IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Dulay v. Lachance, |
| 2012 BCSC 258 |
Date: 20120222
Docket: 43426
Registry:
Kamloops
Between:
Rampaul Singh
Dulay
Plaintiff
Octave Lachance
Defendant
Before:
The Honourable Madam Justice Maisonville
Counsel for the Plaintiff: | M.L. Sadden |
Counsel for the Defendant: | T.J. Decker C. Lencovic |
Place and Date of Trial: | Kamloops, B.C. |
Place and Date of Judgment: | Kamloops, B.C. |
3. Factual
Background of the Plaintiff
5. Present
Problems and Resolution of some of the Injuries
6. Impact
of Accident on the Plaintiffs Work
7. Credibility
and Reliability of Evidence
9. Expert
Medical Evidence Analysis
(i) Mr. Dulays
Chief Complaints Noted by Dr. Grover
11. Damages
Duty to Mitigate
12. Analysis
of the Plaintiffs Claim – Assessment of Damages
(a) Law
on Non-Pecuniary Damages
(b) Law
on the Loss of Future Earning Capacity.
(i) Analysis
on Loss of Future Earning Capacity
(ii) Summary
of Loss of Future Earning Capacity
1. Introduction
[1]
The plaintiff, Rampaul Dulay, claims against the defendant, Octave
Lachance, for injuries he sustained as a result of a motor vehicle accident
which occurred at 8:30 a.m. on October 25, 2007, in Kamloops, British Columbia.
Mr. Dulay was travelling southbound on 4th Avenue in his 2007 grey Toyota
Corolla motor vehicle and had entered the intersection of 4th Avenue and Battle
Street when he was struck broadside by the defendants blue 2005 Chevrolet two-door
coupe. Mr. Dulay, 52 years old at the time of the accident, was 57 years
of age at the time of the trial. He is married and has three adult children
with his youngest 20-year-old boy still living at home and attending Thompson
Rivers University.
2. Issues
[2]
Past wage loss of the plaintiff, Mr. Dulay, has been agreed to be
$4,900. As the defendant failed to stop at a stop sign, liability for the
accident by the defendant has also been admitted. The defendant admits the
plaintiff sustained injuries as a consequence of the accident, but states that
the injuries caused by the accident have largely healed. It is not in dispute
that the back pain, dizziness, and chest pain had all resolved within 6 to 12
months after the accident. The plaintiff, however, continues to suffer from
symptomatic and painful osteoarthritis in his knee and also pain in his elbow. What
is disputed by the defendant is the cause rendering the osteoarthritis symptomatic.
The issues that remain for determination, accordingly, are:
A) Whether
the pain of the osteoarthritis, suffered by the plaintiff in his right knee and
his right elbow was triggered by this accident;
B) The
quantum of non-pecuniary damages;
C) Whether
damages should be awarded for loss of future income, which includes a
determination of when Mr. Dulay was going to retire; and
D) Whether
damages should be awarded for cost of future care.
3. Factual Background of the Plaintiff
(a) Prior to the Accident
[3]
Mr. Dulay has been happily married for 34 years. He is father to
three grown children, with the youngest still at home attending Thompson Rivers
University. His son hopes to be accepted into medicine and then specialize in
psychiatry. Mr. Dulay indicated during the course of the trial that he
will be supportive of his son, including paying his university fees throughout
his studies as he did for his two older children.
[4]
Mr. Dulay manages projects for the Provincial Ministry of
Transportation and Infrastructure. Since May 2011 he has been the project
director of the Okanagan Valley Corridor, which, although a temporary posting, is
a promotion. This position was extended during the course of the trial to last
into January 2012. He then will assume his job of senior project manager, a
post he has held for approximately six years.
[5]
The projects include enlarging highways from two lanes to four lanes and
fixing highways damaged from natural disasters which have occurred such as rock
slides, for instance, and building new roads. His principal task is to manage
the scope, scale and budget of the work. Usually this entails travel to the
site where the change is to be implemented. He must interact with all sorts of
diverse groups including First Nations Bands and environmental groups,
particularly if a new highway is going to impact the habitat. He tries to walk
the project sites personally, bringing his design experience, which he had
gained at the Ministry earlier in his career, to his current project management
responsibilities. He typically works nine hours a day but he is only paid for a
35-hour week. His travel out of town is, on average, once a week for two to
three days. While he was a union employee early in his career, following his
promotion to management, he is no longer with the British Columbia Government
Service and Employees Union. He earns approximately $45 per hour.
[6]
His area of responsibility comprises an enormous part of the province of
British Columbia, stretching from Bella Coola on the west coast, to the Alberta
border on the eastern part of the province, and down to the border between British
Columbia and the United States of America. The plaintiff can be assigned work anywhere
in that region. The projects that he has managed have included numerous large
projects including remedying a rockslide. The budgets for his projects are in
the millions the rockslide budget project exceeded $80 million. He has worked
on numerous other projects including new highways and new bridges which are
more challenging than simply resurfacing existing roads. Normally, as a senior
project manager, he is expected to deal with the projects that are difficult
and more complex.
