IN THE SUPREME COURT OF BRITISH COLUMBIA

Date:
20100302

Docket:
M073936

Registry: Vancouver

Between:

Justin Dodsworth

Plaintiff

And:

John
Krenus and

Common
Ground Construction Ltd.

Defendants

Before:
The Honourable Mr. Justice Masuhara

Reasons for Judgment

Introduction

[1]            
This is a personal injury action arising from an
accident that occurred on September 16, 2005, at about 8:00 a.m., at
the intersection of Chesterfield Street and West 22^nd Ave., North
Vancouver, B.C.  The plaintiff, Mr. Dodsworth, while walking across
Chesterfield in the crosswalk at the intersection, was struck by a pickup owned
by the defendant, Common Ground Construction Ltd., and driven by the defendant,
Mr. Krenus.

[2]            
Liability is admitted by the defendants.

[3]            
The plaintiff claims damages arising from an
avulsion fracture to his right knee, contusions to his knees, soft tissue
injuries to his neck and back, multiple bruises and abrasions, dizziness,
vertigo and insomnia as a result of the accident.  In addition to pain and
suffering, he seeks compensation for a delay of one year in obtaining his
teaching certificate as a result of his injuries.

Witnesses

[4]            
The following were called in the plaintiff’s
case: 

·      
Ms. Marilyn Macdonald: witness to accident; 

·      
Mr. Dodsworth, the plaintiff; 

·      
Dr. Michael Kates: the plaintiff’s family physician; 

·      
Dr. Barry Vaisler: orthopedic surgeon; 

·      
Mr. Paul Pakulak: occupational therapist;

·      
Mr. Stuart Kilpatrick: a friend; 

·      
Mr. Darren Benning: economist; and

·      
Ms. Janice Der: the plaintiff’s mother. 

[5]            
The following were called in the defendants’
case: 

·      
Mr. Mark Jefferson: Co-ordinator of Human
Resources for the School District of North Vancouver; 

·      
Mr. John Krenus: defendant vehicle driver; 

·      
Ms. Lisa Brown: ICBC adjuster handling the claim
of Mr. Dodsworth; 

·      
Mr. Andrew Watt: Senior Program
Co-ordinator and Section Director of Camp Elphinstone in 2007; 

·      
Ms. Alison Gelz: Program Coordinator at
West Vancouver Aquatic Centre; 

·      
Ms. Collene Huskisson: Supervisor of West
Vancouver Aquatic Centre; and

·      
Mr. Mark Goodman: general manager of a
Volvo dealership in North Vancouver. 

Background

[6]            
At the time of the accident the plaintiff was 24
years old and was walking to the bus stop to get to school.  He was enrolled in
three courses in the Faculty of Arts at the University of British Columbia
(“UBC”).  His objective was to become a teacher.  He had attended Capilano
College from 1999 to 2005 and obtained 60 credits (his first two years of
university education).  It was just before 8:00 a.m., he was headed
eastward across Chesterfield Street and was in the crosswalk when Mr. Krenus,
who was stopped at 22^nd Ave., turned left (southward) onto
Chesterfield and struck Mr. Dodsworth.  He was thrown on the hood of the
vehicle driven by Mr. Krenus and then fell to the ground about five feet
from the southerly boundary of the crosswalk.  Ms. MacDonald, who was
stopped in her car on Chesterfield north of the crosswalk witnessed the
accident unfold in front of her.  She parked her car and rushed to assist Mr. Dodsworth
as he laid on the road unable to get up.  An ambulance was called and Mr. Dodsworth
was transported to Lions Gate Hospital.  He was attended to at the Emergency
Department of the hospital.  He was examined and x-rayed while at the
hospital.  He was seen by Dr. Vaisler, an orthopaedic surgeon.  Dr. Vaisler
diagnosed the plaintiff as having sustained an avulsion fracture of the
insertion of the lateral collateral ligamentous complex of his right knee where
it inserted in the fibular neck.  Dr. Vaisler determined that the fracture
was minimally displaced and felt it would heal with non-operative management. 
A Generation II knee brace was recommended, along with physiotherapy.  He was
also prescribed Tylenol 3 and a stronger pain medication called
Oxycodone. 

