IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100324

Docket:
M082756

Registry: Vancouver

Between:

Elio
Fata

Plaintiff

And

Derrick
A. Heinonen

Defendant

Before: The Honourable Madam Justice S. Griffin

Reasons for Judgment

Introduction

[1]            
The plaintiff, Elio Fata, is advancing a claim
for damages for personal injuries caused by a motor vehicle accident that
occurred on November 13, 2006.  It was a rear-end collision that occurred when
Mr. Fata was stopped at a traffic light.  Mr. Fata was 59 at the time. 
Mr. Fata did not immediately think that he needed medical treatment and took no
time off his work as an Electronics Technician at Simon Fraser University
(“SFU”).  As time passed, Mr. Fata felt that his injuries progressed to the
point where he had too much restriction and pain in his left shoulder and arm
to competently perform his job.  He therefore quit his job of 38 years, taking
early retirement effective as of July 2008. 

[2]            
Mr. Fata seeks damages for past wage loss, loss
of earning capacity, cost of future care, as well as for pain and suffering and
loss of enjoyment of life.  He also claims special damages for some expenses he
incurred after the accident.

[3]            
I will address the facts and issues under these
headings:

1.       the accident;

2.       the injuries;

3.       past wage loss;

4.       loss of future earning
capacity;

5.       non-pecuniary damages;

6.       cost of future care; and

7.       special
damages.

The Accident

[4]            
When the accident occurred, Mr. Fata was driving
a 1996 GMC Jimmy 4 door wagon and was stopped at a red traffic light.  It was
around 5:00 p.m. and just starting to get dark.  The sky was overcast, there
was a slight drizzle of rain, and the ground was wet. 

[5]            
Mr. Fata was wearing his seat belt.  His common
law partner was in the front passenger seat.  Mr. Fata heard the squeal of a
car behind him, looked up into the rear view mirror, braced his arms on the
steering wheel, and felt the vehicle jolt as the car behind ran directly into
the rear of his vehicle.  The impact was in the area of his vehicle’s rear
license plate, which fell off. 

[6]            
The car that rear-ended Mr. Fata’s SUV was a
Honda Civic driven by the defendant, Mr. Heinonen.  Mr. Heinonen had been
assuming the light would change and traffic would move forward, so he did not
brake until the last minute.  His speed at impact is not known. 

[7]            
There was some damage to the rear bumper area of
Mr. Fata’s vehicle, and to the front bumper and hood of the Honda Civic.  The
bumper on Mr. Fata’s vehicle was pushed in an inch or two inches and it had to
be replaced. 

The Injuries

[8]            
Prior to the accident, Mr. Fata was in good
health.  He had type 2 diabetes, which he managed well with diet and activity. 
He was unhindered in carrying out the physical aspects of his job, which
included receiving and storing heavy audio-visual equipment.  At home, he was
physically active, involved in gardening and various handyman projects around
the house and yard.  He liked to fly fish for recreation.

[9]            
At the time of the accident, Mr. Fata did not
feel seriously injured.  He felt more upset than physically hurt.  He felt some
soreness later that evening, but thought that it would go away.

[10]        
Over the next several days, Mr. Fata said that
the soreness increased.  After three days he felt very sore. 

[11]        
Mr. Fata said that he really noticed he was
having problems when he attempted to do vacuuming in his house one weekend,
some days later.  It was then that he realized he was having quite a bit of
soreness in his left arm. Mr. Fata said that he started vacuuming with his
right hand because he is right handed.  It is his practice to switch the vacuum
to the left arm when the right arm gets tired.  When he made the switch, he got
a sharp pain in his left shoulder and his left arm started feeling numb.  He
reports that this was the first major activity he had done since the accident.

[12]        
Mr. Fata made an appointment to see his doctor
on November 24, 2006.  His family doctor, Dr. Peter Golin, prepared a medical
report that was filed as an exhibit.  On that first visit, neither Mr. Fata nor
his family physician thought the injuries were severe.  Mr. Fata had not taken
any time off work.  Mr. Fata and his family doctor agreed that he would simply
rest and see if the pain went away.

[13]        
In the meantime, Mr. Fata visited his
chiropractor, Dr. Chau, who he saw regularly for what he described as
“maintenance”. 

[14]        
Mr. Fata next saw his family doctor on December
11, 2006.  Mr. Fata continued to have regular visits to his family physician
without much improvement. 

[15]        
Mr. Fata started to see a physiotherapist in February
2007 and continued to visit there twice a week for approximately one month. 
Mr. Fata learned some exercises which he then undertook on his own.  As
well, his physiotherapist recommended that he wear a left wrist splint, which
he began to do. 

[16]        
In May 2007, Mr. Fata went back to the
physiotherapist and had a number of treatments for approximately one month. 
After that, in July 2007, he began attending a rehabilitation clinic with Karp
Rehabilitation Services and worked with a kinesiologist there for approximately
sixteen weeks.  He also was prescribed exercises which he did on his own two
times per week for one hour sessions.  When Mr. Fata finished that program, he
felt that any symptoms in his neck and back had improved, as had symptoms in
the area of his elbow to wrist.  However, he felt that the pain in his left
shoulder had not been alleviated.

