IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Haley v. Gust, |
| 2010 BCSC 1143 |
Date: 20100531
Docket: M20802
Registry:
Port Alberni
Between:
Justine Haley
Plaintiff
And
Robert Gust and
Lillian Gust
Defendants
Before: The Honourable Madam
Justice Dardi
Oral Reasons for Judgment
Counsel for the Plaintiff: | R. F. Johnston G. R. Phillips |
Counsel for the Defendants: | D. Nuyts |
Place and Date of Trial: | Port Alberni, B.C. March 24-26, and |
Place and Date of Judgment: | Port Alberni, B.C. May 31, 2010 |
INTRODUCTION
[1]
The plaintiff, Justine Haley, was injured in a
motorcycle collision on March 4, 2007. The defendants admitted liability. The
assessment of Ms. Haleys damages proceeded to trial under Rule 66.
[2]
Ms. Haley was working as a deputy sheriff in
Port Alberni at the time of the accident. She received a lay-off notice in August 2007
before she had returned to work.
[3]
Ms. Haley claims that as a result of the
accident, she is continuing to suffer functional limitations with her left knee
that prevent her from returning to her chosen occupation or any similar
occupation. She claims an award of approximately $421,000 consisting of $80,000
for non-pecuniary damages; $17,611.99 for net past wage loss to August 11,
2007; $300,000 for lost future earning capacity; $20,000 for impairment of
housekeeping capacity; and $3,962.18 in special damages.
[4]
The defence argues that an appropriate award for
non-pecuniary damages for the injury to Ms. Haleys knee is in the range
of $60,000 to $65,000. The defence contends that she is entitled to a net past
wage loss of $21,730 and to a future loss of earning capacity in the range of
$8,000 to $50,000. The defence has agreed to special damages in the amount of
$3,962.18.
FACTS
A. Pre-Accident
[5]
Ms. Haley was a healthy, active,
35-year-old woman at the time of the accident. She married John Haley in 1997,
and they had two sons together. She had one son from a previous relationship.
[6]
Ms. Haley graduated from high school in
Ucluelet, British Columbia. Her mother was a member of the First Nations
Toquaht Band (the Band). For a period of three years following high school
graduation, she took various correspondence courses for office administration
at North Island College. After working as an office clerk, she obtained a job
with the Band in Ucluelet.
[7]
She moved to Port Alberni on July 1, 2000
because her husband had obtained employment there as a fire-fighter. However, after
the move, she remained employed with the Band for three years. Her husband
worked on a four day on/four day off schedule. On two of his four days off, she
would drive to Ucluelet and work two extended days, 12 to 14 hours a day.
[8]
In 2003, she resigned from the Band because she
had a personality conflict with a new manager and she did not want to continue
with the long commute to Ucluelet. When she left her employment with the Band
in 2003, she held the position of financial controller, a position she had held
for four years prior to her resignation.
[9]
Ms. Haley eventually applied to the Justice
Institute to become a deputy sheriff. She trained for and passed the Sheriff
Officer Physical Abilities Test. After subsequently completing a two-hour
interview, she was accepted into the 10-week training course in New Westminster
commencing April 2004. She received her final certification in October 2004
and became employed as an on-call deputy sheriff in the Port Alberni
courthouse.
[10]
As of February 2007, Ms. Haley worked
a sufficient number of hours as a deputy sheriff to become eligible for medical
and dental benefits. She testified that she loved her job and it was the career
she wanted. She particularly enjoyed dealing with the public and the variety of
the job. Her duties as a sheriff included responsibility for courthouse
security, opening and closing the courthouse, transferring persons in custody
to and from the local RCMP detachment, watching those in custody in the
cellblock, patrolling the hallways in the courthouse, and being in the
courtroom. Approximately once per month, she was also loaned out to other
detachments on the island, such as Nanaimo, Duncan, and Campbell River.
[11]
Prior to the accident, she was working 35 hours
a week at $21.95 per hour; she anticipated she would eventually obtain a
permanent position as a deputy sheriff.
[12]
At the time of the accident, Ms. Haley was
also employed as an on-call guard for the RCMP with the City of Port Alberni
working, on average, two 11-hour shifts per month. Ms. Haley was paid
$23.40 per hour, plus 15 percent in lieu of employee benefits.
[13]
Prior to the accident, Ms. Haley was very
active. The entire family, including the three boys, had dirt bikes, and two to
three times per month they went dirt-biking on trails and logging roads. Occasionally,
she and her husband would ride during the week. From 2002 to 2006, she had also
participated in approximately six mini and sprint-length triathlons, which
included a 400 to 700 metre swim, an 18 to 22 kilometre bike ride, and a five kilometre
run. She engaged in regular running and walked her dog. She assisted her
husband with the construction of a new home on their property. She had
previously skied.
[14]
The evidence clearly demonstrates, and I accept,
that prior to the collision she was a very energetic and physically active
woman.
