One of the major television stations from Vancouver broadcast a news story this past week about pedestrians as a follow up piece for a report on a family that was struck down in a newly marked crosswalk. The footage showed a pedestrian standing on a sidewalk facing the street as traffic drove by without slowing or stopping. In fact, it appeared to my eye that the speed of the video had been increased slightly so that the cars appeared to zoom by. The commentary by the news reader lamented that the drivers just weren’t stopping as they were supposed to. The trouble was, at least according to the law, he was not correct and this could reinforce improper expectations between drivers and pedestrians.
Drivers and cyclists are not required to yield to a pedestrian using a crosswalk until the pedestrian physically occupies the crosswalk. That means stepping off of the sidewalk and onto the road. It’s a lesson from one of my first visits the courtroom that I will not forget. I had written a traffic ticket to a driver for failing to yield to a pedestrian who was waiting patiently on the sidewalk for her turn to cross. It didn’t take the judge long to dismiss the ticket for want of evidence that the driver had been required to yield.
Oddly, marked crosswalks are dangerous places as over half of pedestrian collisions occur at intersections. More markings are not better than fewer markings. The Pedestrian Crossing Control Manual for British Columbia states “As pedestrian control issues are often emotionally charged, there can be a tendency to assume that using more traffic control devices will resolve pedestrian safety problems. However, experience has shown that the overuse of devices may reduce their effectiveness…”
The manual also says “Pedestrian crossing safety relies on the judgement exercised by pedestrians and drivers. To interact safely requires an exchange of information between the pedestrian and the motorist.” Never simply assume that you have the right of way as a pedestrian or a driver. Right of way is something that is given, not taken.
Using a crosswalk is simple. First, look both ways for approaching traffic. If it is safe to step into the crosswalk, do so, if not wait until it is. As we teach children to do, point your way across by holding your arm up and pointing to the far side. This reinforces in the driver’s mind that we intend to cross and are not just passing the time of day. Make eye contact with the driver and insure that they come to a complete stop. Step out to the edge of that vehicle and repeat the sequence at each successive lane making sure not to enter it until after traffic is stopped.
For the driver, there is always the onus of having to exercise due care to avoid colliding with a pedestrian who is on the highway. Most of us would immediately think that this would only apply if the pedestrian is using an area where vehicles normally drive. This would be incorrect, as by definition places such as the shoulder and sidewalks are part of the highway. We must pay attention to the travels of people on foot to yield the right of way as required by law and to prevent a collision through anticipation of what might happen.
If we approach the act of driving and walking with an attitude of sharing the road together chances are that we will avoid difficulties. It is when we become selfish and insist on being first that the problems begin, particularly for the pedestrian as they are the ones with the most to lose regardless of whether they are right or wrong.
Sunday, June 26th, 2016How to Use a Crosswalk - ILSTV.com
Sunday, June 26th, 2016Have you ever met anyone who would admit to being less than a better than average driver? Those of us who are completely honest may say so but our behaviour behind the wheel could indicate differently. It’s called optimism bias and it is something that we are all affected by. We are all optimistic about our personal capabilities and that includes our driving skills.
Sunday, June 26th, 2016Defence Expert Criticized for Becoming "an Advocate for the Defence" - ILSTV.com
Adding to this site’s archived case summaries addressing advocacy by expert witnesses, reasons for judgement were released today by the BC Supreme Court, Kamloops Registry with critical comments about an expert witness.
In today’s case (Odian v. Carriere) the Plaintiff sustained a chronic neck injury as a result of a collision. Her symptoms impacted her vocational functioning. In the course of the lawsuit the Defendant had the Plaintiff assessed by an occupational therapist who conducted a functional capacity evaluation and provided the Court with opinion evidence expressing optimism that a kinesiology program “will likely improve” the Plaintiff’s condition. In criticizing this opinion as “not well based” and expressing concern that the opinion strayed into prohibited advocacy Mr. Justice Dley provided the following comments
 Ms. Phillips’ optimism that the new kinesiology program will likely improve Ms. Odian’s condition is not well based. There is no history or details that would justify her opinion. Ms. Phillips’ initial opinion as set out above was far less certain than what she said at trial.
