IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100617

Docket: M085412

Registry:
Vancouver

Between:

Stephen Taylor

Plaintiff

And

Ebba Grundholm

Defendant

Before:
The Honourable Madam Justice Maisonville

Reasons for Judgment

INTRODUCTION

[1]            
This is an assessment of damages arising out of a motor vehicle accident
which occurred on January 31, 2008. Liability for the accident is admitted.

FACTUAL OVERVIEW

1.  The Plaintiff

[2]            
Mr. Taylor was 56 years old at the time of the accident. At the time of
trial he was 58 years of age. He lives alone in Milner, B.C. in a small
basement suite in a house next door to a house he used to own. Mr. Taylor lost
both his parents in a plane accident when he was only six years old. He went to
live with his grandparents; three years later, his grandfather died. Within
another three years, his grandmother died and he went to live in foster care. He
completed Grade 11 at Lord Tweedsmuir High School in Langley.

[3]            
He has a strong work ethic, having learned on his grandparents’ farm that
there was always work that could be done. He had worked as a part-time
gas station attendant in his teenage years.

[4]            
Mr. Taylor has been married twice. He first married in his early
twenties. That marriage lasted eight years, during which he purchased a house
in Milner, B.C. At this time in his life, Mr. Taylor worked as a sales
representative with Pacific Builders, a company that sold roof trusses and
prefabricated homes. He worked for that company for over twenty years. He has
two children from his first marriage: he had custody of Scott from the
dissolution of that marriage, and Jessica came to live with him when she was about
ten years of age. The children stayed with him until they finished secondary school,
and returned to live with him from time to time.

[5]            
He married again approximately six years after the breakup of his first
marriage. This marriage ended in 2001 when his wife left him, according to Mr. Taylor,
pregnant with another man’s child.

[6]            
At the outset of his second marriage, Mr. Taylor mortgaged his home to
assist his wife in purchasing a daycare. He testified he lost the house in
foreclosure proceedings at the time of the breakdown of that marriage. He then
moved to the house next door, where he currently resides in one of the basement
suites. His divorce trial took place in 2001, but that was not the end of legal
proceedings with his second wife. He testified she took out a restraining order
against him, and made several criminal complaints against him. She made an
allegation of dangerous driving (that he tried to run her over with a gravel
truck), and on another occasion she alleged he tried to run her over with his
vehicle. He was never convicted in relation to any of these allegations, but he
indicated that the legal proceedings left him feeling “pretty distraught”. He
indicated that before that relationship ended, when he was 50 years of age, he became
semi-retired. He was doing well financially, emotionally and physically. Mr.
Taylor described the breakdown of his second marriage as a period of turmoil
which affected all aspects of his life — his self esteem, his ability to work
and to perform his regular activities. This period lasted, more or less, until
he commenced his employment with Van Kam Freightways Ltd. (“Van Kam”) in 2007.

2.  Pre-Accident activities

[7]            
Before the accident, Mr. Taylor enjoyed hunting, fishing and fly fishing
in particular. He also collected and restored antiques.
He enjoyed spending time with his children and his friends. He has a
recreational property on a lake that is only accessible by water and which
requires much upkeep. He enjoyed working on that property, including having
several cords of wood cut and at the ready. He also enjoyed canoeing, particularly
at his lakefront property mentioned above.

[8]            
Mr. Taylor has worked from a young age. As noted above, he worked with
Pacific Builders as a sales representative for over twenty years. When that
business was closed, which was in approximately 1989, he took six months off
and then purchased a one-ton flatbed pickup truck. He started a hauling
business with his truck, which grew gradually and lasted for ten years. At that
point, he decided to pass the business to some friends of his who were starting
a similar business. He wanted to work full-time in the daycare instead. When
the daycare was purchased in 1993 only seven children attended; by 2000, there
were over 70 children enrolled.

[9]            
Mr. Taylor’s daughter Jessica also testified. She is now resident in Tofino,
B.C. and operates her own hairdressing business there. She testified she lived
with her father from an early age until she finished high school in Langley,
B.C. She described the plaintiff as the “best dad in the world”. She indicated
he used to do a lot of gardening, and that prior to his purchase of the
recreational property, they went camping together. In recent years at the cabin,
they would canoe in the summer and skidoo in the winter over the frozen lake.

[10]        
She described how the breakdown of his second marriage shattered Mr. Taylor
emotionally. Before, he was active: he had a cartage business, helped at the
daycare and lived in a large, comfortable home. Following the breakup, he was
crushed and living in a basement suite. It was only after he obtained his
employment with Van Kam that, in Jessica’s words, “he definitely came back to
himself”. He was proud of himself and his employment with Van Kam.

[11]        
Although he was away from work for a time because of a knee injury (sustained
when he slipped on ice while attempting to put a block under the truck wheel),
this was only temporary and I find he intended to return to driving for Van Kam.
In fact, he did so until August 4, 2009.

3.  Pre-accident employment

[12]        
Mr. Taylor has worked in number of different capacities during his life,
but his two main occupations have been in sales and trucking. He worked for the
same firm selling roof trusses for over 20 years. In trucking, he owned and
operated a cartage business, and then worked for a company as a driver.

[13]        
Mr. Taylor’s income tax returns for the years 2005, 2006, 2009, and computer
printouts for the years 2007 and 2008 (which were filed electronically) were
entered into evidence. He testified that in 2005 he was finishing up managing a
chicken farm. He also worked for Smithrite Delivery – he would fly to Québec
and drive back to British Columbia in a delivery truck. He earned $4,437.04 in
employment income. In that same year he received $5,616.00 in employment insurance.
His total income for 2005 was $10,053.04. He eventually moved to Hank’s Trucking,
where for part of the year he drove a gravel truck, and during springs and
summers he drove a tractor that cut grass at the sides of the road. His income
tax return for 2006 indicates employment income of $27,512.68 and employment insurance
of $2,903 for a total of $30,415.68. He indicated he also earned cash driving a
truck for “Don Holmes” (phonetic), but that is not listed in his tax return; in
cross-examination, he denied receiving employment insurance when he was being
paid in cash.

[14]        
On October 23, 2007 he started with Van Kam, a job he obtained with the
assistance of his brother and cousin. He had considered buying another truck for
his own business, and his brother had offered to lend him $12,000, but he could
not obtain financing. In 2007 his gross earnings were $20,824 and he received
$4,130 in employment insurance benefits for a total of $16,694. In 2008, Mr.
Taylor earned $27,269, $32 in other income, and workers’ compensation benefits
of $16,675. Mr. Taylor stopped working for a period of time as a
consequence of a knee injury he sustained when he slipped on ice at work on
December 29, 2007 (as previously noted, he was attempting to put a block under the
truck wheel). He received workers’ compensation benefits (“WCB”) as a result of
that injury. In 2009 his earnings from all sources, including the Teamsters’ National Benefit Plan, amounted to $41,387.14.

4.  Pre-accident health

[15]        
The defendant asserts that Mr. Taylor had numerous pre-existing injuries
that impacted on his activities. Prior to the accident, he suffered from gout,
arthritis, psoriasis, and mild diabetes. Respecting Mr. Taylor’s diagnoses of gout
and arthritis, Dr. Leith (an orthopaedic surgeon who testified for the defence)
noted that Mr. Taylor’s gait on February 16, 2010
was satisfactory. In accordance with the medical opinions of Drs. Gouws
and Manchanda (the plaintiff’s family physician), I find that gout is a
treatable condition. I also agree with Dr. Manchanda’s finding that Mr.
Taylor’s gout is controllable with proper diet and ceasing all alcohol
consumption.  Mr. Taylor had suffered a significant injury to his left ankle during
his teens that the medical evidence disclosed would likely lead to increased
possibility of arthritis later in life.