B. Accident
[15]
On March 4, 2007, Ms. Haley was
operating a 2007 Kawasaki Ninja 250 on Johnston Street in Port Alberni, which
is a four-lane road. As Ms. Haley proceeded through the intersection, the
defendant, Robert Gust, driving a vehicle owned by the defendant, Lillian Gust,
turned left into Ms. Haley. As a result of the impact, Ms. Haley went
over the handlebars and came to a stop on the roadway. The front drivers side
of the vehicle collided with her motorcycle and hit her left leg. Ms. Haley
described her left leg as feeling like it was on fire.
[16]
Ms. Haley was taken by ambulance to the
emergency room at the hospital in Port Alberni and released the same day. She
had road rash on her left knee and could not put any weight on her left leg. She
also had multiple abrasions on her forehead, chin, and nose. The X-rays showed
no broken bones and after obtaining some crutches, she was sent home.
[17]
Her left leg started to swell that evening. The
next day she re-attended at the emergency room because the Tylenol 3s were not
alleviating the pain. She was prescribed Demerol for the pain.
C. Post-Accident
[18]
After the accident of March 4, 2007, Ms. Haley
saw her family doctor, Dr. Gregory dePape, on March 7, 2007. She
could not walk. Her entire left leg was swollen and bruised. Dr. dePape
arranged for a community care worker to come to the plaintiffs home to attend
to the abrasion on her knee. An occupational therapist was also appointed to
her.
[19]
In the initial week or two after the accident, a
physiotherapist attended at her home to provide her with physiotherapy
treatments for her knee. She subsequently attended at the physiotherapist’s
office three times a week. She attended approximately 64 sessions of
physiotherapy at Pacific Rim Physiotherapy Clinic in Port Alberni until September of
2007. From September to November 30, 2007, she attended 37 sessions of
Rehabilitation in Motion in Port Alberni. It was an intensive program; she
attended four hours per day, five days per week. After the physiotherapy
sessions terminated, she continued to regularly attend that facility for
conditioning of her knee as a gym member at least three times a week.
[20]
She had an air cast on her sprained and swollen
ankle which she wore for three to four months when she was on her feet and
moving.
[21]
A few weeks after the accident, Dr. dePape
prescribed sleeping pills for her. She used the sleeping pills occasionally as
needed for a year after the accident.
[22]
In the period following the accident, she took
narcotic medication (Demerol and Tylenol 3) for approximately a month to six
weeks. She also took non-prescription analgesics and anti-inflammatory
medication. She used ice packs and a pillow support to alleviate the discomfort
and swelling.
[23]
After the accident, Ms. Haley experienced
some anxiety issues in relation to being a passenger in a car. She had four to
five visits with a counsellor, which helped her significantly in this regard. It
is no longer an issue for her.
[24]
Ms. Haley used crutches from the time of
the accident until the end of May 2007. Additionally, for a period of one
month following the collision, she used a wheelchair. Use of a wheelchair was
necessary if she was up for more than 10 to 15 minutes. She also used a cane
for a few weeks after she stopped using the crutches.
[25]
While she was recuperating from her injury,
Ms. Haley received a lay-off notice from her job as a deputy sheriff
effective August 11, 2007. Essentially someone with more seniority
bumped her and obtained the full-time permanent employee position in Port Alberni.
[26]
She returned to work on November 4, 2007 to
her RCMP guard job. She initially worked in a temporary position, and in February 2009,
she obtained a permanent part-time position.
D. At Trial in March 2010
[27]
Ms. Haley is 38 years old. She lives in Port
Alberni with her two teenaged sons, now 13 and 17 years old. Her oldest son,
who is 20, is no longer living at home. She separated from Mr. John Haley
sometime in January 2008 and is in a new relationship with Mr. Curtis
Schmidt.
[28]
Her dominant complaint since the accident has
been the functional limitation with respect to her knee, characterized by pain
with activity. She currently experiences a reduced range of motion in her left
knee and reduced strength in her left leg. She testified that there has been no
improvement in the range and function of her knee over the last 12 months prior
to trial. She works out regularly at the gym two to three times per week but
has had to modify her gym activities.
[29]
Ms. Haley testified that she continues to
experience left knee pain when kneeling or squatting or when she walks or
stands for long periods. Prolonged sitting with the knee in a flexed position
causes her discomfort. She experiences increased symptoms in cold weather
conditions, for example, if she plays with her children in the snow.
[30]
She testified that, because activity is a
triggering factor for pain and discomfort, when possible she attempts to
restrict those activities known to cause pain. While she does experience pain,
her current treatment regime consists of rest, ice, and occasional
non-prescription, anti-inflammatory medication.
[31]
She also testified that she has some residual
scarring and discolouration in her left leg area.
[32]
Ms. Haley now finds she is limited with
respect to her physical activities and has had to change her recreational
activities. She never resumed her assistance with the house construction. She
is no longer comfortable on the dirt bike because she is concerned that her
left leg will not support her and her bike. She cannot run or hike any
appreciable distance. She cannot ski. Her current boyfriend has a boat, but she
does not take part in any water sports such as waterskiing. She has not taken
part in any mini-triathlons since the accident because she cannot bike or run
the required distances. She presents as clearly frustrated with her inability
to engage in these activities.
[33]
She testified that currently she could not carry
out the duties of a deputy sheriff because, given the limitations with her
knee, she would not be able to handle any physical altercations nor would she
be able to pass the Sheriff Officer Physical Abilities Test.