 I am concerned about the objectivity of Ms. Phillips’ opinion.
 Ms. Phillips’ testimony was challenged particularly in light of a rebuttal report she had prepared. During her cross examination, Ms. Phillips was at times evasive and non-responsive. The tenor of the rebuttal report, coupled with her testimony and demeanor in court, was indicative of a witness who had become an advocate for the defence.
 Putting Ms. Phillips in the most favourable light to the defence, the best that can be said about her opinion is that Ms. Odian may receive some benefit from new programs, but they will not cure her symptoms. Ms. Odian will still have discomfort.
 I prefer the opinions of the medical experts who agree that Ms. Odian’s condition is chronic. Dr. Robinson summarized it best:
The treatment of chronic headache related to head and neck trauma is usually difficult. Research is limited despite the frequency and burden of these injuries to individuals and society. As yet there is no physical therapy that has been found to be curative. At most patients will experience temporary benefit and on occasion the headaches may be more severe following such therapy. I do not believe that there is any further advice to be given other than to maintain an active lifestyle. Regular exercise directed to improving general fitness may increase the sense of well-being and ability to cope with pain.
Dr. Robinson: February 13, 2015 at page 8.
 Dr. Robinson’s opinion is consistent with the views of Drs. Laidlow and Hirsch.
 I also accept the evidence of Ms. Odian. She was truthful and reliable with respect to her injuries and the ongoing symptoms.
Sunday, June 26th, 2016Uber discussions need to go beyond the fact it offers a cheaper ride - ILSTV.com
By Paul Haavardsrud, CBC NewsThis is part three of a three-part series on Uber. Read parts one and two. Outraged taxi drivers the world over telling anyone who will listen that Uber is the devil in corporate form makes it tough, even for those so inclined, to blithely accept at face value the company’s argument that it’s just a technology firm disrupting a sheltered industry. It would be nice if that were the case. Easier. But nothing is ever that easy, is it? And neither is Uber. In fairness, you could say there’s much to like about a company that can deliver a prompt ride at the push of a button, often at a cheaper price than cabs. So far, so good. But that’s only the beginning of the Uber discussion. A closer look at the company’s particular brand of disobedience could quickly become unsettling. Uber may like to cast itself as a harmless scofflaw that’s willing to bend a few rules for the greater good, but legal experts say its practices are hardly benign. Working for its own narrow self-interest, the company’s systemic disregard for regulations — a stratagem termed “corporate nullification” — can undermine the laws of the land that everyone else follows. “This isn’t just an Uber problem. If they get away with it, every company will do this; every company will become a platform and just say ‘oh, the laws don’t apply to us.’ If we enter into that stage, then it’s game over for vast swathes of business regulation: environmental, insurance, civil rights, worker protection, consumer protection, that’s all gone,” said Frank Pasquale, a law professor at the University of Maryland. “People don’t see the stakes of it, they think ‘oh well, you know, we have to disrupt taxi cabs and we have to get this stuff done,’ but it doesn’t have to be done on Uber’s terms. The stakes couldn’t be higher in terms of the ability of these platforms to just get out of regulation.” Gig economy In the here and now, of course, warnings about the consequences of corporations flouting the rule of law can feel abstract compared to the immediate gratification of getting a cheaper ride to the airport. That may soon change. While researchers haven’t yet reached a consensus on the number of workers participating in the so-called gig economy, most agree that new forms of contract employment made possible by companies like Airbnb, TaskRabbit and Uber are on the rise. In the U.S., a recent poll suggests more than one in five Americans have participated in this type of on-demand contract employment. Part of the conversation now taking place there, which is beginning to migrate to Canada, involves asking what responsibilities 21st-century companies will have to workers, as well as the rest of society. As it stands, employers and employees both pay to fund programs such as health care, employment insurance, Old Age Security and other parts of the social safety net. The question of who will cover those costs if the nature of work changes to include fewer traditional full-time positions — not to mention the fate of worker