[16]        
Apart from the knee injury in 2007, however, no pre-existing condition
kept the plaintiff from working. His work required many physical activities,
including detailed truck inspection, freight hook-up, and lowering parts of the
truck — all activities that he performed manually. He attended a pre-employment
physical with Dr. Peach on October 9, 2007: no concerns arose and he was
cleared for work.

5.  The Accident

[17]        
Liability for the accident is admitted.  It occurred at approximately
noon on January 31, 2008 when the defendant, Ebba Grundholm, was driving her
2000 Chrysler Cirrus eastbound on Fraser Highway in Langley, B.C. just past the
intersection with 272nd Street. Mr. Taylor was returning to his 1993 Mercury
Topaz, parked at the curb adjacent to the laundromat where he was doing his
laundry. Because his dog was sitting in the front passenger seat, he went
around the vehicle and opened the driver’s side door to reach into the back to
retrieve a box of soap he needed for the wash. His left hand was holding the
steering wheel and he was leaning into the back seat area when the collision
occurred.

[18]        
He described the crash as being like an explosion. His vehicle was later
declared a ‘write off’. The defendant’s vehicle apparently struck him and his
vehicle such that he was thrown into his front driver’s side door. The damage
to the driver’s side of his vehicle was visible in photographs that were
entered into evidence. These photographs show extensive damage to the driver’s
side of the vehicle and corresponding damage to the passenger side of the
defendant’s vehicle.

[19]        
The police reports of the accident were entered into evidence.
The reports describe that Mr. Taylor had conversations with both the defendant
and the police, but he testified that he has no memory of that. He retrieved
his laundry and sought the assistance of friends to help him get the door to
his vehicle shut, which apparently was so badly damaged it could not be shut at
the scene, but he has no recollection of any of those activities either. He
indicated he was “dazed” and “confused”. The plaintiff advised
the RCMP officer who attended the scene that he did not want an ambulance and was
not injured. This report was put into evidence and Mr. Taylor was cross-examined
on this point: he agreed that he likely indicated that he was not injured, but said
it was a mistake on his part as he was clearly hurt. He testified that he was not
acting normally. I find that Mr. Taylor was indeed in shock, not acting normally,
and just wanted to get home — so much so that he took his laundry home wet and soapy.
He then attended a physiotherapy treatment for his knee. Though he mentioned
the accident to the physiotherapist, he did not specifically complain of pain
in his elbow or arm, and there is no indication in the physiotherapist’s notes
of bruising or swelling around his elbow area — but according to the medical
evidence, this was not to be expected at that time (insofar as bruising is indicative
of a distal biceps rupture). Instead, the medical evidence on bruising (if any)
from a distal biceps rupture was that it would not be apparent right away (should
that bruising ever occur).

[20]        
After his physiotherapy treatment, Mr. Taylor
went home, where he stayed for several days. He testified he was confused and
has little memory of this time except for the fact that his brother was very
concerned and eventually came and took him for medical attention.

6.  Post-accident employment

[21]        
Following the accident, Mr. Taylor continued to receive WCB until he had
surgery on his knee and recovered.  He returned to work on July 5, 2008.  He
suffered a further aggravation of his knee injury and was off work (and on WCB)
from September 9 to 19, 2008.

7.  Treatment and post-accident health

[22]        
Mr. Taylor did not seek medical attention immediately following the
accident.  He testified that he was confused, in pain and just stayed home
until his brother came to get him. Although he attended a physiotherapy treatment,
he has no recollection of it. I accept this evidence.

[23]        
On February 5, 2008 Mr. Taylor first sought
medical attention from his then family doctor, Dr. Alister F. Frayne. Mr.
Taylor testified he had not been happy with Dr. Frayne’s treatment and he was in
the process of changing doctors.

[24]        
Dr. Frayne gave evidence at trial respecting his
notes, which were entered into evidence. His practice is not to question a
patient about injuries or symptoms but instead to have him or her describe the
injuries and volunteer the information while he simultaneously types notes into
the computer. His practice is to follow the “SOAP” method of note taking, which
consists of notes under the following headings: Subjective, Objective, Analysis
and Plan.

[25]        
There is no issue that on February 5, 2008 Mr. Taylor came
to Dr. Frayne’s office complaining of pain to his upper left quadrant area,
as well as other complaints arising from the motor vehicle accident.  Indeed,
the note is headed “Examination – mva”. Dr. Frayne noted the following on
February 5, 2008:

Subjective:

MVA last Thursday, hit by car – now sore L hip, shoulder,
central chest CLAIM # N2079391
Also some heartburn, brown urine
[a portion of the notes was illegible but believed by Dr. Frayne to be “some”
followed by the word] insomnia, and nightmares.

Objective: Diffuse
tenderness Trap [which he testified to mean trapezius muscle], ES, no spasm,
lat. dorsii
ROM [range of motion] limited by pain, patient reluctant to move.

The “Analysis” field of Dr. Frayne’s notes was empty,
but he testified that it was an examination in respect of a motor vehicle
accident. Under “Plan” Dr. Frayne wrote “Mobilize, NSAIDs as required,
continue physio” and “Ix: Pathology – Urine Culture”.

[26]        
I find that Dr. Frayne’s records do not detail
all of Mr. Taylor’s problems and the overall trauma he suffered. This can be
attributed to Dr. Frayne’s record keeping style.  He had no independent
recollection of Mr. Taylor’s visit and was unable to describe the mechanism of
the accident.

[27]        
I find there is no doubt that Mr. Taylor complained
of pain in his left side and his upper left quandrant to Dr. Frayne.

[28]        
There is no evidence before me that Mr. Taylor
had ever complained of any difficulties with his upper left quadrant area prior
to the accident.

[29]        
Not satisfied with Dr. Frayne, Mr. Taylor
attended upon Dr. Velay. Mr. Taylor’s initial visit was on February 13, 2008. Dr.
Velay noted his presentation of pain and soreness (these notes were in evidence).
Based on Mr. Taylor’s clinical presentation, he was sent on an emergency basis
to Royal Columbian Hospital to be seen by a neurologist, Dr. Ho, to rule out a
transient ischemic attack (“TIA”). Ultimately, a CT scan of his head and a CT
angiogram were performed, both of which were normal.

[30]        
Respecting the physical presentation of the
biceps injury immediately following the accident, Dr. Manchanda stated that
typically when a muscle is no longer used (as when there is a tear of the biceps
and it is no longer attached to the bone), it will start to atrophy. The
atrophy takes between several weeks and three to four months to show up (visible
as a loss of muscle mass).

[31]        
The disablement of Mr. Taylor’s left shoulder
and upper extremity became more apparent by the time he returned to work in
July 2008. During his testimony, Dr. Manchanda was taken through, and he reviewed
and explained, some of his clinical entries. On November 13, 2008, he noted the plaintiff’s elbow pain: “L arm terrible since back to
truck driving. Arm extended, uses L arm for wheel while R arm shifts L arm
painful in elbow”.

[32]        
Mr. Taylor’s upper limb problems continued to
worsen with use and resulted in his being unable to continue work as of August
5, 2009. He had tried everything to remain working.

[33]        
Dr. Gouws was accepted as an expert in
occupational health and fitness to work. He authored a report dated February
17, 2010, in which he stated as follows:

OPINION ON COMPETITIVE AND FUTURE EMPLOYABILITY

Disability has been defined by the
American Medical Association (AMA) as “an alteration of an individual’s
capacity to meet personal, social, or occupational demands, or statutory or
regulatory requirements.” The World Health Organization (WHO)’s definition of
disability is: “any restriction or lack [resulting from an impairment] of
ability to perform an activity in the manner or within the range considered
normal for a human being.”