[7]            
The plaintiff’s glasses and laptop which were in
his backpack were also damaged irreparably in the accident.

[8]            
The plaintiff was seen for follow-up
appointments by Dr. Vaisler on October 5, 2005 and November 23,
2005.  At the former appointment, Dr. Vaisler recommended that the
plaintiff begin weaning himself from the knee brace in three-and-one-half
weeks.  At the latter appointment, the plaintiff was noted as still complaining
of pain on the lateral aspect of his right knee.  On examination, Dr. Vaisler
found there was minimal lateral ligamentous laxity of his left knee equal to
his right knee.  Dr. Vaisler noted that x-rays taken of the right knee on
November 8, 2005 suggested healing of the fracture. 

[9]            
The plaintiff took his pain medications for
approximately a month. 

[10]        
The plaintiff made use of the knee brace for
about three months.  He also used crutches.

[11]        
The plaintiff attended physiotherapy sessions
for about four months.  Thereafter, he attended the West Vancouver Aquatic
Centre gym two to four times a week for six months. 

[12]        
The plaintiff attended a chiropractor in 2006
once or twice for neck pain. 

[13]        
His family physician Dr. Kates ordered and
obtained an MRI of his right knee on August 28, 2006.  The MRI showed the
knee as “essentially normal with his ligamentous structures all intact and no
evidence of any internal derangement” according to Dr. Kates’ report.  As
of March 25, 2009, Dr. Kates reported: 

His right knee
symptoms were very slow to resolve, however, at the time of this dictation he
has essentially recovered from the injury to the right knee, despite
complaining of occasional recurrence of right knee pain.  His complaints of
neck pain slowly resolved, however, he still has the occasional exacerbation of
left neck pain.  I feel that in time Justin will become completely
asymptomatic.

[14]        
Dr. Vaisler last examined the plaintiff on
May 22, 2009.

[15]        
In his report, Dr. Vaisler in addition to
the avulsion fracture, diagnosed the plaintiff as having sustained from the
accident soft tissue musculoligamentous injury to his neck and low back, along
with a contusion to his left knee.

[16]        
Following the accident, Mr. Dodsworth was
only able to attend two classes and withdrew for the term.  This decision was
supported by his family doctor, who provided a letter to UBC.  Dr. Vaisler
also testified that had he been asked to provide a medical note of support for Mr. Dodsworth’s
withdrawal he would have provided it.  The university permitted the withdrawal
and refunded his fees even though the deadline had passed.  His actions in my
view were reasonable. 

[17]        
Mr. Dodsworth was able to bear weight on
his right leg by December 2005.  He resumed courses in January 2006
and completed the remainder of the winter term.  He experienced dizziness while
sitting in classes every few weeks.  He also stated that he has shooting pains
on the side of his neck and shoulders.  He also feels stiffness in his neck.

[18]        
During the summers of 2005, 2006 and 2007, the plaintiff
worked as a camp leader at Camp Elphinstone, a summer residential camp for
children.  It was his experience as a camp counsellor during the summer of 2005
that solidified his desire to seek a career as an elementary school
counsellor.  In the summer of 2006, Mr. Dodsworth said his knee symptoms
limited him “somewhat” in camp activities such as running, soccer, field games,
and ultimate Frisbee.  In the summer of 2007, he was asked to resign by the
Camp administration as a result of having left a child in his charge behind on
an island following an overnight camp.

[19]        
Mr. Dodsworth was admitted into the
Bachelor of Education two-year program in September 2007 and completed the
program by summer 2009.  He received glowing recommendations from his faculty
advisors overseeing his practicum in the District of North Vancouver. 

[20]        
He received his teaching certificate in the
summer of 2009.  He has applied to several school districts as a “teacher on
call”, an entry level category.  He was hired conditionally by the North
Vancouver School District as such but was subsequently rejected for having been
allegedly untruthful on his application with respect to a criminal charge when
he was eighteen years old, for which he was put into the diversion program.  Mr. Dodsworth
had fully disclosed this in 2007 when he applied for his practicum with the
district however, the district’s focus was on the application for employment.  He
has applied for a teaching position with other school districts including: West
Vancouver, Sea to Sky (Squamish to Pemberton), and Vancouver but had not
obtained employment as of trial.