protections such as overtime and minimum wage — is still in search of an answer. Indeed, the recent popularization of the term “gig economy” reflects this evolution of the work world to include more part-time and contract employment and fewer of the full-time jobs that have traditionally been the bedrock of the middle class. As for the more well-known term, “sharing economy,” it’s losing ground amidst a growing recognition that sharing isn’t really part of the equation. A transaction in which a passenger pays a driver wouldn’t seem to be any different from what happens with a taxi. Yet taking a cab isn’t known as sharing a ride. Wrapping itself in the language of the sharing economy, however, allows Uber to align itself with values like co-operation, sustainability and community. It’s a smart play, if disingenuous, particularly insofar as it helps to bathe a business model that’s so nakedly commercial in a kinder, gentler light. Uber, as is often pointed out, is libertarian to its core, whether it’s the company’s attempts to dismantle regulation or its belief in the righteousness of the unfettered free market. What happens to cabbies? None of this, of course, makes Uber an evil corporation. At the same time, the speed at which the company, among the fastest-growing startups in the history of Silicon Valley, is crashing through the world puts it at the centre of any number of questions. On the front lines of those looking for answers is the taxi industry. The existing system may be flawed, overregulated, and too costly, but that doesn’t mean cabbies should just be written off as collateral damage — the result of rule changes inspired by the financial ambitions of a single company.
Sunday, June 26th, 2016$110,000 Non-Pecuniary Assessment For Chronic C5/6 Disc Herniation - ILSTV.com
Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic disc injury sustained in a collision.
In today’s case (Arletto v. Kin) the Plaintiff was injured in a 2010 head on collision. The Defendant admitted fault. The Plaintiff sustained a variety of injuries the most serous of which was a disc herniation in his neck which caused chronic symptoms which adversely affected his career as a longshoreman. In assessing non-pecuniary damages at $110,000 Madam Justice Dillon provided the following reasons:
 The overwhelming medical opinions and testimony lead to the conclusion that the plaintiff did not have a pre-existing degenerative condition of the cervical spine. He was very healthy and had not been to a doctor in years.
 Dr. Chin stated that there was a risk of further progression of the disc protrusion resulting in worsening symptoms in the future due to repeat injury or trauma. He considered that Arletto was vulnerable to this risk given the nature of his occupation and the fact of disease progression in the absence of additional trauma. Non-surgical management was recommended for now but the possibility of surgery in the future was not ruled out. Dr. Loomer thought that surgery could be a therapeutic consideration if Arletto’s symptoms became intolerable.
 Dr. Nguyen also thought that there was an increased risk of progression of the disc protrusion with the plaintiff’s work. He recommended on-site ergonomic assessment but did not realize that Arletto changes his lift truck daily such that adaptation for individual ergonomics is not practical. He concluded that repetitive neck movement placed Arletto at risk for progression not only of disc herniation, but also arm weakness and worsening neck pain. In cross-examination, Dr. Nguyen said that Arletto was not a candidate for surgery now but that he could be in the future if the pain symptoms were accompanied by weakness or sensory loss.
 Dr. Stancer said that the whooshing sounds that the plaintiff experiences in his left ear are not treatable. The symptoms had not improved over time and are likely to continue indefinitely. The same was said for the headaches with the expectation that they would continue in the same pattern with resultant sleep disruption…
 It is now over five years since the accident. Only the soft tissue injury to the lower back has healed. The plaintiff has continued to work despite shifting pain and other symptoms. There appears no resolution to symptoms from his ongoing injuries. He has lost whatever enjoyment he had from what had already been a limited social life. He continues to look after his personal needs, in keeping with his non-malingering attitude. He has been perseverant and dedicated. As stated by Dr. Stancer, Arletto has coped surprisingly well in the face of continuing pain and uncertainty about his future…
 The plaintiff’s situation is unique. The comparison cases are helpful but only indicators of how others’ pain and suffering were dealt with.