[34]
Currently, she is employed by the City of Port
Alberni as a guard at the RCMP detachment in Port Alberni. As a permanent part-time
employee, she works five and one-half hours per day on a schedule of four days
on/four days off. She earns $24.33 per hour, plus 15 percent in lieu of employee
benefits. She occasionally works extra shifts at the RCMP office. There is no
evidence that her knee condition impacts her ability to work as a guard. She
watches the prisoners in their cells on closed circuit television and prepares
their meals. She testified that she finds the job very unfulfilling and boring.
[35]
Over the last two years, Ms. Haley estimates
that she has applied for 50 full-time positions in Port Alberni, Nanaimo,
Qualicum Beach, Comox, Ucluelet, and Tofino. She has not been offered any new
positions to date.
[36]
She is not prepared to move from the Port
Alberni Valley until her youngest son graduates from high school in four years.
She would be willing to commute to Parksville, Qualicum Beach, Comox Valley,
Ucluelet, and Tofino. Her target employment area may expand in four years.
MEDICAL EVIDENCE
[37]
Ms. Haley called the evidence of two
experts; Dr. dePape and Dr. Stanley Leete. The defence did not call
any expert evidence.
A. Dr. dePape
[38]
Dr. dePape is qualified to give opinion
evidence as a family practitioner. His report is dated January 6, 2010.
Ms. Haley has been his patient since 2001. He treated Ms. Haley for
her knee injury. He testified that as a result of the accident, her posterior
cruciate ligament (the "PCL") in her left knee was ruptured. The
function of that ligament is to stabilize the knee from posterior movement. In
his opinion, as a result of the accident, she has permanent changes to her
left knee and left lower leg. She reported pain with certain activity, and he
was able to reproduce that pain on examination.
[39]
Dr. dePape testified in cross-examination:
A The bottom line is, is that the ligament is
torn. There is no question.
Q The ligament itself isn’t causing any pain
though?
A I disagree with
that. I think the ligament potentially is causing pain. It is torn and it is
forming scar tissue around it.
[40]
Dr. dePape referred Ms. Haley for a
consultation to two orthopaedic surgeons in Nanaimo: Dr. Chris Cameron
and Dr. John Birchard. Both were of the opinion that with respect to
alleviating her pain and resuming her pre-accident lifestyle, she would not
benefit from surgery.
[41]
Dr. dePape further explained his opinion
with respect to the source of Ms. Haleys pain:
A Im not questioning that her knee is stable,
in fact, thats why theyre not operating on her knee, because it is stable. They
don’t think fixing that ligament will improve her stability. Nor for that
matter do they think surgery will improve her pain. Dr. Birchard comments
on scar tissue. Scar tissue in a joint can cause pain. Its not normal tissue. It
contracts; its tight. It doesn’t contribute to the normal function of the
joint. So I agree the knee is stable, but its not a normal knee and it can be
painful at times.
…
A No, I think theres
degrees of sprains and in this case it wasn’t a sprain, it was a tear. It was
a complete tear. Thats completely different than an ankle sprain. When you
stretch a tendon or a ligament, depending on how far you stretch it, it can
heal back to its normal functional state and not necessarily form scar tissue. If
you take a large ligament and tear it right off the bone it, its totally
different. Its going to form scar tissue and the function of that ligament is
not going to be the same.
[42]
Dr. dePape testified that, in his
assessment, Ms. Haleys condition is such that she could no longer perform
her duties as a sheriff. Because of the condition of her knee, her personal
safety as well as public safety could be jeopardized. Her ability to arrest
someone is compromised. In his report, he wrote the following:
At the time of her injury Ms. Haley was working as a
Deputy Sheriff. She would be required at times to perform a lot of activities
involving squatting, lifting and abrupt changes in positioning. As a result of
her accident she was left with significant pain in the kneeling and squatting
positions and it was felt that this would impair her ability to continue on as
a Sheriff. Therefore she was sent for a Functional Assessment which occurred on
February 24, 2009. The assessment found her to have limitations which
would potentially put her safety as well as public safety at risk if she were
to continue working as a Deputy Sheriff. It was concluded that she would not be
able to continue to fulfill the physical requirements of that career. Based on
my assessments, I would agree with these conclusions.
B. Dr. Leete
[43]
Dr. Leete is qualified to give expert
evidence in the field of orthopaedic medicine. In addition, he has a
fellowship in disability medicine from the American Academy of Disability
Evaluating Physicians.
[44]
Dr. Leete met with Ms. Haley on October 21,
2009. He took her history and carried out a clinical examination of her. He
also reviewed her clinical records, including the physiotherapy records, the
records of her family doctor, and the consult reports of the two other
orthopaedic surgeons: Dr. Birchard and Dr. Cameron.
[45]
In his report of October 21, 2009, Dr. Leete
noted the following:
It is now over 2 ½ years since this person injured her left
knee and I think her current condition should be regarded as permanent and
stationary, that is, unlikely to improve with any form of surgical or medical
treatment in the foreseeable future.