[7]
Mr. Dulay enjoys his work very much and has worked for the Ministry for
over 34 years. His superannuation pension is already vested. By September 2012
he will be able to take his pension at a full, unreduced rate. The pension
reaches a maximum level of 70% of his last five earning years preceding
retirement. Mr. Dulay is now enjoying the highest earnings of his career. If he
works a further five years his pension will be assessed on the basis of those
five years earnings.
[8]
At issue in this trial, as noted, is the date when Mr. Dulay was
planning on retiring. It was his evidence that he had intended to work to at
least 63 years of age; a further six years. Although he had no concrete plan
formed, he based his estimation on the fact that he is now earning his highest salary
ever and would like his pension to be calculated on this basis. He was candid in
stating that he will work until his son is finished schooling. It is also of
note that he has recently assumed a $300,000 mortgage having recently purchased
a new home.
(b) Other Daily Activities
[9]
Before the accident he worked in his large garden; he would mow and
rototill the lawn. Their home is near McArthur Park and he used to enjoy the
park very much. He walked in the park and he would jog three kilometres at
least four times a week after coming home from work. Together with his wife, he
would socialize with friends and he volunteered at his temple.
(c) The Accident
[10]
The accident occurred at 8:30 in the morning of Thursday, October 25,
2007. The plaintiff was driving his vehicle to a work site and he recalls it
being a nice day. He was driving southbound on 4th Avenue at the intersection
of Battle Street when the accident occurred. He testified he had been
travelling at about 40-50 kph. The speed limit at that intersection he believes
is 50. He did not see the defendants vehicle prior to impact.
[11]
Immediately upon impact, the airbag deployed, striking his chest and
obscuring his vision. He applied the brakes. He recalls that his knees had crashed
together, but his objective was to keep his foot to the brake given he could
not see and he was trying to stop his vehicle. The impact caused his vehicle to
be pushed up across the curb and further pushed across the lawn beside the sidewalk
before finally stopping. From the photographs that were tendered into evidence
it is clear that his vehicle travelled some distance from the intersection,
across a lawn, narrowly missing a fire hydrant and a mailbox, eventually coming
to rest adjacent to an apartment building.
[12]
After the accident he did not know where he was. His body was in pain. The
pain was particularly acute in his chest area, from the impact of the airbag.
[13]
An ambulance attended at the scene and Mr. Dulay was taken to the
Royal Inland Hospital where he was examined. X-rays were taken of his upper
body area. At that time, he recalls his major complaint was pain all over his
body and, in particular, his chest area. He had pain in his neck, back and his
right arm and leg, and he started getting a headache. He felt the pain was so
bad that he believed that he had likely cracked his ribs from the impact of the
airbag. He luckily, however, had not broken his ribs. Apart from his chest, the
injuries that affected him were chiefly on the right side of his body his
right shoulder, his right arm, and his right leg. He was released to the care
of his wife and a family friend who had driven to the hospital. He walked out
of the hospital on his own.
[14]
After they left the hospital, his wife, his friend and he went to the impound
yard to go to his vehicle to retrieve his laptop. He picked up his things from
the vehicle and went home. Ultimately, it was determined that his vehicle was a
write-off.
[15]
For the first three weeks, he felt he was in more pain, particularly in his
neck and back area. His right arm also started swelling. His fingertips had a
tingling sensation and he was getting cramps in his right calf such that they
woke him up on occasion. He would take pain medication and just stay in bed for
the first little while after the accident. He could not do much.
4. Treatment
(a) Dr. Otto Zsigmond
[16]
Dr. Otto Zsigmond had been his family practitioner for only a four-month
period at the time of the accident. Before that, Dr. Yeung had been the
plaintiffs family physician for many years but upon the doctors retirement,
only months prior to the accident, Mr. Dulay had secured Dr. Zsigmond as
his family doctor.
[17]
The plaintiff went to Dr. Zsigmond four days after the accident.
[18]
Dr. Zsigmond made a note on October 29, 2007 about the plaintiffs
motor vehicle accident of October 25. While not specifically being a note about
the plaintiffs right knee, Dr. Zsigmond had noted right arm and right leg
pain and he insisted that this note was meant to incorporate the knee pain. Again,
on November 5, 2007, he noted the plaintiffs complaints had included
right leg muscular calf aches.
[19]
There is no question that following the accident the plaintiff always
presented with complaints of pain to his right side. He attended Dr. Zsigmonds
office again on November 27, 2007 complaining of pain to the right side of his
body, including his right shoulder and upper arm. He also complained of
difficulties with his range of motion in his shoulder. Dr. Zsigmond
referred the plaintiff to physiotherapy and massage therapy.