 Arletto was 47 years old at the time of the accident. He had worked his way up to a full time union job as a longshoreman driving a forklift truck and enjoyed some seniority in that position. He was single but with strong family ties and had looked after his sister. He was driving his nephew to a game when the accident occurred. He was known to be private and reserved but enjoyed the collegiality of the union hall. He was healthy and had never been to a massage or physiotherapist.
 Arletto is now 52 years old. He suffers from permanent pain in his neck and shoulder blade and has numbness and tingling down his left arm and into his fingers. He suffered a left-sided disc protrusion at C5/6 with associated annular tear in the accident. The protrusion has impinged the nerve and spinal cord, causing increased pain. He has undergone trigger point injections and two nerve root blocks to relieve the pain with only temporary relief. He has tinnitus and vertigo as a result of the accident. He suffers headaches about three times per week that interrupt sleep. He takes pain medication as required but not often because it interferes with work. A lower back soft tissue injury resolved after just less than two and a half years. Work aggravates his pain. His work has been permanently affected to the point that he has reduced working hours, given up hope of improving his union rating by becoming a crane operator, and planned for an earlier retirement. His family and other relationships have suffered and he cannot tolerate crowds or a noisy family dinner.
 An appropriate award for non-pecuniary damages in this case is $110,000.
Sunday, June 26th, 2016BY ROB SHAW AND CHUCK CHIANG, VANCOUVER SUN
Sunday, June 26th, 2016Hersh Shefrin | Huffington Post Business
Monday, January 11 marked the beginning of a ‘bellwether’ trial for General Motors (GM) that will provide a template for future litigation stemming from a faulty ignition switch. Between 2004 and 2013, at least twelve people died in ten separate accidents involving GM Cobalts and Saturn Ions which featured the faulty ignition switch. The switch was easily disabled by knee movements, which turned off the engine en route, disabling power steering and power brakes, thereby making it difficult for drivers to maintain control of their vehicles.Manufacturing companies frequently encounter technical problems like the faulty ignition switch. In and of itself, this problem should have been a minor issue that was easily correctable. The fact that it was not corrected for years was a consequence of GM’s dysfunctional risk management. My new book Behavioral Risk Management describes why the major risk management failures to have occurred in the last fifteen years stem from deep seated psychological pitfalls. In the book, I discuss the GM case, describing the psychological issues that led GM to engage in critical don’ts and avoid important do’s in the way the company practiced risk management. Four of the most important psychological pitfalls are: 1. Downplaying the likelihood of unfavorable events, known as excessive optimism; 2. Overassessing own ability, known as overconfidence; 3. Turning a deaf ear to information that is unfavorable, known as confirmation bias; and 4. Taking an unfavorable risk to avoid having to accept a sure loss, known as aversion to a sure loss. Personnel at GM exhibited every one of these pitfalls. A firm with a strong risk management profile establishes protections against psychological pitfalls in the way that it sets standards, engages in planning, structures incentives, and shares information internally. GM failed abysmally on all counts. Amazingly, in 2004 GM CEO Rick Wagoner test drove a Cobalt and turned off the ignition with his knee while he was driving! Ray DeGiorgio, the engineer who chose the ignition switch design, eventually recognized the problem, but could not convince his colleagues to address it. In desperation, of his own volition, in 2006 he asked parts supplier Delphi to replace the faulty switch with a superior alternative. However, he did not change the part number on the ignition switch and did not share the information with anyone else at GM. That failure to share information hampered GM investigators when they subsequently tried to figure out what was going on. In July 2014 Michael Millikin, GM’s general counsel, told a Senate hearing that although GM’s legal team had been investigating the faulty switch issue for some time, it was only several months before that they even told him there was an issue. This is a colossal information sharing failure. A company with effective risk management profile puts in place a risk management edifice that is strong along three dimensions: structure, culture, and behavior. Strong structure entails effective policies, procedures, and systems, with sound risk management practices being rewarded through compensation. Strong culture entails making risk management a valued activity, with clear communication channels for the sharing of information, and bosses who are good risk management role models. Strong risk management behavior means encouraging constructive devil’s advocacy. How GM emerges from its bellwether case remains to be seen. However, what is clear is that GM was weak in all three dimensions. Engineer DeGiorgio found no policies and procedures for how to deal with the faulty ignition switch problem once he discovered it. His bosses were hardly role models for strong risk management. And as a junior GM lawyer discovered in 2012 when the company was trying to figure out what to do, his suggestion of a product recall was not welcome. All in all, when it comes to GM’s risk management report card, the verdict is guilty.