64. Mr. Taylor
continues to have a functional impairment due to the injuries that he sustained
in the motor vehicle accident of January 31, 2008. In view of the fact that he
continues to have symptoms more than 2 years following his injury, the
widespread nature of his pain and his relatively advanced age in the workforce,
his prognosis for any significant improvement in his symptoms and function is
guarded.

65. Mr. Taylor cannot
meet the Physical Activities of his previous occupation of long haul/short haul
truck driver. It is my opinion that he is permanently disabled from returning
to these occupations. From a vocational rehabilitation perspective, Mr.
Taylor’s chronic pain condition, associated mood and sleep disturbances as well
as his ongoing left upper limb dysfunction is a significant liability for him
to continue in his chosen occupational field.

FITNESS TO WORK:

66.   Mr. Taylor’s biggest problem in terms
of his physical abilities is his intolerance for physical activity including
sustained reaching and handling with the left upper limb, and sustained body
positioning. This and his chronic pain would make it very difficult for him to
work in any capacity at this stage.

67.   Unfortunately,
Mr. Taylor has very few transferable skills, although he does seem to have been
quite adaptable to different work situations in the past. Mr. Taylor will most
likely find that he must seek lighter, lower paying employment where it will be
difficult for him to be competitive in view of his reduced ability to work
productively. As a consequence of his injuries and ongoing physical
impairments, he will most likely be unable to benefit from other employment opportunities
that would have been available to him, were it not for the motor vehicle accident
of January 31, 2008.

[34]        
Dr. Travlos was accepted as an expert in the
area of physical medicine and rehabilitation. Mr. Taylor had seen Dr. Travlos
for the purposes of obtaining an assessment, which was tendered as an exhibit.
Dr. Travlos’ statement with regard to the left biceps injury was similar to Dr.
Manchanda’s. He stated, and I accept his evidence, that depending on the
incident and the rupture, the patient may notice pain, but sometimes the
patient does not notice it at the time.

[35]        
Mr. Taylor was assessed
by Dr. Travlos on August 19, 2009. He recommended hands-on supervision in physical
therapy four days per week, geared towards a progressive program of stretching
and strengthening of the left upper extremity. Dr. Travlos’ report was
provided to Brookswood Physiotherapy on August 28, 2009, following which
therapy began as recommended. From August 28, 2009 to April 20, 2010 Mr. Taylor
had attended and been treated at Brookswood Physiotherapy on 93 occasions.

[36]        
Dr. Travlos was
questioned about the plaintiff’s pre-existing health concerns: gout, psoriasis
(which can be indicative of an underlying arthritic condition), diabetes, and
arthritis in the knees and ankle from the earlier injury. He indicated that all
of these conditions are manageable — they can flare up and then come under
control again. I accept that Mr. Taylor had managed these conditions for many
years, and throughout his employment with Van Kam, without any loss of work (except
for the knee injury and surgery).

[37]        
Dr. Travlos noted as
follows in his report of August 19, 2009:

Although Mr. Taylor did return to work, he was
clearly having difficulty doing so and although he worked for close to a year
after his return to work, he was having great difficulties doing the work.
Indeed, when one examines and observes him today, there is no way he would be
given clearance to work as a truck driver. At this point, it is difficult to
know just how much he has deteriorated over time, but either way, his current
level of functioning does not allow for him to be employed as a trucker, and he
would not pass his certification to do so. It is my opinion Mr. Taylor is, at
this point, fully disabled from his job as a trucker.  It is difficult to know
if he will regain the ability to work in that capacity and this remains to be
seen. The lack of left arm use and the chronic pain symptoms would preclude him
from doing many other jobs at this time, and his presentation today does not
allow for gainful competitive employment. To what extent he will be able to in
the future remains to be seen and will depend on his improvement over time.

[38]        
Dr. Manchanda provided his opinion in a report dated
February 12, 2010, which was entered as evidence. It is notable that all
the witnesses who were questioned about Mr. Taylor’s injuries considered Dr. Manchanda
to be an exceptional family physician, particularly in terms of conscientiousness,
the thoroughness of his note-taking, and caretaking of his patients. After Mr.
Taylor had undergone four and one-half months of the therapy regime with
Brookswood Physiotherapy, Dr. Manchanda noted as follows:

In my opinion,
Mr. Taylor is not able to work in any job that requires physical strength of
his left upper extremity, such as jobs requiring lifting, sweeping, cleaning,
pushing, pulling, driving large vehicles, driving for many hours, etc. In my
opinion, Mr. Taylor is not able to work as a long haul truck driver given his
significant disability in his left upper extremity.

…

In my opinion,
Mr. Taylor is motivated to work. I recall seeing swelling in his left wrist and
left distal forearm in July 2009. This is documented in my notes of July 19,
2009. I had to put him on Prednisone 60 mg (a very potent anti-inflammatory
drug, not commonly prescribed in general practice due to its unwanted
side-effects) to manage his swelling and inflammation. In the end, it was
determined that the swelling was inflammatory and due to his soft tissue injuries.
My note of August 06, 2009 reveals that the swelling in the left hand and arm
was subsiding.

I understand
he was going to work as a truck driver with swelling and tenderness along his
left forearm and left wrist in July 2009. He mentioned to me on many occasions
that he will continue to work for as long as he possibly can. In my opinion, he
stopped working when it was physically not possible for him to continue, and it
was likely also not safe for him to continue working in August 2009 because he
was unable to operate his big truck with only one hand (since his left upper
extremity was essentially non-functional in my opinion). In my opinion, his
absence from work since August 05, 2009 is justified and is an essential part of
his healing.

…

PROGNOSIS

…

2.   Considering the treatments that he has tried
and his present condition, in my opinion Mr. Taylor will not be able to do any
physically demanding jobs indefinitely.

[39]        
Dr. Manchanda confirmed in his report and on cross-examination
that Mr. Taylor is currently not capable of work as a truck driver insofar
as it requires strength in the upper extremities. Dr. Manchanda did feel,
however, that Mr. Taylor has the ability to perform light or sedentary duties
that do not require strength in both upper extremities.

[40]        
Dr. Leith, an orthopaedic surgeon, was qualified as an expert witness in
the area of shoulder, elbow, knee, musculoskeletal injuries and general
orthopaedic surgery. Dr. Leith prepared a report dated February 16, 2010 and
testified he also examined Mr. Taylor on the same day. He testified that his
practice is to review only the main heading of the referring letter prior to
examining a patient — that he doesn’t look at the file initially to prevent it
from biasing his opinion. He relies on the person seeing him for the history.
He ensures the person visiting him is aware that the visit is only for an
assessment and not a traditional visit for care or treatment. It is, he
describes to patients, only to conduct his assessment, which may or may not
result in a report — and if a report is generated, it will be shown to all
counsel.

[41]        
On his examination by Dr. Leith, Mr. Taylor said that he had neck pain,
pain over the posterior aspect of his shoulder girdle region on the left side,
laterally sided elbow pain, and that he was unable to move his left hand. He also
indicated that his right shoulder was becoming more painful because he was using
it more than the left. Dr. Leith observed much voluntary guarding, which Dr.
Leith testified was “pain behaviour”. He saw the noticeable deformity to Mr.
Taylor’s distal biceps, which is the result of a rupture of the distal biceps
tendon. He testified that it would be unusual for this injury to result from
the accident without Mr. Taylor hearing a tearing sound (or feeling the same)
or experiencing a popping sensation. The defendant submits, accordingly, it is
necessary for the plaintiff to have heard a popping sound, or to have felt a
tearing, popping, or burning sensation. However, given the crash of metal from
the collision, and what Mr. Taylor described as an “explosion”, his
failure to note this sound or feeling is neither remarkable nor indicative that
it did not occur.

[42]        
I find the injury to Mr. Taylor’s biceps tendon and to his upper left quadrant
did occur as a result of the accident. Nowhere in the medical records is there
a note of this injury — now described by Dr. Leith as a “noticeable deformity”
— prior to the accident. The evidence from the physicians was that there would
have to have been a significant event to cause this type of injury.