[20]
On December 17, 2007 the plaintiff attended at his physicians office
and was seen by a locum, Dr. Eccleston, who specifically made a note of
pain to the right knee and upper calf swelling. The locum physician noted a
mild, possible Bakers cyst at the back of Mr. Dulays right knee; an area that
Mr. Dulay was complaining about.
[21]
On January 8, 2008 Mr. Dulay re-attended upon Dr. Zsigmond. At
that visit the physician noted inter alia Rt Shoulder Rotator cuff
respecting the decreased range of motion. He noted Rt leg better, but also
noted the Bakers cyst. On February 4, 2008 Mr. Dulay again attended
Dr. Zsigmond with complaints of pain to his right side.
[22]
The plaintiff commenced physiotherapy on November 7, 2007. He attended
at Ben Yeung, who coincidentally is the brother of his retired family doctor.
Ben Yeung gave him exercises to do and he initially was seeing him twice a week.
The visits later decreased to once a week. Mr. Dulay has been doing the
exercises taught by the physiotherapist since that time. He began seeing improvements
in his neck and back over the four or five-month period that he saw
Mr. Yeung, until Mr. Yeung also retired, but the pain in his right
leg and arm did not diminish.
[23]
Due to the plaintiffs continued pain at nine months after the accident,
Dr. Zsigmond referred him to Dr. Jan Navatril, a rheumatology and
osteoporosis specialist. The plaintiff attended quite a few times over the
following year. Dr. Navatril gave him cortisone shots in his right elbow
and his right knee, according to the evidence of the plaintiff. The plaintiff
explained how they were extremely painful. He testified that he felt the shots
go right into the bone. He received them twice to his knee and elbow. The first
time he had the cortisone shot, he had an adverse reaction resulting in hives by
the time he got home. He went to the emergency room of the hospital for
treatment. He was prescribed medicine and the hives finally disappeared two
days later. The first shot gave him three months of some relief, and the second
also gave him some relief, but the pain returned after some three to four
months. He was unable to do home chores at all. He indicated in his
direct-examination that he never had trouble with his knees before the
accident.
[24]
Dr. Navatril was not called as a witness.
[25]
Dr. Navatril referred Mr. Dulay to another physiotherapist, Kevin
Brechin, as the first physiotherapist he was referred to, Mr. Yeung, had
retired. He also started massage therapy on December 11, 2007 at Downtown
Massage following the recommendation of Dr. Zsigmond. The plaintiff found great
relief from the massage therapy. The therapist, Melanie Roberts, would massage
his calves and relieve the cramping in both calves. He attended massage therapy
approximately seven times. The massage therapy greatly helped the symptoms but
it did not lead to any lasting improvements. In addition to those treatments, he
would go to the pool at the Tournament Capital Centre and sit in the hot tub to
relieve his pain. He was still doing his exercises taught to him by his
physiotherapist. He also tried swimming.
[26]
After a number of months of continued pain, he was also directed to have
an MRI scan done.
[27]
On the basis of the evidence of the plaintiff and the clinical notes of
the family physician, I find that the plaintiff had, in fact, presented continuous
complaints of pain on his right knee from the time of the accident.
[28]
By the summer of 2010 his symptoms of pain respecting his right knee
were still continuing, and he was limping and having a difficult time with his
chores and work. He would get up several times during the night and could not get
back to sleep. If he tried to do any of the handyman work that he normally did
around the house, including mowing the lawn, he would have extreme
difficulties, and so had to take frequent breaks. When gardening, he could no
longer squat to sit on his feet anymore. He found (and still finds) that household
tasks that he normally used to perform, such as vacuuming and mopping, were
extremely difficult to undertake. He has difficulty driving, as well, and must
take breaks after an hour and a half because his right knee, being in one
position on the pedal for extended periods, begins to become extremely painful
to him.
[29]
The chief problem he continues to be treated for is osteoarthritis that
causes swelling of his right knee. Photographs, taken for the purposes of this
litigation, were entered into evidence. They depict a noticeably larger right
knee. Dr. Zsigmond had also taken photographs independently, which were
tendered as exhibits. The physician took the photographs because they depicted the
pronounced swelling. The Bakers cyst on the back of the plaintiffs right knee
was noticeable in the pictures, appearing as a red circular area.
[30]
The chief factual issue involving the plaintiff and Dr. Zsigmond
was whether the plaintiff had complained immediately after the accident of his
right knee and elbow pain. The importance of this is that both orthopaedic
surgeons called as expert witnesses on bone injuries and arthritis agreed that,
if the first complaint of pain was months after the accident, it was unlikely
that the pain arising from the osteoarthritis was triggered by the accident.