[17]        
In October 2008, Mr. Fata was referred to Dr.
Andrew Travlos, a specialist in physical medicine and rehabilitation.  Mr. Fata
saw Dr. Travlos on November 18, 2008 and again on May 29, 2009.

[18]        
Dr. Travlos prepared a report dated September
23, 2009, which was entered as an exhibit at trial.  As well, he was examined
by way of video deposition, which was also presented at trial.

[19]        
According to Mr. Fata, Dr. Travlos told him to
stop wearing the wrist brace.  Dr. Travlos was unable to remember this when he
was examined as a witness by way of video deposition.  In any event, Mr. Fata
did stop wearing the wrist brace after seeing Dr. Travlos.

[20]        
Dr. Travlos gave the opinion that Mr. Fata’s
symptoms were caused by the accident, largely as a matter of logical deduction
since he did not have these symptoms before.  His written opinion dated September
23, 2009 stated the following:

It is my
opinion, therefore, that Mr. Fata was essentially a well and healthy individual
without much in the way of ongoing musculoskeletal symptoms other than possibly
the occasional low back complaint.  It is my opinion that Mr. Fata was
injured following the accident of November 13, 2007.  He was noted to complain
of neck, upper back, shoulder and left upper extremity symptoms in all the
various records that have arisen since his accident. … It is my opinion that
these complaints were a direct consequence of the accident and would not likely
have arisen in the absence thereof.

[21]        
Dr. Travlos noted that when he saw Mr. Fata in
November 2008, Mr. Fata was still “quite significantly symptomatic and
restricted by his symptoms despite the fact that he was retired and no longer
working”.  Dr. Travlos noted that there was more significant wasting of Mr.
Fata’s left upper body and arm, when compared to the right, than one would
normally expect even accounting for the fact that Mr. Fata was right
handed.  Dr. Travlos gave the opinion that Mr. Fata had “obvious impingement
syndrome at the shoulder”.  Dr. Travlos felt that it was the disuse of that
shoulder, because of the pain, that was accounting for the wasting of
Mr. Fata’s upper limb.

[22]        
Dr. Travlos recommended a series of exercises
for Mr. Fata to help strengthen the shoulder. 

[23]        
Mr. Fata performed the exercises regularly,
every morning and every evening.  When he returned to see Dr. Travlos on May
29, 2009, Mr. Fata felt that his symptoms had not really changed.  Dr. Travlos
examined him and concluded that the ongoing shoulder impingement was the
primary source and cause for Mr. Fata’s pain.  Dr. Travlos then
recommended a cortisone shot in the shoulder.  First, Dr. Travlos explained to
Mr. Fata the risks of such an injection, including the possibility of skin
discolouration, infection, skin dimpling, and adrenal suppression. 
Mr. Fata said that he was hesitant, given the possible risks, but agreed
to the first cortisone shot, which was then given right away.  Dr. Travlos
told Mr. Fata to report back as to whether the shot had any effect.

[24]        
Mr. Fata testified that his arm hurt just as
much after the shot as it did before.  Mr. Fata therefore dropped by Dr.
Travlos’ office and left him a note in July 2009, stating that the cortisone
had not improved his symptoms.

[25]        
Dr. Travlos’ report states that Mr. Fata’s lack
of response to the cortisone shot is very unusual; he thought that if repeat
cortisone injections did not work, surgery was an option depending on the
severity of the symptoms.  He recommended that Mr. Fata undergo a supervised
physiotherapy exercise program, but noted that Mr. Fata appeared to know what
to do when observed by Dr. Travlos.  His report states the following:

Nevertheless, Mr. Fata needs to continue
with his strengthening for his scapular stabilizing muscles and his rotator
cuff.  He may benefit from having repeat cortisone injections on at least one
or two more occasions.  If the cortisone injections are simply not making a
difference to his symptoms, then Mr. Fata should be considered for a surgical
opinion and possible decompression of the shoulder.  However, the choice to go
ahead with surgery will depend of the severity of the symptoms.  Now that he is
no longer working, his symptoms may be more tolerable and, therefore, he may not
feel the need to have the surgery done. …

I would
recommend that prior to any consideration of surgery Mr. Fata undergo a
supervised physiotherapy program for the shoulder to specifically deal with
strengthening of the scapular stabilizing muscles and the rotator cuff. 
Although he seems to be aware of what to do (when he was instructed by me what
to do), it is possible that he requires supervision while performing these
exercises to make this more effective.

[26]        
Mr. Fata testified that he performed his exercises
in front of his family doctor, Dr. Golin, who said he was doing them properly.

[27]        
Mr. Fata gave evidence that he was not keen on
having additional cortisone injections, given the potential risks, including
possible infection.   Since the first shot had not benefitted him, he was of
the view that the subsequent shots would not likely do so; given the risks he
did not pursue it.

