IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Cabral v. Brice, |
| 2010 BCSC 197 |
Date: 20100215
Docket:
M080873
Registry: Vancouver
Between:
Danny
Cabral
Plaintiff
And
Andrew
Douglas Brice
Reddog Enterprises Ltd.
Defendants
Before: The Honourable Madam Justice Wedge
Reasons for Judgment
Counsel for the Plaintiff: | K. |
Counsel for the Defendants: | H. |
Place and Date of Trial: | Vancouver, |
Place and Date of Judgment: | Vancouver, |
I. INTRODUCTION
[1]
Danny Cabral was driving a pick-up truck when he
was struck from behind by a commercial truck driven by Andrew Brice. The
accident occurred on March 31, 2006, in Langley, British Columbia.
[2]
Mr. Cabral
suffered soft-tissue injuries to his neck. He continues to suffer from chronic
neck pain.
[3]
Liability is admitted. The
central issue is the severity of Mr. Cabrals neck injury and the ongoing
limitations he experiences as a result. He seeks compensation under the following
heads of damage:
a)
General (non-pecuniary) damages;
b)
Past income loss;
c)
Loss of income earning capacity;
d)
Loss of house maintenance capacity;
e)
Cost of future care; and
f)
Special damages.
II. FACTS
Mr. Cabrals Background
[4]
Mr. Cabral was 32 years of age at the time
of the accident; he is now 36. He and his spouse, Susan Cabral, have two
children who are now aged three and five. They live in a house with a large
yard in Richmond. At the time of the accident, the Cabrals younger child was
10 days old.
[5]
Mr. Cabral
completed high school in 1991 and, thereafter, a two-year telecommunications
diploma from BCIT. He has been employed by Telus for 11 years. For the past
nine years he has worked in the field performing technical and installation
work. Taking into account his benefit package with Telus, he earns
approximately $80,000 per year. Mr. Cabral is the sole income earner for
the family. Ms. Cabral works in the home, caring for the children and
performing the household work. Mr. Cabral maintains the house and performs
the yard work.
[6]
Mr. Cabral was,
and continues to be, very active and physically fit. He participates in many
sports, but his passion (as he describes it) is soccer. He has played
competitive soccer at an advanced level since he was six years of age. Soccer
is the source of his exercise, his social life and his overall well-being.
Mr. Cabrals Pre-accident Health
[7]
In December 2001, Mr. Cabral suffered a
herniated disc in his neck at the C6‑7 level from a workplace injury. The
injury also damaged the nerve distribution of his right arm. He was off work
completely for six months. He returned to work on light duties in June 2002,
for nine months, but the work gradually aggravated his neck condition. He then
attended an intensive rehabilitation program for six weeks, which resulted in a
complete resolution of his injury. Mr. Cabral returned to his full duties
in September 2003. He also resumed all of his sports activities and the
maintenance of his home.
[8]
Mr. Cabral
experienced no residual pain or limitations on any of his activities after
September 2003. He was able to perform the full range of work and domestic
duties, and all of his sports activities. He played intensive soccer and had no
difficulty with any aspect of the game, even heading the ball without any
consequential neck pain.
[9]
After September 2003, Mr. Cabral
embarked on an ambitious house renovation project. He renovated the bedrooms
and study in the house, and then worked on the exterior of the home replacing
most of the siding. At the time of the accident, he had completed most of the
renovations and was planning a large landscaping project for the front yard.
The Accident
[10]
The accident occurred in the late afternoon of
March 31, 2006 during rush hour. Mr. Cabral was driving a small, extended
cab Nissan truck. He had cleared a signalled intersection but stopped as a
result of traffic congestion once through the intersection. Mr. Brice was
driving a Ford F450 commercial truck and was some distance behind Mr. Cabral.
He had also cleared the intersection when he saw the congestion in front of him.
He was in the process of gearing down in anticipation of the traffic, and
pumped his brakes to come to a full stop. His brakes did not respond and he hit
the rear of the truck Mr. Cabral was driving. Mr. Brice estimated
that he was travelling at between 10 and 20 km per hour when his vehicle hit Mr. Cabrals
truck.
[11]
Mr. Cabral
testified that he was looking down toward the floor of the truck when he was
struck. He felt an immediate sharp pain in the base of his neck on the right
side, but did not come into contact with the steering wheel or the dashboard of
the truck. Mr. Cabral and Mr. Brice got out of their vehicles to
exchange information and examine the damage. Mr. Cabral said he felt
shaken by the accident, but indicated in response to Mr. Brices inquiry
that he felt all right.
[12]
The collision caused a
dent in the steel bumper of the Ford truck. The right side of the bumper on the
Nissan truck was bent, the right tail light was broken, and there was buckling
to the right rear quarter panel of the truck.
[13]
Mr. Cabral was
concerned about the sharp pain he felt during the collision because it was in
the same area as his previous neck injury. When he arrived home, he immediately
put ice on his neck.
[14]
The accident occurred
on a Friday. Mr. Cabral was scheduled to work on Sunday, but he
experienced increasing neck pain on Saturday and decided not to attend work on
Sunday. On Monday morning he visited his family doctor, Dr. Robert Morrell.