Sunday, June 26th, 2016Learn about 2015’s top fraud offenders and how insurance fraud is costing all BC drivers:
A man who torches his vehicle then claims it was stolen, a woman embellishing the extent of her injuries to collect two paycheques, and a man crying wolf to get out of doing the dishes — these are just some of the highlights found in ICBC’s fraud files in 2015.
While the vast majority of ICBC’s customers are honest, there are some drivers that choose to exaggerate or make false claims. ICBC is launching an anti-fraud campaign to raise awareness about fraudulent insurance claims and its financial impact to all B.C. drivers.
Insurance fraud is not a victimless crime; it costs every B.C. driver more than $100 per year on their insurance policy. Insurance industry estimates indicate 10 to 20 per cent of auto insurance claims contain an element of fraud or exaggeration. That means, dishonest claims total up to as much as $600 million each year in B.C. And ICBC is committed to catching fraudsters in the act as one of the ways to help reduce the pressures on rates.
The most common types of insurance fraud include false claims, exaggerated claims and organized fraud. An example of a false claim is when an owner fabricates a story about their vehicle being stolen when it was actually disposed of by the owner. Exaggerated claims are when a driver or passenger embellishes a claim by overstating their injuries or the damage to their vehicle. And organized fraud are planned events such as staged collisions and jump-in schemes.
Here are some cases of people that weren’t so truthful in 2015:
From headaches to back pain, a man complained to ICBC that his injuries are so severe after his MVA that he couldn’t even help his wife with simple household chores, like washing the dishes. Shortly after his crash, our investigators collected footage of him lifting box after box of heavy floor tiles at his work site. For his attempt to falsify his injuries, he was convicted of fraud, fined $1500, and is likely back on dish duty.
A Vancouver woman involved in a collision claimed she was unable to return to work because of her injuries. After receiving an anonymous tip, our investigators obtained evidence confirming that she had been working since the crash – effectively collecting two paycheques at once – one from her employer, and another from ICBC. For exaggerating the extent of her injuries, she was convicted and served with a one-year driving suspension as well as a $1750 fine.
Mom Caught in Cover-Up
A Vancouver Island mom reported that her Audi was stolen from her office’s parking lot. She said that her sons were the only other people that had access to her vehicle, and confirmed both were at home. Later that day, police found her car in the Lower Mainland, abandoned and crashed into a chain link fence.
More evidence was exposed, poking holes in her statement. Witnesses saw a man flee the scene. Telephone records pegged one of her sons at the scene of the crash. Cameras at a B.C. Ferry terminal also caught the same son purchasing a ticket. Both were convicted of providing false statements. The mother was fined $2300, and the son received an $1150 fine and a one-year driving suspension. It turned out that his license was suspended at the time of the crash, so he was sentenced to 90 days in jail as well.
Dash Cam Disclosure
A Lower Mainland man claimed that when he was driving, another car veered into his lane and sideswiped his vehicle. Although the crash was certainly upsetting, the driver was happy that his newly installed dash cam captured the entire incident. He excitedly shared the footage with ICBC to support his claim. However, the video also revealed he was riding shotgun and that his car was actually driven by someone else – an unlicensed driver – at the time of the crash. For providing a false statement about who was driving, his claim was denied.