[28]        
Dr. Travlos was of the view that Mr. Fata still
had some symptoms of soft tissue pain in the neck and some symptoms in his elbow,
indicating residual soft tissue and myofascial pains.  He felt that these
symptoms could be addressed with continued exercising. 

[29]        
Dr. Travlos gave the opinion that Mr. Fata could
still improve somewhat, but given his age and the duration of his symptoms he
would likely be left with some residual complaints that might impede activities
involving prolonged overhead reaching, or repetitive arm movements such as
painting.  However, it was Dr. Travlos’ opinion that Mr. Fata’s
symptoms would be “reasonably controllable for the majority of day-to-day
living activities” (at p. 6).

[30]        
Dr. Fata gave the opinion that Mr. Fata’s
symptoms would not preclude him from working.  However, he accepted that these
symptoms would have caused Mr. Fata some difficulties doing work.  Dr. Travlos
suspected that the symptoms could have played a role in Mr. Fata’s
decision to retire early, but said that only Mr. Fata would be able to
state this.

[31]        
In particular, Dr. Travlos gave this
opinion regarding Mr. Fata’s ability to work:

When I last saw him, he was still
symptomatic and would have continued to have difficulties doing work because of
the symptoms. The symptoms would not, however, have precluded him from
continuing to work. It is my opinion, therefore, that Mr. Fata’s decision
to retire was in part related to the accident, but I could not state what
percentage attribution that was.  I suspect the accident played a role, which
was not an insignificant role.  Ultimately, only Mr. Fata can state to
what extent the accident caused his retirement versus any other life decision
planning that he had. 

If Mr. Fata
were to choose to go back to work at this time, he is certainly capable of
gainful full time employment, but would have restrictions with the use of his
left upper limb.  He is right-hand-dominant and so the left-sided symptoms
would be less of an issue, but his ability to do bimanual overhead activities
would certainly be challenging and limiting, and he would be challenged to do
work that required him to have his left arm elevated or to perform repetitive
physical activity with that arm.

(at p. 7, Dr. Travlos report, emphasis added)

[32]        
The opinion of Dr. Golin, Mr. Fata’s
family physician, was as follows:

Disability – Mr. Fata had no period of complete disability.  The injuries
he suffered in his MVA and the chronic pain which developed from these injuries
played a significant and important role in his decision to retire.  The time of
his retirement he was capable of performing light duties at work with pain,
however, his pain in the left shoulder was becoming increasingly more intense
and bothersome.

Mr. Fata was partially disabled from
the date of the accident, November 13, 2006 until the date of his retirement in
May 2008.  At present, he remains partially disabled even though he is
retired.  He continues to have persistent pain in his left shoulder which
affects his ability to sleep on his left side, do housework, do yard work such
as mowing the lawn, and activities such as working out in the gym. 

Final Diagnosis –

1. Impingement
Syndrome left shoulder

2. Left elbow and
left forearm strain 

3. Neck and back
soft tissue injury – strain. 

All of the symptoms and diagnoses described above, are completely
due to the motor vehicle accident on November 13, 2006.

(at pp. 4-5, Dr. Golin report)

[33]        
Dr. Golin’s opinion is that Mr. Fata
has fully recovered from his soft tissue injuries to the neck and back.  He is
also of the opinion that Mr. Fata has fully recovered from his left elbow
and forearm strain.

[34]        
However, Dr. Golin’s opinion is that Mr. Fata
continues to have ongoing symptoms related to his left shoulder due to
impingement syndrome.  This causes Mr. Fata to have pain in his shoulder
radiating down into his left upper arm.  He does not have constant pain, but has
pain with extension, flexion, abduction, and internal and external rotation of
his left shoulder. 

[35]        
Dr. Golin is of the view that further
cortisone shots would not be beneficial and he supports Mr. Fata’s
decision not to elect for surgery.  It is Dr. Golin’s view that Mr. Fata
does not require further referrals to specialists.  However, he recommends that
Mr. Fata continue a regular exercise program for his left shoulder, either
at home or at a gym.  He recommends that Mr. Fata purchase a gym pass for
at least the next twelve months. 

[36]        
Dr. Golin stated that Mr. Fata’s
injuries from the motor vehicle accident left him capable of continuing lighter
duties, but with chronic pain.  It was his opinion that Mr. Fata was fit
to return back to light duties work with significant limitations.

[37]        
Both Dr. Golin and Dr. Travlos were of
the view that Mr. Fata does not suffer from any mental illness.  Further,
Dr. Golin stated that Mr. Fata “has fully cooperated with all
recommended treatments”. 

[38]        
The defence position at trial was to suggest
first, that Mr. Fata had some pre-existing problems with his back; and
second, that the extent of his disability with respect to his left shoulder and
left arm was not very great and that he could still do most activities.

[39]        
With respect to the first point, the defendant
pointed to records of Mr. Fata’s chiropractor showing that he had received
chiropractic treatment prior to the accident.  Mr. Fata agreed with this
and noted that he had no ongoing complaints, but visited Dr. Chau for what
he described as “maintenance”. 