Dr. Morrell advised Mr. Cabral to continue applying ice to his neck
and to book some additional days off work. He also wrote Mr. Cabral a
prescription for Celebrex, an anti-inflammatory medication.
Mr. Cabrals Condition in the
Months Following the Accident
[15]
Mr. Cabrals neck pain was specific to the
base of his neck and top of his right shoulder. He missed three days of work,
returning on the Wednesday following the accident. He performed light duties
for the month following his return to work, and then resumed his regular duties.
[16]
Mr. Cabral testified that for the first
month or two following the accident he experienced intense neck pain and spasms.
He received massages and acupuncture for the pain. He said that when he resumed
his regular duties, he performed them in pain. The pain was particularly aggravated
by any work requiring the extension of his hands and arms away from his body,
either directly in front of him or above his head.
[17]
At the time he resumed
his regular duties, Mr. Cabral was working eight-hour shifts, five days
per week. He then went to a compressed work week which involved three 10.5-hour
days and one eight-hour day. He testified that for approximately two or three
months following the accident he put ice on his neck immediately after arriving
home from work. The pain interfered with his ability to sleep. He was very
tired and irritable from both the pain and the lack of sleep. It was more
difficult for him to help his spouse with their young children, one of whom was
a newborn.
[18]
Mr. Cabral
continued to receive massages for several months, as well as physiotherapy. He
took the anti-inflammatory medication until his stomach became sensitive to it.
He then used over-the-counter pain medication.
[19]
After the first couple
of months, Mr. Cabral resumed most of his sports activities. He found that
being physically active decreased his neck pain. By the end of May 2006, Dr. Morrell
cleared Mr. Cabral to resume playing soccer but told him not to head the
soccer ball. Mr. Cabral tried to avoid heading the ball whenever he
could by playing outside positions on the field, but did perform the manoeuvre
from time to time. Mr. Cabral also resumed playing floor hockey, another
of his favourite sports.
Mr. Cabrals Ongoing
Condition
[20]
Although the intense
pain abated after the first few months, Mr. Cabral continues to suffer
from neck pain which has prompted him to make some modifications at work.
Whenever possible, he continues to avoid extending his arms in front of, or
above, his body while performing installation work. He also avoids sitting or standing in
stationary positions for extended periods of time, and assuming awkward positions when reaching behind furniture for phone jacks. He
takes his heavier equipment and supplies to worksites on a dolly instead of
carrying them.
[21]
The level of the pain
fluctuates. Mr. Cabral said that he could be fairly asymptomatic for a few
days, and then experience increased pain. He continues to come home after work
in pain, sometimes requiring that he put ice on his neck and receive neck
massages from his spouse. He said he tries to play with the children as much as
possible, but that sometimes playing on the floor with their toys and train
sets results in increased neck pain.
[22]
Mr. Cabral bought
a tent-trailer for travelling and camping with his family. The family took its
first trip last summer to Osoyoos, British Columbia. Mr. Cabral said the
five-hour drive resulted in significant neck pain that took at least a day to
resolve.
[23]
Ms. Cabral
testified that Mr. Cabrals ability to participate in family activities
and child care duties has decreased since the accident. She said that Mr. Cabral
often comes home from work in pain, which causes him to be fatigued and
irritable. She does what she can to assist him by massaging his neck and
performing all of the indoor household duties, including most of the child
care.
[24]
Mr. Cabral
testified that he thought his productivity level at work was not as high as it
was before the accident. Approximately 18 months ago, a supervisor told him he
was at the lower end of productivity for the employees in his job
classification. However, the issue has not been raised since that time. He has
not received a written warning about his productivity, or any kind of negative
job review.
[25]
Mr. Cabral also
testified that he does not think he will be able to perform a desk job because
of the discomfort it will cause. Before the accident, he had hoped to move from
field work to an inside position by the time he was between the ages of 40
and 45, but believes that may not be possible due to his neck injury. As a
result, he believes he may be less marketable as an employee in the future.
[26]
Mr. Cabral
acknowledged that he had not yet explored the options available at Telus for
inside work. He also acknowledged that no medical professional had recommended
that he look for a different kind of job than his current position with Telus.
[27]
Mr. Cabral
attended physiotherapy from April until July 2006. He resumed treatment in
October 2006, receiving nine additional treatments through February 20, 2007. Thereafter,
with the exception of a Botox injection in December 2007, he did not receive
any further treatment for his neck injury until December 2008.
[28]
In December 2007, Mr. Cabral
received an injection of Botox which significantly relieved the pain for
several months.
[29]
Mr. Cabral has
continued playing competitive soccer and floor hockey without any increase in
his pain symptoms. He continues to avoid heading the soccer ball when
possible. There have been times when he could not play soccer due to a groin
injury and then an ankle injury, but his neck injury has not prevented him from
playing soccer since he resumed playing a couple of months after the accident.
[30]
Floor hockey poses no
problem with respect to Mr. Cabrals neck injury.
[31]
Between May and
December 2008, Mr. Cabral received physiotherapy treatments at a sports
medicine clinic, but not for complaints of neck pain. He had injured his left
wrist playing floor hockey, and received treatment for that injury. The notes
of the treating physiotherapist, Katherine Gordon, disclose ongoing complaints
by Mr. Cabral of wrist pain, which he said was aggravated by chores such
as shovelling snow and trimming the hedge bordering his property.