[21]        
In addition to his employment as a summer camp
leader, he found employment as a lifeguard and swimming instructor working at both
the Aquatic Centre and Ambleside Beach in West Vancouver.  Several courses had
to be completed prior to obtaining his lifeguard certification.  They included:
standard first aid, bronze medallion, bronze cross, water safety instructor,
National Lifeguard – waterfront, and National Lifeguard – water park.  He completed
these courses in fairly short order, his bronze medallion and bronze cross in
March or April 2006 and his national lifeguard certification in December 2006. 
In advance of his certification he had submitted an application to West
Vancouver in November 2006 for a lifeguard position. 

[22]        
He testified that he had hoped to have obtained
his certification sufficiently in advance for employment in
September 2006.  In September 2006, the District of West Vancouver
hired eight casual lifeguards.  He was hired by the District as a
lifeguard/instructor in September 2007. 

[23]        
The plaintiff continues to complain that he
suffers from the effects of the accident.  These effects include:  pain in his
right knee when he runs or cycles; some pain in his left knee; neck pains that
shoot to his head and shoulders when he turns his head to the left which are
painful enough to momentarily distract him from the tasks that he is performing
such as driving or studying; and upper and lower back pains.

[24]        
Subsequent to the accident, Mr. Dodsworth
suffered two skiing injuries.  In January 2007 he fell and fractured his left
wrist which was then placed in a cast.  He was skiing on Spanky’s Run on
Blackcomb Mountain, a double black diamond run.  In February 2008 he collided
with another skier and suffered bruises and a sore right arm.  He has skied
since the age of 5 or 6.  He described his skill level as advanced, but
testified he was restricted to intermediate runs because of his injuries. 

[25]        
In August 2006, while working at Camp
Elphinstone, Mr. Dodsworth suffered a fracture to his right ring finger
distal interphalangeal joint while playing with a camper. 

[26]        
In May 2007, he also suffered a left wrist
sprain while working at the same camp. 

[27]        
Prior to the accident, Mr. Dodsworth had
been in good physical condition.  He had no pre-existing symptoms or complaints
with respect to his knees, neck, back, shoulders or any other musculoskeletal
complaints.  However, Mr. Dodsworth according to Dr. Kates has had ongoing
emotional issues from as early as 1987 and has been prescribed medications. 
Since 2002 through the date of the accident, Dr. Kates has prescribed
antidepressant and anti-anxiety medications for the plaintiff.  The evidence
indicates that Dr. Kates has spent considerable time over the years with Mr. Dodsworth
on both his physical and mental well-being and knows the plaintiff well
medically. 

Damages

[28]        
The plaintiff is entitled to be returned to the
position he would have been in had the injury not occurred.  The assessment of
damages is to be on a balance of probabilities except for anticipated losses
where the court must determine whether the future event of further loss and
injury is a real possibility and not mere speculation.  Where there is a real
possibility, then the court must determine the percentage chance of the event
occurring and reflect this in the assessment.

(a)           
Non-Pecuniary Loss

[29]        
The plaintiff under this head submits that a
fair assessment is $70,000.

[30]        
The defence argues the amount is more reasonably
in the range of $30,000 to $40,000.

[31]        
The cases cited by the plaintiff included: Fortin
v. Cousins, 2009 BCSC 720, [2009] B.C.J. No. 1076; Schnare v
Roberts, 2009 BCSC 397; and Cabrera v. Sandhu, 2009 BCSC 1321. 

[32]        
The cases cited by the defendant included: McGrath
v. Meise, 2005 BCSC 1333; Milsom v. Verron, 2005 BCSC 1452;
Hartman v. Dias, 2006 BCSC 478; Glowinski v. Knowlton, 2008
BCSC 662; and Gray v. Ellis, 2006 BCSC 1808.