[43]        
The biceps tendons are attached to the bone, which anchors the muscle. 
When flexed, the muscle will appear to be at about the middle of the upper arm.
If an individual has sustained a biceps tendon tear near the elbow (distal),
the muscle is no longer anchored and will bunch up proximally, appearing much
like the cartoon character Popeye’s arm. This is a noticeable deformity.

[44]        
Dr. Leith concluded there was no history given consistent of a biceps
rupture given at the time of the accident. However, on cross-examination he
agreed that being struck while holding the steering wheel (and hence having the
bicep in flexion) is a likely way the injury could happen. Dr. Leith noted
that there may be bruising with this kind of injury, but that it does not
become visible right away. The distal biceps is also the muscle that enables
one to turn his palm up. While an injury to that muscle may not affect a desk
worker, testified Dr. Leith, such an injury would affect someone who had
to supinate i.e. turn his palm facing up during his work. He testified that
although one would not expect to find disability, one would find weakness in
some activities – and as Dr. Leith noted, this weakness results from the
distal biceps rupture alone. He concluded that no structural injuries or
fractures had resulted from the accident. He found that Mr. Taylor had full range
of motion, but that was on relaxation. In his report, Dr. Leith noted of distal
biceps rupture: “[t]his injury can result in up to 30% loss of elbow flexion
strength and up to 40% loss of supination strength”.

[45]        
On cross-examination, Dr. Leith agreed that people can suffer soft
tissue injuries that can be ongoing and debilitating. He said that such
injuries are, in his words, “more a manifestation of our system than reality”.
He agreed that people can have prolonged pain that cannot be measured and which
is disabling. He noted the distinction between people with soft tissue injuries
and those who have objectively viewable fractures or injuries. He testified that
in his practice, the people with soft tissue injuries that do not recover are people
with WorkSafeBC matters or who have been involved, for instance, in rear-end
collisions resulting in whiplash injuries. He indicated that those people do
not recover as readily as others. He denied that this was a jaded view; rather,
he indicated that it was a fact noted in the literature. He testified that such
people do not get better. Their pain is real, he noted, based on what they
describe to their physicians.

[46]        
Dr. Leith agreed that if the accident occurred when the plaintiff was
pulling on the steering wheel (thus creating active flexion in the muscle at
impact) this event could cause a ruptured biceps tendon. Dr. Leith agreed that
people who typically suffer from distal biceps ruptures are older (excluding younger
people on steroids). He agreed there could be a variety of reasons why Mr.
Taylor went home after the accident and stayed there — including that he was
traumatized and did not want to go out — although it was unusual and not
consistent with the behaviour Dr. Leith typically sees.

[47]        
In general for his reports, Dr. Leith relies on the accuracy of notes
from other physicians and assumes that they have properly examined the patient.
He assumes that the physicians would be asking detailed questions about the
accident, and that there would be a detailed exam on the date of presentation. Dr.
Leith quoted from Dr. Frayne’s notes in his report, but testified he had no
idea to what Dr. Frayne was referring when he wrote, amongst other things,
“ES”. He assumed that Dr. Frayne may have been referring to muscles
because of the context. “ES,” however, was not shorthand for any muscle known
to Dr. Leith. Insofar as Dr. Leith relied on Dr. Frayne’s notes over the plaintiff’s
evidence, I find that the plaintiff had, in fact, presented with injuries to
his left upper quadrant and the distal biceps muscle tear when he saw Dr. Frayne
on February 5, 2008.

[48]        
Although the absence of an evidentiary basis for Dr. Leith’s opinion does not undermine his opinion entirely, it affects the weight to
be given to that opinion. I find that Dr. Leith’s inferences respecting the
plaintiff’s complaints to Dr. Frayne are not correct given Dr. Frayne’s
evidence respecting his manner of taking notes and the important omissions to
which he admitted (such as the nature of the accident). Dr. Frayne
testified that while not likely, it was possible that Mr. Taylor spoke of
the injuries to his left biceps or elbow. I find it more probable than not that
the plaintiff complained of these injuries and, as noted, he complained of pain
in the general region. Still, Dr. Frayne’s notes were one of the bases for Dr. Leith’s
opinion that the plaintiff only suffered from soft tissue injuries and that the
distal biceps rupture did not occur at the time of the accident.

[49]        
Dr. Leith further testified that a distal biceps tear is almost never
repaired unless it is acute because people with this injury usually have no
problems with function; rather (as noted), they will have problems with
strength.  Mr. Taylor is thus left with a lifelong cosmetic deformity in
addition to the attendant loss of strength.

8.  Videotape evidence

[50]        
Mr. Taylor had been placed under surveillance and videotaped by
investigators retained by the defendant on certain days in March and April of
2010. I find he was not shown to be doing anything inconsistent with his
statement that he sustained an injury and was in pain. At one point, he was
shown seated in the driver’s seat of his vehicle and reaching to about ear
level with his left arm to grab the seatbelt. It was not a movement where he
had to twist his body in any way, significantly arch his back or lift his arm
directly over his head. Similarly, he was shown removing his hat with his right
hand and smoothing his hair down with his left. I do not find those motions to
be inconsistent with his injury. He was not directed by his physicians to cease
using his left arm. The fact that he did not show obvious signs of distress
when doing these movements is not inconsistent with his injury. He was not observed
to be lifting anything. Accordingly, I do not find the videotape surveillance
inconsistent with the evidence of the plaintiff and his physicians.

ISSUES

1.  The Plaintiff’s claims

[51]        
The plaintiff’s claims are as follows:

1. non-pecuniary
loss of $115,000;

2. income
loss of $54,900 (before income tax);

3.  future income loss and loss of
earning capacity of $555,000;

4.  special damages of $6,348.60;

5.  future care costs of $20,000
for physiotherapy; and

6.  future care costs of $15,000 for
loss of housekeeping capacity.

I will consider each of these claims, in turn, after
addressing the issue of causation.

2.  Causation

[52]        
The defendant says, firstly, that causation has not been proved — that
it has not been shown that Mr. Taylor’s injuries resulted from the accident.
Secondly, the defendant submits that the injuries the plaintiff suffered in the
accident were minor and in the nature of soft tissue injuries which should have
resolved shortly after the accident. With respect to his ruptured biceps
tendon, the defendant argues this predated the accident. Thirdly, the defendant
says Mr. Taylor has failed to mitigate his losses in that he failed to engage
in physiotherapy until July 2009 (18 months after the accident).

[53]        
The test for causation is found in Resurfice Corp. v. Hanke, 2007
SCC 7, [2007] 1 S.C.R. 333. In that decision the Court affirmed that the basic
test for determining causation remains the “but for” test. The burden is on the
plaintiff to show that “but for” the actions of the defendant, the injury would
not have occurred. Chief Justice McLachlin stated the test as follows at
paragraphs 22-23:

[22]  This fundamental rule has never been
displaced and remains the primary test for causation in negligence actions. As
stated in Athey v. Leonati, at para. 14, per Major J.,
"[t]he general, but not conclusive, test for causation is the ‘but for’
test, which requires the plaintiff to show that the injury would not have
occurred but for the negligence of the defendant." Similarly, as I noted
in Blackwater v. Plint, at para. 78, "[t]he rules of causation
consider generally whether ‘but for’ the defendant’s acts, the plaintiff’s
damages would have been incurred on a balance of probabilities."

[23]  The “but for” test
recognizes that compensation for negligent conduct should only be made
"where a substantial connection between the injury and defendant’s
conduct" is present. It ensures that a defendant will not be held liable
for the plaintiff’s injuries where they "may very well be due to factors
unconnected to the defendant and not the fault of anyone": Snell v.
Farrell, at p. 327, per Sopinka J.