[32]
Ms. Gordon
testified that Mr. Cabral first asked her to examine his neck on December
17, 2008. He had some neck stiffness and protective neck posture. Ms. Gordon
provided a program designed to assist in the mobilization of Mr. Cabrals
neck. She saw Mr. Cabral for a few weeks regarding his neck symptoms as
well as his wrist injury, and then designed a home program for him. She saw him
from time to time after that to make adjustments to the program. Ms. Gordon
has seen Mr. Cabral recently for treatment of a right foot injury.
[33]
Mr. Cabral has not
employed anyone to assist him with the yard work or other home maintenance he
customarily performs. He continues to mow the lawn and do other yard work and
home maintenance. He employed a person on one occasion to top the large hedge
bordering his property. He testified that his father-in-law has been helping
him with some of his home improvement projects since the accident.
III. THE MEDICAL EVIDENCE
Dr. Robert Morrell
[34]
Dr. Morrell has been Mr. Cabrals
family physician for 10 years. He confirmed that Mr. Cabral had fully
recovered from his 2001 workplace injury by the fall of 2003, when he resumed
all of his workplace duties and sports activities. It was Dr. Morrells
opinion that the 2006 accident caused Mr. Cabrals current condition. It
was also his opinion that the previous injury likely created Mr. Cabrals
vulnerability to the injury he suffered in the 2006 accident.
[35]
In his report dated
December 8, 2009, Dr. Morrell provided a chronology of his treatment of Mr. Cabral.
I will summarize the report.
[36]
Dr. Morrell noted
that by April 25, 2006, Mr. Cabral reported that his neck was improving
although by the end of the day it was sore when holding his newborn baby. On
examination, Mr. Cabrals cervical and thoracic range of motion was normal
and pain free.
[37]
On May 30, 2006, Mr. Cabral
reported that his neck felt good: Range of motion was excellent, and it was
advised that he could re-start soccer. After seeing Mr. Cabral in July
2003, Dr. Morrell wrote: At this stage he was doing all of his
activities, playing and practicing soccer, although he had been avoiding
heading the ball as per instructions.
[38]
In September 2006, Mr. Cabral
told Dr. Morrell that since discontinuing his physiotherapy treatments in
July, he had experienced episodes of increasing neck discomfort. Dr. Morrell
advised him to take an anti-inflammatory as required.
[39]
Mr. Cabral next
saw Dr. Morrell in mid-February 2007. He told Dr. Morrell that he had
experienced no pain through December and January, but began experiencing pain
again in February. On examination, Dr. Morrell found decreased range of
motion at the base of the neck as well as decreased extension. With respect to
the examination, Dr. Morrell noted the following:
The diagnosis
was soft tissue inflammation and irritation of the C1, C2, C5-6 cervical spine.
This was felt to be exacerbated by his heading of the ball in soccer. He was
advised to attend physiotherapy … and to use Naprosyn anti-inflammatory
medication.
[40]
Dr. Morrell saw Mr. Cabral a week
later, and observed that his range of motion had returned to normal and his
facet joints were easy to mobilize. In a follow-up visit in early March 2007, Mr. Cabral
reported that his neck had improved but there was occasional pain and
discomfort. Dr. Morrell advised him to continue with a strength and
flexibility program, and discussed sports activities that could aggravate his
neck pain.
[41]
Dr. Morrell next
saw Mr. Cabral in early July 2007. He observed some tenderness and
tightness in Mr. Cabrals neck muscles. He prescribed Mr. Cabral
Naprosyn, another anti-inflammatory. Two weeks later, when he attended for
another visit, Mr. Cabral stated that the neck pain could be made worse by
playing tennis or other throwing activities. Dr. Morrell advised him to
limit those activities and to rest his neck.
[42]
Mr. Cabral did not
see Dr. Morrell again until mid-November 2007. On that occasion, he told Dr. Morrell
he was still experiencing intermittent soreness and tightness in the right side
of his neck. He had returned to playing soccer after some months of rest due to
a groin injury. Dr. Morrell had suggested that Mr. Cabral receive a
Botox injection some months earlier, and in December 2007, Mr. Cabral had
the injection. The Botox improved his neck symptoms considerably.
[43]
In July 2008, Mr. Cabral
saw Dr. Morrell and reported that his neck discomfort and tightness had
largely resolved for seven months following the Botox injection but had now
returned. He was experiencing pain at work when reaching into awkward spaces. A
month later, Dr. Morrell ordered X-rays of Mr. Cabrals neck as he
was still experiencing intermittent discomfort. The X-rays revealed
degenerative disc disease at C6-7 and other mild changes at C3-4, C4-5, C6-7
and C7-T1. Regarding these changes, Dr. Morrell observed the following at
p. 5 of his report:
These changes
were not present on the x-rays from 2003. It was felt that there had been some
progressive deterioration of his cervical spine. We again reviewed that his
neck had been subject to recurrent pains following the motor vehicle accident
in 2006. These pains would be triggered by specific movements and activities. Again,
these activities were reviewed in detail as well as the significance and
importance of him avoiding heading in soccer. This had been previously
discussed periodically over the last three years.