[33]        
While the cases provide guidance in assessing
damages, each case is to be decided upon its own unique circumstances.  In my
view, the injuries and the impact on the lives of the plaintiffs in cases
relied upon by Mr. Dodsworth were much more significant than in his case. 

[34]        
Mr. Dodsworth suffered a serious injury and
endured considerable pain particularly during the first few weeks following the
accident.  He suffered multiple bruises and abrasions from the accident, in
addition to the avulsion fracture.  He was on pain medication for a month, wore
a knee brace for four months, his mother testified to his significant pain
during the first few days of the accident, he suffered a rectal tear caused by
the constipation from the pain medications, he had to attend physiotherapy 2 to
3 times a week for months, and he was unable to bear weight on his injured leg
for about three months.  On the other hand, he had sufficient ability to within
a few days of the accident to attend his family doctor’s office, attempt to
take classes at UBC, attend traffic court in North Vancouver to dispute traffic
violations, to go shopping and make purchases to replace his pants,
prescription glasses, and laptop computer that had been damaged in the accident,
and start physiotherapy. 

[35]        
Dr. Vaisler stated in his report the
following: 

On examination [May 22, 2009] he did
not appear to be in any obvious discomfort during the interview nor did he
exhibit any abnormal pain behaviour.  His gait and stance were normal and he
impressed me as being physically fit.  He had a full pain free range of motion
of his cervical spine with no tenderness or paracervical muscle spasm.  His
thoracic spine was normal.  On examining his lumbosacral spine he had a full
range of motion with no tenderness or paralumbar muscle spasm.  He did,
however, complain of some pain in his upper lumbar spine with left lateral
flexion.  The sacroiliac joints were non-tender and non-painful to stress.  On
examining his right shoulder, it forward flexed 170° with 95° of external
rotation with his arm abducted, 45° of external rotation with his arm at his
side and 90° of internal rotation.  There was minimal prominence of the lateral
end of the acromion.  The impingement findings were negative and there was no
weakness.  Examination of his left shoulder was identical.  The remainder of
both upper limbs was normal.

On examining his right knee, the patellofemoral
joint was normal.  The tibiofemoral joint flexed from 0 to 155° and he
complained of minimal pain on full flexion.  No instability, or swelling was
present.  On examining his left knee there was minimal tenderness at the inferior
pole of the patella.  The tibiofemoral joint flexed from 0 to 155° with no tenderness,
swelling or instability.  The remainder of both lower limbs was normal.  There
was no evidence of any motor or sensory abnormality in the upper or lower
limbs. 

X-rays taken of
his lumbosacral spine and pelvis on September 16, 2005 were normal.  X-rays
his cervical and lumbosacral spine carried out on May 27, 2009 were
normal. 

[36]        
He noted further that Mr. Dodsworth
continued to complain of infrapatellar, pain of retropatellar, and lateral knee
pain in his right knee on a daily basis.  Dr. Vaisler noted that the
plaintiff “described gradual aching in his right knee, aggravated by sitting,
standing, exercising, using a recumbent bike, using an elliptical trainer,
squatting and going upstairs”.  Dr. Vaisler found no evidence of patellofemoral
crepitation.  Dr. Vaisler opined that the pain complained of is most
probably due to a contusion of the right patellofemoral joint at the time of
the accident.  The medical evidence indicates that there is a risk, though
small of the plaintiff developing early degenerative osteoarthritis in his
right knee as a result of the accident.  The plaintiff has regained full range
of motion in his right knee with no residual knee instability; as well, he has
full range of motion of his lumbar spine.  This evidence also indicates that
there is an even chance he will continue to suffer some intermittent,
occasional annoying and disabling low back pain for the foreseeable future.  In
terms of neurologic injury, the plaintiff did not suffer any permanent
neurologic injury as a result of the accident. 

[37]        
I note the evidence of the plaintiff’s family
physician since birth who stated in his report that “in time Justin will become
completely asymptomatic”. 

