no encroachment on the root nerves nor any neurological basis for his pain, that Dr. Murphy referred him to Dr. Lazaric (JEB, p. 45). Dr. Lazaric gave Mr. Blenus epidural injections seven or eight times between November 12, 2014, and July 30, 2018. Mr. Blenus testified that the injections were very painful, and he did not think that they helped him.

[23]         Dr. Murphy also referred Mr. Blenus to Dr. William Oxner, an orthopaedic surgeon. He was examined by Dr. Oxner on January 7, 2015. He did not recall what Dr. Oxner told him and was referred to Dr. Oxner’s report. The report notes that Mr. Blenus reported that he was diagnosed with broken bones in his back. The CT scan showed no evidence of a fracture, but only age-related degenerative changes to the lumbar spine. His assessment was that Mr. Blenus had back pain, but that there was nothing surgical that could be done about it (JEB, pp. 47, 244-245).

[24]         In early 2015, Mr. Blenus thought that the steel plate in his shoulder was causing him pain, though Dr. Murphy said it was too early to remove it. After a further request on February 24, 2015, however, Dr. Murphy removed the plate on February 26, 2015 (JEB, pp. 48-56).

[25]         When Mr. Blenus’ family doctor, Dr. Doran, retired in 2015 Dr. Segato took over. There was some confusion as to the source of the prescription for medical marihuana that Mr. Blenus described in his testimony. While Dr. Segato’s notes do not show such a prescription, Mr. Blenus testified that Dr. Doran had prescribed medical marihuana. He said he did not fill the prescription because he could buy it off the street more cheaply. There was no dispute that the privately-produced marihuana butter he had been taking did not correspond to any prescription.

[26]         Dr. Segato referred Mr. Blenus to the Berwick Chronic Pain Clinic in 2015 (JEB, p. 9). Mr. Blenus said he attended the clinic to register but did not return, as he heard nothing from the Clinic.

New symptoms in 2016

[27]         In April 2016, Mr. Blenus complained to Dr. Segato about tinnitus, vision disturbances, and head pressure (JEB, pp. 9-11). In his testimony he described a sensation like a “siren” in his head. Dr. Segato referred him to Dr. James Ruddy, an audiologist, to test for tinnitus. In May 2016, Dr. Ruddy referred him to a neurologist at the QEII, Dr. Charles Maxwell, to investigate whether the tinnitus was a by-product of headaches (JEB, pp. 228-232). Instead, Mr. Blenus saw another neurologist, Dr. A. L. Green. He complained of tinnitus and severe headaches. Mr. Blenus understood that Dr. Green found “nothing”. Dr. Green’s reports of May 10 and August 29, 2016, noted that none of the tests showed any brain contusion or injury. Dr. Green was left with no explanation as to the etiology of his symptoms (JEB, pp. 236-240).

[28]         In April 2016, Dr. Segato referred Mr. Blenus to be examined by an optometrist, Dr. Leah Gallie. Dr. Gallie’s report stated that there were “no signs of retinal issues” but noted that Mr. Blenus had reported that he had experienced “about ten significant head injuries”, and he appeared to be suffering from post-concussion vision syndrome. Mr. Blenus acknowledged at trial that he had suffered from prior concussions. He was cross-examined on the notes of an osteopath, Sarah Hayes, who he consulted starting in 2008, having injured his back jumping off a roof on a worksite. He confirmed at trial that, as suggested in Ms. Hayes’s notes, he had experienced multiple head injuries from hitting his head on construction sites. He also confirmed an apparent 2009 back injury from lifting a heavy weight.

[29]         In July 2016 Mr. Blenus began seeing a naturopath, Dr. Bryan Rade, about his head issues. Mr. Blenus had concluded from internet searches that he had Lyme Disease. He concluded that he had it, although a test ordered by Dr. Segato was negative. He said Dr. Rade told him US tests were more accurate and arranged for a blood test out of California. The results of the resulting July 27, 2016, California test were negative, or possibly indeterminate (JEB, pp. 225-227). In any event, Mr. Blenus started treating himself for Lyme Disease. He used a daily medication list, prepared by his then girlfriend (Tab 10, p. 224). He also added oxygen to his blood once a week - a procedure that a friend he identified as Archie Lockhart, who he said had Lyme Disease, was following. He testified that there was a dramatic improvement in his symptoms. His energy increased and the pressure in his head diminished.

[30]         In September 2016, Mr. Blenus’ friend Mr. Lockhart arranged for Mr. Blenus to consult Dr. Richard J. Dubocq in Maine, for Lyme disease treatment. Rather than blood tests, it appears, Dr. Dubocq evaluated Mr. Blenus based on his questionnaire, as having 80% of the Lyme disease symptoms, and prescribed medication accordingly. Mr. Blenus appears to have travelled to consult Dr. Dubocq on five occasions between September 26, 2016, and October 22, 2017 (JEB, Tab 15).

[31]         Mr. Blenus said his symptoms improved under Dr. Dubocq’s treatment. This is reflected in Dr. Segato’s notes. On November 28, 2016, Mr. Blenus reported that his cognitive and head symptoms had largely resolved. On March 27, 2017, Mr. Blenus reported that he was on a long list of Lyme Disease meds and “feeling 1000% better, aches gone, ringing in head gone, sea sickness gone” (JEB, pp. 19-20). He also reported that his back pain was being managed with the THC butter. While Dr. Segato had referred him to the pain clinic in Berwick, and reiterated this to him in 2016, it appeared that Mr. Blenus did not follow-up and was discharged.

[32]         Mr. Blenus attended for an independent physiatry assessment with Dr. Max Kleinman, on August 25, 2016. He provided the answers to the questions on the information sheets attached to Dr. Kleinman’s report (Tab 17). He did not tell Dr. Kleinman about his Lyme Disease diagnosis and treatment. Mr. Blenus had seen Dr. Rade on August 22, 2016, three days earlier, and Dr. Rade had reviewed the American blood test result and discussed Lyme Disease with him. Mr. Blenus was asked why he did not raise Lyme disease in the lengthy questionnaire he completed for Dr. Kleinman and in his interview with Dr. Kleinman on August 25, 2016. His answer was to the effect that he had described his symptoms truthfully to Dr. Rade and thought he had Lyme Disease at the time, but “now knows” that it was a head injury. He did not answer defence questions about why he did not tell Dr. Kleinman on August 25, 2016, that he believed that he had Lyme disease.

[33]         On June 20, 2017, while he was returning to Canada from his fourth attendance at Dr. Dubocq’s office in Maine, Canadian Border Services Agency officers seized his medications. Mr. Blenus said he “put up a stink” and went public. Media reports were in evidence (JEB, Tab 23).

[34]         On February 7, 2018, Mr. Blenus reported to Dr. Segato that he was still going to Maine for Lyme disease treatment, as well as to Dr. Lazaric. He also indicated that he might not be able to travel any more due to his back pain. On February 28, 2018, he reported to Dr. Segato that he had “lost home, wife, job” and was in chronic pain. He listed several physicians and medical treatment providers he had consulted. He did not want to go to the Berwick Pain Clinic but continued to use the THC butter to treat his back pain (JEB, pp. 21-22).

[35]         The Joint Exhibit Book contains a May 24, 2018, report by Dr. Chris Reeves of the Laser Spine Institute in Missouri (JEB, Tab 16). Mr. Blenus understood that he was not a candidate for a back surgery, but that an electrical implant to control his pain was a possibility. He discussed this report with Dr. Segato but did not proceed with the procedure.

[36]         Mr. Blenus acknowledged falling when climbing from a wharf onto a boat on August 31, 2016. He attended the hospital, believing he had fractured his lower right leg, and had x-rays. He testified that he was not hurt, however. The description he gave to the court of this incident differed vastly from the description he gave in discovery. Similarly, he acknowledged tripping and falling in some grease on a garage floor on November 4, 2018. Again, he attended at the hospital, and acknowledged the triage notes, but claims he received no treatment.

[37]         Mr. Blenus described the impact of his injuries on his life. He said they affect what he can do with his young children. After the accident, when not working, he used to ride his motorcycle, fish, hunt, and snowmobile. He gave up motorcycling, snowmobiling, fishing, and hunting because of the pain. He is still trying to sell his fishing boat. For 20 years he travelled south in the winter, but he did not go last winter.

Dr. Daniel Lazaric

[38]         Dr. Lazaric is an experienced anaesthesiologist, who runs a pain clinic in New Minas. Mr. Blenus was referred to him by Dr. Murphy on July 23, 2014, because of low back pain, with the query as to whether he could offer further suggestions for pain control. Mr. Blenus saw Dr. Lazaric eight times between November 12, 2014, and July 30, 2018. Dr. Lazaric’s notes are in evidence at Tab 3 of the JEB, and he amplified them at trial.

[39]         On cross-examination, Dr. Lazaric was directed to Dr. Murphy’s referral letter of July 23, 2014. In it, she described Mr. Blenus’ motorcycle accident and his back pain, the medication he was taking without success, and requested that he would be able to see him and provide any other suggestions for pain control. In the letter she stated, “He really doesn’t have any surgical issues with regards to his back. He had a CT scan that doesn’t show any encroachment on the nerve roots and does not have any neurological findings, or any leg pain associated with this.” Dr. Lazaric said he was not provided with Mr. Blenus’ complete clinical charts and that his diagnosis was dependent on accurate and fulsome information from his prior charts to be able to inform his treatment plan. He also said the patient’s subjective reporting can be basis for his assessment and diagnosis. He acknowledged that in Dr. Murphy’s referral letter made no reference to a head injury, and that she stated that Mr. Blenus did not have any neurological findings.

[40]         On the first visit, on November 12, 2014, Dr. Lazaric interviewed and physically examined Mr. Blenus, and requisitioned a CT scan and x-rays, but provided no treatment. He noted tenderness on Mr. Blenus’ lumbar spine and decreased range of motion in the “central aspect of his back.” A few days later, on November 18, Mr. Blenus returned and Dr. Lazaric carried out nerve blocks and epidural steroid injections to relieve pain on Lumbar 2 to Lumbar 5. On March 26, 2015 (the third visit), Mr. Blenus reported that his pain had been temporarily relieved by the injections, and Dr. Lazaric repeated the same procedures on L2 to L5 and, in addition, S1. He repeated this treatment on July 24, 2015 (the fourth visit).