[40]        
I am satisfied with Mr. Fata’s explanation
and do not consider this a case where there is sufficient evidence to conclude that
Mr. Fata’s reported symptoms after the accident were due to a pre-existing
injury.  I note that the defendants filed no expert medical evidence in this
regard, and none of the plaintiff’s experts were of the view that the symptoms
were caused by a pre-existing injury.

[41]        
I am persuaded on the evidence that the accident
did cause personal injuries to Mr. Fata.  The next issue is the extent of
those injuries. 

[42]        
The defendant filed no expert opinion evidence
on the question of the extent of Mr. Fata’s injuries.  Rather, the defence
relied on videotape surveillance of Mr. Fata which the defence had
covertly obtained in May and June of 2007. 

[43]        
The videotape evidence shows Mr. Fata
engaged in such activities as grocery shopping and loading and unloading
groceries and boxes over the tailgate of his vehicle. 

[44]        
The videotape evidence confirms that when
lifting heavy objects, Mr. Fata is careful to use both arms but often uses
his body to support the object.  The videotape evidence did not show Mr. Fata
lifting objects over his head, with one exception, when he used his left arm to
lift items off a shelf in the grocery store.  The videotape confirms that Mr. Fata
has some ability to lift and move objects with his arms. 

[45]        
The videotape surveillance was not inconsistent
with Mr. Fata’s evidence or that of his physicians.  Mr. Fata’s
evidence was that his physicians and physiotherapist had recommended that he
continue to use his left arm and shoulder, and that he attempts to do so.  No
one has suggested that he has no use of his left arm and shoulder.   Neither Mr. Fata
nor the physicians, who gave expert opinions on his behalf, suggested any
marked limitation in Mr. Fata’s range of motion.  His primary complaint is
that he has pain when he uses his left arm and shoulder.  The videotape did not
disprove this evidence, nor did it seriously cast doubt on it.  A videotape
cannot capture all pain but may illustrate signs of severe pain, for example,
if the person being watched grimaces on doing certain activities. 
Mr. Fata was not displaying obvious signs of pain.  The videotape perhaps illustrates
that whatever pain Mr. Fata might have with ordinary day-to-day activities
is manageable.

[46]        
I have concluded from reviewing the videotape
evidence carefully and considering Mr. Fata’s explanations of it, as well
as from my review of the medical evidence and Mr. Fata’s evidence of his
ongoing symptoms, that Mr. Fata does continue to suffer ongoing symptoms
in his left arm and shoulder that were caused by the motor vehicle accident of
November 13, 2006.  Given the passage of time, it is likely these symptoms will
continue indefinitely.  These symptoms are not severe, as Mr. Fata still
has use of his left arm and can do most activities.  However, the symptoms are
such that Mr. Fata does suffer pain with the use of his left arm and
particularly with excessive use or lifting his arm over his shoulder.  The pain
restricts him from some of these types of activities he might otherwise do.

Past Wage Loss

[47]        
This claim is based on the premise that but for
the accident, Mr. Fata would have worked at SFU up until the date of
trial.

[48]        
The unusual feature of the claim for past wage
loss and loss of future earning capacity is that Mr. Fata did not take any
sick days off work because of his motor vehicle accident.  However, more than a
year after the accident, based on his own assessment of his physical impairment
caused by his injuries, he quit his job to take early retirement, giving notice
in May 2008, effective July 2008.  His claim is for wages lost from July 2008
to December 2009. 

[49]        
To understand Mr. Fata’s decision to quit
his employment, it is necessary to review his history and the nature of his
employment. 

[50]        
Mr. Fata was born in Italy in 1947 and
immigrated with his parents to Canada in 1951.  They located in Burnaby where Mr. Fata
has lived ever since.  Mr. Fata’s mother was a housewife and his father a
labourer who performed many different jobs to support his family, ultimately
retiring at 64 because of an injury.

[51]        
Mr. Fata took his own first job at age 13,
working as a warehouseman at a food and produce warehouse.  He worked all the way
through high school and his subsequent enrolment at the British Columbia
Institute of Technology (“BCIT”).  Mr. Fata attended BCIT the same year he
graduated from high school, in 1965, where he took a broadcast technical
option.  He graduated at age 20 and took a job with the Federal government in
the Department of Transportation as an electronics technician.  He serviced
electronic equipment, working there until February 1970. 

[52]        
Mr. Fata commenced working for SFU on June
18, 1970.  He worked there for 38 years before taking his retirement as of July
2008.

[53]        
Mr. Fata’s position at SFU was described in
SFU job evaluation documents as “electronics technician”.  He worked in a small
department that serviced a variety of electronic equipment used by the university,
including audio-visual equipment and laboratory equipment.  He not only worked
on fixing broken equipment, but also in storing equipment and ensuring an
adequate inventory of supplies.  He was largely self-directed and there were no
people reporting to him. 