[38]        
I find that Mr. Dodsworth’s testimony was overstated
in regard to his disabilities.  I say this in light of the following: 

(a)      his full
participation as a camp leader for two summers at Camp Elphinstone
post-accident .  He was one of two leaders in charge of ten campers on a continuous
basis for two weeks at a time over the entire summer.  He would lead the
children in a wide variety of activities such as hiking, camping, swimming, climbing
high ropes, sailing, field games, kayaking, canoeing, etc.  I note that this included
lifting and carrying a large war canoe, kayaks, hobie cats, and canoes.  There
is no indication that he had any limitations in these activities other than his
own statement. 

(b)      his
ability to ski on double diamond runs as he indicated in his examination for
discovery.  In this regard, I did not accept his correction at trial that he
was actually in the Seventh Heaven area an intermediate ski area.  Mr. Dodsworth’s
vagueness, lack of recall or inconsistencies during the trial reduced the level
of reliance to be placed on his more recent recall of events and the level of
his injuries generally. 

(c)      his
ability to successfully complete within a concentrated period of time all of
his lifeguarding certifications and subsequent annual re-certifications, all of
which involved a fairly high level of physicality and concentration;

(d)      his
ability to carry on as a lifeguard and swim instructor, though I note at one
point he did not take on any shifts as a swim instructor but did not tell his
supervisor.  My view is that this was more related to his claim than his
disability;

(e)      his
ability to successfully complete his education in an expeditious fashion; and

(f)       his
vagueness or lack of recall relating to events surrounding previous employment,
his diversion, and inconsistency between the aforementioned activities and his
claimed disability. 

Given all of his activities I am not
persuaded that his pain is or will be as debilitating as submitted.  I do not
view the ongoing complaints as significant as those suffered by the plaintiffs
in the cases he cited to the court, including the extent of his right knee
injury. 

[39]        
Having reviewed the cases provided by each of
the parties and having regard to the specific circumstances of this case with
respect to the inconvenience, loss of enjoyment of life and the pain and
suffering the plaintiff has experienced, and making allowances for risks, I
assess general damages as being $45,000. 

(b)           
Loss of Income

[40]        
The plaintiff claims that as a result of his
injuries he was delayed in completing his certification to become a lifeguard,
and more significantly, his education towards obtaining his teaching
certificate by one year. 

[41]        
The plaintiff argues that that but for the
accident he would have obtained his bronze cross, bronze medallion, and lifeguard
certification by the summer of 2006.  The plaintiff submits that but for the
accident he would have been hired as a lifeguard in September 2006 with the
District of West Vancouver or another municipality.

[42]        
The plaintiff submits that he should be
compensated for income loss from September 2006 which is when he stated he
hoped to be employed.  He seeks $9,503.48.  This amount is the difference between
what the plaintiff earned from lifeguarding in 2008 and what he earned in 2006.

[43]        
The approach in regard to this aspect of the claim
is one of a real and substantial possibility as adjusted for contingencies.  I
find such a possibility in this case.  There was a lifeguarding component (though
not necessary) to the work when his campers are swimming.  At least one leader was
to have lifeguarding certification.  The plaintiff obviously had swimming
skills as he was able to obtain his certification in relatively short order.  However,
to be on the academic timeline he set for himself, he would have had a very
rigorous course load. 

[44]        
Taking into consideration the contingencies
affecting the probabilities of the real possibility, I would assess the damages
at $4,000.

[45]        
In regard to the delay in obtaining a teaching
certificate.  The plaintiff started UBC in September 2005 but withdrew as a
result of the injuries suffered from the accident.  He resumed studies at UBC
in January 2006 and received his teaching certificate in summer 2009.  This
delay in turn he submits delayed him in obtaining a teaching position including
pay upgrades due to seniority.  The plaintiff submits that his loss of income
in this regard amounts to $50,000.

[46]        
As noted earlier, the approach to assessing
damages for lost income on a hypothetical basis is on a real and substantial
possibility standard.

[47]        
In this case, the defendants submit that Mr. Dodsworth’s
academic history is inconsistent with his claim that he would have completed
all of his prescribed courses in order to be admitted into the Bachelor of
Education program beginning September 2006.  The defence referred in this
regard to his previous record of attending Capilano College for six years on a
part-time basis to earn transfer credits for the equivalent of the first two
years of a four-year degree program.  From the admissions filed as Exhibit 16
at trial, it was noted in paras. 6 to 8 that:

If the plaintiff had only completed three of
the 11 courses required by the end of Term 1 in 2005/2006, he would have had to
plan his courses carefully or very strategically in Term 2 to meet the academic
pre-admission requirements.  An academic advisor would have been available to
assist the plaintiff.