[41]         Mr. Blenus did not return for a fifth time until July 14, 2016. On this occasion he first reported that he had been suffering from severe headaches, 24 hours a day, for several weeks, and said he had Lyme Disease, for which he was being treated with medications. Dr. Lazaric did not himself diagnose Lyme Disease, but took Mr. Blenus at his word. He suggested Botox therapy as a possible help for the headaches. At this point, he added to his diagnosis on his chart notes Lyme Disease and “post concussion syndrome.” In respect of the five-point plan referenced in his chart of July 14, 2016, he acknowledged that he was aware that Mr. Blenus owned and operated a construction company. When asked if point four of his five-part plan – “exercise and work as tolerated” – was consistent with Mr. Blenus running his construction firm, Dr. Lazaric declined to comment.

[42]         Dr. Lazaric acknowledged that his clinical notes of November 18, 2014, and March 26, 2015, indicated “normal ability to concentrate” and “no problem making decisions.” He was asked why on July 14, 2016, a year, and eight months, after he had started seeing Mr. Blenus, and three years after the motorcycle accident, and only after Mr. Blenus told him that he had and was receiving treatment for Lyme Disease and had 24-hour headaches “for the past few weeks” that he would, for the first time, add to his diagnosis “post-concussion syndrome”, likely attributable to the motorcycle accident. He agreed that when a patient reported headaches as a significant concern it was important to record that. He further stated that he added to his list of diagnosis on July 24, 2016, Lyme Disease syndrome based on what Mr. Blenus told him, and that he was relying upon the accuracy of Mr. Blenus’ subjective reporting, without any corroboration of Lyme Disease.

[43]         On January 30, 2018 (the sixth visit), Mr. Blenus reported that his Lyme Disease was now well-controlled by medication. He reported pain around the T5-T6 (upper back) area. He said the pain was consuming his life. Dr. Lazaric requisitioned an x-ray of the thoracic spine. Dr. Lazaric again acknowledged that the charts were only as reliable as Mr. Blenus’ reporting.

[44]         On April 16, 2018 (the seventh visit), Mr. Blenus again reported ongoing worsening back pain and said he would like surgery. Mr. Blenus stated that a friend of his, Dr. David Ross, had recommended that he see Dr. Michael Gross, an orthopedic surgeon. Mr. Blenus asked Dr. Lazaric for a referral to Dr. Gross and Dr. Lazaric complied.

[45]         Plaintiff’s counsel referred Dr. Lazaric to Dr. William Oxner’s letter regarding his January 7, 2015, consult with Mr. Blenus arranged by Dr. Murphy (JEB, Tab 14). Dr. Oxner referred to a CT scan showing age-related degenerative changes and indicating Dr. Oxner’s view that there was nothing surgically that could be done for Mr. Blenus. Dr. Lazaric stated that he did not remember seeing that letter or being aware that Mr. Blenus had seen Dr. Oxner.

[46]         On July 30, 2018 (Mr. Blenus’ eighth and final visit), Mr. Blenus reported that his pain was terrible, that he could barely move, and nothing relieved his pain. Dr. Lazaric repeated the four diagnosis he had first on July 14, 2016, which included post-concussion syndrome, chronic neuropathic myofascial pain syndrome, chronic daily headaches, and Lyme Disease. He performed an epidural steroid injection using a longer needle than previously.

[47]         Dr. Lazaric testified to the effect that a maximum for epidural injections would be three to four times a month, and for nerve blocks once a month, depending on their effectiveness.

[48]         The Court puts no weight on Dr. Lazaric’s “diagnosis” of “post-concussion syndrome”, which appears to have been based solely upon Mr. Blenus’ description of his headaches in July 2016, after he concluded he had Lyme Disease, and more than a year-and-a-half after Dr. Lazaric started to see him, which diagnosis is contrary to the chart notes of Dr. Murphy.

Medication

[49]         As of the trial, Mr. Blenus testified that his medications were menocyline (twice daily) and marihuana butter that he grows and prepares. He said on cross-examination that Dr. Ruddy had given him a one-year prescription for menocyline, which he filled in the United States. It is the only other “drug” that he is on.

[50]         Mr. Blenus was directed to Dr. Ruddy’s letter of May 9, 2016, reconfirming his recommendation that Mr. Blenus “wean this [marihuana butter use] down very dramatically.” He acknowledged that at discovery he said he did not listen to his doctors’ advice. On cross-examination, he explained that this was because of the pain.

[51]         Mr. Blenus said the injections he received from Dr. Lazaric did not work. He stated that his ultimate goal was to find a surgeon to operate, but the specialists he visited did not see that surgery would help. He was asked why he was prepared to let a surgeon operate on him, but not to accept the specialists’ recommendation of a neural stimulator implant. His equivocal reply was that he studied it but was not ready to go there yet.

[52]         Mr. Blenus was directed to Dr. Kleinman’s report (JEB, p. 317), which indicates that he told Dr. Kleinman that Dr. Segato had originally prescribed him marihuana. This was contrasted to his direct evidence at trial that Dr. Doran prescribed it. He said he was confused. When referred in Dr. Kleinman’s report to having been prescribed Gabapentin, he said he stopped using it when he started using butter in November 2013. He had used painkillers before he started using butter.

[53]         Mr. Blenus denied abusing prescription medicines but acknowledged getting pills (mostly Tylenol) off the street. He said that the doctor did not know how much pain he was in. He agreed that he took more pain pills than he was prescribed. He denied that Dr. Doran was “furious” with him for taking too many painkillers and getting drugs elsewhere. His discovery evidence in which he said Dr. Doran was “furious” that he obtained painkillers from another doctor was put to him, and he replied that he was “mad at me but he was not out of control”. He added that his pain was the result of being “forced to go back to work” because “you” [referring to the insurance company] “only offered $250 per week until settlement.” At the time, he said, he had equipment payments to make of $15,000 per month.

[54]         Mr. Blenus acknowledged that the pills prescribed by Dr. Doran were only a quarter of the pills that he was taking. He could not tell Dr. Doran about the extra pills he was taking because “he made me sign an opiate contract”. It was his decision to use the “butter”. The gabapentin made him sick, so he stopped using it. At the time, he said, he was only being treated for his injured ribs and shoulders from the accident.

Dr. Max Kleinman

[55]         Dr. Max Kleinman conducted an independent physiatry assessment of Mr. Blenus on August 25, 2016. His report is dated October 17, 2016 (JEB, Tab 17). In his report, Dr. Kleinman noted that he relied on “the presumed truthfulness of Mr. Blenus. If there have been distortions or inaccuracies in his reporting my diagnostic impressions and conclusions could be altered.” Further, he confirmed that his opinion was based on the information available at the time of the assessment, and that “[a]ny further information brought forward at a later date could alter my diagnostic impressions and opinions” (JEB, p. 315).

[56]         In describing the accident (as recounted to him by Mr. Blenus), Dr. Kleinman noted that “[h]e stated that there was a loss of consciousness, but he does remember being awake at the scene”, and referenced the clinical notes’ indication that there was “no specific loss of consciousness” (JEB, p. 315). As for the Truro trip-and-fall, Mr. Blenus told Dr. Kleinman that this occurred “approximately two weeks post-collision...” (JEB, p. 316).

[57]         In respect of the plaintiff’s medical history, Dr. Kleinman’s understanding was that it was “unremarkable with respect to his current presentation. Mr. Blenus indicated that he had not been involved in any previous motor vehicle accidents or relevant work related trauma” (JEB, p. 317). Mr. Blenus informed him that the medication he was taking was marihuana butter, which was “originally prescribed” by Dr. Segato (JEB, p. 317).

[58]         As to his ongoing symptoms, Dr. Kleinman wrote that Mr. Blenus reported ongoing issues that included, inter alia, “chronic aching pain with stabbing sensation throughout the right shoulder”; numbness over the rib fracture area; constant lower back pain “over the midline extending to the lumbrosacral base”; right hip pain; a “constant aching pain at the base of the neck...” (JEB, pp. 319-320). Mr. Blenus informed him that the chronic pain had made “feel suicidal for three years” (JEB, p. 321). Mr. Blenus also complained of constant headaches, tinnitus, and short-term memory problems (JEB, p. 320).

[59]         Dr. Kleinman concluded that Mr. Blenus’ “collision-related impairments” consisted of the following (at JEB, pp. 323-325):

(1) Chronic pain syndrome with associated depressive symptomatology. The relevant factors included use of medication to control chronic pain; dependence on health care providers and family for assistance; secondary physical deconditioning ; withdrawal from social milieu; failure to restore pre-injury function; and development of anxiety, depression, and other “non-organic illness behaviours.”

(2) Biomechanical disorder of the cervicothoracic and lumbrosacral spine. Dr. Kleinman concluded that “the muscles, ligaments and capsules of the spine underwent sudden overstretching and partial tearing and strain” in the collision, and the “initial soft tissue pathology has now given way to the development of chronic scar tissue that impacts Mr. Blenus in a way that is both physically painful and functionally disabling.”

(3) Right shoulder, chronic dysfunction secondary to clavicular/scapular fracture with subsequent non-union. This referred to the ongoing pain in the right shoulder.

(4) Chronic post-traumatic headaches. Dr. Kleinman was of the view that the “presentation and description of his headaches” suggested “a mixed origin including a cervicogenic (originating from the neck) component with a muscular tension contribution.” However, he believed it was also relevant that Mr. Blenus “was thrown from the motorcycle and it is quite likely that he sustained a traumatic brain injury. Further comment as it relates to a specific diagnosis would be deferred...”

(5) Upper and lower extremity referral (i.e. “numbness and tingling in both the upper and lower extremities”).

(6) Chest wall pain (“chronic sprain/strain secondary to the original fracture sight”).

[60]         As to prognosis, Dr. Kleinman wrote in his report:

It is now well over three years since the time of Mr. Blenus’ collision. He presents with continuing pain, restricted range of motion and functional limitation. The nature and severity of the injuries and the longstanding duration of his problems are negative prognostic indicators. Quite important to note is the minimal amount of therapy that Mr. Blenus has had since the time of the collision. I am somewhat surprised that he has had such little therapy in an attempt to reactivate him towards his daily activities and I believe this is a material contributing factor to his overall presentation.