[54]        
Mr. Fata’s duties included working at a
computer and at a workbench used for repairing equipment, and occasionally
lifting and carrying heavy equipment, such as overhead projection screens and
projectors.  For example, Mr. Fata was responsible for ordering overhead
projection screens; upon delivery, it was his responsibility to open each box,
pull out the screen for inspection, identify the screen with an SFU inventory
number, re-box it, and put it on a shelf until it was required for use.  These
screens weighed around 20-25 pounds.

[55]        
Immediately after the accident, Mr. Fata says
that at his request to his supervisor, he was put on lighter duties.  Mr. Fata
found that his arm pain affected his ability to lift heavy objects.  Also,
after he had been advised to wear the arm brace, he found it difficult to do
the small, fine repairs at his workbench.  He had to take off his brace and
felt that the work was very painful.

[56]        
Mr. Fata said that before the accident he
loved working at SFU.  He enjoyed going to work each morning and seeing the
people he worked with, which were like a second family to him.

[57]        
Mr. Fata said that the pain in his shoulder
frustrated him because he took pride in his work and he was no longer able to
produce things like he used to do.

[58]        
Mr. Fata said that he decided to retire in
2008 when he realized his quality of work and production had diminished.  This
clearly seriously affected his pride. He indicated that he felt his integrity
was being challenged by co-workers.  He said he did not enjoy working in pain
and so made the difficult decision to retire early.

[59]        
Mr. Fata was not very expansive about how
it was that he felt his quality of work was being challenged by co-workers.  He
gave the example that sometimes when he asked for help in lifting heavier
objects, he would get a comment such as “you’re getting paid like me, why
should I do your work, I’ve got my own to do”.  He said he felt that he was
cheating by continuing to get a paycheque when he was not working to the same
extent as he had before.  He also had heard rumours that the paperwork aspect
of his job was going to be moved to another office, which would leave him doing
more physical work. 

[60]        
Thus, on April 1, 2008, he handed a letter in to
his supervisor, stating that he was going to retire for health reasons
effective July 11, 2008.  Mr. Fata described being in tears when he signed
the letter.

[61]        
After he retired from SFU, Mr. Fata said that
he tried to get other work.  He looked at some ads but once he talked to a few
people he gave up hope, figuring that no one would want to hire a 62-year old
(soon turning 63) with a bad shoulder.

[62]        
Peter Corps was a co-worker of Mr. Fata’s
at SFU, who was called as a witness by the plaintiff. 

[63]        
Mr. Corps described Mr. Fata’s
functions in the department as paperwork, processing supplies and equipment, and
installing equipment.  He confirmed that Mr. Fata’s job included
everything from working with small electronic devices to lifting heavy objects
prior to working on them or storing them.

[64]        
Mr. Corps was not immediately aware of Mr. Fata’s
motor vehicle accident.  Later, he observed that Mr. Fata appeared to be
suffering some pain.  Mr. Corps said that since he has a lower back
condition himself and has been through episodes of pain, he felt he recognized what
was happening to Mr. Fata.  However, Mr. Fata tried to carry on with
what he was doing.  He said Mr. Fata seemed to be more tired and slower. 
He said he did see Mr. Fata lifting things at work and commented that Mr. Fata
used to help him lift things because of Mr. Corps’ back.  After the
accident, he was not lifting things as well.

[65]        
Under cross-examination, Mr. Corps said
that sometimes others would assist Mr. Fata in lifting objects, but often Mr. Fata
would assist him.  This was true both before and after the accident. 

[66]        
Mr. Corps also agreed in cross-examination that
the union they belonged to had an agreement with the employer whereby the
employer had to accommodate employees with disabilities. 

[67]        
The defendant called William Goodman as a witness. 
He was the manager of the same department at SFU.  He had worked together with Mr. Fata
for over 35 years, becoming his manager for approximately the last 5½ years.

[68]        
Mr. Goodman said that during the last 5
years prior to Mr. Fata’s retirement, the majority of Mr. Fata’s job
was in accessing the supplies they needed.  Traditionally, they had all been
technicians, but Mr. Fata had taken over the paperwork of what the
storesman used to do.

[69]        
Mr. Goodman said that only occasionally
would Mr. Fata be required to lift heavy items over his head.  Normally,
people would not do these things themselves but would have others to help
them.  He pointed out that some of the heavy equipment delivered to them is
delivered on wheels.

[70]        
Mr. Goodman learned of Mr. Fata’s
accident a couple of weeks after it occurred as he was originally away on
vacation.  He did not recall Mr. Fata expressing to him any difficulties
he had with lifting or reaching.  Mr. Goodman did not notice any
difference in Mr. Fata’s productivity at work after the accident.  He did
not recall Mr. Fata’s work capacity after the accident posing any problems
for the department.  Mr. Goodman was quite emphatic in stating that he
considered Mr. Fata to be an asset to the department, noting that he did
all the purchasing.

[71]        
Mr. Goodman confirmed that the union
contract required the employer to accommodate workers with disabilities. 