Maximum number of credits allowed as an arts
student is 30 credits in the Winter Session and 14 in the Summer Session.  A
credit increase may be granted up to 18 credits (6 courses) in either term, to
a maximum of 36 credits (12 courses) per Winter Session.

The Arts Faculty
‘Credit Limits’ website states that ‘most students find balancing a full course
load 930 in winter or 12-14 in summer) challenging.  As such, a credit increase
is not recommended.  However there are some exceptions and there may be a time
when you feel it’s feasible to add another class.  At that time you may make a
request to have your credit limit temporarily increased’.  Taking more than a
full course load of 30 credits per year or 5 courses per term puts extra
pressure on a student’s class schedule, course work, studying, exams and
ability to do well in all courses.  Most students would choose to balance out
each term as evenly as possible (i.e, 5 or 6 courses in term 1 and 5 courses in
term 2, or 5 courses in term 1, 5 courses in term 2 and 1 course in summer
2006) to ensure that the candidate’s chances of doing well in each course was
maximized.

[48]        
Against this argument is the fact that Mr. Dodsworth
was able to take a full complement of courses over three terms, with an
intervening summer, to meet the course requirements for admission to the Bachelor
of Education program.

[49]        
The parties have agreed in paragraphs 4, 5 and 6
of the notice to admit filed November 5, 2009, to the following:

4.   Mr. Dodsworth
was enrolled in the following courses in the Fall 2005 term:

(i)    Political Science 240 (3 credits)

(ii)   Political Science 327 (3 credits)

(iii)  History 125 (6 credit course spanning Fall 2005 and Winter 2006
term)

5.   If Mr. Dodsworth successfully completed Political Science
240 and 327 and the first half of History 125 he would have needed the
following number of credits and courses by the end of August 2006:

(i)    15 senior level credits at UBC (300 or 400 level courses)

(ii)   3 additional senior level credits for BC College of Teachers
purposes

(iii)  3 credits of math

(iv) 3 credits of Canadian History or Geography

(v)  Finish the second half of History 125 (*note a 200 level Canadian
History course would satisfy both the 3 credits of Canadian History requirement
and 3 senior level credits required for BC College of Teachers purposes at the
same time).

6.   As of January 2006 Mr. Dodsworth
would have been required to have taken seven additional courses plus a
completion of the second half of History 125 over two terms from January to
April and then May to August 2006, if he had completed the 9 credits he was
enrolled at the time of the accident on September 16, 2005.

[50]        
From the agreed facts in Exhibit 16, paragraph 5,
I note that:

The deadline for
applications for the 2 year B. Education program starting September 2006
was March 15, 2006 but late applications are usually accepted.

[51]        
The plaintiff submits that completing the eight
courses over two terms (either four courses per term or three courses and five
over two terms) was “doable” without extraordinary effort.  The plaintiff
submits that he demonstrated his ability to do this through taking four courses
in the January to April 2006 term and then the same number of courses in the
September to December 2006 term.  Based on the UBC Faculty of Education
statistics of admissions, the plaintiff argues that it was almost certain that Mr. Dodsworth
would have been admitted in 2006, particularly as the average grade point
average of successful applicants was lower in 2006 than in 2007 when Mr. Dodsworth
was admitted.  It is further submitted that but for the accident the plaintiff
would have completed his program and been certified as a teacher in the
province of British Columbia in the summer of 2008.

[52]        
Given the circumstances, I am led to conclude
that there was a real and substantial possibility of Mr. Dodsworth
completing his course of studies to gain acceptance for the Bachelor of Education
program for the September 2006 term and obtaining his teaching certification by
the summer of 2008. 

[53]        
Turning to the assessment of damages.  The
plaintiff relies upon the report of Mr. Benning to support his income loss
claim. 