In the long term, I think with the very small amount of
instability that is demonstrable in her knee at the AP [anterior-posterior]
plane, it is more than likely that she will develop degenerative changes
and osteoarthritis of the joint. The time frame for this is probably 20 to 25
years in the future, but I would feel confident in saying that with the injury
that she sustained, this will most likely occur.
[Emphasis
added.]
[46]
At trial, Dr. Leete opined that Ms. Haley
would be at risk if she attempted to return to her previous employment as a
deputy sheriff; she may have difficulties defending herself in an altercation
because of the problems with her knee. When asked in cross-examination whether Ms. Haley
could perform the physical tasks associated with being a deputy sheriff, he
testified:
A I think probably
90 percent of the time she could manage well, but if she were to be involved in
a physical altercation I think she would be in some jeopardy with the knee
letting letting her down and as time progresses, right now her knee is
stabilized by what we would call secondary restraints, the muscles and the
other structures encapsulating the knee joint. As time goes on those secondary
restraints will stretch and I would anticipate that the degree of
anterior/posterior instability will slowly increase. With this increase there
will be the knee will not function in its normal manner and she will be at
risk of developing osteoarthritis.
If I may just compare the knee to say the cylinder of a car engine, the knee
joint is designed with to very finite specifications. If the knee doesn’t isn’t
in [a stable] position and the normal articulations are not being met then the
knee will wear out normally. As the knee wears out normally, the articular
cartilage, the shiny slippery surface on the end of the joints will break down
and the end result will be osteoarthritis.
[47]
In his opinion, it is more likely than not that
she will require a total knee replacement within 20 to 25 years. The optimal
period of rehabilitation from a total knee arthroplasty is six months and
requires a great deal of physical therapy; the patient can no longer kneel or
squat because the range of motion is restricted after the surgery.
[48]
When asked whether Ms. Haley could avoid a
knee replacement, Dr. Leete further opined:
A No, I believe that with the instability of
her knee over a period of time such as I outlined in my report, I believe that she
will more likely than not require a total knee replacement if that is the
state of the art at that time.
…
A No, well, it is not it is not an exact
science, prognostication of this type, but even the normal day to day walking
as I as I tried to explain earlier with the knee not being 100 percent stable
and with the gradual weakening of the secondary restraints she will
regardless of her being, you know, physically active, progress to
osteoarthritis.
[Emphasis
added.]
ANALYSIS
Summary
[49]
Dr. Leete, who is very experienced in
orthopaedics, was very thorough and careful in his evidence. I accept Dr. Leetes
opinion and the opinion of Dr. dePape. I found both doctors testified in
an objective and professional way. Neither was shaken in cross-examination.
[50]
In summary, I find that the March 4, 2007
accident caused Ms. Haley permanent and significant injury to her left
knee and the rupture of her PCL. I accept that surgical repair is not a viable
option. I accept that she experiences pain on occasion and that the damage to
the PCL may cause her knee to fail under stress or when she performs highly
strenuous activity. I also accept that she faces a realistic prospect of
developing osteoarthritis of the joint and of requiring a total knee
replacement in the future.
Damages
[51]
The appropriate award for damages will be
discussed in the following sequence:
1) non-pecuniary damages;
2) loss of earning capacity (including past wage loss and loss of
future earning capacity);
3) loss of housekeeping capacity; and
4) special damages.
Non-pecuniary damages
[52]
Ms. Haley seeks an award of $80,000 for
non-pecuniary damages.
[53]
Defence counsel submits $60,000 to $65,000 is an
appropriate award.
[54]
The objective of non-pecuniary damages is to
compensate a plaintiffs pain, suffering, and loss of enjoyment of life. The
award is to compensate a plaintiff for those damages she has suffered up to the
date of the trial and for those she will suffer in the future. The essential
principle derived from the authorities is that fairness and reasonableness of
an amount of an award for non-pecuniary damages is measured by the adverse
impact of the particular injuries on a particular individual plaintiff.
[55]
The factors to be considered in awarding
non-pecuniary damages were discussed by the B.C. Court of Appeal in Stapley
v. Hejslet, 2006 BCCA 34 at para. 46. The non-exhaustive list
includes the age of the plaintiff, the nature of the injury, the severity and
duration of pain, the degree of disability, the impairment of family, marital,
and social relationships, and loss of lifestyle. While fairness is assessed by
reference to awards made in comparable cases, each case is decided on its own
unique facts: Lindal v. Lindal, [1981] 2 S.C.R. 629 at 637.
[56]
Ms. Haley answered questions in a
straightforward and responsive manner. She did not exaggerate or embellish her
evidence. She was forthright when she could not remember details of any
particular event. I found her to be a credible witness.
[57]
She is currently 38-years-old and has suffered a
permanent injury to her knee. Her injuries, while not catastrophic, are very
real. As a result of the accident she clearly has suffered pain and a loss of
enjoyment of life, and she will no doubt continue to do so. As well, as
referred to earlier, she faces the realistic prospect of osteoarthritis, and in
Dr. Leetes opinion, it is more likely than not that she will require a
total knee replacement in 20 to 25 years.
[58]
Prior to the accident, she was very active and
enjoyed many recreational and athletic activities. She continues to experience
some pain in her knee with activities.