[54]        
According to the defendant, the evidence of Drs. Frayne and Leith is key
to the issue of causation. According to the plaintiff, the evidence of Drs.
Manchanda, Gouws and Travlos should be preferred: they were of the opinion that
the injury to the biceps tendon and the other soft tissue injuries to the left
upper quadrant arose from the accident. I find on all of the evidence that the
accident of January 31, 2008 caused these injuries to the plaintiff. With
regard to Dr. Leith’s opinion that there should have been some audible sound, I
believe the plaintiff when he describes the accident as having been like an
explosion. I make the inference that, given the sound of crushing metal (which
result was apparent from the photographs) any tearing or popping noise would
have been impossible to hear in the circumstances.

[55]        
I also find that Mr. Taylor continues to have difficulties arising from his
injuries sustained during the accident. I accept, however, that Mr. Taylor
has many additional health problems (such as diabetes, arthritis and gout)
which are unrelated to the accident injuries. In particular, the plaintiff
suffered an injury in which he described his left foot being “crushed” when he
was 17 years of age — all the doctors questioned about this agreed that such an
injury could increase the likelihood of future arthritis in his foot. In fact,
it was apparent in the video evidence (taken in late March
early April 2008) that Mr. Taylor was limping while swinging his right
arm to compensate. However, I accept Dr. Manchanda’s evidence that insofar
as this limp could be attributable to gout, such a symptom can be transient and
can be controlled by proper diet and ceasing alcohol consumption. Indeed, when
he observed Mr. Taylor on February 16, 2010, Dr. Leith noted he had a normal
gait.

[56]        
The defence states that the appropriate range of damages to compensate
the plaintiff for his injuries is between $20,000 and $45,000.

[57]        
The defendant disputes the plaintiff’s claim for past loss of
income and all future loss of income. The defence also disputes all of the
plaintiff’s claims for special damages and future care costs.

ANALYSIS OF THE PLAINTIFF’S CLAIMS

1.  Non-pecuniary loss

[58]        
The defendant submits that non-pecuniary damages should be in the range
of $20,000 to $45,000, but that the amount should be reduced for a failure to
mitigate. The defendant relies on the following cases:

·      
Johnson v. Sarty, 2006 NSSC 69, [2006] N.S.J. No. 172
57-year-old male who suffered a biceps tendon rupture, partial thickness tear
of rotator cuff, and pain in his shoulder and wrist was awarded $20,000.

·      
Fata v. Heinonen, 2010 BCSC 385, [2010] B.C.J. No. 522
59-year-old male who suffered soft tissue injuries to his left arm and shoulder
was awarded $45,000.

·      
Filsinger v. Insurance Corporation of British Columbia,
2009 BCSC 232, [2009] B.C.J. No. 331
50-year-old male suffered soft tissue injuries to his left hip, both ankles,
lower back as well as a rotator cuff injury to his right shoulder which
required surgery. He was awarded $52,000, $20,000 of which was attributed to
his shoulder injury.

[59]        
The plaintiff submits an award of approximately $115,000 is
appropriate, citing the following cases:

·      
Dycke v. Nanaimo Paving and Seal Coating Ltd., 2007 BCSC 455, [2007] B.C.J. No. 2961
33-year-old woman suffering whiplash injuries was awarded $125,000.

·      
Fox v. Danis, 2005
BCSC 102, [2005] B.C.J. No. 137, aff’d 2006 BCCA 324
28-year-old woman suffered injury to her lower back and neck, as well as
permanent nerve injury. She was awarded $100,000.

[60]        
There is no issue that the plaintiff has suffered a debilitating
loss. He will no longer be able to look after his cabin and it will have to be
sold. He will no longer be able to enjoy the activities that he enjoyed with
his friends and family. Additionally, Mr. Taylor was nearing retirement. As Griffin
J. noted in Fata v. Heinonen at para. 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.).

[61]        
The defendant submits that the plaintiff has failed to mitigate
his losses, and that such failure should be factored into any award for these
injuries.

[62]        
Every plaintiff has the duty to mitigate his losses. The burden of proving
failure to fulfil that duty rests with the defendant, and the standard of proof
is on the balance of probabilities: Janiak v. Ippolito, [1985] 1 S.C.R.
146.

[63]        
In Graham v. Rogers, 2001 BCCA 432, leave to appeal to S.C.C.
ref’d, [2001] S.C.C.A. No. 467, Rowles J.A. succinctly described the role of
mitigation in personal injury cases as follows:

[35]   Mitigation goes to limit
recovery based on an unreasonable failure of the injured party to take
reasonable steps to limit his or her loss. A plaintiff in a personal injury
action has a positive duty to mitigate but if a defendant’s position is that a
plaintiff could reasonably have avoided some part of the loss, the defendant
bears the onus of proof on that issue.

[64]        
In this case, the defendant submits that the plaintiff failed to
mitigate his loss by failing to continue with physiotherapy when it was
initially recommended, and by failing to immediately return to a program of
physiotherapy treatment when it was recommended a second time.

[65]        
In Antoniali v. Massey, 2008 BCSC 1085, [2008] B.C.J.
No. 1526, Mr. Justice Preston describes the test for establishing a
failure to mitigate as follows:

[31]   In order to conclude that Ms. Antoniali’s damages
should be reduced by application of the principle that a plaintiff has a
positive duty to mitigate his or her injuries, I would have to find that the
defendant has established:

1.   that a program of stretching and conditioning under the
guidance of a personal trainer would have reduced or eliminated the effect of
the injuries;

2.   that the reasonable plaintiff in Ms. Antoniali’s
circumstances would have followed such a program;

3.   that Ms. Antoniali unreasonably failed to follow such a
program and;

4.   the extent to which Ms. Antoniali’s damages would have
been reduced if she had followed such a program.

[66]        
The defendant submits it is clear that
physiotherapy would have been effective. Insofar as the
plaintiff’s own doctors testified there was no doubt he could have benefitted
from earlier intense physiotherapy (as had been the recommendation), I agree. I
find that the plaintiff had a positive duty to mitigate his injuries by
attending physiotherapy as directed by his physicians at an earlier time.

[67]        
In all the circumstances, I award the plaintiff
$90,000 in non-pecuniary damages, less 10% for failure to mitigate by attending
rehabilitation in the form of physiotherapy as recommended by his treating physicians
at an earlier time. The award for non-pecuniary damages will therefore be
$81,000.

2.  Past loss of income

[68]        
The defendant submits that, if this Court finds causation, that an award for past income loss should not exceed the plaintiff’s
historical earnings — approximately $16,000 gross per annum (when all the years
for which income tax returns existed are averaged). The defendant agrees that
the plaintiff should be compensated for the period from August through to
December 2009, when he was assessed by Dr. Leith. Alternatively, this
could be extended to February 2010 (to which date Dr. Manchanda says he was
able to work) or to the present, taking into account the plaintiff’s current
and significantly improved physical function, and allowing a period of adjustment
to seek employment (assuming that his recovery could have occurred earlier had
he mitigated his losses).

[69]        
The defendant goes further, submitting that Mr. Taylor is now and has
always been wholly unsuited to long-haul trucking. It was submitted that he is
a hazard on the road due to having possibly sustained TIAs and vision problems,
and the mention of fainting spells found in Dr. Frayne’s clinical records of
February 13, 2007, where he wrote “Fainting spells, 10x since last Dec 22. no
apparent cause. Seems postural. No CP, no seizure activity”. This note was
listed under the heading [“Syncope/pre-syncope”.]. Dr. Frayne testified he did
nothing in the nature of follow-up or investigation in relation to this note. I
find that he did not believe Mr. Taylor was in serious medical jeopardy: the “Seems
postural” comment suggests as much. Nothing in his notes revealed a concern
that Mr. Taylor would lapse into unconsciousness.