[72]        
Mr. Goodman’s evidence was quite clear that
at no time did Mr. Fata approach him and ask to go on lighter duties. 
Furthermore, Mr. Goodman said he did not ever confront Mr. Fata to
suggest that he was not sufficiently productive.

[73]        
In cross-examination, Mr. Goodman agreed
that he would not normally be situated in the department in a position that
would allow him to watch Mr. Fata work on a day-to-day basis.  He conceded
that Mr. Fata would direct himself through his work with very little
supervision from Mr. Goodman.

[74]        
It has to be kept in mind that Mr. Fata has
the burden of proof of establishing on a balance of probabilities that any past
wage loss has occurred and that it was caused by the accident.  Analyzing all
the evidence regarding Mr. Fata’s decision to take early retirement from
his employment, I find that Mr. Fata has not met the burden of proof in this
regard.  I accept that from his perspective, his injuries made him sometimes suffer
pain at work and feel less valuable to his employer.  However, I am left with
the greater impression that it was his own pride which caused him to retire and
I am not persuaded on the necessary balance of probabilities that his injuries
prevented him from continuing to work.  In this regard, I note the following:

a)    Mr. Fata’s co-worker, Mr. Corps, suffered pain at work
because of a back disability but was able to continue working.  His evidence
was that he observed that Mr. Fata appeared to be suffering some pain, but
this does not mean the pain was so debilitating that it would be unreasonable
to expect Mr. Fata to carry on working.  In any event, he said that Mr. Fata
continued to carry on with what he was doing.  He said that sometimes others
helped Mr. Fata lift objects, but Mr. Fata also assisted Mr. Corps
in lifting objects, even after the accident.  This would suggest that Mr. Corps
had perhaps a more painful condition that Mr. Fata’s, yet he was able to
continue working in the same department.

b)    Many of Mr. Fata’s job duties were light duties, such as
ordering supplies.  Mr. Fata’s supervisor believed that only occasionally
was Mr. Fata required to lift heavy objects, and he said usually others
would help.  Mr. Goodman believed that some of the heavy equipment was
delivered on wheels.  Mr. Fata did not explore with his employer the
possibility that he could have focussed solely on light duties.  He did not
explore other ways of performing his job, nor did he seek out a specialist for
advice on how to make adjustments in his workplace.  There was nothing standing
in the way of exploring these possibilities: other employees believed that their
union contract required the employer to accommodate employees with
disabilities.

c)    
Mr. Fata’s supervisor, Mr. Goodman, did
not notice anything to indicate that Mr. Fata had not been performing his
job adequately.  This was despite the fact that Mr. Fata continued to work
for over a year after the accident, a sufficiently long time to notice if Mr. Fata
was not performing.

d)    No medical doctor was consulted by Mr. Fata to provide an
opinion as to whether or not it was necessary for him to quit work due to the
injuries he sustained in the accident.  He made this decision on his own.  His
physicians were of the opinion that his injuries would not have precluded him
from continuing to work.  They accepted Mr. Fata’s point of view that his
injuries played a factor in his decision to retire, but this is a different
matter than concluding that his injuries prevented him from continuing to work.
 

e)    It is clear from the evidence that Mr. Fata can do most
day-to-day activities.

[75]        
The totality of the evidence indicates that
Mr. Fata was able to sufficiently perform the duties of his job.  While he
enjoyed his job less and felt less able to perform it, I am not convinced that his
injuries made him incapable of performing his job and unable to continue his
SFU employment.  In my view, Mr. Fata’s dissatisfaction with work may have
arisen because of his injuries caused by the accident, but nevertheless he likely
could have kept working and earning an income until his planned retirement at age
65. 

[76]        
Mr. Fata’s loss of enjoyment of his work in
my view is a factor to be taken into account when considering non-pecuniary
damages.  But on the facts of this case, I simply do not see that the past
income loss sustained by Mr. Fata, due to his decision to quit work, can
be the defendant’s responsibility. 

Loss of Future Earning Capacity

[77]        
Loss of future earning capacity can be awarded
on the basis that the person is less capable overall of earning income from all
types of employment, and less valuable to himself as a person capable of
earning income in the competitive labour market, due to the injuries caused by
the defendant’s negligence: Brown v. Golaiy (1985), 26 B.C.L.R. (3d)
353 (S.C.).  However, a plaintiff must always first prove that, due to the
injuries caused by the defendant’s negligence, there is a real and substantial
possibility of a future income loss: Perren v. Lalari, 2010 BCCA 140.

[78]        
The claim for loss of future earning capacity is
based on the premise that, but for the accident, Mr. Fata would have
worked at SFU until retirement at the age of 65.  Thus this claim is from the
date of trial until Mr. Fata would have turned age 65.  Mr. Fata had
few years to work before retirement at age 65.  Mr. Fata gave no evidence
that his intention was to work past age 65. 

[79]        
This claim suffers from the same problem as the
claim for past wage loss.  Mr. Fata has failed to prove that the
accident caused his early retirement in the sense that it made him not capable
of continuing to earn his income at SFU.  He was capable, but he enjoyed his
job far less. 