I consider Mr. Blenus’ overall prognosis at this point to be guarded. He has reached a physical plateau. I would state that given the paucity of treatment to date, there is some possibility of further improvement, but overall he will be left with residual symptomatology into the long-term. [JEB, p. 325]

[61]         As to recommendations, Dr. Kleinman concluded that the “most appropriate course of action for Mr. Blenus at this point is to have him involved in an interdisciplinary chronic pain program” (JEB, p. 326). He wrote that such programs,

typically integrate the services of medical, physical, psychological, occupational and social therapeutic treatment providers to provide an integrated approach to the treatment of both the physical and non-physical components of chronic pain. There is generally a strong association between psychological distress and the physical manifestation of pain. Mr. Blenus clearly indicated that he had persistent difficulties with respect to how his pain impacts on his function and his ability to return to his pre-collision lifestyle. His difficulties and description from this perspective were consistent with chronic pain syndrome and a diagnosis needs to be evaluated through an appropriate and comprehensive evaluation. The assessment should include both a medical and psychological component to quantify his status, identify various contraindications to treatment as well as to understand how his pain impacts on his capacities... I should emphasize that the goal of treatment is one of pain management as opposed to pain resolution. Mr. Blenus will be left with persistent pain extending into the long-term. The goal is to help him deal with the pain in order to ensure that he can maintain a level of function.

...

The treatment program that I am recommending should include a component focused on improving strength, flexibility and endurance for the neck, back and extremities. Cognitive behavioural techniques should also be introduced to provide Mr. Blenus with coping strategies in an attempt to deal with his difficulties. It is important to note that educational advice be given to Mr. Blenus so that he can understand the difference between “hurt” versus “harm” pain so that he can be made to understand that he can move forward through his levels of pain without risk of further injury... [JEB, pp. 326-327].

[62]         While there was “not much more that can be offered to Mr. Blenus in terms of treatment”, Dr. Kleinman did go on to “make recommendations for functional support, in particular an Occupational Therapy assessment of the home”, which could “identify barriers as well as provide education, assistive devices and coping strategies in an attempt to improve his functional tolerances.” Given that he regarded Mr. Blenus as “at least partially disabled” in relation to “heavier housekeeping and home maintenance”, Dr. Kleinman wrote that an OT could “provide a dollar cost estimate of the amount of support Mr. Blenus requires now and on a go forward basis” (JEB, p. 327).

[63]         Dr. Kleinman was cross-examined by Skype from Florida respecting his report. Dr. Kleinman reviewed documents listed in Appendix A of his report, which documents were discussed by him in Appendix B (JEB, pp. 332-336). He agreed that Appendix A listed all the documentation he reviewed in preparing the report. Exhibit 6 listed medical documents he reviewed after preparing his report. He said the IME questionnaire (JEB, pp. 337-360) was completed by Mr. Blenus, or from information provided by him in the reception area before Dr. Kleinman interviewed him, but was reviewed by Dr. Kleinman with Mr. Blenus “page by page” to ensure that Mr. Blenus’ information was being accurately reported.

[64]         On cross-examination, Dr. Kleinman acknowledged that his assessment was based on the presumed truthfulness of what Mr. Blenus told him, together with the information contained in the documentation provided. Any distortions or inaccuracies, or any information brought forward after the date of his report could alter his impressions and conclusions.

[65]         Dr. Kleinman had Mr. Blenus’ MSI treatment history when he wrote his report. He said the pre-accident notes did not indicate any specific difficulties with musculoskeletal pain. He agreed that any pre-existing musculoskeletal pain, depending on its nature, could potentially affect his opinion. He acknowledged that Mr. Blenus answered Questions 5 and 6 in his pre-interview questionnaire to the effect that he had no pre-accident problems or injuries, including work-related, recreational, or motor vehicle, nor any pre-accident difficulties similar to those he was experiencing at the time of his assessment, nor any treatment for any kind of musculoskeletal condition by physiotherapy, chiropractor, or other specialist. Dr. Kleinman agreed that he concluded that Mr. Blenus’ past medical history was “unremarkable” with respect to his present presentation and that Mr. Blenus reported that he had not been involved any prior motor vehicle accidents or relevant work-related trauma.

[66]         Dr. Kleinman was then directed to the clinical notes of Kings Physiotherapy beginning and asked whether each of those entries related to pre-accident musculoskeletal pain-related injuries, then asked acknowledge that Mr. Blenus had not disclosed these to him (Tab 9, p. 213 et seq.). He agreed.

[67]         The first of the Kings Physiotherapy notes refers to Mr. Blenus’ attendance for physiotherapy on April 28, 2008 in relation to pain resulting from jumping off a roof onto frozen ground a month earlier. At that time, the notes indicate, Mr. Blenus reported: (1) having had back pain for ten years and taking morphine for it; (2) suffering whiplash from a motor vehicle accident at the age 20; (3) back pain from a skidoo accident; (4) several concussions; (5) a snowmobile accident many years previous, and (6) as a child, he “couldn’t stand for long.” Mr. Blenus received further physiotherapy treatment on May 9 and May 23, 2008.

[68]         According to the next Kings Physiotherapy note, on December 7, 2009, Mr. Blenus reported that “a month earlier, he was lifting a heavy weight at work, turned and hurt himself. He was tender and treated for “EDEMA” of L5/S1”.” Asked on cross-examination whether the note of December 11, 2009, stating “L5 PRSr-no lumbar curve or cervical curve” referred to the loss of lordosis, he initially declined to interpret the note, but agreed that if the note referred to having no lumbar curve, it meant the loss of lordosis. He added that this could be normal or abnormal. He agreed that the word “edema” meant a swelling of the L5/S1area.

[69]         A further note related to an attendance on January 19, 2010, when Mr. Blenus was treated for lower back and heel pain. He reported that since he was a teenager, he had to sit after standing for 15 or 20 minutes. On a February 12, 2010, attendance, he reported that his back was better, but he still had pain in his heels.

[70]         Dr. Kleinman acknowledged that he was told nothing about these injuries or treatments in the questionnaire or his interview. He agreed that these were inaccuracies.

[71]         Dr. Kleinman was directed to the impression of the optometrist Dr. Leah Gallie, who carried out an ocular-visual examination at the request of Dr. Segato on April 27, 2016. In particular, he was directed to her “plan/impression”, where she stated that “there were no signs of retinal issues. He appears to be suffering post-concussion vision syndrome, and he mentioned in total he has experienced about ten significant head injuries …”

[72]         Dr. Kleinman acknowledged that Mr. Blenus had not reported any prior head injuries to him. Dr. Kleinman was told by counsel that Mr. Blenus had testified that he sustained many injuries on the job site, and had subsequent symptoms that included seeing stars, head spinning, and headaches. Dr. Kleinman acknowledged that Mr. Blenus did not report these to him and agreed that these were distortions or inaccuracies.

[73]         Dr. Kleinman said he deferred to the neurologist with respect to pre-accident concussions and trauma but stated that there was nothing in the pre-accident reporting about physical injuries that was relevant to Mr. Blenus’ physical presentation at the time of his assessment.

[74]         Dr. Kleinman was asked that the fact that Mr. Blenus reported in his questionnaire, at Question 13, that he was thrown 80 feet from his bike into the ditch, which conflicted with the EHS first responder’s report that his bike was approximately 20 feet from the other vehicle and he was about ten feet further from the bike. Dr. Kleinman disagreed with the suggestion that this amounted to a distortion or an inaccuracy, explaining that Mr. Blenus’ estimate was a subjective feeling, while the EHS estimate was an objective measurement.

[75]         Dr. Kleinman was directed to the EHS and hospital records from July 28, 2013, which expressly indicated the absence of any head trauma or loss of consciousness in the accident, including the following particulars. The EHS record indicated that Mr. Blenus was “awake, alert and orientated x3. Pt denies any loss of consciousness and is able to recall the MVC [motor vehicle collision].” The EHS record went on to state that, on secondary assessment: “Head and neck: no apparent trauma... No headache or dizziness.” It stated that Mr. Blenus had reported “very blurry” vision for several minutes after the accident but had returned to normal. The EHS report also stated “Psychological: no confusion.” Further, EHS reported “GCS: E4, V5, M6 equals 15”, Dr. Kleinman confirmed that this was the Glasgow Coma Scale, which scale refers to the types of consciousness and is the maximum score possible (JEB, pp. 80-85). Dr. Kleinman was also referred to the admission record and reporting letter of Dr. P. Yaffe, indicating that “Mr. Blenus’ GSC was 15 at my assessment” and that there was no reported loss of consciousness (JEB, pp. 99-100).

[76]         Dr. Kleinman acknowledged that he had access to these assessments at the time of his assessment, which showed no head trauma at the time of the accident. He said that a mild traumatic brain injury did not require a loss of consciousness and added that he was not an expert in this area. Directed to Question 12 on the questionnaire, where Mr. Blenus reported, under “head injury”: “loss of consciousness and blacked out.” Asked if this was a distortion or inaccuracy, he replied that it was a grey area.

[77]         Dr. Kleinman was then directed to the opinion section of his report, and specifically his statement that all his opinions were within the context of his expertise of physical medicine and rehabilitation. His opinion was that Mr. Blenus suffered from six collision-related impairments. With respect to the first opinion: chronic pain syndrome and mood disorder, he acknowledged that this was outside his area of expertise and required a DSM-5 evaluation by a psychiatrist or psychologist.

[78]         Dr. Kleiman stated that even without an objective finding of a fracture, the myofascial pain Mr. Blenus experienced was, in his view, a result of the overstretching and strain of the muscles in the cervical and lumbar spine. He stated that the multiple fractures of the right shoulder continued to cause Mr. Blenus difficulty, even though Dr. Murphy reported a good outcome of the reconstruction surgery she conducted.

[79]         Dr. Kleinman concluded that the post-traumatic headaches “quite likely” related to a traumatic brain injury when he was thrown from the motorcycle. He acknowledged that Mr. Blenus’ complaint of numbness and tingling in the extremities was not neurologically based and might have been related to the neck and back injuries.

[80]         Respecting the second impairment, Dr. Kleinman was referred to CT scan reports of July 28, 2013 (JEB, pp. 134-144), June 20, 2014 (JEB, pp. 165-166)¸ and January 30, 2018 (JEB, p. 183), each showing no evidence of abnormalities or fractures in the area of the thoracic or lumbar spine.