[59]
Ms. Haleys former spouse, current partner,
and close friend, Ms. Kronenbush, testified at trial. Without exception,
they each testified in a straightforward and forthright manner and I accept
their evidence. Her former spouse described her as active and driven with
respect to her physical activities. The evidence of these witnesses in
conjunction with the evidence of Ms. Haley establishes that before the
accident, she was an enthusiastic, active, and positive woman with many recreational
interests and pursuits. As the active mother of three sons, she has attempted
to resume as many activities as possible, but the accident has significantly
impacted and disrupted her life.
[60]
While she attempts to remain as active as
possible (she now participates in quadding), she remains limited when
compared to her pre-accident activities. Since the accident, she has become
very cautious about any activity that might injure her knee. She is no longer
able to participate in mini-triathlons and dirt-biking with her family. She
cannot ski or participate in water sports. It is likely she will continue to be
restricted for the rest of her life to some degree in respect of the scope of
the activities she would have enjoyed but for the accident.
[61]
I have also considered as a factor in my
assessment the adverse emotional impact of Ms. Haleys inability to pursue
a line of work which she clearly enjoyed.
[62]
I have considered the following cases cited by Ms. Haleys
counsel on the issue of quantum of non-pecuniary damages: Bradshaw v.
Matwick, 2009 BCSC 564; Parker v. Ingalls, 2007 BCSC 1763; Penner
v. Silk, 2009 BCSC 1682; Pett v. Pett, 2008 BCSC 602, revd on other
grounds 2009 BCCA 232; and Caldwell v. Ignas, 2007 BCSC 1816.
[63]
I have considered the following additional case
cited by the defence: Atkinson v. Niles, 2009 BCSC 442.
[64]
While the authorities are instructive, I do not
propose to review the authorities in detail as each case must be decided on its
own individual facts.
[65]
Having reviewed all of the authorities provided
by both counsel, and in considering all of Ms. Haleys particular
circumstances, I conclude that a fair and reasonable award for non-pecuniary
damages is $75,000.
Loss of earning capacity
[66]
Ms. Haley argues that she should receive an
award of $300,000. Ms. Haley submits that even if she did not continue in
sheriff services either by choice or by budget restraints, her training and
experience would be such that she would have found equivalent work in related
fields for similar pay.
[67]
The position of the defence is that Ms. Haley
should receive $8,000 to $50,000. The lower end of the range represents an
assessment of the possibility that she will be off work for her knee
replacement in 20 to 25 years. The defence argues that Ms. Haley has not
proven that there is a substantial possibility of a loss that can be laid at
the feet of the defendants. The defence submits that she is an intelligent
and articulate woman whose lifetime income would probably be higher if she
emphasizes her mental advantages as opposed to her physical abilities."
Legal Principles
[68]
The legal principle that governs this assessment
for loss of earning capacity is that, insofar as is possible, the plaintiff
should be put in the position he or she would have been in but for the injuries
caused by the defendants negligence: Lines v. W & D Logging Co. Ltd.,
2009 BCCA 106 at para. 185. Compensation must be made for the loss of
earning capacity and not for the loss of earnings: Andrews v. Grand &
Toy Alberta Ltd., [1978] 2 S.C.R. 229.
[69]
It emerges from the recent jurisprudence of the
Court of Appeal that the plaintiff must demonstrate an impairment to his or her
earning capacity, and that there is a real and substantial possibility that the
diminishment in earning capacity will result in a pecuniary loss. If the
plaintiff discharges that requirement, he or she may prove the quantification
of that loss of earning capacity either on an earnings approach or a
"capital asset" approach: Perren v. Lalari, 2010 BCCA 140 at
para. 32 and Pallos v. Insurance Corp. of British Columbia (1995),
100 B.C.L.R. (2d) 260 at 271 (C.A.). Regardless of the approach, the court must
endeavour to quantify the financial harm accruing to the plaintiff over the
course of her working career: Pett v. Pett, 2009 BCCA 232 at para. 19.
[70]
Although a claim for "past loss of income
is often characterized as a separate head of damages, it is properly
characterized as a component of loss of earning capacity. It is a claim for the
loss of value of the work that an injured plaintiff would have performed but
was unable to perform because of the injury: Rowe v. Bobell Express Ltd.,
2005 BCCA 141 at para. 30; Bradley v. Bath, 2010 BCCA 10 at paras. 31-32;
and Falati v. Smith, 2010 BCSC 465 at para. 39.
[71]
This court in Falati at para. 40,
recently summarized the principles governing the assessment of loss of earning
capacity:
[40] The full assessment of damages for such losses may
involve, at least to some extent, consideration of hypothetical situations and
contingencies what might have happened, or what might yet happen, had the
accident not occurred, as distinct from what actually has happened. However,
particularly where the claimed losses are derived from something other than a
measurable, conventional income stream, the determination of a plaintiffs
prospective post-accident, pre-trial losses can involve considering many of the
same contingencies as govern the assessment of a loss of future earning
capacity . . . When considering hypotheticals and contingencies
in the context of a pre-trial loss, the same general principles which govern
the assessment of lost future earning capacity may be equally applicable
. . . As stated by Rowles J.A. in Smith v. Knudsen,
2004 BCCA 613, at para. 29,
What would have happened in the past but for the injury is
no more knowable than what will happen in the future and therefore it is appropriate
to assess the likelihood of hypothetical and future events rather than applying
the balance of probabilities test that is applied with respect to past actual
events.