[44]
In the concluding paragraph of his report, Dr. Morrell
expressed the following opinions. Although Mr. Cabral had experienced a
previous neck injury in 2001, it had completely resolved. Before the 2006
accident, Mr. Cabral was functioning normally in his work, sports and
social life. Following the 2006 accident, Mr. Cabral experienced
soft-tissue pain which had persisted intermittently since that time. The pain
was exacerbated by Mr. Cabrals working conditions and playing soccer. The
X-rays disclosed progressive disc degeneration in several areas of the neck. Dr. Morrell
concluded his report with the following comments:
At the present
time I would feel that he will have an intermittent problem with his cervical
spine which will be controlled with flexibility and strengthening and also stop
doing sports where heading balls are involved[.]
[45]
Dr. Morrell was called to speak to his
report at trial. He testified that he advised Mr. Cabral to avoid heading
the ball when playing soccer because there was a risk of aggravating his neck
injury, but that Mr. Cabral had never complained of any pain from heading
the ball. Dr. Morrell said that Mr. Cabral could play soccer, particularly
as it was so important to him, and should participate in whatever activities
made him feel better. He cautioned, however, that Mr. Cabral should play
at a level that did not exacerbate his neck injury.
[46]
Dr. Morrell expressed the opinion that at
the time of the 2006 accident, while Mr. Cabral had completely recovered
from the 2001 accident, he was more vulnerable to a neck injury because of the nature
of the previous injury.
Dr. George Aitken
[47]
Dr. Aitken is a specialist in Orthopaedics.
He examined Mr. Cabral at the request of his legal counsel on May 24,
2007, approximately 18 months after the accident. Dr. Aitkens report was
written on the day of the examination.
[48]
On examination, the range of motion in Mr. Cabrals
neck was normal. Palpation of his head and neck produced mild discomfort at the
nape of his neck.
[49]
It was Dr. Aitkens opinion that the
rear-end impact in the 2006 accident caused the soft-tissue injury and
resulting intermittent pain now suffered by Mr. Cabral. He recommended
acupuncture for any muscle spasms Mr. Cabral may experience or, if the
pain became severe enough, periodic Botox injections.
Dr. Mark Adrian
[50]
Dr. Adrian is a specialist in Physical
Medicine and Rehabilitation. He examined Mr. Cabral at the request of his
legal counsel on October 6, 2008. Dr. Adrians report was written on the
same day.
[51]
On examination, Mr. Cabral had full range
of motion in his neck but tenderness at the base of his neck on the right side.
[52]
Dr. Adrian concluded that Mr. Cabral
suffers from mechanical neck pain as a result of the 2006 accident. He
expressed the opinion that while Mr. Cabral herniated a disc in his neck
in 2001, it had resolved well before the accident. However, the disc herniation
likely made Mr. Cabral more vulnerable to another neck injury. It was also
Dr. Adrians opinion that the injury sustained in the 2006 accident was
not likely to worsen over time.
[53]
Dr. Adrian stated that Mr. Cabral
would likely continue indefinitely to experience neck pain symptoms when
performing activities that stress the musculoskeletal structures of his neck. Specifically,
those symptoms were likely to appear when he performed activities requiring
awkward neck positioning, prolonged carrying, repetitive reaching and impact
activities such as heading the soccer ball.
[54]
Dr. Adrian recommended that Mr. Cabral
maintain his current level of fitness by participating in a home exercise
program. He did not make any other therapeutic recommendations.
Dr. Michael Piper
[55]
Dr. Piper is a specialist in Orthopaedics. He
examined Mr. Cabral at the request of the defendants on October 6, 2009. His
report was written the same day.
[56]
In his report, Dr. Piper set out Mr. Cabrals
description of his neck pain. Mr. Cabral told him that he experienced severe
pain two to three times per week, sometimes brought on by working in awkward
positions. At those times, he was always aware of the discomfort. He also
experienced the pain when driving for long periods of time. Mr. Cabral
told Dr. Piper that he avoided taking the anti-inflammatory Celebrex but
took six to eight tablets of Ibuprofen per week. He also said he performed the
household chores and mowed the lawn but that these activities aggravated his
symptoms.
[57]
On examination, Dr. Piper observed a
marked muscle spasm in the lower right area of Mr. Cabrals neck and
upper area of his right shoulder.
[58]
A review of the X-ray and MRI reports revealed
progressive disc degeneration and degenerative osteoarthritis in the neck
joints. At p. 6 of his report, Dr. Piper concluded as follows:
From a clinical point of view, he would
appear to continue to suffer some symptoms as a result of a fairly significant
cervical sprain, superimposed upon preexisting degenerative changes and perhaps
aggravated by the development of further degenerative change. The changes noted
on his more recent imaging may have come about as a result of the subject motor
vehicle accident or may simply be the result of the passage of time.
I believe Mr. Cabral
should be commended for continuing to work. He should continue with his
aggressive rehabilitative exercise program, which I believe is beneficial for
him.
[59]
In his evidence at trial, Dr. Piper
reiterated that the injury and degenerative problems resulting from the 2001
accident, while resolved at the time of the 2006 accident, made Mr. Cabral
more vulnerable to the soft-tissue injuries he sustained in the accident. Dr. Piper
said the trauma may have contributed to the degenerative changes since the
accident but could not identify the cause of the degeneration with any certainty.