[81]         Respecting the third impairment (the shoulder), Dr Kleinman was referred to the EHS report of September 20, 2013, about the Truro fall and the serious reinjury of his right shoulder, as well as the fact that Mr. Blenus appears not to have disclosed it to Dr. Kleinman, just as he did not report it to Dr. Murphy on October 22, 2013, or on March 20, 2014, until the injury appeared in an x-ray that Dr. Murphy obtained.

[82]         Mr. Blenus testified that he was very badly hurt in Truro, that it was a serious fall, that he smashed his right shoulder again, and bent the plate in his shoulder, and that the pain was excruciating, with him shaking and in shock. Dr. Kleinman, relying on Mr. Blenus’ subjective description of the incident, was aware only that he had tripped in a parking lot, that an ambulance came, and he went home. He acknowledged that if Mr. Blenus had told him what he was reported to have told the Court about his Truro injury, it would have been reflected in his report.

[83]         Dr. Kleinman acknowledged that his opinion about Mr. Blenus’ use of marihuana butter was made on the assumption that it was used under a prescription by Dr. Segato for use as needed. When the content of Mr. Blenus’ testimony as to the nature of his use was relayed to him, he was uncertain as to whether it would have made a difference in his opinion, other than that Mr. Blenus should follow the advice of his doctor.

[84]         With respect to the fourth impairment (headaches), Dr. Kleinman acknowledged that this was beyond his expertise and that it fell within the expertise of a neurologist. He agreed that the first complaint of headaches appears in Dr. Segato’s notes of April 2016, in the context of tinnitus and vision disturbance, a full three years after the accident. He acknowledged that Dr. Lazaric’s chart notes indicate that Mr. Blenus had a normal ability to concentrate and make decisions. Dr. Kleinman acknowledged that he had had access to Dr. Lazaric’s records for his assessment and that the first mention of headaches was in Mr. Blenus’ July 14, 2016, attendance on Dr. Lazaric, at which time he advised him that he had Lyme disease and was being treated for it.

[85]         Mr. Blenus agreed that the answers to the list of daily living activities he completed in Dr. Kleinman’s questionnaire (JEB, pp. 351-354) were truthful. He was then asked to comment on the fact that he answered with respect to the 31 activities that he could complete all of 22 of them, parts of six of them, was “unable to complete” only three. Mr. Blenus’ answer was that he was able to do less now than in 2016.

[86]         Mr. Blenus acknowledged on cross-examination that he received the report of Dr. Kleinman and reviewed it, but said he never discussed it with his lawyers. When directed to the extent of his awareness Dr. Kleiman’s recommendation contained in the report, he said he was probably aware of them at the time, but not at the time of trial.

[87]         I conclude that I can place limited weight on Dr. Kleinman’s opinion. As described above, it is clear that the information he received from Mr. Blenus was far from complete; for instance, Mr. Blenus omitted referring to Lyme Disease. In reference to why he did not get fulsome information from Mr. Blenus, Dr. Kleinman stated that the fault could possibly lie with him, because his intake questionnaire only asked about the motorcycle accident. He acknowledged that this could affect his diagnosis and conclusions.

Principles of law

Assessment of evidence

[88]         The determination of the issues in this case will rest heavily on the court’s assessment of the Plaintiff’s credibility and reliability, in view of all the evidence. The distinction between credibility and reliability was explained by Watt J.A., for the court, in R. v. H.C. (2009), 241 C.C.C. (3d) 45, [2009] O.J. No. 214 (Ont. C.A.):

41  Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately

 

i. observe;

 

ii. recall; and

 

iii. recount

 

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence...

[89]         A classic statement of the principles of reliability and credibility appears in Faryna v. Chorny, [1952] 2 D.L.R. 354, [1951] B.C.J. No. 152, where O'Halloran J.A. said, for the majority of the British Columbia Court of Appeal:

9  ... [T]he validity of evidence does not depend in the final analysis on the circumstance that it remains uncontradicted or the circumstance that the Judge may have remarked favourably or unfavourably on the evidence or the demeanour of a witness; these things are elements in testing the evidence but they are subject to whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time...

 

10  If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility... A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.

 

11  The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

[90]         The Court has serious concerns with both the credibility and the reliability of the Plaintiff’s evidence. These concerns rest both on the Plaintiff’s evidence itself and on the other testimonial and documentary evidence relevant to assessing his evidence. The Plaintiff presented as an individual who, in his own view, always knows best, and is not inclined to listen to advice, particularly medical advice. He had a tendency to self-diagnose, and these self-diagnoses often shifted over time, to accord with whatever set of facts was most convenient at the relevant time. This was also the case with reported symptoms. An example of this phenomenon is the sudden announcement some three years post-accident that the plaintiff now believed that he had lost consciousness in the accident. Another example is the Plaintiff’s shifting views on whether he had Lyme Disease.   

[91]         The evidence also demonstrates the Plaintiff’s tendency to not make full disclosure to medical professionals of the circumstances relevant to his condition at any given time, for instance, the failure to answer the questions about not disclosing the impact of the Truro trip and fall on his shoulder injury or disclosing his Lyme disease diagnosis.

[92]         Whether these tendencies were the result of deliberate exaggeration and an intention to shape the evidence in way favourable to his legal position, or whether the Plaintiff actually believes in the accuracy of his evidence, is somewhat beside the point. These issues cause the court to question the credibility and reliability of almost everything Mr. Blenus said.

Causation

[93]         The law of causation has been developed by the Supreme Court of Canada through a line of cases including Snell v. Farrell, [1990] 2 S.C.R. 311, and Athey v. Leonati, [1996] 3 SCR 458. Snell and Athey set out the principles that “[c]ausation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury” and that “[t]he general, but not conclusive, test for causation is the “but for” test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant” (Athey at paras. 13-14). Where the “but for” test is unworkable, Major J. noted in Athey, “the courts have recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury” (para. 15).

[94]         The Court returned to the subject of causation in Clements v. Clements, 2012 SCC 32, [2012] 2 SCR 181. In that case, a passenger on a motorcycle who was injured in a crash claimed that the driver’s negligence caused her injury. The driver took the position that a tire puncture and resulting deflation actually caused the crash, and that this would have happened regardless of the driver’s negligence. The trial judge held that “but for” negligence could not be established, but found liability based on the “material contribution” test. The British Columbia Court of Appeal held that the material contribution test did not apply, a conclusion affirmed by the majority of the Supreme Court of Canada. Speaking for the majority, McLachlin C.J. described the “but for test” as follows:

[8]        The test for showing causation is the “but for” test.   The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence.  This is a factual inquiry.  If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

[95]         The Chief Justice said the “but for” test “must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury” (para. 9). She continued:

[10]      A common sense inference of “but for” causation from proof of negligence usually flows without difficulty. Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss.  See Snell and Athey...

 

[11]      Where “but for” causation is established by inference only, it is open to the defendant to argue or call evidence that the accident would have happened without the defendant’s negligence, i.e. that the negligence was not a necessary cause of the injury, which was, in any event, inevitable.  As Sopinka J. put it in Snell, at p. 330:

 

The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has not been adduced.  If some evidence to the contrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield’s famous precept [that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted” (Blatch v. Archer (1774), 1 Cowp. 63, 98 E.R. 969, at p. 970)].  This is, I believe, what Lord Bridge had in mind in Wilsher when he referred to a “robust and pragmatic approach to the . . . facts” (p. 569).  [Emphasis by McLachlin C.J.]

 

[12]      In some cases, an injury — the loss for which the plaintiff claims compensation — may flow from a number of different negligent acts committed by different actors, each of which is a necessary or “but for” cause of the injury.  In such cases, the defendants are said to be jointly and severally liable.  The judge or jury then apportions liability according to the degree of fault of each defendant pursuant to contributory negligence legislation.

[13]      To recap, the basic rule of recovery for negligence is that the plaintiff must establish on a balance of probabilities that the defendant caused the plaintiff’s injury on the “but for” test.  This is a factual determination.  Exceptionally, however, courts have accepted that a plaintiff may be able to recover on the basis of “material contribution to risk of injury”, without showing factual “but for” causation. As will be discussed in more detail below, this can occur in cases where it is impossible to determine which of a number of negligent acts by multiple actors in fact caused the injury, but it is established that one or more of them did in fact cause it. In these cases, the goals of tort law and the underlying theory of corrective justice require that the defendant not be permitted to escape liability by pointing the finger at another wrongdoer.  Courts have therefore held the defendant liable on the basis that he materially contributed to the risk of the injury.

[96]         Clements remains the leading authoritative statement of the Canadian law of causation.

[97]         Based on all the evidence, the court is satisfied that the Plaintiff has experienced pain and suffering as a result of the injuries sustained in the accident. As discussed above, he suffered a right clavicle and scapula fracture, which required shoulder surgery and insertion of a plate, which was later repaired after becoming loose, and ultimately removed. He suffered right rib fractures (3-8), a collapsed lung, and subsequent soft tissue and back pain. He also experienced thoracic spinal fractures, specifically, right T5 and T6 transverse process fractures. These injuries were caused by the motor vehicle accident, and by the defendant’s negligence. Subject to my comments below about mitigation, the plaintiff has ongoing pain arising from these injuries.

[98]         The evidence does not support a causal link between the Defendant’s negligence and the symptoms that arose in 2016, which may or may not have been attributable to Lyme Disease. As described above, the evidence does not support a finding that the Plaintiff suffered a head injury in the collision. The 2016 symptoms resolved through Lyme Disease treatment. I place no weight on the Plaintiff’s later subjective opinion that he had in fact suffered a “brain infection” as a result of the collision, which only manifested itself three years later. 

Lost future income/diminished earning capacity

[99]         A central aspect of the Plaintiff’s claim – and the largest element of his various damage claims – is the closing-down of his construction business in the spring of 2017. There was extensive evidence from Mr. Blenus, and from his children Evan Blenus and Terri-Lee Eaton, about the circumstances of the ending of the business. Both children worked in the business.