[80]        
The medical evidence does support the point of
view that Mr. Fata was less capable of doing some tasks, involving
overhead lifting and repetitive arm movements.  But the problem with extending
this concept to suggest that Mr. Fata was less capable of earning an
income after the accident is that I have found that the evidence does not
establish that he was not capable of continuing to work at SFU until
retirement. 

[81]        
Given how close Mr. Fata was to retirement
and how many years he had worked at SFU, I find that there is next to no chance
that he would have been in the marketplace looking for another job. Before the
accident, Mr. Fata’s plan was to continue working at SFU until
retirement.  I have concluded that he was capable of continuing to do so after
the accident.  This means that I find that Mr. Fata has not proven a real
possibility of a future loss of income due to the accident.  Therefore, I award
no damages for loss of earning capacity.

Non-Pecuniary Damages

[82]        
As noted above, I do accept that Mr. Fata
suffered injuries in the motor vehicle accident.  Some of these, the neck and
forearm injuries, have resolved.  Nevertheless, the injuries did cause him some
discomfort and he was required to undertake an exercise regime and
physiotherapy.  In addition, I have concluded that Mr. Fata suffered an
injury to his shoulder, caused by the accident, which continues to this day and
is likely to continue in the future.

[83]        
As such, Mr. Fata is entitled to an award
for his pain and suffering and loss of enjoyment of life.

[84]        
There are several factors to take into account
in considering Mr. Fata’s pain and suffering and loss of enjoyment of
life.

[85]        
I have already made the point that the evidence
clearly establishes that Mr. Fata lost some of the enjoyment of his job,
due to the ongoing injury in his shoulder. 

[86]        
As well, Mr. Fata testified that he was
unable to do all of the activities in retirement that he had planned to do, due
to his shoulder injury.  The evidence was clear that he was a highly competent
handyman and I accept that he would have undertaken several projects around the
home in retirement had he not felt the restriction he now feels in his left arm. 
As well, I accept that he was an avid gardener and that his enjoyment of
gardening has been restricted because of the injury in his left shoulder and
arm.

[87]        
In addition, Mr. Fata hoped to pursue more
fly fishing in his retirement; the injury in his left shoulder and arm has
diminished his enjoyment of this activity.

[88]        
The retirement years are special years for they
are at a time in a person’s life when he realizes his own mortality.  When
someone who has always been physically active loses his physical function in
these years, the enjoyment of retirement can be severely diminished, with less
opportunity to replace these activities with other interests in life.  Further,
what may be a small loss of function to a younger person who is active in many
other ways may be a larger loss to an older person whose activities are already
constrained by age.  The impact an injury can have on someone who is elderly
was recognized in Giles v. Canada (Attorney General), [1994] B.C.J. No. 3212
(S.C.), rev’d on other grounds (1996), 21 B.C.L.R. (3d) 190 (C.A.).

[89]        
In short, it is Mr. Fata’s loss of enjoyment
of life in recreation, home chores, and work that should be compensated for in
an award for non-pecuniary damages.

[90]        
The defendant argued that some authorities show
a range of damages for non-pecuniary loss for shoulder impingement cases in the
range of $35,000-$45,000, citing MacLaren v. Kucharek, 2008 BCSC 673; Nisbet
v. Pare, 2007 BCSC 1173; and Ragneborg v. Giesbrecht, 2009 BCSC
110. 

[91]        
On the facts of this case, where Mr. Fata
has suffered a loss of some enjoyment of life in every aspect of his life, I
conclude that an appropriate award for non-pecuniary damages is $45,000.

Cost of Future Care

[92]        
Mr. Fata advances a claim for the cost of future
care, including the cost of replacing services Mr. Fata would have
performed around the home but for his injuries. 

[93]        
I am not persuaded on the evidence that Mr. Fata
requires any assistance with light chores around the home.  He is able to
manage light housekeeping and light gardening.  I conclude that if he paces
himself, he is able to do housekeeping, shopping, and look after himself.  He
may need to take breaks from time to time if his arm becomes tired and causes
him pain, but he does have the time to pace himself to do all of these chores. 

[94]        
However, Mr. Fata will need help with some heavier
home maintenance tasks.  Mr. Fata is a person who has been a handyman all
his life, and who was otherwise of good health.  I find that he would have
likely done much work around his property on heavier home maintenance tasks
well into his retirement years, but for the injury to his left arm, and that
the injuries caused by the accident have prevented him from doing these tasks. 

[95]        
An occupational therapist, Lila Quastel,
prepared a report dated September 9, 2009, which was entered as an exhibit at
trial.  She estimated that Mr. Fata would require assistance for heavier
home maintenance and repairs of 109.5 hours per year, at an average cost of $30
per hour, which is $3,285 per year.  I accept Ms. Quastel’s evidence and
conclude that this is a reasonable cost.  I find, however, that it is not
likely that Mr. Fata will require additional home services on top of this,
such as janitorial services.