[60]
Dr. Piper was
asked by counsel for Mr. Cabral whether he would recommend that Mr. Cabral
look for other employment if his pain worsened. Dr. Piper responded that
if Mr. Cabrals symptoms became progressively worse, requiring more
treatment and medication, then it may be advisable for him to seek other work.
IV. DISCUSSION AND
CONCLUSIONS
[61]
Causation is not in issue. The evidence
established that Mr. Cabral had been fully functional for almost three
years before the accident: the neck injury he sustained in 2001 had completely
resolved long before the 2006 accident. According to the medical experts, Mr. Cabral
may have been more vulnerable to a further neck injury as a result of the
previous injury. Accordingly, but for Mr. Brices negligence, Mr. Cabral
would not have suffered the kind of injury he sustained in the accident: Resurfice
Corp. v. Hanke, 2007 SCC 7, [2007] S.C.J. No. 7.
[62]
I will turn now to the various heads of damages
claimed by Mr. Cabral.
(a) General
(Non-pecuniary) Damages
[63]
In Unger v. Singh, 2000 BCCA 94,
[2000] B.C.J. No. 246, Proudfoot J.A. observed the following at para. 32
concerning the quantum of general damages in soft-tissue injury cases:
After analyzing
the many cases cited by both counsel (I will limit my comments to relevant
material) I find that the range of damages is indeed wide. Cases involving
primarily soft-tissue injury with some emotional problems including sleep
disruption, nervousness, depression, seem to be from a low $35,000 to a high of
$125,000. However, I caution though that these numbers are only guides.
[64]
In Stapley v. Hejslet, 2006 BCCA 34,
[2006] B.C.J. No. 128, Kirkpatrick J.A. (writing for the majority)
outlined (at para. 46) the factors a trial judge should consider when
assessing general damages:
The inexhaustive list of common factors
cited in Boyd that influence an award of non-pecuniary damages includes:
(a) age of the plaintiff;
(b) nature of the injury;
(c) severity and duration of pain;
(d) disability;
(e) emotional suffering; and
(f) loss or impairment of life;
I would add the following factors, although
they may arguably be subsumed in the above list:
(g) impairment of family, marital and
social relationships;
(h) impairment of physical and mental
abilities;
(i) loss of lifestyle; and
(j) the
plaintiff’s stoicism (as a factor that should not, generally speaking, penalize
the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163 (QL), 2005
BCCA 54).
Position of the Plaintiff
[65]
Counsel argued that as Mr. Cabral is a
young man of 36, he is entitled to a larger award for his pain and suffering. The
rationale is that he will have to live with his pain for many years, and has
suffered pain at a time in his life when he expected to be healthy and
able-bodied. The medical experts all concluded that Mr. Cabral will
continue to suffer neck pain for the foreseeable future, and will only ever
have temporary relief from it.
[66]
Counsel observed that Mr. Cabral
has attempted to regain his previous level of functioning through treatments of
various kinds. He has worked continuously despite his pain and should not be
penalized for his stoicism. The injury has affected his family life and has
prevented him from doing tasks he once performed in his home and yard. It has
caused sleep disruption, fatigue and irritability. He is concerned that his
neck injury has affected his productivity at work and will make him less
competitive in the job market.
[67]
The following
authorities were advanced on behalf of Mr. Cabrals position that he is
entitled to an award of at least $80,000 but arguably a greater amount:
Foran
v. Nguyen, 2006
BCSC 605, [2006] B.C.J. No. 291. A 31 year old teachers assistant who
suffered a mild traumatic brain injury, multiple soft-tissue injuries to her
neck and back, and was left with chronic pain and migraine headaches was
awarded $90,000.
Schroeder
v. Shaw, 2008 BCSC 1757,
[2008] B.C.J. No. 2499. A 32 year old man suffered back, hip and neck
injuries as a result of which he could no longer run his landscaping business
and required retraining. He had been very active previously, but as a result of
his injuries he could no longer participate in most of his recreational
activities. His relationship with his family suffered. The medical evidence
established a permanent partial disability. He was awarded $75,000.
Collyer
v. Boon, 2008 BCSC 1745,
[2008] B.C.J. No. 2481. The plaintiff, a young man, was working as a
bartender and attending university at the time of the accident which resulted
in his car being damaged beyond repair. He suffered injuries to his neck, back,
shoulders, hip, knee and thumbs. He sustained superficial burns and abrasions
to his arms. He developed chronic neck and back pain and at the time of trial
was taking significant amounts of opiates to control his pain. He could no
longer participate in his favourite sports and his relationship with his female
partner suffered. He was awarded $80,000, which was reduced to $70,000 for
failure to follow recommended therapeutic programs.
Niloufari
v. Coumont, 2008
BCSC 816, [2008] B.C.J. No. 1181. The plaintiff taxi driver was rear-ended.
There was substantial damage to his taxi. He suffered neck and back strain
which continued to cause him significant pain up to the time of trial. He was
disabled from any activities, including his work as a taxi driver. He was
awarded $70,000, reduced to $63,000 for failure to mitigate. The Court of
Appeal (2009 BCCA 517, [2009] B.C.J. No. 2518) found that he had not
failed to mitigate, and raised his damages under this head back to $70,000.