[31]
In regards to his clinical file and his documentation of the plaintiffs
pain, Dr. Zsigmond was vigorously cross-examined about his notes. He
admitted that he had not made a specific note of right knee pain on the first
occasions he saw the plaintiff after the accident; however, he indicated it was
always impossible to note everything. He indicated he had made a note of only
essential things. I find that while Dr. Zsigmonds notes are less than
complete and not carefully detailed, the plaintiff had indeed shortly after the
accident complained of pain to his right knee.
(b) The Orthopaedic
Surgeons
(i) Dr. Richard McLeod
[32]
Dr. Navatril referred Mr. Dulay to Dr. Richard McLeod, an
orthopaedic surgeon, in respect of his right knee injury. Dr. McLeod first
saw the plaintiff on June 7, 2010. He wanted the plaintiff to do less
walking but to still attempt to strengthen his knee. He was instructed to start
biking. Mr. Dulay never had a bicycle before and so he purchased a bike.
Dr. McLeod also recommended he lose weight, explaining to the plaintiff
that every pound increases the pressure on the joint and thus the pain. The
plaintiff, eager to comply, went to a dietician. He was 182 pounds at the time
of the accident, but by the time he saw Dr. McLeod he was about 209 pounds.
Following the consultation with the dietician he lost 16 pounds. At the time of
trial he was 189 pounds, which he has achieved chiefly through diet.
[33]
The plaintiff had at one time purchased a knee brace. He thought it
would help; instead, it only aggravated the cyst behind his knee. The cyst became
infected and his orthopaedic surgeon indicated to him that the brace additionally
makes the muscles lazy and was not a good idea. The plaintiff has taken up
yoga which assists him with his stress and anxiety as well as his flexibility.
[34]
He has no present plans to see Dr. McLeod to follow-up.
(ii) Dr. Deepak Grover
[35]
The plaintiff was referred by his counsel to Dr. Deepak Grover, an
orthopaedic surgeon who, inter alia, specializes in knee replacements.
He saw Dr. Grover once, on June 20, 2011. Dr. Grovers evidence is
discussed later in these reasons.
5. Present Problems and Resolution of some of the Injuries
[36]
He has been taking some medicines, mostly Ibuprofen, and two different
rubs for his knee, Voltaren and Rub A535. The A535 rub has an odour, so he
cannot use it at work. Instead he uses the Voltaren twice a day. When he was in
extreme pain he was once prescribed Tramacet. On one occasion, he went to a
clinic for the pain. He also takes Tylenol and glucosamine for the pain and for
the cyst on the back of his right knee.
[37]
In addition to those problems, he also had some dizziness, particularly
in the first three months after the accident. His neck and lower back pain seemed
to resolve at about six or seven months. The treatment that he received, the
physiotherapy, the massage and the exercises all helped, he testified. His
chest pain resolved for the most part over the first few months after the
accident. His headaches are now, as well, mostly resolved and he only gets them
once in a while, but he testified he suffered frequently from them for the
first year following the accident.
[38]
Mr. Dulays chief concern is constant pain from his right knee, and he believes
that this sometimes precipitates a headache. Although he went right back to
work the next day, he realized he needed recovery time. He took three weeks off
work and then started a graduated return to work of a few hours a day before he
would have to go home because of the pain. Some days were unbearable for him and
in the years 2008 and 2009 he took entire days off. Going home took the stress
away.
[39]
Respecting his right elbow, he testified, that it also continues to be
painful. Using his right arm, he can only raise about 20 to 30 pounds.
[40]
Mr. Dulay also had much anxiety and nervousness about driving. In
particular it took him some time before he could drive near the intersection
where the accident had occurred and it took him some time before he could return
to that area. He has also had more anxiety at work.
[41]
His chief concern, however, is his right knee. When he is on the road he
tries to ensure he checks into a hotel that has a hot tub. The heat gives him
relief from his painful symptoms in his elbow and knee. He now has permanent
chronic pain. On a scale from 1 to 10, he says that the pain has been constant
from day one, ranging from 8 to 9. On warm days it is better, but cold days
worsen his pain. Soon after the accident, he tried jogging, but found quickly that
it was too painful. Instead, he walks a couple of times a week, one kilometre
at most.
[42]
His current treatment is glucosamine and Ibuprofen twice a day. He
is still doing home exercises that he learned from his physiotherapist, and he
continues to swim. He uses the A535 rub and the Voltaren as well. He believes
he spends between $50 and $55 a month on medicine, and between $18 and $20 per
month on the pool that he goes to.
6. Impact
of Accident on the Plaintiffs Work
[43]
Several witnesses from Mr. Dulays employment were called. Frank
Dacho, his supervisor for the past seven years, testified that the plaintiff is
an excellent employee. He was aware shortly after the accident that Mr. Dulay
had suffered injuries, but he did not know the extent of them. Mr. Dacho
testified he was a hands-on worker who, prior to the accident, had never
complained of knee pain or elbow pain. Mr. Dacho, whose evidence I accept,
testified that Mr. Dulay, over the years, was given more and more complex
work assignments. For instance when there was a rock slide on Highway 97, that
project was assigned to Mr. Dulay.