[70]        
As Dr. Manchanda testified, a complaint of “Fainting spells” is extremely
vague — too vague upon which to make a diagnosis without more. Respecting TIAs,
Dr. Manchanda noted there had been a CT scan of Mr. Taylor’s head and an angio
CT, neither of which revealed evidence of acute traumatic arterial injury. He
stated that it was probable that if in fact Mr. Taylor had suffered from TIAs
that he would likely now be dead or possibly paralyzed as TIAs are highly
indicative precursors to a stroke. Insofar as the defendant argues that this
note describes unconsciousness, I find that it does not — even as noted above Dr.
Frayne noted [“Syncope/pre-syncope”], which indicates uncertainty about the nature
of the dizziness. I find it is impossible to conclude, on the basis of that
note, that Mr. Taylor was at a risk of unconsciousness to the extent that (as
the defendant suggests) he should not have been driving.

[71]        
Mr. Taylor’s evidence respecting the fact that he had used cocaine in
the past (he testified that he had once ingested cocaine to enable him to drive
a truck without resting) does not disqualify him from trucking, nor do I find (as
the defendant submits) that he should never have been a trucker at all as a consequence
of that one incident.

[72]        
The physicians were cross-examined on cocaine use, and expressed
concern for a more frequent user. Mr. Taylor was questioned extensively on
this point, and as well on his alcohol use. There was no evidence of any such incidents
while he worked for Van Kam. I do not agree that Mr. Taylor should never
have been driving.  Further, although Beverley Stewart, Director of Line Haul
Operations at Van Kam, testified that cocaine use would prohibit someone from
driving, she had no such concern with Mr. Taylor.

[73]        
The Van Kam payroll sheets, and Ms. Stewart (who
gave evidence on behalf of Van Kam), detailed Mr. Taylor’s pre-accident work
history. He was primarily doing line haul work to areas such as Prince George
and Princeton.

[74]        
In the context of Dr. Manchanda’s comment that Mr.
Taylor was fit to work only in jobs that involved light or sedentary duties, it
is important to note that such a description could not be applied to line haul work.

[75]        
The plaintiff was receiving WCB at the time of the accident and I
find that he would have remained disabled by reason of his knee injury until he
underwent and recovered from corrective surgery. He returned to long haul driving
on July 5, 2008, with the exception that he received WCB from September 9 to 19,
2008 due to a flare-up of his knee injury. Mr. Taylor experienced increasing
difficulty with his left upper extremity on his return to work. He ceased
working entirely on August 5, 2009.

[76]        
According
to the plaintiff, taking the average 20.3 weeks calculation, the award for past
loss of income should be $46,956. He says that this amount represents what
additional income he could have earned but for the accident and comprises a
series of estimates based on Mr. Taylor taking on routes after a period of time
working different routes from the Princeton route which gave a “per mile”
premium.

[77]        
An
award for past loss of income in these circumstances must reflect a likely
scenario. Mr. Taylor was on the Princeton route from October 6, 2008 until he stopped
work. I find that but for the accident he would have continued on that route up
until the time of trial.

[78]        
Mr.
John W. Struthers, consulting economist, was qualified as an expert to provide opinion
evidence on potential earnings, losses, income multipliers and cost of care
multipliers. He created various tables which were entered into evidence. He
noted in his report that the multipliers he used were calculated using a
discount rate of 2.5% per year from the trial date, as required by s. 56 of the
Law and Equity Act, R.S.B.C. 1996, c. 253. He also noted these
multipliers were adjusted for survival but did not incorporate statistical allowances
for other contingencies.

[79]        
Also,
it is important to note that any award for past loss of income must be reduced
as required by sections 95 to 98 of the Insurance (Vehicle) Act,
R.S.B.C. 1996, c. 231, which limits the liability of designated defendants for
claims for income loss arising out of motor vehicle accidents to “net income
loss”.

[80]        
Mr.
Struthers reviewed the plaintiff’s employment records from his years with Van
Kam. He noted that for approximately 50% of the time Mr. Taylor was doing the
long hauls — for which mileage is paid in addition to an hourly rate. When he
started with Van Kam in October 2007, he spent 26 out of 30 days doing long
hauls. Then he sustained his knee injury. After he returned to work in July of
2008, he worked 33 of 36 days doing long hauls. Then, following his return to
work after aggravating his knee in September of 2008, he worked seven trips
getting the mileage premium for doing long hauls. After October 16, his work
pattern changed. Over his last 43 weeks with Van Kam, he increased his days of
work but only earned a 1.7% premium for long hauls. Given this evidence, the
testimony of Ms. Stewart that the Princeton route was a good fit for him and
the company, and Mr. Taylor’s evidence in cross-examination (he stated that he
was given shorter runs with no mileage premium, i.e. the Princeton run), I find
Mr. Taylor’s loss of income from August 4, 2009, until trial was $35,561.

[81]        
I
find that Mr. Taylor’s past income loss, after deducting for income tax, is
$30,831.38 ($35,561 x (1 – 0.133)).

[82]        
After
stopping work with Van Kam, Mr. Taylor received weekly indemnity payments through
the Teamsters. This continued until approximately January 24, 2010. A Third
Party Liability Reimbursement Agreement was tendered into evidence. As that
claim is subrogated, it is not deductable by the defendant. Following the
weekly indemnity payments through the Teamsters, he then received E.I.
disability benefits.  Those benefits are not deductible from the award for past
income loss. (Bracchi v. Roberts (1990), 51 B.C.L.R. (2d) 257 (S.C.)).
Mr. Taylor now qualifies for Long Term Disability benefits (“LTD”) from the
Teamsters of $1,000 per month. His first payment will be on May 23, 2010. These
benefits are also subject to the Reimbursement Agreement noted above.

3.  Future loss of income

[83]        
The doctors were of the opinion that in order to reduce his symptoms
related to gout, Mr. Taylor needed to stop drinking entirely — something he has
yet to do. Additionally, they agreed that the existing arthritis will likely
worsen, particularly with respect to the injury he sustained to his foot as a
teenager.

[84]        
Mr. Taylor claims that he cannot work as a consequence of his chronic
pain and soft tissue injuries. Even if this Court finds that the ruptured biceps
predated the accident, Mr. Taylor submits that he is still unemployable. He
testified that he will never be able to perform the activities required of a
long haul driver, such as putting the landing gear of the truck down, hooking
up trailers, or performing the necessary vehicle inspections. The pain causes
him sleep problems, which in turn, he testified, leads to daytime drowsiness. He
finds his left eye is light-sensitive, and he continues to have difficulty with
his neck, back, left shoulder and elbow.

[85]        
The defendant says that there is no future income loss, as the plaintiff
has failed to show a loss of earning capacity resulted from
the injuries he sustained in the accident. Further, the defendant submits that
Mr. Taylor is capable of working at a variety of light and sedentary
occupations, some of which would generate a salary similar to what he earned as
a long haul truck driver. The defendant submits the plaintiff should have been
seeking such employment months ago. The defendant disputes the
plaintiff’s claim that he is unable to work in any capacity because it is based
on the plaintiff’s testimony (which the defendant says is unreliable), and the
report of Louise Craig, which the defendant submits should be afforded little
weight.

[86]        
Louise Craig was accepted as an expert in functional capacity
assessments. Her background includes a physiotherapy degree followed by courses
in specified methods of functional evaluation (notably the Matheson courses). During
cross-examination, she agreed that on matters of medical opinion, she would
defer to the physicians, but only if they observed Mr. Taylor perform the task
in question. She found the plaintiff unable to perform the tasks required of
him as a trucker. While I accept this evidence, I do not find it to be
inconsistent with Dr. Manchanda’s evidence that Mr. Taylor could perform sedentary
or light duties.