[54]        
One of the key assumptions provided to Mr. Benning
was that the plaintiff was delayed by one year in obtaining his Bachelor of
Education degree and Teaching Certificate as a result of the accident.

[55]        
In quantifying the loss, Mr. Benning used
as a starting point the salary for a first year full time teaching position
under the collective agreement for teachers in the District of North Vancouver
and then applied the typical labour market contingencies often seen in economic
studies such as: participation rates, unemployment for males having a similar
level of education, part time work, and part year work. 

[56]        
Mr. Benning assumed that the plaintiff
would have worked at 50% of full time rate in his first year.  He conceded that
this percentage was somewhat arbitrary.  He also did not take into account the
lower “teacher on call” rate of pay that a first year teacher who more than
likely earn, but noted that a teacher in the position of the plaintiff would
find other work to supplement their income. 

[57]        
The evidence of Mr. Jefferson for the
District of North Vancouver was that a teacher on call would receive on average
about thirty to fifty days in their initial year; a full year is one hundred
ninety days.  Assignments for TOC work are not distributed on seniority but
rather are made on a random basis.

[58]        
Mr. Benning testified that the average
income for a first year university graduate with an undergraduate degree is in
the range of $30,000 to $35,000 after taking into consideration a full set of
contingencies. 

[59]        
In assessing damages under this head, taking
into consideration the contingencies both positive and negative.  I am of the
view the appropriate amount is $35,000. 

(c)           
Loss of Earning Capacity

[60]        
The plaintiff relies upon the report of Mr. Pakulak
and Dr. Vaisler to support his claim that he has suffered a loss of future
earning capacity.  The plaintiff argues that though he has chosen a teaching
career, he had not yet begun working as such and therefore cannot be said to
have settled in a career path.  In this regard, the plaintiff submits that
$50,000 is a fair representation of this loss, subject to downward adjustment
for loss of income is compensation is provided for his claim in the delay in
obtaining his teaching certificate.

[61]        
Dr. Vaisler testified that Mr. Dodsworth
would have difficulty with any work below the waist level which involved
stooping, crawling, bending, kneeling or repetitive stair climbing.  In his
report he stated that: 

It is more likely
than not, in view of his complaints of neck, low back and right knee pain, that
he would have difficulty performing full time work doing repetitive heaving
lifting or heavy labour.  His tolerance to this should improve with the focused
exercise programme outlined above, but there is an even risk that this work
disability will be permanent. 

[62]        
Mr. Pakulak opined that:

Mr. Dodsworth
is best suited for activity requiring modified medium strength with restriction
specific to prolonged and repetitive bending and crouching.  Given his response
to testing (increases in pain levels and a reduction in capacity at the
conclusion of the assessment) it is anticipated that prolonged work above a
modified medium level and/or without provisions for the above limitations will
adversely impact his productivity and safety.

[63]        
He stated work that would not be suitable
included various construction trades, floor laying, cleaning, automotive work,
and mill work. 

[64]        
The defendants submit that the plaintiff has not
established that the injuries suffered in the accident have closed any avenues
of employment.

[65]        
In approaching damages under this head, the test
is that of a real and substantial possibility.  There must be cogent evidence
of this possibility and both positive and negative contingencies must be
considered.

[66]        
In Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), a number of considerations for
making an assessment as to the value of the lost or impaired asset of earning
capacity are set out, see also Rosvold v. Dunlop, 2001 BCCA 1, 84
B.C.L.R. (3d) 158 (C.A.), at para. 10. They are whether: 

1.         the plaintiff
has been rendered less capable overall from earning income from all types of
employment; 

2.         the plaintiff
is less marketable or attractive as an employee to potential employers; 

3.         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.         the plaintiff
is less valuable to himself as a person capable of earning income in a
competitive labour market.