[44]
He is very well thought of by his employers and co-workers and
consequently he may end up moving into a permanent position as a director
should there be an opening. He has gained valuable experience monitoring
projects to completion.
[45]
The plaintiff was described by his supervisor, Frank Dacho, as a very
hands-on individual and this was evident in the plaintiffs testimony when he
described how he liked to go out to the field to check the site itself. Walking
the site is something he does with stakeholders. He spends time with the
geotechnical consultants. Much of the terrain in British Columbia where the
roads and highways must be put in is not flat; frequently it is at an incline
and is rugged terrain. He described how it now hurts to ascend and descend
these inclines. Since the accident he must still go to the project sites two to
three times per week, about six times a month on each project. In his normal
position, at any time, he usually had six or seven projects that he was
accountable for. When he was a senior project manager, at times he would take a
co-worker, Kathy Strobbe, with him. She was his subordinate, but it was not her
job to drive him or ordinarily accompany him to work sites. He was in fact
training her to be a senior project manager. In his present position he has
been the sole driver to the various sites. He can be managing up to 25
different people on a project depending on the number of consultants and has,
in the past, managed up to 150 people. It would not be unusual for the
plaintiff to be dealing with up to 40 different individuals on any given
project.
[46]
Mr. Dacho confirmed that, while there was not a consistent pattern, on
average Mr. Dulay would have to be on the road for two to three days a
week.
[47]
Driving the long distances poses considerable difficulty for Mr. Dulay
now, as noted. He must stop to get out of the vehicle to rest his knee. While
he was senior project manager and mentoring Kathy Strobbe, she would drive the
two of them to the work sites. Now he is alone and must complete these journeys
on his own.
[48]
As his job often involved meetings with stakeholders and local citizens
of the area being affected by the implementation of a new highway, he would
frequently arrive at the hotel near the site and attend in advance at the
meeting room to set up displays for showing proposed constructions. To prepare
the meetings, Mr. Dulay would bring easels for visual displays and other
montages. Prior to the accident, the preparations for these meetings were not chores
for him at all; he readily and easily set up the displays in order to show the
stakeholders the plans. Now, as a consequence of the ongoing knee problems,
chiefly, and his inability to carry items over 30 pounds, the task is a significant
hurdle.
[49]
Frank Dacho testified that while the accident has not impacted the
ability of Mr. Dulay to put in good work, that there are nonetheless subtle
changes. Before, when asked any questions about a site, Mr. Dulay would usually
be able to respond without hesitation. Now, according to Mr. Dacho, it is
not unusual for Mr. Dulay to respond: Ill have to get back to you. Mr. Dacho
is aware Mr. Dulays leg bothers him. He sees him rubbing his leg during
meetings. He noted that the plaintiff is spending more time making phone calls rather
than being out in the field. While he still takes time and talks with
stakeholders, more often than not it is by phone from his office rather than in
person close to the project site as he had done in the past. When Mr. Dulay
returns from projects, Mr. Dacho indicates he noticed Mr. Dulays leg is sore
due to his observation of Mr. Dulay limping on his right side.
[50]
Mr. Dacho is aware that a number of former employees of the Ministry
have been hired away after they retire from the government. He listed a number
of firms that employ these former employees. He testified that Mr. Dulay
would be an attractive candidate as a consultant to these private firms due to
his many years of experience and his good reputation in handling design and
project sites.
[51]
Mr. Dulay testified his knee restricts him in his capabilities to
do his job properly. He cannot walk down the steep terrain he used to and
instead must ask co-workers to take photos of the terrain for him. Often the
pictures do not capture what in his experience is essential. Often he directs
the co-worker to go and retake the photos. His colleagues, in particular Ms. Strobbe,
noted that his design background gave him an eye for things she was not
initially aware of.
[52]
Mr. Dulay testified that he still enjoys his job, but is currently not
obtaining the same level of satisfaction and, on occasion, must delegate tasks
he would normally do himself. He also regrets being unable to walk the sites
himself. He worries that something may be missed as a consequence (although
nothing in that vein has occurred).
[53]
Wayne Fraser, who took over Mr. Dachos position when he was
promoted, indicated to the Court that he was surprised that Mr. Dulay did
not get daily calls from the private sector luring him away. He is aware that a
private sector position would be far more demanding in that there are no set
regions, and there is a demand to travel more and produce more. He has seen his
staff be hired away by at least four different consultant companies which he
named.