[72]
The other principles which inform the assessment
of loss of earning capacity include the following:
i.
The standard of proof in relation to
hypothetical or future events is simple probability, not the balance of
probabilities; a future or hypothetical possibility will be taken into
consideration as long as it is a real and substantial possibility: Reilly v.
Lynn, 2003 BCCA 49 at para. 101. Hypothetical events are to be given weight
according to their relative likelihood: Athey v. Leonati, [1996] 3
S.C.R. 458 at para. 27.
ii.
Factors to consider in the assessment include
whether the plaintiff has been rendered less capable overall from earning
income from all types of employment, is less marketable or attractive as an
employee to potential employers, has lost the ability to take advantage of all
job opportunities that might otherwise have been open, and is less valuable to
herself as a person capable of earning income in a competitive labour market: Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) at para. 8.
iii.
Allowances must be made for the contingency that
the assumptions upon which an award is based may prove to be wrong: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), affd (1987), 49
B.C.L.R. (2d) 99 (C.A.); and Falati at para. 41.
iv.
The court must assess damages for loss of
earning capacity and not calculate them mathematically: Rosvold v. Dunlop,
2001 BCCA 1 at para. 11. The assessment is based on the evidence taking
into account all positive and negative contingencies
Functional Capacity Evaluation
[73]
Ms. Haley underwent a functional capacity
evaluation with Russell McNeil, a certified occupational therapist, on February 24,
2009. He testified at the trial via teleconference. The results of his
evaluation are in a report dated March 29, 2009. Overall, his testing
demonstrated that Ms. Haley tended to favour using her right leg over her
left leg. At the date of the evaluation with Mr. McNeil, Ms. Haley
demonstrated restricted abilities. He states in his report at paras. 13
and 34:
Overall, Ms. Haley has demonstrated the capacity to
perform activity that requires light to modified medium level strength. She
demonstrated restrictions in her capacity for activity requiring below waist
work including bending, stooping, crouching, and kneeling. There were measured
restrictions in lower extremity strength as well as restrictions in her
capacity for one handed carrying, two handed carrying, and two handed lifting.
There were restrictions in her tolerance for standing, walking, and climbing
(stairs). Overall there were restrictions in her endurance which adversely
affected her capacity to maintain a productive work pace
Demonstrated Capacity
Based on assessment results of February 24,
2009, Ms. Haley has not demonstrated the capacity to perform her work as a
Deputy Sheriff on a full time basis at a competitively employable work pace.
She has not demonstrated the capacity to perform the strength and stamina
requirements of the work and she would likely place herself and the public at
risk for injury. She has also demonstrated restrictions in her capacity for
prolonged standing as well as repetitive crouching and kneeling.
[74]
Mr. McNeil was unshaken in
cross-examination. I accept the medical evidence and Mr. McNeils
assessment concerning Ms. Haleys work limitations and that she is
presently unable to work as a deputy sheriff. I conclude that employment as a
deputy sheriff and also other similar employment to which she could have
potentially transferred, such as municipal policing, security, corrections, and
the RCMP, are no longer available to her.
[75]
As the court observed in Burton v. Bowman,
2010 BCSC 371, it is always difficult to predict a plaintiffs career
path. In this case, Ms. Haleys lay-off from the deputy sheriff position
renders it particularly difficult.
[76]
The defence submits that with or without the
accident, the plaintiff would not be working as a sheriff now or in the medium
term. The defence argues that the sheriffs job was eliminated in Port Alberni and
that there were no other sheriff jobs available or likely to become available
in the next short while. In support of this assertion, the defence relies on
the evidence of Robert Baker, who is a manager at the sheriff’s department in
Nanaimo, and who testified about the budget restraints in the North Island
District with respect to sheriffs. He testified that since Ms. Haleys
lay-off in August 2007 there has been no hiring in the district. There
have been no classes since April 2008 through the Justice Institute of
British Columbia.
[77]
Ms. Haley testified that but for her injury
she would have applied for work as a correctional officer in Nanaimo or as a
municipal police officer in Victoria, Esquimalt, or Saanich when she was laid
off from the sheriffs department. She also testified that there is an Aboriginal
Policing Section in Port Alberni (three constables and one corporal), who do
all the policing on the reserves and that with respect to recruitment the RCMP
had specific orientation for women.
[78]
Given her family commitments, she said that she
would have commuted to Nanaimo. If she had gone into municipal policing, she
would have accommodated this by working four days in the particular
municipality and returning to Port Alberni for her four days off.
[79]
Mr. Baker stated in cross-examination that
there are a fair bit of transferable skills from the sheriffs position to
the RCMP, municipal police, customs, and transit authority. Further, it is fair
to say that in British Columbia there is a reasonable amount of movement
between a sheriffs position to those other agencies. He testified that the
standards in the sheriff’s department were very high and that the sheriffs
department is an attractive recruitment centre for other agencies. Ms. Haley
testified that she personally knew two deputy sheriffs who have joined the
RCMP.