[87]        
Damages for a loss of future earning capacity can be awarded on the
basis that one is less capable overall of earning income from all types of
employment — and furthermore, less valuable to him or herself as a person
capable of earning income in the competitive labour market — as a consequence
of the injuries caused by the defendant’s negligence: Brown v. Golaiy (1985),
26 B.C.L.R. (3d) 353 (S.C.). 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.

[88]        
In Parypa v. Wickware, 1999 BCCA 88, after analyzing the cases on
loss of earning capacity stated, the Court of Appeal stated:

[67]  These cases demonstrate that the trier of fact, in
determining the extent of future loss of earning capacity, must take into
account all substantial possibilities and give them weight according to how
likely they are to occur, in light of all the evidence. However, in calculating
such likelihoods, the plaintiff is not entitled to compensation based solely on
the type of work she was performing at the time of the accident. There is a
duty on the plaintiff to mitigate her damages by seeking, if at all possible, a
line of work that can be pursued in spite of her injuries. If the plaintiff is
unqualified for such work, then she is required, within the limits of her
abilities, to pursue education or training that would qualify her for such
work. If the plaintiff claims she is not able to mitigate by pursuing other
lines of work or by retraining, she must prove this on a balance of
probabilities. The requirement for mitigation is addressed by this court in
Palmer, supra, at 59:

A plaintiff is not entitled at the cost of the defendant to
say, "The only sort of work I like is such and such. I cannot do that.
Therefore, you must give me sufficient capital to replace the income I cannot
earn on that sort of job”.

What the respondent proved in
this case was that he had lost his capacity to follow the sort of occupation he
was pursuing at the time of the accident. But that did not prove, on a balance
of probabilities, that he could not earn by pursuing some other sort of
occupation, as much as before.

[89]        
The defendant characterizes the plaintiff’s claim as a claim for
capital without a requirement on his part to mitigate. The plaintiff did admit
that if he could not work at Van Kam, he did not want to work. Dr. Manchanda expressed the opinion, however, that Mr. Taylor has
the ability to perform light duties that do not require strength in both upper
extremities. Dr. Manchanda also gave evidence that the long-term
consequences of the plaintiff’s other illnesses would impinge on his
employability, and concluded that he could probably work for only “a few more
years”. When pushed on that point, he extended this to seven years (i.e. when
the plaintiff reaches sixty-five years of age).

[90]      Ms. Stewart testified that Van Kam employs approximately 250 line
haul drivers, 10 to 20% of whom are over age 65. There is no question that some
individuals are able to work as trucker until 70: indeed, the plaintiff called
a witness (Mr. Art Canning) who had just retired from Van Kam at age 70 and
who had worked full-time despite his diabetes.

[91]     
Van Kam is a union company; Mr. Taylor is a
member of Teamsters Local 31. Work availability is based on seniority. Ms. Stewart testified that Mr. Taylor was number
18 of 28 drivers working out of Surrey. He had some seniority in his position. He
had worked steadily since being hired, and there would be work available for
him at Van Kam if he were able to work.

[92]      In order to obtain the position with Van Kam, Mr. Taylor had an
interview with Ms. Stewart, a medical examination and drug testing, and submitted
a driver’s abstract. Ms. Stewart testified regarding the importance of the
driver’s abstract, and said that the number of points accumulated and number of
violations were important in the hiring process. When asked specifically about two
24-hour suspensions, she denied that these would have been of much import — and
I accept her evidence on this point. The medical examination by Dr. Peach (tendered
into evidence) noted a healthy 56-year-old man. The drug testing was
negative. Van Kam also conducted random drug testing and driver’s abstract
checks. Ms. Stewart was clear that her concern or hiring is not a person’s life
history, but rather his or her health and drug test at the time of hiring. I
accept that evidence.

[93]        
Ms. Stewart described Mr. Taylor as punctual,
accommodating, valued, that he had good reputation, and said, “he did a good
job for us”.

[94]        
The work available for Mr. Taylor consisted of a
variety of routes. The Princeton route was paid a straight 10-hour rate: $19.99
per hour or $199.90 per shift. All other routes are paid both a mileage rate
and an hourly rate (as noted in the payroll records), resulting in a
significantly higher rate of pay than on the Princeton route.

[95]        
The plaintiff’s evidence in chief was
that he had requested the less demanding Princeton route from his employer in
October 2008; however, on cross-examination he admitted that he was given that
role because its former driver had left the company. Furthermore, Ms. Stewart
testified that it was “a good fit for both him and the company”, and made no
mention of him requesting it.

[96]        
In Perren v. Lalari, the Court of Appeal
reviewed the two approaches to future loss of earning capacity. The first is
what Finch J., as he then was, referred to in Brown v. Golaiy as the “real
possibility” approach. This approach is appropriate in a situation where the
pecuniary loss is quantifiable. However, even though the loss is quantifiable,
it is still the loss of capacity that is being compensated. The second approach
— sometimes called the “capital asset” approach — is applicable where the loss,
though proven, is not easily quantifiable (see Perren v. Lalari, at paras. 12,
30 and 32). In the case at bar, the first approach is more appropriate given Mr.
Taylor’s history of employment at Van Kam.

[97]        
As noted, Mr. Taylor was assessed by Ms. Craig on January 18, 2010. Mr. Taylor
was also assessed by John Lawless, an expert in vocational rehabilitation and
vocational assessment.

[98]        
Mr.
Lawless’ report, dated February 25, 2010 states, in part, as follows:

The question
now turns to what if anything Mr. Taylor can do for work. Whatever he does will
need to be very easy – sedentary activities with the opportunity to alternate
between sitting and standing. There are occupations like that but the vast
majority are more skilled and need more education and better abilities, so they
can’t be considered. There are a very few sedentary, unskilled service jobs
like Parking Lot Attendants, Ticket Takers, Self Serve Gas Station Attendants
(part of the occupation of Cashiers), and Recreation Facility Attendants,
though Mr. Taylor might still have physical limitations for such positions and
thus may need sympathetic employers. Wages for these jobs are normally little
more than minimum, and only about a quarter of positions have full-time hours
for a full-year. Irregular shifts (evenings and weekends) are also common. As
well, these positions are more often found in urban centres, since there is
little call for services like pay parking lots in areas like Langley. These
also tend to be “dead end” jobs with little durability and prospects for
advancement, so it’s likely Mr. Taylor will be needing to find new positions
fairly often until he does retire.

My final
concern for Mr. Taylor is that his difficulties put him at greater risk for
future unemployment. It’s impossible to accurately quantify anyone’s risk for
this, although it’s been well established in research that disabled persons on
a whole are less attached to the workforce, especially if they’re older and
have less education. In fact, considering the paucity of vocational options
described above, Mr. Taylor may be without work more often than not to the
end of his working life.

To conclude, Mr. Taylor is restricted from his
prior work as a Truck Driver along with every other occupation he has accessed.
His employment prospects now are marginal, consisting of just a few elemental
service occupations that are not gainful and for which he will still likely be
limited and require sympathetic employers. He also has a greater risk of
unemployment and underemployment in the few remaining working years he has, and
may be challenged to get back into the workforce entirely.

[99]        
Mr. Lawless could not find a single suitable job for Mr.
Taylor out of an extensive list of occupations from Statistics Canada. He
rejected every one ─ even a desk clerk position because he said it had a
significant physical component. Under cross-examination Mr. Lawless did
concur that the plaintiff’s vocational prospects will improve with increased
function and mobility (which the defendant submits the plaintiff has enjoyed
since the reports relied upon by Mr. Lawless were authored) and that there are
a wide range of unskilled and sedentary jobs in the marketplace.