With all the technological advances in today’s vehicles, it can be hard to keep up with all the new bells and whistles that come with a new car. Not knowing foiled this man’s scheme to cash in on a scam.
A Fraser Valley man woke up at 2 a.m. to find his BMW missing from his driveway. He immediately called the police to report the theft, who found the car later that night, burnt to a crisp at a nearby park.
The man claimed that he was in bed by 11:30 p.m. and that none of his keys were stolen. This particular vehicle employs technology that records each time a key fob is used. Investigators found that an original key fob was used at 12:18 a.m. on the night of incident. The man was busted by his own car, and for that, his claim was denied.
A bus struck a parked fire truck as it was making a turn around a transit exchange. After ensuring all the passengers safely left the bus, the bus driver walked over to the fire truck to exchange information with the driver. The bus driver returned to find a man waiting for him, claiming that he was on the bus and had been injured as a result of the collision. The man filed a claim to ICBC for compensation. However, security cameras at the bus terminal showed that the man was never on or near the bus at the time of the collision. The man was busted for fraud, ordered to pay a fine and spend a night in jail.
ICBC has stepped up its efforts in combatting fraud in order to keep costs down. In addition to enhancing its Special Investigations Unit to include cyber probes and training frontline staff to detect fraud, in 2016, ICBC is exploring adding enhanced fraud software to its arsenal, a tool that will help to quickly flag patterns and high predictors of fraud at the beginning of the claims process.
In 2015, ICBC opened approximately 7500 fraud investigations, which includes almost 5000 claims investigations. The work of its Special Investigations Unit led to a 98% conviction rate on all charges laid, resulting in approximately 550 fraud convictions from 2010 to 2015. These convictions can limit a person’s career options, prevent one from crossing the border and applying for credit. Thousands of fraudsters faced other penalties, including a complete denial of their claim, asset seizure, denial of optional insurance coverage, and other civil remedies.
Insurance fraud increases claims costs, which leads to higher premiums for every British Columbian needing auto insurance.
The public can protect their wallets by reporting suspicious activities related to insurance fraud to ICBC’s toll-free tips line at 1-800-661-6844. Tip information is confidential and callers can remain anonymous. For more information, visit icbc.com/fraud.
Sunday, June 26th, 2016Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a personal injury claim involving an alleged hit and run.
In today’s case (Havens v. ICBC) the Plaintiff was involved in a 2010 motorcycle collision. He sustained a brain injury. The Plaintiff alleged that the collision was caused through the careless actions of an unidentified motorist operating a red truck. The Court dismissed the claim finding it was not proven, most notably accepting medical evidence that the plaintiff’s recollection was medically ‘impossible‘ given the nature of his head injury. In reaching this conclusion Mr. Justice Myers provided the following reasons:
 ICBC obtained a report from a psychiatrist, Dr. Roy O’Shaughnessy, to address the likelihood of the plaintiff being able to recall the accident reliably after receiving the blow to the head. He referred to the plaintiff’s memory as being “recovered memory”, which is memory that occurs much later after the fact. Dr. O’Shaughnessy opined that Mr. Havens’ reported memory is not consistent with the physiology of memory in two ways. The first was that:
… he states he has developed a memory of being struck in the head by lumber extending out the rear of a pick-up truck that he states was in the lane beside him and crossed into his lane. He then recalls seeing the pick-up truck passing by him in his lane before becoming unconscious. This is physiologically impossible. If he were to have received a blow to the helmet or head that would have rendered him unconscious, it would have occurred immediately with impact and not some time later. He would not have been able to recall seeing the red pick-up truck pass by him and enter into his lane as he believes he recalled. Invariably any blow to the head of such a nature to cause unconsciousness does so immediately post blow. Were he to have actually been struck in the head, he would not have recalled anything post impact and would certainly not have recalled seeing the red pick-up truck accelerate away from him.