[80]
Ms. Haley is currently a part-time employee.
I accept her evidence that she has applied for approximately 50 jobs since the
accident and that she has not had any success securing more remunerative
employment. I do not accept the defences submissions that she has failed to
mitigate because she has not returned to employment with the Band in Ucluelet
where she was earning $43,000 (with no deductions for income tax) in 2003. She
testified that there are not any Band jobs now nor have there been any jobs
available in the last few years. I find that Ms. Haley has acted
reasonably in pursuing alternate employment opportunities.
[81]
Ms. Haley presented as a motivated and
determined woman with ample initiative. Given her vocational and cultural
background, I find that there is a real and substantial possibility that absent
the accident she could have secured future employment as a deputy sheriff or
performed an alternative occupation in a related field for pay comparable to
that of a deputy sheriff. These were realistic options for her had she not
sustained these injuries. Based on the evidence, there is a real and
substantial possibility that these positions would be more remunerative than
the employment which she will now have.
[82]
She has been rendered less capable overall from
earning income from all types of employment. Her physical limitations caused by
the injuries in the accident have occasioned a diminution of her career options
and have rendered her a less marketable and attractive employee.
[83]
She reports stiffness in her knee with prolonged
sitting, which Mr. McNeil opines will potentially reduce her productivity
even in sedentary vocations. I also accept Mr. McNeils assessment that
there are restrictions in her endurance which adversely affect her capacity to
maintain a productive work pace.
[84]
In summary, I conclude that she has proven on a
balance of probabilities that the injuries she has sustained in the accident
have impaired her long term earning capacity and that the preponderance of
evidence establishes a real and substantial possibility that the impairment in
her earning capacity will result in a pecuniary loss in the future.
[85]
Having found that Ms. Haley’s future
earning capacity is diminished due to the accident, I must decide, in light of
all of the other evidence, including her skills, education, and abilities, what
amount she should be awarded for the impairment.
Loss of Earning Post-Trial
[86]
In 2009, Ms. Haley earned $35,409.
[87]
Mr. Baker testified that currently, an
entry level sheriff earns an annual salary of $47,032.75.
[88]
Mr. Benning, an economist, prepared a
report illustrating a scenario in which Ms. Haley would otherwise continue
to work as a deputy sheriff with the provincial government and as an on-call
guard for the RCMP until age 65. He calculated her income at $53,796 per annum
if she worked as a deputy sheriff working 35 hours per week and continued to
work two shifts per month with the RCMP. He calculated the difference between
this and what she would earn as an RCMP guard working at her current
arrangement. The future income loss calculated by Mr. Benning for pre-retirement
income loss is $395,098. He calculated the total, including post-retirement
pension loss, as $422,696. He has incorporated in his calculations general
negative labour market contingencies, including voluntary retirement, temporary
absences to care for family members, and involuntary withdrawal for reasons of
illness or disability.
[89]
Ms. Haleys counsel properly concedes that
the uncertainty of her circumstances is such that she is not entitled to be
compensated on the basis of these arithmetical illustrations of an earning
approach: Perren at para. 32. Her counsel acknowledges that this case
is more akin to the less measurable facts found in Pallos." Since
the loss is not quantifiable in a measurable way, Ms. Haleys counsel
urges this court to engage in an at large approach in assessing damages using
Mr. Bennings calculations as a starting point.
[90]
Even if the accident had not occurred, Ms. Haley
would have been laid off from her deputy sheriff position in August 2007. The
evidence in this case mandates that I take into account a strong negative
contingency that Ms. Haley would not have obtained a deputy sheriff
position or an equivalent position in a related field in a geographical
location that she would have accepted given her personal circumstances. The
further negative contingencies include the possibility that in the future she
will be employed for a greater number of hours and that she will find
employment with either equivalent or better wages in a job other than that of a
deputy sheriff, notwithstanding her injury.
[91]
On the other hand, positive contingencies
include the possibility that she may have experienced wage increases and/or
promotion as a deputy sheriff or in a similar capacity. Based on the evidence
of her current employer issuing a lay-off notice effective March 18, 2010,
I have also considered the possibility that in the future she could be laid off
or bumped from her current position. Her physical circumstances have
occasioned a diminution of job possibilities that would otherwise be open to
her.
[92]
I accept Dr. Leetes evidence that in 20 to
25 years she may face six months off work for knee replacement surgery and
subsequent rehabilitation. I have also considered this as a factor in my
assessment of damages and applied a discount to adjust for the present value of
that component of the future loss.
[93]
Future loss capacity awards must be assessed rather
than calculated arithmetically. Taking into account all of the evidence and the
relevant negative and positive contingencies, I assess her loss of future
earning capacity from the date of trial at $100,000. I am satisfied that in all
of the circumstances that this is a fair and reasonable award.
Loss of Earning Capacity from the Accident to the Date of
Trial
[94]
The defendant is only liable for the net income
loss, as defined in s. 98 of Insurance (Vehicle) Act, R.S.B.C.