[100]    
The
plaintiff argued that the issue is not that there might be a job that he could
perform for a period of time, but rather that the issue is competitive
employability. As Mr. Lawless stated, Mr. Taylor’s prospects are slim:
older workers trying to find new positions face an uphill battle, and Mr.
Taylor is unskilled in anything but physically demanding occupations. While it
was suggested to Mr. Lawless in cross-examination that the plaintiff did have a
background in sales, that was many years ago. It will be very difficult to find
something very light and easy, without requiring much skill or aptitude, for an
older worker with limited experience and few transferable skills. He is not
completely unemployable, but in his remaining working years he is not going to
be able to do much, if anything at all.

[101]     I find that
there is a “substantial possibility” Mr. Taylor would have been able to
continue with his job at Van Kam but for the accident. However, there are other
reasons unrelated to the accident that make it unlikely that Mr.
Taylor would have worked to 70 years of age. Mr. Taylor’s gout,
diabetes and arthritis would likely have had an impact on his ability to work
regardless of the accident, and it is likely he would only have worked until 65
years of age. There was also the possibility that his ailments could have
forced retirement earlier than 65.

[102]     I find that had Mr. Taylor been able, he likely would have worked as
a short haul trucker in 2010, continuing on the Princeton route. Due to his
seniority, however, it is likely that he would have commenced doing long haul again,
and I find this would have commenced in 2011 and carried on to 2016 (when he
would turn 65).

[103]     Working as a short haul trucker, he would make $49,000 per year, and
as a long haul trucker, he would make $56,400 per year. The present values
of those incomes, according to the calculations provided by Mr. Struthers, are
as follows:

$49,000 x 0.677 ($677/$1000)
= $33,173

$56,400 x 4.951 ($4951/$1000)
= $279,236.40

Total: 
$312,409.40

[104]     Mr. Struthers’ report also was concerned with non-wage benefits. Employment
Insurance (“EI”) and Canada Pension Plan (“CPP”) contributions account for an
additional 6.42% at the $50,000 per year salary. Mr. Struthers noted that in
the transportation, warehousing and wholesale trade sector the average amount of
about 11.7% of gross payroll was spent on voluntary, non-taxable, non-wage
benefits. Mr. Struthers estimates that because Van Kam was in part
governed by a Teamsters’ Agreement, the non-wage benefits with pension plan,
CPP, EI and WCB would exceed 20% of employment incomes.

[105]     If the non-wage benefits were 15% on top of employment income, then
the calculation would be $312,409.40 x 1.15 = $359,270.81.

[106]     Mr. Struthers’ numbers have been adjusted for survival, but not for
other contingencies such as unemployment or part-time work. I find, however, that
there are other contingencies that must be factored into an assessment for
future income loss: both general contingencies and contingencies specific to
Mr. Taylor’s pre-existing health concerns. There is also the possibility
that he could find other employment.

[107]     An assessment of future income loss is, however, not a simple calculation
— it is rather compensation for loss of a capital asset. I find there are other
occupations that could be available to Mr. Taylor. Although he has meager prospects,
his duty to mitigate is nonetheless engaged. There are occupations which he
could still perform — for example, minimum wage positions involving light
duties, such as a parking lot attendant.

[108]    
Following the first method noted in Perren, I fix damages for
future income loss at $180,000.

4.  Future care costs

[109]    
The plaintiff claims $20,000 for future physiotherapy costs and a
further $15,000 for loss of housekeeping capacity. Mr. Struthers prepared
a report on the present value of such an award. There is no question that
ongoing physiotherapy is required. Mr. Taylor does not require surgery for
the ruptured biceps tendon.

[110]    
Mr. Taylor’s family physician (Dr. Manchanda) has written a report with respect to loss of housekeeping capacity indicating, in
part, as follows:

In my opinion, Mr. Taylor is
mostly independent with his household chores but will likely have a significant
worsening of his pain with heavier household chores such as vacuuming, lifting
laundry, sweeping, cleaning dishes, etc. He will likely have to take breaks and
divide his bigger chores into smaller one (sic).  He may not be able to do some
heavier household chores.

[111]    
Dr. Manchanda wrote the following respecting
future care:

TREATMENT RECOMMENDATIONS

1. In my opinion, Mr. Taylor will likely
need to continue with physiotherapy for 1 – 2 months more on a regular basis
(3-4 times a week) and thereafter intermittently.

2. Mr. Taylor will likely need analgesic
medications for quite some time (several months or longer/indefinitely).

3. I recommend he enroll in a gently tapered
active rehabilitation program to achieve the maximum potential of his upper
extremities.  Thereafter Mr. Taylor should continue independently in the gym to
maintain his strength.

4. I recommend Mr. Taylor participate in
regular, preferably daily, aerobic, cardiovascular exercise program (e.g.
treadmill, exercise bike, stairmaster, etc). He should choose exercises that do
not worsen his pain.  Regular aerobic exercise will likely reduce his pain and
headaches, and improve his general condition and mood.

5. Currently, there is still significant
pain with movements of his left shoulder.  Along with his current physiotherapy
he can start on a general active rehabilitation program.  He may require
another steroid injection and possibly also trigger point injections to the
left shoulder girdle. At this stage, I do not think surgery will be beneficial
but I leave this decision in the hands of his orthopaedic surgeon, Dr. Kostamo.

6. Mr. Taylor will likely need to be
retrained for another job. Fortunately he is right handed and right upper
extremity works well. In my opinion, he is now able to tolerate jobs that are
classified as light work or sedentary that do not require strength of both
upper extremities (e.g. security guard, gas station attendant). Currently and
for the foreseeable future I do not see his left upper extremity improving
enough to allow him to drive a big truck. He may be able to drive a truck
depending on how much he recovers in the next 1-2 years.  This remains to be
determined.

7. Mr. Taylor
will likely benefit from some sessions of counseling and pain education given
his low mood, constant pain and disability. He has expressed low mood and
frustration from time to time.

[112]     The defendant submits that the plaintiff has not proven a need for
future care or housekeeping assistance and submits that the claims under these
heads of damages should be dismissed.

[113]    
I accept Dr. Manchanda’s evidence. I find that
the plaintiff has shown some loss under both heads. For future care costs to
cover physiotherapy as set out by Dr. Manchanda ─ to cover two more
months of physiotherapy and intermittently thereafter ─ and analgesic
medications to cover pain which may continue indefinitely, I will award $4,000.
For future housekeeping costs, I accept that Mr. Taylor is unable to do the
heavy household chores required. As noted already, this loss of ability will
require him to sell his recreational property. Under the heading of
housekeeping capacity, I award $2,000.

5.  Special Damages

[114]     The
plaintiff claims $5,197.97 for physiotherapy treatment for his upper left quadrant
and $545.15 in mileage to attend to Brookswood Physiotherapy during 2009 and
2010.  There was no issue that Mr. Taylor derived medical benefit from that
treatment. The plaintiff has proven that this expense was reasonably or
medically necessary, and so I allow this claim.

[115]     The
plaintiff claims $129.21 in compensation for prescription medications, and I
find that these are reasonable and were medically indicated. I allow $255 for
doctors’ notes. There is also an “injection fee” of $10.00, again related to
his treatment, and I find this was reasonably or medically
necessary. I will also allow the associated parking costs and BC transit costs
which total $166.25 and $9.00 respectively, for a total of $6,312.58 in special
damages. An amount was claimed for GST, but the evidence does not allow me to
determine what this amount is or relates to; accordingly, I find it is not proven
on a balance of probabilities.

CONCLUSION

[116]    
The plaintiff’s award is as follows:

[117]    
The plaintiff will have interest in accordance with the Court Order Interest
Act, R.S.B.C. 1996, c. 79, and costs at Scale B. Costs are subject to
submissions within 45 days in the event that Rule 37B applies.

“Maisonville J.”

___________________________________

The Honourable
Madam Justice Maisonville