[100]    Mr. Blenus’ evidence was that his business was growing in the years before he shut it down, largely due to his design and construction of a new type of chicken barn. The evidence (mainly based on tax returns and notices of assessment) indicates that Mr. Blenus’ gross business income, and Line 150 personal income for the years 2008 to 2016, was as follows:

Year    Gross Business Income   Line 150 Personal Income

2008    $1,214,866.00                $107,635.00

2009    $834,690.00                    $53,731.00

2010    $1,638,106.00                $42,507.00

2011    $1,399,663.00                $40,574.00

2012    $1,246,420.00                $32,265.00

2013    $1,313,181.00                $33,929.00

(Accident: July 28, 2013)

2014    $1,898,423.00                $33,716.00

2015    $2,361,096.00                $187,993.00

2016    $1,773,863.00                $122,047.00

 

[101]    (The figures for gross business income are those relied on by Jarrett Reaume in his report (JEB, p. 440)). The Line 150 income figures are taken from the plaintiff’s tax returns or notices of assessment.

[102]    When he closed the business, Mr. Blenus said, he had debts: two VISA cards, a second mortgage, payments on five new trucks, an excavator, and a dozer. He said he had to sell the business assets to pay the debts and was left without a surplus. Mr. Blenus said his only income is a CPP disability pension of $1,200.47 a month. He pays child support of $1,800.00 per month to the mother of his two youngest children (aged 8 and 10). The children moved with their mother to Ontario in June 2018. On cross-examination Mr. Blenus acknowledged applying for Canada Life Disability Benefits (JEB, p. 29), but said his claim was denied four times.

[103]    In quantifying his economic loss, the Plaintiff relies on the expert report of Jarrett Reaume. Mr. Reaume was qualified as a chartered professional accountant and a certified forensic accountant capable of giving evidence on the subject of income and economic loss. Mr. Reaume is a partner and senior vice president in the Halifax office of Matson, Driscoll & Damico Ltd. (MDD), a forensic accounting firm.

[104]    Mr. Reaume provided a report on the economic losses sustained by the Plaintiff as a result of the motor vehicle accident of July 28, 2013. He worked on the assumption that the Plaintiff would have retired at age 65 and that his life expectancy and rate of disability remained in line with the Canadian male average. He understood that the business ceased operating on April 30, 2017.   

[105]    Mr. Reaume’s original report was filed July 27, 2018, and was superseded by an updated report dated November 19, 2018, which he indicated at trial reflected his final opinion. Mr. Reaume projected the Plaintiff’s gross income, absent the incident, for 2013 to 2016 based on actual income. The Plaintiff had indicated that “there was no loss up to the year the Business ceased” (MDD report, para. 35). From 2017 onward, the assumption was that the Plaintiff would have zero actual income, as he had indicated that his injuries made him unable to return to work (MDD report, paras. 39-40).

[106]    Mr. Reaume assumed an effective date of January 1, 2019. He calculated past income loss to that date of between $135,527 and $235,020 (MDD report, para. 45). He calculated pre-tax future losses of between $620,113 and $1,264,451 (MDD report, para. 46).

[107]    For gross income from 2017 forward, Mr. Reaume provided three scenarios of economic loss. Mr. Reaume provided three scenarios for calculating future income loss: (1) based on average income for a full-time construction manager in Nova Scotia; (2) based on the actual average income available to the plaintiff from 2008 to 2016, based on the bookkeeper’s unadjusted calculations, including the erroneous double-expensing of portions of inventory; and (3) based on the actual average income available to the plaintiff from 2008 to 2016, without the double-expensing of inventory. As for future pre-tax losses, the three scenarios considered by Mr. Reaume gave the following totals:

Scenario 1: $620,113;

Scenario 2: $586,648;

Scenario 3: $1,264,451 [MDD report, para. 50]

[108]    These loss calculations were prior to the deduction of any collateral benefits and did not take into account income tax gross-ups or prejudgment interest. All scenarios were adjusted for inflation. Mr. Reaume used a net discount rate of 2.5 percent, in accordance with Civil Procedure Rule 70.06(1).

[109]    Mr. Reaume assumed that, absent the accident, the Plaintiff would have sold the assets of the business when he retired at age 65. He assumed that the assets disposed of in 2017 and 2018 were sold for their approximate fair market values. Mr. Reaume found that the Plaintiff had a benefit from selling the capital assets earlier that he would have sold them absent the accident, and calculated an early disposition benefit of $151, 259 reflecting the time value of the money (MDD report, paras 47-49).

[110]    With respect to Mr. Rheaume’s report that Mr. Blenus had sold his remaining inventory and capital assets, Mr. Blenus stated that he did not sell all of them. He said he kept a tractor and one personal truck, and he had actually sold the assets over time.

[111]    Mr. Blenus acknowledged that at the time of his August 2017 discovery, he believed he had assets worth over a million dollars to sell, of which $400,000 of assets remained at trial. He acknowledged that, by referring to Mr. Rheaume’s report, it looked like he had sold $400,000 in equipment. Mr. Blenus agreed and stated that since Mr. Rheaume’s report he had also sold a plow truck for $60,000. Remaining was one of nine trucks he owned and a tractor, which he valued at $75,000.

[112]    Mr. Reaume assumed that the Plaintiff had not received any otherwise deductible collateral benefits. He noted that the Plaintiff had been approved for Canada Pension Plan Disability Benefits, which he understood not to be deductible under Nova Scotia law. He indicated that to the extent the CPP Disability approval included any retroactive amount that was deductible, the MDD calculations would be overstated by that amount.

[113]    With respect to his detailed findings, Mr. Reaume noted that the Plaintiff had indicated that he had incurred incremental labour costs to replace his reduced working capacity after the accident, MDD had been “unable to calculate any incremental payroll” (MDD report, para. 33).

[114]    On cross-examination Mr. Blenus said he did not meet Mr. Rheaume in person but spoke to him on the phone. Mr. Blenus’ bookkeeper, Sharon Hirtle, provided most of the data.

[115]    The reason for Mr. Blenus’ decision to close down the construction business is a central issue. In direct examination, Mr. Blenus testified that around March 2017 his Lyme Disease symptoms (if that is what they were) had largely resolved, but that “my back and my head or my shoulder and stuff was all bothering me and my ringing in my ears was still there.” However, he said, this was not the reason he closed the business. He went on to recount that his son Evan fell and broke his arm in December 2016, with the result that he had to “step back in and start doing some stuff that I shouldn't have been doing and I did that for a couple months and got really bad, my back got really bad then.” Then Evan and his partner learned that a child they were expecting was facing a potentially serious health issue. This led Mr. Blenus to the following conclusion:

I would have to do a lot more because he wasn't going to be around because he had a girl, a little daughter ... that had heart disease. So I shut it down then when there was just nothing left, there was nothing left of me and ... and he was gone looking after his baby and stuff and running back and forth to the hospital in Halifax and I shut it down because I couldn't run it no more and he wasn't around to fill in was the reason I shut it down and it was ... it was the pain, I couldn't live with the pain, it was my back.

[116]    Mr. Blenus went on to agree that he shut the business down because he was in pain; he also said he would not have kept it running if Evan had been around, also because of the pain he was in. He testified that neither Evan nor Terri-Lynn had the ability to run the business (“I was the only one capable of running my business.”) He attempted to downplay their roles as being little different from any other employees.

[117]    Mr. Blenus was referred to Mr. Reaume’s statement in his report that “It was the Plaintiff’s intention to eventually transition the business to Evan; however, there was a falling out between father and son and that did not occur” (para. 15). Mr. Blenus acknowledged that this information came from him. He agreed on cross-examination that “when I was ready to retire I was going to transfer the company to him, yes. Or he would buy ... He would buy me out or whatever we would do, yes.” Elsewhere on cross-examination, however, Mr. Blenus insisted that his son was not capable of taking over the business, contrary to the impression reported by Mr. Rheaume in his economic loss report, contrary to Evan’s evidence (see below) that the expectation had been that he would take it over.  

[118]    Asked what he told Evan about his decision to close down the business, Mr. Blenus replied that he told him that he was going to shut it down because of his own injuries and pain. He told Evan to “grab a few guys and do some small jobs” but would not let him continue building the profitable chicken barns.

[119]    Mr. Blenus acknowledged that Evan objected to his decision to shut the business down. He acknowledged that during a heated exchange, Evan threw his keys at him and left the premises, and after that they did not speak from April 2017 until Christmas 2018. When pressed about Evan wanting to keep the business going, Mr. Blenus replied that he (Evan) knew that “I couldn’t do it and he couldn’t do it either.” He saw the falling-out as the result of Evan wanting to continue being paid for 48 hours per week, while Mr. Blenus wanted to pay him for the time he worked.

[120]    Evan Blenus, age 36, testified that he was raised by his father. He completed Grade 12. He lives with his girlfriend Rebecca and their two children. Evan said he started working with his father when he got out of school in 2002 and remained with him until the falling-out and the subsequent closure of his father’s business in the spring of 2017. After that he went to work with Alan Knowles Handyman Services. He later started his own carpentry construction business in June 2018. Up to the time of the trial (six months), he said, he had done 15 or 16 home renovations and small jobs. He had two employees. Before that he worked for Allan Knowles after leaving his father’s employ.

[121]    When he worked for his father, Evan Blenus supervised jobs and did manual labour, from concrete work to shingling roofs. He discussed job site decisions with his father, but not potential clients, contracts, or other paperwork. Before the July 2013 accident, he said, his father was involved with everything. After the accident, he could not work without pain. After the accident, Evan managed the job sites. Mr. Blenus continued to attend local job sites but was unable to travel any distance.

[122]    Over the five years after his father’s accident, Evan said, they completed eight or nine chicken barns, plus several other barns. He had a crew of 15. His sister worked with him, and was able to do everything, including supervising jobs as well as the same physical work as the crew. Contrary to his father’s evidence that he and his sister were only “employees”, Evan described himself as a “supervisor” and effectively his father’s second-in-command. While he denied having a managerial role in his father’s business, on cross-examination Evan confirmed that in operating his own sole proprietorship, he now employed two crew, who used to work for his father. He did everything, including negotiating contracts, excluding only payroll. His girlfriend, who had a university degree, helped him in the business.

[123]    Evan testified that he had a falling out with his father in 2008. He was drinking too much, and his father did not like it. He did not work for his father for about six months at that time. (Similarly, Ms. Eaton testified that her father fired her in 2008 due to excessive drinking.) However, he subsequently returned to his father’s business.

[124]    Just before Christmas 2016 Evan slipped on ice and broke his arm. He was unable to work for about three months. When he returned to work the following winter, he and his girlfriend had learned that their unborn baby had severe heart defects and would require extra medical attention. On one occasion, his father docked him a day’s pay, without notice, because he attended a medical appointment in Halifax with his girlfriend. This occurred after his father had already cut his pay from 48 hours per week to 40 hours, around the time he announced the pending closure of the business. He agreed on cross-examination that he was annoyed by his father’s actions.