[54]
In cross-examination it was put to Mr. Dulay that he still enjoys
excellent job performance reviews. He agreed, but it was evident that he was
anxious about his performance and worried considerably more as he now relies on
others to report to him about site conditions, whereas in the past he could do
the work himself.
[55]
It is clear the plaintiff is a hard worker and feels he must give 110%
to his position. His inability to do so and his reliance on others for what he
himself used to do, such as walk the sites personally, and meet with the
stakeholders personally at the sites and not on the phone, have caused him
anxiety.
[56]
He expressed that he had, in the past, considered becoming a private
consultant. His colleagues indicated he would likely be a very desirable
candidate in the private sector as he is highly positioned in the Ministry now,
has design background, and a good reputation both as a co-worker and with
stakeholders. In 2007, the year the accident occurred, he earned $79,194.39;
2008, $84,757.78; 2009, $86,901.04; 2010, $88,479.19, and in 2011 he expects to
earn slightly more than $93,000. In fact he has been promoted as noted, albeit
temporarily.
[57]
During the summer of 2011 he took some time off when his daughter was
married. He found that life was better for a while. It was less stressful. There
was no driving, no displays to set up and overall he found this period very
relaxing. While he still had pain, it was much better.
[58]
The plaintiff testified that changes in the weather also affect his pain
levels.
[59]
Their oldest daughter is a registered nurse and had attended Thompson
Rivers University. His middle son is in accounting. He also went to Thompson
Rivers University and then to the British Columbia Institute of Technology. The
plaintiff estimates that the cost for each child to go to University that he
paid was approximately $60,000.
[60]
His wife was injured in 2009 and has had a hip replacement after a
slip-and-fall. She is on a WCB pension.
[61]
Their new home was purchased in 2009. They have a $300,000 mortgage. His
wife testified it was her dream house. While she is happy in her new home, she
is aware the plaintiff is not the same as before he can no longer help her
around the home as much. The knee injury has affected his ability to do laundry
in his present house. The laundry is located in the basement area of the house.
[62]
She also indicated that they do not socialize as they used to. This is
in contrast to their social life before the accident of meeting with their
friends often.
[63]
On cross-examination, he was asked why he had not purchased a rancher if
stairs aggravate his pain, to which he responded that his wife preferred the
current house; it was to make her happy that he agreed to purchase it. It is larger
and is on a slightly bigger lot.
[64]
As for retirement he had thought that he would continue to work with the
Ministry until he was about 63 years old and he could then become a consultant
at a private engineering firm, although he recognizes that that would be far
more demanding physically.
[65]
He was cross-examined as to when he was planning on retiring. He
indicated that he expects to work at least until his youngest son has completed
his education. His young son, Sunroop also known as Sonny, is presently in
second year at Thompson Rivers University. Should his son be successful in his
dream of being a medical doctor with a specialty in psychiatry, this could mean
a further course of study of as long as 10 years. He would first finish his
undergraduate degree then attend medical school and then a period of study for
his residency. Should Mr. Dulay wish to do so, he could work for the
Ministry up to 67 years of age to the age when his son would complete his
education as there is no longer a compulsory retirement age at 65. Sunroop
testified that he hoped to receive an income as a resident physician so Mr.
Dulay at that point would no longer need to work to assist Sunroop completing
his education. Instead if he worked it would be he set out in his preaccident
plan, which while not set in concrete was to work six more years for the
Ministry then in private practice.
[66]
Sunroop testified that his father was a neat freak and that he was
very fastidious about lawn care. He now does the chores that are too demanding
for his father, such as vacuuming and mowing the lawn.
[67]
Mr. Dulay used to rototill his own lawn; but now he hires someone
to do that job. His wife, Sukhminder, testified that her husband suffers
from knee pain daily. She noted his obviously visible swollen knee in the
photographs and says she sees this daily. The Bakers cyst was also noted by
his son. His family his son and wife who testified noted his limping.
[68]
Now, at the end of the work day he goes home, he lies down on the couch
and he watches television. He does his exercises he learned from the
physiotherapist and then he will go to the pool or do yoga. He does his
exercises either before or after supper, but takes Ibuprofen and Voltaren
beforehand to lessen the pain.
[69]
Mr. Dulays friend, Mr. Avtar Basran, testified that Mr. Dulay is
no longer involved in temple activities as he once was. Mr. Basran saw firsthand
the effects of the accident; Mr. Dulays limping, and swelling and rubbing
of his right knee. They are now no longer able to exercise much together.
[70]
Mr. Dulay was cross-examined by counsel for the defendant. It was put to
him that at his examination for discovery he indicated there were only four to
six projects on the go at that time. He said that that was true although at the
time of trial it was six to seven. He said that the reason for the variance is
that the bulk of the projects occur in spring and summer months when
construction can be undertaken throughout the province. It was suggested to him
that he made no mention of pain immediately after the accident. He denied this
and indicated he had from the outset complained of pain. In cross-examination
the plaintiff denied that he was ever able to jog after the accident.