Position of the Defendants
[68]
The defendants argued that Mr. Cabrals
non-pecuniary damages are in the range of $22,500 to $40,000 based on the
following authorities concerning individuals who suffered soft-tissue injuries:
Aulakh
v. Poirier, 2006
BCSC 2027, [2006] B.C.J. No. 3485. The plaintiff suffered injuries
to her neck, back and shoulders, as well as sleep disruption, after her car was
rear-ended by a semi-trailer truck. The court held that the injuries would not
likely improve over time and impacted her ability to work, household chores,
physically interact with her children and her enjoyment of life more generally.
She was awarded $22,500.
Schulmeister
v. Furmanak, 2004
BCSC 1484, [2004] B.C.J. No. 2377. The plaintiff, a fit, active young man
who was passionate about his outdoor athletic activities, suffered a back
injury that was not expected to resolve. He had ongoing, constant pain four
years after the accident. He had continued his activities but at a modified
level and with significant pain. His work was physically demanding and he was
worried he may not be able to continue that type of work. He was awarded
$30,000.
Krogh
v. Swann, 2005 BCSC
761, [2005] B.C.J. No.1184. The 20 year old plaintiff, also a fit,
active young man, suffered neck and back soft-tissue injuries when his car was
rear-ended by a truck and damaged beyond repair. The court accepted that he
would continue to suffer some pain from the injuries into the future, that the
injuries may be aggravated by certain activities, and that they may impact on
his energy level and his capacity to perform certain jobs. However, the
injuries were not likely to worsen, and activity would not cause further injury.
The plaintiff continued to participate in most of his sports, many of which
were physically strenuous (skiing, squash, soccer and golf). He was awarded
$30,000.
Hamilton
v. Vance, 2007 BCSC
1001, [2007] B.C.J. No. 1495. The plaintiff, a 45 year old single
mother of three children sustained multiple soft-tissue injuries, with some
nerve involvement, which incapacitated her completely for two months. Thereafter,
she gradually resumed her work and some of her other activities but with pain
and modifications. The court concluded that she would continue to suffer some
neck pain and had sustained a permanent but minimal partial disability. She was
awarded non-pecuniary damages of $38,000.
Verhnjak
v. Papa, 2005 BCSC
1129, [2005] B.C.J. No. 1714. The plaintiff, a 55 year old woman,
sustained soft-tissue injuries to her neck, shoulder and lower back when her
car was broadsided by another car. Her car was damaged beyond repair. She was
stoic about her injuries and continued working without taking any time off even
though she was in considerable pain. At the time of trial, she was still
significantly restricted in her movements and her partial disability was likely
permanent. She was awarded $40,000 in non-pecuniary damages.
Discussion
[69]
Mr. Cabral performed light duties at work
for one month following the accident, and then returned to his full duties. He
undertook a three-month course of physiotherapy, and was participating in all
of his pre-accident sports activities by the summer of 2006. He received
several further physiotherapy treatments between October 2006 and February 2007.
Thereafter, he again underwent treatment for his neck pain in December 2008.
[70]
The medical evidence
established that Mr. Cabral suffered a significant neck sprain in the
accident which, while it does not prevent him from working full-time in his job
and participating in his sports activities, continues to cause intermittent
pain which increases his fatigue and stress at work and limits some of his
activities at home. The evidence established that Mr. Cabrals recovery
has reached a plateau. The evidence further established that his condition will
not worsen over time.
[71]
Mr. Cabrals
medical condition is not as severe as those suffered by the plaintiffs in the
decisions cited by his counsel, although it does share some of the features of
those decisions. The medical evidence suggests that his neck pain may now be
chronic in nature.
[72]
Each personal injury
case possesses its own unique facts, and Mr. Cabrals is no different. In
some respects, but not all, his circumstances more closely resemble the cases
cited by the defendants, albeit those in the higher range of damages.
[73]
I have concluded that
an appropriate award for Mr. Cabrals non-pecuniary loss is $50,000.
(b) Past Income Loss
[74]
Mr. Cabral missed three days of work as a
result of the accident. The parties agree that damages for past income loss are
in the amount of $646.
(c) Loss of Future Income
Earning Capacity
[75]
Mr. Cabrals job involves the following
activities. He reports to work at the Telus offices and loads his job
information onto his laptop computer. He then travels by van to various
customer locations to install equipment and wiring both inside and outside the
customers premises, which includes working at a telephone pole and working
with wires running from the pole to the premises. He uses a ladder for the pole
work, which he carries on the roof of his truck. He moves his tools and other
equipment from his van to the worksite.
[76]
Mr. Cabral has modified the way he performs
his work. In order to avoid reaching into tight spaces and assuming awkward
positions to access telephone jacks and wiring inside the premises, he moves
the furniture to access them. He moves his equipment with a dolly instead of
carrying it. He tries to avoid working for prolonged periods with his arms
extended in front of him or above his head.
[77]
Mr. Cabral experiences neck discomfort when
he is stationary for long periods of time, such as when he is working on his
computer.