[125]    Evan testified that his father did not ask him to run the business and he said in direct that he did not ask his father to run it. On cross-examination, he agreed that when his father told him he was shutting down the business, he told Evan that he (Evan) could not run it. Evan thought he could and agreed that he had told Defence counsel that he wanted a shot at running it, but his father refused. He in turn refused to speak to his father from then until the Fall of 2018.

[126]    Terri-Lee Eaton, the Plaintiff’s oldest child, testified that she learned carpentry working for her father from about 2005 to 2008, then got a business diploma from NSCC and worked at an insurance brokerage until her father asked for help in 2014 because he was in pain and could not work at his job sites. On cross-examination, Ms. Eaton said her father fired her in 2008, after which she worked for Allan Knowles until she went to NSCC in 2010, graduating in 2012 with a certificate specializing in financial services, including accounting.

[127]    Before her father was injured, Ms. Eaton said, he was at the sites pouring concrete and doing everything. After the accident, she said, he did a little excavation but only if Evan was not available to do it. After she returned to work for him, she said, her father would give daily directions and visit the work sites but did no manual labour. Their projects were mostly chicken barns and garages. She recalled building seven chicken barns from 2014 to 2017.

[128]    Ms. Eaton described her brother Evan as her boss and next in line to her father when he was not present. She said Evan did everything except paperwork. Ms. Eaton testified that before the accident, her father’s memory was so good he did not need a written list to order supplies; after the accident, he did. While she worked for him from 2014 to 2017, her father and a bookkeeper, Sharon Hirtle, who attended weekly, did all the paperwork. She said her father never asked her help with the bookkeeping. He talked about teaching her, but it never happened.

[129]    Ms. Eaton testified that around Easter 2017, her father told her he thought Evan might take on a few jobs, but this did not work out, so he finished up what he had on the go and closed the business. She said she was present at the start of the “fight” between her father and her brother. She said she left before Evan threw his keys and left, as she did not want to be around. She described the two of them as both being stubborn. She agreed that it was a “pretty big fight.” Evan then went to work for Allan Knowles, and she joined him after her father’s business was closed.

[130]    It is undisputed that Mr. Blenus’ business was expanding, and his revenues generally increasing, in the years after the accident. The evidence indicates, and I find, that this was in large part attributable to the new chicken barn design he developed. Between the accident and April 2017 (when he closed the business), Mr. Blenus’ crews built nine of these new-style chicken barns with the help of his son Evan Blenus and his daughter Terri-Lee Eaton. He was still getting requests to build them after he closed the business; as he testified, he “could be building chicken barns every day for a long time.”

[131]     There is no doubt that Mr. Blenus’ own ability to work was compromised by his various health issues, including both the ongoing pain and discomfort associated with his injuries in the accident, and the symptoms that arose in 2016 and were eventually brought under control by the Lyme Disease treatment. I accept that Mr. Blenus became unable to do physical labour, and that his ability to attend at work sites was reduced. This had been an ongoing fact since the accident. By his own evidence, Mr. Blenus had continued to oversee the operations of the business through periods when he was suicidal due to the Lyme Disease symptoms, and in severe pain due to injuries from the accident.

[132]    It does not follow, however, that the closure of the business in 2017 can reasonably be attributed to the injuries. Mr. Blenus was very much of the view that he himself was essential to the business. Contrasting himself with Evan, he said, “I was the business. He wasn't the business. He was an employee.” The Plaintiff asks the Court to find as a fact that this was in fact the case, which I reject. Mr. Blenus agreed that his intention had been to transfer the business to Evan when he retired. It was apparent from his evidence that Mr. Blenus was disgruntled by Evan’s temporary unavailability due to injury in the winter of 2016-2017. He also formed the opinion that with the potential of a child with health issues, Evan’s time would be limited moving forward. This was merely Mr. Blenus’ personal view, and was belied by other evidence, including Evan’s own reaction to his decision to shut down the business.  

[133]    The business was viable, and indeed expanding, and Evan, who had worked alongside his father for over 15 years, was interested in taking over. Mr. Blenus’ declaration that no one else could possibly run the business runs counter to his own admission that the intention had been that Evan would eventually take over. It was the breakdown in the relationship between father and son that caused Mr. Blenus to shut down the construction business in the spring of 2017.

[134]    The foundation of the Plaintiff’s claim for loss of earning capacity or lost future income is the premise that the closure of the construction business resulted from his injuries. While Mr. Blenus clearly became less able to take an active part in the day-to-day operation of the business as a result of his inability to do manual labour and his ongoing pain, it is not clear that this translates into any actual lost future income. This conclusion has elements of both causation and mitigation. I have found that the cause of the shut-down was not Mr. Blenus’ injuries, but the circumstances between him and Evan in early 2017. But even if the injuries had been the cause of the closure, Mr. Blenus had an ability to mitigate his damages, but declined to do so. Mr. Blenus was proprietor of the business, which was, in fact, growing in the years after the accident. He had a “support system” in the form of his own children who were capable of taking charge of operations day-to-day. It is noteworthy that Mr. Reaume worked on the basis that the plaintiff had indicated that there was no loss up to the year the business ceased, which was some four years post-accident, despite Mr. Blenus’ condition over those years.  

[135]    As such, the Plaintiff has not established grounds for an award of damages for lost future income or diminished earning capacity.             

Non-pecuniary damages

[136]    The Plaintiff cites Binder v. Mardo Construction Ltd. (1994), 136 N.S.R. (2d) 20, [1994] N.S.J. No. 494 (C.A.), where the Court of Appeal affirmed a jury’s general damage award of $100,000 ($156,476.08 adjusted for 2018) for a respondent who was “left with painful and disabling injuries when her car was struck from behind by the appellant's truck while stopped at an intersection...” (para. 1). Freeman J.A. said, for the court:

9          With respect to general damages, Ms. Binder was left with untreatable injuries causing pain so severe and so persistent she could neither sleep nor concentrate on her work. The jury found the condition is permanent. While she was left with functioning limbs, the disruptive effect of the injuries on Ms. Binder's life could hardly have been greater had she been paralyzed...

 

[137]      The Plaintiff also relies on Sharpe v. Abbott, 2007 NSCA 6, where the Court of Appeal described the “functional approach” to assessing damages as developed by the Supreme Court of Canada in Arnold v. Teno, [1978] 2 S.C.R. 287, and Lindal v. Lindal, [1981] 2 S.C.R. 629. Saunders J.A., for the court, noted that the trilogy stands for the proposition that “awards for non-pecuniary damages should be moderate” (para. 119). As Dickson. J. (as he then was) remarked in Lindal, the “social impact” of a non-pecuniary damage award is a relevant consideration, by contrast with an award for cost of future care, and the plaintiff is otherwise compensated for whatever damages for lost income are called for. Further, he noted, “damages for non‑pecuniary loss are not really ‘compensatory.’ The purpose of making the award is to substitute other amenities for those that have been lost, not to compensate for the loss of something with a money value. Since the primary function of the law of damages is compensation, it is reasonable that awards for non‑pecuniary loss, which do not fulfil this function, should be moderate” (Lindal at 638, cited in Sharpe at para. 119). Saunders J.A. concluded:

[120]     It follows from this that assessing damages for non‑catastrophic injuries cannot simply be a matter of comparing the seriousness of the plaintiff's injuries with those of the plaintiffs in the trilogy and scaling the award back from the maximum.  As was said in Corkum v. Sawatsky (1993), 118 N.S.R. (2d) 137 (T.D.) at pages 154 ‑ 5, (varied slightly on appeal, but not on this point, [1993] N.S.J. No. 490) an assessment of non‑pecuniary damages must take account of all of the circumstances in light of the goal of the award of providing some measure of solace for the pain, suffering and loss of enjoyment of life suffered by the plaintiff.

[138]    The Court of Appeal in Sharpe reduced a jury award of general damages from $225,000 to $100,000. The jury had “obviously considered her to have suffered serious and indefinite injuries which have had a significant impact on her enjoyment of life” and held that “those findings were reasonable and available to the jury on this record” (para. 134). However, the quantum represented “palpable and overriding error on the jury’s part ... having regard to both the evidence, and as measured against appellate decisions involving appeals from jury awards in like cases” (para. 150).

[139]    The Plaintiff also cites Tulloch v. Akogi (2007), 85 O.R. (3d) 793, [2007] O.J. No. 3232 (Ont. Sup. Ct. J.). In that case a jury awarded general damages of $125,000 ($150,479.89 adjusted for 2018). The Plaintiff brought a motion for a determination that he had suffered “a permanent and serious impairment of an important physical, mental or psychological function”, a threshold determination required before damages could be recovered from an owner or occupant of an automobile. In allowing the motion, the court said:

8  The essential position of the plaintiff was that since the date of the accident, he has suffered chronic back pain which has interfered materially with the quality of his life and with his ability to work. Further, while exacerbated by subsequent events, the lower back pain occasioned by the original accident is nevertheless the source of his inability to walk for substantial distances, or to stand for substantial periods of time. As well, the medical evidence made clear that the prospect of improvement by the plaintiff is negligible and he is likely to remain in his existing situation for the balance of his life, if he does not actually deteriorate.

...

 

10  In my view, there is no question here that chronic back pain of the kind experienced by the plaintiff, as reflected in his evidence, is playing a major role in his health, general wellbeing and way of life. Clearly this function is an "important" physical one and the material evidence established that his chronic back pain will be "permanent". Further, an award of this magnitude by the jury shows clearly that the jury found that the injuries which were sustained by the plaintiff were necessarily serious in nature, insofar as they had made a serious economic award of damages to him. Finally, the evidence made clear that Mr. Tulloch suffered a substantial burden of chronic back pain for at least the four years following the accident, prior to the occurrence of any of the subsequent events which exacerbated his situation, and that chronic low back pain continues to be the source of his lack of mobility, inability to work, and an important component of the accelerated deterioration of his health that he has experienced in recent years. Insofar as it interfered with his pre-accident capacity for work and pleasurable activity, and continues to do so in his now reluctantly accepted "forced" retirement, I find that his impairment attributable to the accident is a serious one, even if it was exacerbated by subsequent events.