[71]
It was also suggested that he had not in fact been attending the pool as
often as he indicated. The pool that he attends, the Tournament Capital Canada
Pool, has many different manners of paying one can pay for a single use,
monthly, or purchase a book of tickets. He was cross-examined extensively on
how he could possibly be paying as much as he said he was for the pool when he
was unable to produce all his receipts. I find that he was using the pool and
diligently trying to do his exercises. He was a soft-spoken man and he did not
display at any time any heightened emotion, but was very calm and matter-of-fact
in the way that he presented and gave his evidence. I find him to be a credible
witness and accept his evidence. He testified that he spends $50 to $55 each
month on medication, but he only had receipts for some of that amount. He was questioned
repeatedly on cross-examination as to whether he has asked the Ministry to
accommodate him. His immediate supervisor, Frank Dacho, testified, however, that
the plaintiffs job was not a position that lent itself to accommodation. While
there is a pool of senior project managers to draw upon, it would not be fair
to have some only go to certain physical sites which were convenient and close
while others had to travel long distances.
7. Credibility and Reliability of Evidence
[72]
The factors to be considered when assessing credibility were summarized
by Dillon J. in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186,
in which Her Ladyship noted an assessment of a witness testimony for
trustworthiness is based upon the veracity or sincerity of a witness and the
accuracy of the evidence that the witness provides (Raymond v. Bosanquet
(Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)).
Dillon J. continued, still at
para. 186:
Ultimately, the validity of the
evidence depends on whether the evidence is consistent with the probabilities
affecting the case as a whole and shown to be in existence at the time (Farnya
[v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.)] at para. 356).
[73]
It is important to note, additionally, that any expert opinion resting
upon a hypothesis which in turn is not found to be convincing or credible will
be undermined: Samuel v. Chrysler Credit Canada Ltd., 2007 BCCA 431, at
paras. 15, 49-50. Here, the key point is already alluded to in these
reasons: did the plaintiff complain of pain to his right knee and elbow almost
immediately following the accident?
[74]
I find the plaintiff Mr. Dulay was a credible witness who gave his
testimony as accurately as he could. I accept his evidence. Similarly,
respecting the witnesses the plaintiff called from his employment, Kathy
Strobbe, Frank Dacho, and Wayne Fraser, I find all gave their evidence in a straightforward
manner. None were seriously challenged on cross-examination. His family members
similarly gave their evidence sincerely and I find their evidence to be
credible. Respecting Dr. Zsigmond, I find his note taking is clearly wanting;
however, coupled with the plaintiffs evidence, I find the complaint of pain to
the right knee was indeed made by Mr. Dulay within days of the accident.
8. Prior Injuries
[75]
The plaintiff testified that he injured his calf in 2006 in the summer
when he was jogging around McArthur Island Park and fell into a pothole. He
hurt his right leg mid-calf. He was told by a doctor that he had torn the
muscle and that it would eventually heal. He had no health issues in 2007 apart
from what occurred in the accident although he did use orthotics as a result of
running and jogging. He had pain underneath his foot that he had complained of
and presented to a clinic for in the past, which was improved when he used the
orthotics. I find those injuries and the foot problem had resolved prior to the
accident.
9. Expert Medical Evidence Analysis
(a) Dr. Richard McLeod
[76]
Dr. Richard McLeod, the orthopaedic surgeon to whom the plaintiff
was referred was called as an expert witness in the area. He had prepared two
reports that were before the Court. Dr. McLeod wrote in the first of his
two reports that [i]t is impossible to predict whether or not this right knee
would have become symptomatic should this accident not have occurred. In his
second report Dr. McLeod opined:
…it is my opinion that the
injury sustained to the right knee of Mr. Dulay on October 25, 2007 did
indeed render an asymptomatic condition to become symptomatic.
[77]
Dr. McLeods initial report had stated:
Mr. Dulay will not have any
physical limitations upon his vocation, recreation, or domestic
responsibilities as a result of the right knee injury sustained in the motor
vehicle collision on October 25, 2007. A contusion to the knee is a self
limiting condition that resolves within twelve months post injury. Any symptoms
after this length of time would be attributable to pre-existing degenerative
changes within the knee.
The plaintiffs position is that these two statements
combined indicate that when Dr. McLeod was referring to the knee injury in
his report of June 9, 2011 he was referring to the bone contusion.
[78]
Dr. McLeod had described the contusion to the right medial femoral
condyle and medial tibial plateau (very simply put the area where the femur
meets the lower leg bones) as mild, but as noted he separated this injury from
the triggering of the arthritis as clarified in his second report. I accept his
evidence on this point and find that his attribution of mild to the injury
did not mean to incorporate the onset of symptoms of osteoarthritis.