[96]        
Ms. Quastel also recommended that Mr. Fata
have a gardening service to help him with the heavier gardening tasks.  She
recommended that he have an allocation of 45 hours of gardening assistance per
year at an average cost of $35 per hour, which is $1,575.  I find that it is
likely that Mr. Fata will require some gardening assistance, and but for
the accident he would have done the heavier gardening tasks himself for several
years.  However, I find the allocation of 45 hours per year excessive.  It is
likely that Mr. Fata will still be doing considerable gardening but will
have to pace himself.  A more reasonable estimate of the hours of assistance he
will likely need for heavy work is 25 hours per year, at a cost of $35 per
hour, which is $875 per year.

[97]        
The physicians appeared to be of the opinion
that little can be done for Mr. Fata other than the continuation of an
exercise program and ensuring that he does his exercise properly. 

[98]        
I find it unlikely that Mr. Fata will go to
physiotherapy, massage therapy, or a personal trainer.  Mr. Fata appears
to be plateaued and has not needed these services in the recent past.  He
appears able to perform the exercises on his own.  Given that he will be
exercising on his own, it does make sense that he consult with a kinesiologist two
times per year to ensure that he is doing his exercises correctly and to obtain
any recommendations for additional exercises.  Ms. Quastel estimates the
cost per session at $60, which would equal $120 per year.  I accept that this
is a reasonable estimate of the cost, and conclude that an award of $120 per
year to allow for this future care is appropriate.

[99]        
In addition, it is reasonable that Mr. Fata
have access to a fitness centre to exercise so as to keep his shoulder
maintained and so that it does not get worse.  Ms. Quastel states that the
average annual cost of a fitness centre membership is $400 for seniors.  I also
accept this evidence.

[100]     As for time frame, I find that there is little chance that Mr. Fata
would have done all of the heavier home services for himself for the rest of
his life regardless of the accident.  At some point in his senior years, it is
likely that he would have wanted or needed help regardless.  I also find
that there is little chance that Mr. Fata will continue to go to the gym
and to a kinesiologist in his more advanced years.  Given Mr. Fata’s
otherwise good health and the fact that he has been diligent about trying to
exercise to overcome his injuries, I consider that a 10 year time frame is a
reasonable and fair estimate with respect to all of these future care items.

[101]     I have concluded therefore that it is appropriate to take into
account the following in an award of damages:

a)    the replacement cost of heavier home maintenance ($3,825) and
gardening ($875), of $4,700 per year for 10 years;

b)    the cost of two sessions with a kinesiologist per year, amounting to
$120 per year for 10 years; and

c)    
the cost of an annual fitness centre membership,
amounting to $400 per year for 10 years.

[102]     The total of the above items is $5,220 per year for 10 years.

[103]     The plaintiff provided the expert report of an economist, Robert
Carson, dated October 14, 2009, to assist in the calculation of costs of future
care.  Mr. Carson’s table indicates that a $1,000 cost cumulatively for 10
years has the present value of $7,919 today.  Applying Mr. Carson’s tables,
the present value of an annual cost of $5,220 for 10 years is $41,337.

[104]     Considering the amount and frequency of costs which will likely be
incurred by Mr. Fata in the future due to his injuries, and recognizing
that the award of damages is an assessment and not a calculation, I assess the
cost of future care damages as $41,500.

Special Damages

[105]     The plaintiff advances as special damages the cost of painting Mr. Fata’s
home, the cost of repairing the springs in a garage door, and the cost of
cleaning blinds.

[106]     Mr. Fata’s evidence fell short of proving on a balance of
probabilities that these expenses were incurred as a result of the accident. 
While Mr. Fata argued that he would have undertaken these home repair and
maintenance chores on his own but for the injury he suffered in the accident, I
am not persuaded that this is so.  These appear to be specialty services. 
Furthermore, the labour and materials involved were not broken down on the
invoices.  I am unable to conclude that Mr. Fata suffered additional costs
for these items that he otherwise would not have incurred but for the accident.

[107]     The defendants concede that Mr. Fata has incurred some special
damages for medical treatment and anti-inflammatory medications totalling
$403.56.  I therefore award this amount as special damages.

Conclusion

[108]     Mr. Fata suffered injuries as a result of a motor vehicle
accident that was the fault of the defendant.  The accident occurred on
November 13, 2006.  While most of Mr. Fata’s injuries have healed, he has
been left with a long-term painful shoulder condition.  This injury does not
prevent him from doing most day-to-day activities, but does cause him pain and
restricts him from doing some heavier activities that he would have done but
for the accident. 

[109]     I have concluded that the Mr. Fata was capable of continuing
his employment at SFU after the accident, and of working until retirement.  However,
the loss of enjoyment of his work, due to the limitations and pain from his
injuries, led Mr. Fata to make the personal decision to quit.  For this
reason, I have not awarded damages for past wage loss or for loss of future
earning capacity.  However, I have taken Mr. Fata’s loss of enjoyment of
his work into account in the assessment of non-pecuniary damages.

[110]     In conclusion, I have awarded the following damages:

“S. Griffin, J.”
The Honourable Madam Justice Susan Griffin