[140]    The Defendant says the proper measure of general damages attributable to the accident is $75,000. In Singer v. Power (1997), 163 N.S.R. (2d) 1, 1997 CarswellNS 344 (S.C.), the plaintiff, a 46-year-old taxi driver, suffered a mild whiplash injury, including neck and elbow discomfort and headaches, which resolved in several months with physiotherapy. However, he had ongoing right shoulder pain that interfered with sleep and routine tasks. He was diagnosed with a rotator cuff tear requiring surgery and physiotherapy. He subsequently had some difficulty sleeping and experienced discomfort in certain weather. Stewart J. awarded general damages of $40,000, reduced by five percent for failure to mitigate by seeking treatment for depression and anxiety.

[141]    In Hawes v. Yorston, 2006 NSSC 26, a vehicle driven by the plaintiff Hawes was hit by a vehicle driven by the defendant which turned left into her path. The defendant was entirely at fault. The plaintiff Pottie was a passenger in Hawes’s vehicle. He experienced pain in his neck, back, and leg, and required bilateral shoulder surgery three years later. He recovered a full range of motion in both shoulders, and the pain in his neck improved with physiotherapy. Davison J. awarded non-pecuniary damages of $25,000.

[142]    In Mawdsley v. McCarthy's Towing & Recovery Ltd., 2010 NSSC 168, the plaintiff tried to enter his stalled vehicle as it was being towed by the defendant and was caught between the vehicle and the tow truck. The plaintiff suffered serious head and upper body injuries, including a broken jaw, fractured ribs, and loss of sensitivity in his left arm. He spent eleven days in hospital after the accident. He had persisting loss of feeling on the right side of his face as the result of a severed facial nerve. He had lacerations on the side and back of his head and a puncture would to the chest. He was referred to an orthopaedic surgeon with respect to the AC joint separation and to a neurosurgeon with respect to neuropraxia. He had some ongoing loss of sensitivity on his left arm and, despite, dental surgeries, he still suffered from some malocclusion and facial asymmetry. He also underwent lengthy physiotherapy and work conditioning, which was partly successful, and returned to work on modified duties. In assessing general damages, Bryson J (as he then was) said:

64      The evidence discloses that Mr. Mawdsley continues to experience pain in his shoulders, neck, back and jaw. His sleep is sometimes interrupted. He takes Tylenol to alleviate pain. He says he has difficulty concentrating. However, x-rays taken at the time of the accident disclosed degenerative changes in the C-5, C-6 area. There is no medical opinion as to whether and to what extent these degenerative changes may be contributing to his present symptomology. Moreover, many of these symptoms are not constant, but they arise or are aggravated by work. As indicated above, he also has problems in the lumbar spine area.

 

65      Mr. Mawdsley's injuries are troubling and persistent, but not totally disabling. With the exception of lifting heavy objects, particularly over his head, Mr. Mawdsley has recovered much of his pre-injury function. He can do many of the things he used to do, although more slowly. He has pain which is manageable except when he works long and hard. But the accident has had a permanent impact on him. According to Dr. Lefebvre's most recent report, he has now plateaued.

66      The seminal decision in Nova Scotia dealing with injuries which are "persistently troubling but not totally disabling" is Smith v. Stubbert, [1992] N.S.J. No. 532 (N.S. C.A.). In Stubbert, the Court of Appeal established a "range" of general damages in such cases of $18 - $40,000. This court considered the Stubbert range of damages in Merrick v. Guilbeault, 2009 NSSC 60 (N.S. S.C.). LeBlanc, J. "updated" the Stubbert range for inflation to $27,000.00 to $54,000.00. In that case, an award of $45,000.00 was made, increased to $52,000.00 by way of aggravation for an unprovoked and brutal assault. Stubbert can be contrasted with the approach of Justice Moir in Marinelli v. Keigan, [1998] N.S.J. No. 155 (N.S. S.C.), aff'd [1999] N.S.J. No. 23 (N.S. C.A.), in which the Court found that the plaintiff's enjoyment of life had been "substantially if not totally curtailed." In Marinelli, the plaintiff suffered severe whiplash injuries in a motor vehicle accident. She developed chronic pain which prevented her from working as a registered nurse. She could only do light housework in slow stages. She was awarded $80,000.00 (approximately $100,000.00 in 2009). In addition to these cases, the plaintiff has cited Dillon v. Kelly, [1996] N.S.J. No. 143 (N.S. C.A.), as well as other cases involving brain trauma. In my view, both Marinelli and Dillon involved physical injuries that had a greater impact on the plaintiffs' life and capacity to enjoy life than is disclosed in this case. Mr. Mawdsley's physical injuries alone, what he has endured, what he is left with and the challenges going forward, place him at the higher range of Stubbert.

[143]    Further concluding that the plaintiff had suffered “mild but permanent brain trauma from his accident” manifesting as “memory and concentration impairment” (paras. 88-89), Bryson J. concluded:

90      I have carefully considered the authorities cited on behalf of Mr. Mawdsley with respect to brain trauma, including Dillon, Hyland v. Henneberry, [1994] N.S.J. No. 313 (N.S. S.C.), Jodrey Estate v. Crowder Estate, [1990] N.S.J. No. 183 (N.S. T.D.) and Goguen v. British Columbia, [2002] B.C.J. No. 2615 (B.C. S.C.). In my assessment, Mr. Mawdsley's level of impairment is less serious than that of the plaintiff in any of those cases. Taking into account both his physical injuries and his mild brain trauma, I consider $100,000.00 to be a reasonable sum by way of general damages.

[144]    In Hayward v. Young, 2013 NSCA 64, the plaintiff, a 31-year-old business executive, was injured in a broadside MVA. While he went to work after the accident, he later reported disorientation and nausea, though he had not lost consciousness, and stiffness and soreness in the neck, back, and shoulders. He was subsequently diagnosed with soft tissue injuries, with associated headaches. The pain became chronic. He was later treated for depression, arising from his injuries and associated pain. The chronic pain was still impacting the plaintiff at trial, eight years after the accident, although he remained employed and engaged in other business ventures. General damages of $57,500 were ordered on appeal, in view of the trial judge’s clear finding that the injuries were within the Smith v. Stubbert range.

[145]    In Tibbetts v. Murphy, 2015 NSSC 280, the plaintiff, who was 51 years old, was injured while driving a motorcycle when she was struck by the defendant’s truck. Her injuries included a dislocated and fractured left hip, a fractured left tibia, and a fractured left fibula.  She spent 11 days in hospital, went through multiple surgeries, and had mobility issues, including being severely limited in functioning for several months after the accident. She still required a walker and a cane. She unsuccessfully tried to return to her work as a security guard seven months after the accident. She reported ongoing hip, leg, and back pain, and experienced nightmares. She eventually returned to work, with a reduced ability to do her job. MacAdam J. assessed general damages at $30,000.

[146]    The Defendant also cites Wilson v. Wilson, [1996] N.B.J. No. 606, 1996 CarswellNB 609 (Q.B.), where the plaintiff, an office worker, suffered a compression fracture of the thoracic spine, broken left ribs, a partial collapse of the left lung in hospital, a broken left collar bone and shoulder blade, and a sprain to the lumbar spine area. Her subsequent worsening back pain required a spinal fusion. Her outlook at the time of trial, 4.5 years later, was for ongoing chronic pain. She had some loss of function in her left shoulder and back, and some disfigurement of the chest and spine. General damages were assessed at $60,000. The defendant submits that Wilson is the “high water mark” of general damages in circumstances where causation is established in relation to all the plaintiff’s injuries, including ongoing chronic pain.

[147]    As described above, Mr. Blenus suffered a right clavicle and scapula fracture, which required shoulder surgery and insertion of a plate, which was later repaired after becoming loose, and ultimately removed; right rib fractures (3-8); a collapsed lung, and subsequent soft tissue and back pain. He also experienced thoracic spinal fractures, specifically, right T5 and T6 transverse process fractures. He experiences serious ongoing back and shoulder pain that is exacerbated by activity, leaving him unable to perform physical work and preventing him from engaging in a range of activities that he participated in before the accident. He denies any psychological injury, insisting that his injuries are purely physical. In assessing the impact of the injuries on the plaintiff, I am mindful of my previous findings as to his credibility and reliability. I have taken into account the Plaintiff’s tendency to exaggerate, as well as the intervention of serious symptoms in 2016, unconnected to the accident.   

[148]    The caselaw suggests a considerable range for general damages for injuries of this nature. I am satisfied that Mr. Blenus’ injuries are beyond the Smith v. Stubbert range, given the evidence of the scale of impact of his injuries on his life. Mr. Blenus’ injuries are not only soft tissue injuries, but fractures that have caused significant ongoing pain which does not show any sign of resolving. His situation is more akin to those of the plaintiffs in Marinelli and Dillon, in that his physical injuries have had a greater impact on his life and capacity to enjoy life than was the case in Mawdsley, where the court noted that the plaintiff had “recovered much of his pre-injury function.” I conclude that general damages of $100,000 are appropriate.

Loss of housekeeping and valuable services

[149]    The Nova Scotia Court of Appeal considered the quantification of damages for loss of housekeeping capacity and valuable services as a head of damages distinct from non-pecuniary damages in Carter v. Anderson (1998), 168 N.S.R. (2d) 297, [1998] N.S.J. No. 183. In that case, Roscoe J.A. said, for the court:

26  ... Future loss of capacity, where proved, should be compensated separately whether or not replacement help has been paid in the past. The award for lost capacity should not simply be part of the non-pecuniary damages as "an element of loss of amenities". Housekeeping capacity is ordinarily not an amenity. Its loss is not an intangible loss comparable to the appellant's loss of ability to dance, to skate, or to ride horses... Managing one's home and keeping it clean and organized is important and necessary for the health and safety of the family. The partial or total loss of that ability has economic value which should be recognized. In another case, it may be more appropriate to compensate most of the loss with a non-pecuniary award for a loss of amenity, if for example, the plaintiff proved that he derives personal gratification from doing housework.

 

27  In this case there has been an economic loss for which no compensation has been provided. There is a mother of four children, who is also employed outside the home, and who has been found by the trial judge, to be unable to vacuum, mop floors, scrub the bathrooms, or do heavy chores and has problems lifting. Her limitations were found to be likely to continue "for a very long time, if not for life."