1996, c. 231. In Lines at para. 184, the Court of Appeal held
that it was the intention of the Legislature to give a discretion to the judge
to determine what period or periods are appropriate for the determination of
net income loss in all of the circumstances."
[95]
I find that the injuries caused by the accident
were such that they prevented Ms. Haley from returning to any employment
until November 2007.
[96]
The loss up until the date of lay-off on August 11,
2007 was not seriously disputed by defence counsel. The loss of earning
capacity is quantified by the amount of wages she would have earned if her
capacity had not been impaired by the injuries sustained in the accident: Bradley
at para. 33. The gross wage loss for the 22 weeks from the date of the
accident to the date of the lay-off on August 11, 2007 is $20,161.02.
[97]
The assessment is less straightforward after August 11,
2007, when Ms. Haley received her lay-off notice from the sheriffs
department. Ms. Haley was able to return to her guard job in November 2007
as a temporary employee and eventually secured her current employment
arrangements. The defence concedes she is entitled to an award of approximately
$10,000 gross after August 10, 2007 for the six-month period in which she
was ramping up to her current employment arrangements.
[98]
In assessing this component of the award, I have
considered all of the evidence and taken into account all of the contingencies,
including the negative contingency that she may have not been able to find
equivalent employment to that of a deputy sheriff after she was able to return
to employment in November 2007, and I exercise my discretion as follows: I
assess the gross value of Ms. Haleys loss of earning capacity from August 11,
2007 to the date of trial as $18,000.
[99]
The total award for the monetary value of the
impairment to Ms. Haleys past earning capacity caused by the injuries
suffered by her in the accident is $38,161.02 gross. I will leave it to counsel
to calculate the net amount. They have liberty to apply in the event they are
not able to agree.
Impairment of Housekeeping Capacity
[100] The plaintiff seeks an award of $20,000 for loss of her past and
future housekeeping capacity. The defence contends that the evidence does not
support such a claim and that any future loss is speculative.
[101] The Court of Appeal recently reiterated in Campbell v. Banman,
2009 BCCA 484 at para. 13, that damages for past and future loss of
housekeeping capacity may be awarded even though a plaintiff has incurred no
expense because those housekeeping expenses were replaced by a family member. However,
the Court cautioned that a relatively minor adjustment of duties within a
family will not justify a discrete assessment of damages.
[102] Prior to the accident, Ms. Haley shared household duties with
her husband. Immediately after the accident, she could not do any cooking,
laundry, or cleaning, for the household of five. Ms. Kronenbush described Ms. Haley
prior to the accident as being a particular and organized housekeeper. Ms. Haley
gradually resumed her duties as her knee improved. She testified that she could
do pretty much everything by August 2007. During the period when she was
recuperating, her husband did more than his usual share of the household duties.
I accept the evidence that her husband took over a range of household duties
including cooking, taking out the garbage, and the heavier cleaning for several
months. There was no evidence that his assumption of these tasks was matched by
a reallocation of other duties between them.
[103] Her friend, Ms. Kronenbush, and her mother also assisted with
housekeeping during her convalescence. She paid Ms. Kronenbush $900 for
her assistance, and she paid her mother approximately $200. The $900 (60 hours
at approximately $15 per hour) Ms. Haley paid Ms. Kronenbush is
included in her claim for special damages. Ms. Kronenbush testified, and I
accept, she was paid until the end of June 2007, but she continued to
provide her assistance with housework.
[104] I conclude that Ms. Haley is entitled to a very modest award
for the past loss of housekeeping capacity that is not compensated for in her
claim for special damages.
[105] The evidence on the future claim for loss of housekeeping capacity
was somewhat thin. Nonetheless, based on the medical evidence with respect to
the likelihood of osteoarthritis and knee surgery, I am persuaded that there is
a real and substantial possibility that in the future:
1) Ms. Haley will require assistance with respect to housekeeping
for at least a six-month period while she is recuperating from the knee
surgery; and
2) The osteoarthritis will restrict her mobility such that she will
require assistance with heavier housekeeping chores.
[106] For purposes of this assessment, I have considered the $15 per hour
paid to Ms. Kronenbush as a reasonable compensation for future
housekeeping services.
[107] Assessing a very modest award for her past impairment of her ability
to do her own housework and factoring in the contingencies associated with a
future award, I assess her past and future loss for future impairment of her
ability do her own housework at $6,000.
[108] Special damages are agreed at $3,962.18.
[109] In summary, Ms. Haley’s damages are assessed at $223,123.20,
consisting of the following:
1)
non-pecuniary, $75,000.00
2)
gross past wage loss, $38,161.02
3)
loss of future earning capacity, $100,000.00
4)
loss of housekeeping capacity, $6,000.00
5)
special damages, $3,962.18.
[110] The total amount is $223,123.20.
[111] If the parties are unable to agree on costs, Ms. Haleys counsel
is at liberty to file written submissions within 60 days from the date of this
judgment. Counsel for the defence is to file written submissions in response
within 45 days of receipt of Ms. Haleys submissions. Any reply
submissions must be filed within 15 days.
Dardi J.