 The second is that when he was admitted to the hospital, Mr. Havens had an impaired Glasgow Coma Scale of 7 out of 15. Given that, it would have been impossible for him to have laid down long-term memory after the blow to the head:
… If there is a disruption in the person’s abilities to attend, focus, or concentrate, they will not be able to lay down memory or recall it at a later date. Individuals who have suffered a head injury of this magnitude will invariably experience impairment in their capacity to attend or concentrate such that the memory will never have been laid down in the first place and it is not “recoverable” at a later date.
 I accept the evidence of Dr. O’Shaughnessy that it would have been impossible for Mr. Havens to be able to recall the accident.
 That would be sufficient to dismiss the action, but the other inconsistencies in Mr. Havens’ evidence and the evidence of the other witnesses confirm that conclusion.
Sunday, June 26th, 2016$80,000 Non-Pecuniary Assessment for Chronic and Permanent Low Back Injury - ILSTV.com
Today’s guest post comes from B.C. injury claims lawyer Erik Magraken
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic low back injury sustained in a collision.
In today’s case (Gunson v. Sekhon) the Plaintiff was involved in a 2010 collision caused by the Defendant. The plaintiff suffered a chronic and permanent low back injury. The lingering symptoms caused some difficulties for the Plaintiff at work but did not outright disable him. In assessing non-pecuniary damages at $80,000 Mr. Justice Grauer provided the following reasons:
 It is not contested that Mr. Gunson suffered soft tissue injuries to his neck and back with symptoms including dizziness, headache and sleep loss, most of which problems were resolved within a year of the accident. On his physician’s advice, Mr. Gunson took 28 days off work and underwent a course of physiotherapy. I accept that he also suffered an exacerbation of pre‑existing situational depression related to his marital and financial difficulties.
 What did not resolve and is unlikely ever to resolve is injury to Mr. Gunson’s lower back, which I find has become chronic in the form of ongoing intermittent lower back pain and was caused by the accident. An MRI taken at the request of Dr. Hershler demonstrated “mild changes consistent with facet joint arthropathy and ligamentum flavum hypertrophy at L3/4 and L5‑S1″, as well as shallow posterior disc bulge with a “minimal central canal encroachment but…mild encroachment on the left L4 nerve root”. I am satisfied that these changes are part of the lower back injury caused by the accident.
 Dr. Waiz recommended physiotherapy and approved a course of chiropractic treatment, while Dr. Hershler recommended a supervised one‑on‑one active exercise program to assist with further pain management.
 Apart from the first course of physiotherapy immediately following the accident, which was helpful, Mr. Gunson has not pursued these recommended treatments. The defence does not, however, allege a failure to mitigate. Rather, it points to this as indicative of Mr. Gunson’s ability to work without the need of such therapy.
 What is the result of this chronic lower back injury? Mr. Gunson concedes that he did not do housework before the accident, but he did do yard work and does less now. He advances no claim for loss of housekeeping capacity. As his counsel submitted, his real focus in life has been his work.
 Mr. Gunson continued to work full‑time, but testified that he has had to adjust how he has carried out his job, which is clearly a physically‑demanding one, delegating more of the heavy physical work to junior crew members and resting as required. I will have more to say about this in relation to his claim for loss of income earning capacity. At this point, I observe that, notwithstanding the injury he has clearly suffered, he has maintained full‑time employment for over five years, has taken no time off as a result of the injury beyond the first 28 days, has not found it necessary to undergo physical therapy or take pain medication, and was able to change employers twice, by choice, without any impediment arising from his physical condition.
 Mr. Gunson also testified that his injury interferes with his ability to play with his growing children, particularly his three‑year‑old, so that he is unable to be as close to them as he would like. If his back discomfort is aggravated by his work, it interrupts his sleep. He has not been able to engage in activities such as snowmobiling and golf, and finds that long rides on his Harley cause a flare‑up of the lower back pain.
 In all of the circumstances of this case, I conclude that an appropriate award would be $80,000.