[150]    Turning to quantification, Roscoe J.A. referred to Fobel v. Dean (1991), 83 D.L.R. (4th) 385 (Sask. C.A.) (leave to appeal to S.C.C. refused, [1992] 1 S.C.R. vii), where Vancise J.A. started “with the proposition that the service, even though performed inside the home and outside the marketplace, has an economic value capable of quantification. To award damages on this basis it is necessary to identify the various elements or components of homemaking”, under the broad categories of “(i) direct labour, and (ii) management” (Fobel at 398, cited in Carter at para. 28).

[151]    In Leddicote v. Nova Scotia (Attorney General), 2002 NSCA 47, [2002] N.S.J. No. 160, Saunders J.A., speaking for the majority on this point, emphasized that under this head of damages “one is not compensating for physical injury or resulting pain and suffering. Rather, the inquiry is focused on the repercussions of such injury, that is to say whether their effect has impaired the claimant's ability to complete the tasks and fulfill the responsibilities undertaken around the home before the accident” (para. 49). After referring to Carter v Anderson, he said:

50  ...[I]n order to sustain a claim for lost housekeeping services one must offer evidence capable of persuading the trier of fact that the claimant has suffered a direct economic loss, in that his or her ability or capacity to perform pre-accident duties and functions around the home has been impaired. Only upon proper proof that this capital asset, that is the person's physical capacity to perform such functions, has been diminished will damages be awarded to compensate for such impairment...

 

51  I should note parenthetically that while the trial judge may (as here) choose to consider whether or not the claimant has paid anyone prior to trial to complete such household chores, such is not determinative as to whether or not compensation ought to be paid for lost housekeeping services. As noted in Carter and more recently by Oland, J.A. writing for this court in Miller v. Folkertsma Farms Ltd. et al., [2001] N.S.J. No. 350, [2001] NSCA 129, loss of capacity to perform homemaking or housekeeping tasks is to be compensated separately whether or not replacement help has been paid for in the past.

[152]    The Plaintiff also cites Boucher v. Doiron (2000), 230 N.B.R. (2d) 247, [2000] N.B.J. No. 382 (C.A.), where Drapeau J.A. (as he then was), for the court, held that a plaintiff need not establish actual financial loss to make out a claim for lost housekeeping capacity, and held that “the respondents could not reduce their liability to Ms. Boucher by deducting from her claim the value of the services rendered gratuitously by her children and other members of her family” (para. 29).

[153]    Before the accident, the Plaintiff was independent in household chores, including cooking, cleaning, childcare when his children were with him, and outdoor chores. He did, however, employ Sherry Rogers to clean the house for three hours each week, paying her $60.00 per week. He states, however, that this was a matter of convenience, not necessity. After the accident, his girlfriend continued doing the inside chores until they broke up in April 2016. Now his daughter helps with inside chores, and his brother, son, and son-in-law with his outside chores. On cross-examination, Mr. Blenus was directed to Dr. Kleinman’s report where Mr. Blenus reported that he could not do housekeeping and had a housekeeper come in once a week (JEB, p. 318). He acknowledged on cross-examination that this was not accurate. He had a housekeeper before the accident, but she ceased working after the accident.

[154]    Evan Blenus testified that since he began speaking with his father again in 2018, he had helped him with chores, such as shovelling snow and mowing his lawns. Mr. Blenus’ daughter Terri-Lee Eaton said that when her father and brother were not talking to each other, she helped her father with yard work and he paid her out of the business to clean his house when he did not have a “significant other” with him.

[155]    I accept that there has been a loss of housekeeping capacity arising from the Plaintiff’s injuries. The Plaintiff seeks a significant quantum of damages under this head, some $125,000, based on estimated costs for indoor and outdoor chores to the age of 80. The Defendant says any award for loss of housekeeping capacity should not exceed $12,500, which would be in line with such awards in Mawdsley ($5715, as adjusted for 2018), Tibbetts ($10,545), and Wilson ($12,015). With particular reference to the undisputed loss of Mr. Blenus’ ability to perform heavier outdoor chores, I would allow damages of $25,000 for loss of housekeeping capacity and valuable services.

Cost of future care

[156]    In his pre-trial brief Mr. Blenus advanced a claim based on a prescription for medical marihuana for three grams per day, of an expense of $9,063.60 per year, or lump sum of $163,940.00, to age 80. He agreed that he had never filled the prescription. Instead, he had been taking marihuana butter, initially buying it from a friend, and subsequently producing his own. Mr. Blenus acknowledged refusing to name the friend who originally prepared and gave him medical marihuana at his discovery on August 24, 2017. He said he did not want to get his friend into trouble. He did not know the exact CBD or THC content in his friend’s recipe, but testified it was “potent stuff” and he uses the same recipe to make his own.

[157]    Mr. Blenus acknowledged testifying at discovery that a mason jar of butter lasted five weeks if he did not do any lifting and was not in a lot of pain. He stopped buying his friend’s jars (about 10 jars per year, at $150.00 per jar) when he started this proceeding. He presently grows his own marihuana and makes his own butter.

[158]    The Defendant says the claim for costs of future care is unsubstantiated, based on the Plaintiff’s attitude and conduct. The Defendant says there should be no award in respect of expenses for marijuana butter produced by “Ricky”, or by the Plaintiff himself, nor should there be any award in respect of the medical marijuana prescription that the Plaintiff did not fill in the five years post-accident.

[159]    I accept that the Plaintiff will incur ongoing expenses related to pain mitigation, although I am not satisfied that the likely amounts have been quantified to any degree of precision or reliability. I also consider claims for other forms of support equipment speculative, particularly in view of Mr. Blenus’ failure to pursue some options offered in the past, such as an occupational therapy assessment of his home. I would allow damages of $25,000 for cost of future care.

Mitigation

[160]    The duty of an injured plaintiff to mitigate their damages in the context of chronic pain is discussed in Hollett v. Yeager, 2014 NSSC 207, where Coady J. said:

[13]        Freeman, J.A. in Slawter v. White, [1996] N.S.J. No. 122 discussed the components of chronic pain at para. 84:

 

         It appears from the evidence that for the purpose of determining damages, chronic pain syndrome consists of three elements:

 

1.  Physical injuries suffered in a tortious accident which do not account for the degree of disability complained of by the plaintiff and, indeed, which may have wholly healed without continuing disabling effect.

 

2.  Continuing physical discomfort from causes secondary to the original injury, which may include cramping, atrophy, shortening or other stresses in the affected muscles and tendons resulting from inactivity during and following the healing process.

 

3.  A psychological overlay, in which depression and anxiety may be factors, resulting in exaggerated symptoms and pain or other sensations such as numbness which may be wholly psychosomatic in origin.

 

In such cases the challenge lies in determining the limits of the Defendant’s just duty to compensate in damages.

 

[14]        The issues of chronic pain, and the duty to mitigate, were discussed by Freeman J.A. at para. 88:

 

88   If the plaintiff diligently attempts to mitigate his damages and no improvement results, he will then be entitled to recover damages in full measure for the disabilities that continue from secondary causes related to the initial injuries, even in the event of full recovery from the initial injuries.  If, however, there is medical evidence that a substantial improvement could have been expected in the plaintiff's condition if he had followed medical advice, and he failed to follow it, then he will be deprived of damages resulting from his own failure.  This will be taken into account in the assessment of damages even if there is only a likelihood falling well short of certainty that the recommended treatment will be successful.

 

[15]        In chronic pain cases the burden does not shift to the Defendant to prove an absence of mitigation (Janiak v. Ippolito, [1985] 1 S.C.R. 146).  It is also well accepted that a lack of mitigation will be excused if the Plaintiff at the time of the accident is suffering from a psychological infirmity that deprives him of the capacity to make rational choices. (Janiak v. Ippolito, supra)...

[161]    I conclude that the Plaintiff has not met his duty to mitigate. Numerous of his own acts and omissions have contributed to worsening his condition or undermined his ability to recover. For instance, after the slip-and-fall incident in Truro, he not only refused EHS assistance, but did not seek medical attention, and did not disclose the fall to his treating physicians until the following spring. (I am mindful that the evidence did not establish an immediate injury or damage to the shoulder plate, but the Plaintiff’s own evidence was that the fall brought on severe pain.) The failure to inform Dr. Murphy about the fall on his repaired shoulder in Truro was among many other instances examples of Mr. Blenus not acting prudently for his own well-being. Similarly, Mr. Blenus did not recall telling Dr. Kleinman on August 25, 2016, about reinjuring his shoulder at Truro, or about the broken plate. He did tell Dr. Kleinman that he tripped in a parking lot approximately two weeks post collision. At trial, he blamed this error on the fact that he suffered a “brain injury” in the accident.   

[162]    Similarly, despite the extent of pain he describes, the Plaintiff took no steps to inquire about his status at the Berwick Pain Clinic after being referred there and apparently registering. Dr. Segato later reiterated to Mr. Blenus that the referral was in place and should be pursued. Dr. Segato also testified that he would have discussed Dr. Kleinman’s recommendation for an interdisciplinary pain program with Mr. Blenus. Both Drs. Segato and Kleinman testified that the failure to pursue recommended treatment modalities could have a negative impact on a patient’s recovery.  

[163]    These and other abuses of himself (including, in particular, the taking of illicit drugs, failing to continue his physiotherapy, and/or cooperating with his treating physicians) clearly aggravated his circumstances. (I do not, however, conclude that the Plaintiff’s use of marihuana butter in place of the prescribed form of marihuana constitutes a failure to mitigate. There was no evidence on which to find that Mr. Blenus’ pain control would have been more effective had he filled the prescription rather than buying, and later producing, his own.)

[164]    Accordingly, the court finds that the Plaintiff has not acted reasonably to mitigate his damages. I conclude that his damages should be reduced by 25 percent to reflect the failure to mitigate.  

[165]    The Plaintiff specifically denies any psychological trauma arising from the accident, insisting that his injuries are purely physical. As such, there is no basis on which to find that he is suffering from a psychological infirmity that deprives him of the capacity to make rational choices, as contemplated by Janiak.

Conclusion

[166]    Accordingly, I award general damages of $100,000, damages for loss of housekeeping and valuable services of $25,000, and damages for cost of future care of $25,000. The damages shall be reduced by 25 percent due to the failure to mitigate.

[167]    If the parties unable to agree to the costs or prejudgment interest rates, then counsel shall provide written submissions for my consideration within 30 days.

 

Warner, J.