[67]        
As mentioned earlier, I do not find the evidence
of loss as presented by the plaintiff as extensive as claimed.  Mr. Dodsworth’s
employment post-accident as a lifeguard, swim instructor, and as a camp
counsellor and the level of physical fitness and activity required for these
jobs, as well as his ability to continue to ski on challenging runs, along with
his ability to complete his courses and obtain his teaching certification reduces
the extent to which I view the diminishment of this capital asset.  In addition,
I am not persuaded that the Functional Capacity Evaluation Report findings as
to the extent of the plaintiff’s disability in light of the report of Dr. Vaisler
found on examination that the plaintiff “impressed” him as being physically
fit.  Mr. Pakulak was not able to satisfactorily address this difference. 
He did not know of the work activities required of a lifeguard, swim instructor
or a camp counsellor for children as Mr. Dodsworth did not tell Mr. Pakulak
that he had been actively engaged in these activities; and thus was unable to
reconcile the considerable fitness level and physical requirements met by Mr. Dodsworth
to complete all of his lifesaving courses as well as the activities he
performed as a camp counsellor.  I also place weight on the opinion of Dr. Kates
who has for many years dealt with both the mental and physical well-being of
the plaintiff and stated in his report that over time Mr. Dodsworth would
become “completely asymptomatic”.  However, I find that Mr. Dodsworth has
lost some capacity sufficient to constitute a diminishment of a capital asset. 
I take into account the plaintiff’s chosen career in teaching is still at its
early stage and could change.  As well, his lack of seniority, he may be
required to take on other employment to supplement his income. 

[68]        
Taking into consideration all of the foregoing
and the various contingencies positive and negative I find a fair assessment to
be $10,000.

(d)           
Future Care Costs

[69]        
The plaintiff seeks cost of future care in the
amount of $ $1,550.  The costs are made up of the following:

·              
10-12 90 minute sessions with a kinesiologist to
develop a regular exercise routine at $50/hour, which amounts to approximately
$900;

·              
A pass to a fitness facility with gym and pool,
which is estimated at $400 to $500; and 

·              
A knee brace which amounts to $150.

[70]        
Future care costs are those things that are
medically required and will are likely to be used by the plaintiff in the
future. 

[71]        
Given the evidence of Dr. Vaisler and Mr. Pakulak,
I am satisfied that the need for the above-mentioned items have been
established and are reasonable.  Accordingly, the amount of $1,550 is awarded. 

(e)           
Special Damages

[72]        
Special damages claimed by Mr. Dodsworth. 
The total amount claimed is  $4,855.43 and is comprised of the following:

[73]        
The defendant does not take issue with these
items except for certain taxi costs ($100) and the cost of the laptop
computer.  The defence argues that the plaintiff could not adequately justify
certain of the taxi expenses as he could not recall the purpose of the trips, I
would agree.  In terms of the laptop, the defence argues that the plaintiff
could not provide the value of the damaged laptop.  From the limited
information provided by the plaintiff I am of the view that the reasonable cost
of replacing the damaged laptop would be more in line with a value of $1500.  I
find that the special damages except for $948 to be reasonable. 

(f)            
Failure to Mitigate

[74]        
The defendants submit that the plaintiff failed
to mitigate his damages from not attempting to return to class.

[75]        
The burden is on the defence to establish that
the plaintiff did not act reasonably in the circumstances.

[76]        
The plaintiff in my view followed his medical
advice, he requested a taxi account from ICBC, but found it too difficult.  The
defendants argue the plaintiff could have gotten an accommodation or enrolled
in distant learning.  But the defendants did not establish that these options
were available.

[77]        
The withdrawal from his first term was supported
by his family doctor and a note to that effect was provided to him for
submission to the university.  The university permitted him to withdraw even
though it was beyond the set date for withdrawal from classes.

[78]        
I find that Mr. Dodsworth’s actions were
reasonable given the nature of his injuries and their effect upon him; as well
as, his need to do well in his courses to have the best chance of being
admitted into the teaching program.  The defence has not established that the
plaintiff did not act reasonably in the circumstances.

Conclusion

[79]        
All of the foregoing has led me to assess
damages under the various heads as follows:

[80]        
Reviewing the total in an overall sense, I am
satisfied that it is fair and reasonable in all the circumstances.

[81]        
If required, the parties may schedule a hearing
through the trial coordinator’s office on the issue of costs.

“The Honourable Mr. Justice Masuhara”