The Legal Test
[78]
In Rosvold v. Dunlop, 2001 BCCA 1, [2001]
B.C.J. No. 4, the Court of Appeal described the test for assessing damages
for loss of income earning capacity at para. 9:
Because damage
awards are made as lump sums, an award for loss of future earning capacity must
deal to some extent with the unknowable. The standard of proof to be applied
when evaluating hypothetical events that may affect an award is simple
probability, not the balance of probabilities: Athey v. Leonati, [1996]
3 S.C.R. 458. Possibilities and probabilities, chances, opportunities, and
risks must all be considered, so long as they are a real and substantial
possibility and not mere speculation. These possibilities are to be given
weight according to the percentage chance they would have happened or will
happen.
[79]
The Court went on to say at para. 10 that
the trial judge must take into consideration all of the relevant factors
arising from the evidence, which include the following:
[1] whether the plaintiff has been
rendered less capable overall from earning income from all types of employment;
[2] whether the plaintiff is less
marketable or attractive as an employee to potential employers;
[3] whether the plaintiff has lost
the ability to take advantage of all job opportunities which might otherwise
have been open to him, had he not been injured; and
[4] whether
the plaintiff is less valuable to himself as a person capable of earning income
in a competitive labour market.
Plaintiffs position
[80]
Mr. Cabral argued that as a result of his
neck injury he has been deprived of his ability to choose his livelihood. The
evidence, said his counsel, supports the conclusion that there is a real and
substantial likelihood he will suffer a loss in the future. Because of the
nature of his neck injury, Mr. Cabral is limited with respect to both
physical and sedentary employment. He will likely be required to retrain in
order to find work that he is physically capable of doing and which will pay
him approximately what he now earns. That retraining will likely take up to two
years.
[81]
Taking into account base salary and benefits, Mr. Cabral
earns $80,000 per year. Counsel argued that the range of the appropriate award
can be reasonably determined by multiplying his yearly earnings by two (which
is the number of years it will take him to retrain) or, at a minimum, awarding
him an amount equal to one years income. In the result, argued counsel, Mr. Cabral
is entitled to an award in the range of $80,000 to $160,000 for loss of earning
capacity.
Defendants position
[82]
The defendants argued that Mr. Cabral has
not established a real and substantial possibility of a future income loss. After
only three days absence from work and one month of light duties, Mr. Cabral
successfully returned to his full range of duties and has worked without any
further absences for a period of more than three and a half years. Mr. Cabral
acknowledged that since returning to his full duties, he has never required
assistance from co-workers or asked to reduce his hours despite working 10.5-hour
days.
[83]
Mr. Cabral said that his productivity
decreased after the accident and that he was spoken to by his employer on one
occasion approximately 18 months ago. However, he has never received a written
warning or a negative job performance evaluation. He could not say where he
ranked among his co-workers in terms of productivity either before or after the
accident.
[84]
The defendants argued further that Mr. Cabral
has provided no medical evidence to support the proposition that he may not be
able to continue working in his current job or that he should look for
alternative employment.
Discussion
[85]
None of the medical experts, including Mr. Cabrals
family physician, offered the opinion that Mr. Cabral could not continue
to perform his job at Telus or recommended that Mr. Cabral find different
employment. Dr. Piper agreed that if Mr. Cabrals condition worsened,
he may wish to find other work. However, there was no evidence to suggest that
his condition has worsened, or will worsen over time.
[86]
Mr. Cabral did not undergo a vocational or
functional capacity assessment to determine whether he was incapable of
continuing to perform the duties of his job as a technician and installer, or
to determine whether there was other work for which he would be better suited
as a result of his neck pain.
[87]
Mr. Cabrals counsel argued that he may
require retraining at some point in the future, but he did not advance any
evidence as to what type of work he ought to be retrained to perform or the
nature of the retraining that would be required.
[88]
No expert testified that Mr. Cabral would
be unable to perform a desk job or some other inside work.
[89]
The only evidence on the issue was that of Mr. Cabral,
who expressed concern that he may not be capable of continuing indefinitely in
his present job and may not be able to perform a desk job in the future.
[90]
At most, Mr. Cabrals condition has become
static. He suffers from chronic intermittent neck pain which has prompted him
to make certain modifications at work. Notably, however, he has continued to
work these past three and a half years without interruption. He is able to take
short breaks and stretch after completing tasks. Because of the nature of his
job, he is free to alter his position frequently.
[91]
Mr. Cabral testified that he likes his job.
It provides a good salary and excellent benefits package. He earns a higher
income now than he did three years ago. He remains capable of performing
effectively in his job.
[92]
The weight of the medical evidence was that with
exercise, stretching and occasional medication to deal with inflammation, Mr. Cabral
will be capable of continuing in his present occupation.
[93]
It is noteworthy that Mr. Cabrals
condition does not prevent him from participating in the sports he enjoyed
before the accident. These are high-contact sports involving significant
exertion. Mr. Cabrals medical condition is not exacerbated by these
sports. He has suffered other injuries from playing soccer and floor hockey
since the 2006 accident (to his wrist, ankle and groin), but none involved
exacerbation of his neck condition.
[94]
I have reviewed a number of decisions in which
loss of earning capacity was established, such as Kahle v. Ritter, 2002
BCSC 199, [2002] B.C.J. No. 285 and Letourneau v. Min, 2003 BCCA 79,
[2003] B.C.J. No. 274. Both of those decisions involved young men of
approximately the same age and educational level as Mr. Cabral, and who
worked in jobs requiring similar physical exertion. The facts of those cases,
and the medical evidence tendered by the plaintiffs, established that they were
no longer capable of fulfilling some of their work requirements. As a result, their
future earning capacity was demonstrably impaired.
[95]
Mr. Cabrals circumstances more closely
resemble those of the plaintiff in Krogh v. Swann, cited earlier. In
that case, the evidence established that the athletic and physically active
plaintiff suffered a neck sprain in a car accident. The neck pain became
chronic and non-progressive. The plaintiff was able to resume all of his
pre-accident sports activities. Mr. Justice Powers concluded that the
plaintiff would continue to suffer some pain in the future and that it may be
aggravated by certain of his work activities. However, the evidence did not
support the claim that he was unable to pursue the kind of employment related
to his training. There was some loss of earning capacity, but Powers J.
concluded that it was minimal. He awarded the plaintiff $10,000 for loss of
earning capacity.
[96]
Any compensation under this head of damages
should be in proportion to the substantial possibility of actual pecuniary
loss: Naidu v. Mann, 2007 BCSC 1313, [2007] B.C.J. No. 1916. In
that case, the plaintiff continued working in her job as a bank teller despite
her injuries. She was physically able to perform the demands of her job. Her
earnings increased after the accident. However, the plaintiff was unable to
engage in repetitive motions. Madam Justice Russell concluded that the
plaintiff was, as a result, rendered somewhat less attractive as an employee and
that some occupations might be closed to her. The plaintiff was awarded
$10,000.
[97]
Mr. Cabrals neck pain is aggravated by
certain work activities and he has made some modifications to his manner of
work as a result. With those modifications, he is able to perform the full
spectrum of his job duties. There is some possibility of future pecuniary loss,
but it is minimal. Having said that, Mr. Cabrals annual salary is significantly
greater than the plaintiffs in the cases just cited. For these reasons, an appropriate
amount to allow under this heading is $25,000.
(d) Loss of House
Maintenance Capacity
[98]
Mr. Cabral is a competent handyman who has
renovated his home and landscaped his yard. He argued that he is now limited in
terms of the home maintenance he can perform, and seeks an award of damages of
$15,000 as compensation.
[99]
In Hartnett v. Leischner, 2008
BCSC 1589, [2008] B.C.J. No. 2242, Russell J. summarized the
law concerning the awarding of damages for loss of house maintenance capacity
(at para. 107):
This award is
intended to compensate the plaintiff for a total or diminished loss of capacity
with respect to home maintenance activities. It is not designed to compensate
the plaintiff for a specific expense or loss incurred: [citation omitted].
Furthermore, the plaintiff does not have to prove that someone will be hired to
perform such services or to establish any actual expenses incurred or monetary
loss: [citations omitted].
[100] Mr. Cabral testified that he still performs routine household
chores such as mowing the lawn and taking out the garbage. He said he trims the
large hedge bordering his property annually. Though that task used to take him
a day to complete, he has found it a much more onerous job since the accident:
the trimming requires repetitive reaching movements with a pole saw, which
aggravates his neck injury. As a result, he now completes the job over several
days. On one occasion he employed someone to lower the height of the hedge, but
otherwise has continued to do the trimming himself. He recently obtained a
quote for the hedge trimming at $1,000.
[101] With the exception of the hedge trimming, Mr. Cabral continues
to perform the house maintenance he performed before the accident.
[102] Mr. Cabral is entitled to an award of $3,000 for loss of house
maintenance capacity.
(e) Cost of Future Care
[103] Mr. Cabral seeks an award of $10,000 for cost of future care.
[104] Mr. Cabral concluded his physiotherapy treatments for neck pain
in 2007 but sought further treatment for his neck in December 2008 when he was
receiving physiotherapy for his wrist injury. Ms. Gordon, his
physiotherapist, proposed a pain management program at a cost of $55 per visit.
Such a program would typically involve approximately six weeks of visits
followed by occasional visits for program modification.
[105] Dr. Morrell proposed that Mr. Cabral receive a Botox
injection to manage his neck pain. Mr. Cabral had one such injection in
December 2007, which significantly reduced his discomfort. He has not had any
further injections. Dr. Morrell testified that some additional Botox
injections may be of assistance to Mr. Cabral in the future for any
significant exacerbations of the pain. The cost of the one Botox injection he
received was $750.
[106] Taking into account a physiotherapy rehabilitation program and several
additional Botox injections, Mr. Cabral is entitled to an award of $7,500 or
cost of future care.
(f) Special Damages
[107] The parties agree that Mr. Cabrals out-of-pocket expenses
total $3,000.
V. SUMMARY OF CONCLUSIONS
[108] In summary, Mr. Cabral is entitled to the following awards:
| (a) | General Damages | $ | 50,000 |
|
| (b) | Past Income Loss | $ | 646 |
|
| (c) | Loss of Future | $ | 25,000 |
|
| (d) | Loss of Home | $ | 3,000 |
|
| (e) | Cost of Future | $ | 7,500 |
|
| (f) | Special Damages | $ | 3,000 |
|
| TOTAL | $ | 89,146 |
| |
[109] Subject to submissions by the parties, Mr. Cabral is entitled
to his costs.
The Honourable Madam Justice C. A. Wedge