[79]
Dr. McLeod stated: It is impossible to predict whether or not this
right knee would have become symptomatic should this accident not have occurred.
I accept his evidence on that issue.
[80]
Respecting the plaintiffs work, Dr. McLeods opinion was that any
vocational limitations Mr. Dulay now faces are a consequence of the motor
vehicle accident. The report, however, was silent on what those limitations
are.
[81]
In respect of future treatment he opined that Mr. Dulay will be
required to perform more exercise including the possibility/probability of
future surgery, periodic use of medications, and supports, injections,
physiotherapy. Dr. McLeod wrote in his second report:
…there is no correlation
between the severity of arthritic changes visualized on plain radiographs and
the degree of subjective symptoms such as pain. In fact it is quite common for
individuals to experience more severe pain with low grade x-ray changes and
less pain with end stage arthritis as shown on plain radiographs…
[82]
I accept that evidence. Given that Dr. McLeods opinion is based on
a presentation of pain shortly after the accident, which, I accept, I find that
Dr. McLeods opinion to be that the accident rendered Mr. Dulays
asymptomatic arthritis symptomatic.
(b) Dr. Deepak Grover
[83]
Dr. Deepak Grover was called and qualified as an expert witness in
the area of orthopaedic surgery. He is a joint replacement and orthopaedic
surgeon in Chilliwack, British Columbia where he has practiced since August of
2007. He has privileges at a number of Lower Mainland hospitals including
Chilliwack General Hospital, Ridge Meadows Hospital and Delta Hospital. He also
practices and performs surgery at the South Fraser Centre. Prior to coming to
Canada he was an orthopaedic surgeon in the United Kingdom and had received his
training in India. He had initially moved to Newfoundland in 2001 and worked
there for some time before coming west. He now specializes in lower limb
reconstruction and arthroplasty, which is joint replacement surgery. In 2009 he
performed 152 hip and knee surgeries; 2010, 130; and 2011, approximately 130. I
accept his qualifications, and his expertise was not disputed by the defendant.
Mr. Dulay was referred to him by his counsel for a consultation and was seen on
June 20, 2011.
(i) Mr. Dulays Chief Complaints Noted by Dr. Grover
[84]
Dr. Grover noted there are chiefly two different issues involving Mr. Dulay:
(1) right knee pain, and (2) pain at the back of the right elbow.
[85]
Respecting the knee, Dr. Grover noted two separate aspects. The first
relates to the medial area of the knee, and the second is the arthritis that he
suffers from. Behind the knee he saw an obvious lump. In his physical
examination of the plaintiff, he described that Mr. Dulay had some wasting of
the quadriceps muscles in his right leg. He noted as well the cystic lump,
which he believed to be a Bakers cyst, typical with arthritic changes. He
testified that fluid forms in the knee as a consequence of the arthritis and
this fluid makes a home for itself in the back of the knee. He noted Mr.
Dulays chief problem was the painful arthritis in his right knee.
[86]
Dr. Grover stated that Mr. Dulays treatment options in the future are
visco-supplement injections to his knee to be administered twice a year. These
are synthetic substitutes for the fluid that is normally on the joint, which could
stop painful arthritis. The injections to the knee are administered in the
doctors office. There is a cost of $300 to $450 for an injection. The
effectiveness of this treatment is, however, only about 50%. If a patient is
fortunate to be in the 50% for which the treatment is effective, then three or four
injections are required. Dr. Grover was not making this specific recommendation
for Mr. Dulay at this time, however, and was rather projecting a course of
treatment beyond the foreseeable future, a period he meant to describe as
being in the range of two to five years. One can receive these injections indefinitely,
unlike cortisone shots.
[87]
Another future option that Dr. Grover spoke of was arthroscopic surgery
to the knee. It is performed as a day surgery. He explained it as basically
spring cleaning of the knee. The success rate is no greater than 50% when the
cause of the problem is arthritis. In cross-examination, Dr. Grover
conceded that he was aware of a study indicating that arthroscopy could be
equated with a placebo effect. He also testified in cross-examination that 100%
of his knee replacement surgeries are a result of arthritis and not trauma, and
98% of the hip replacements are due to arthritis.
[88]
He indicated that he was aware that there was an MRI done on Mr. Dulay
on March 26, 2010 showing degenerative changes, but it was put to him that this
was 30 months after the motor vehicle accident. If it was a bone bruise caused
by the accident (which are also called bone edema) then, it was put to Dr.
Grover, it should have resolved within 6 to 12 months the usual time for such
injuries to heal. He answered that that was generally so, but not always; additionally
he stated that bone edema could be caused by a number of things such as
infection and cancer, so that while bone bruising is always bone edema, not all
bone edema is bone bruising. While he indicated that it would be possible for such
an injury to result from jogging, that would not be a common event. It was put
to him that had Mr. Dulay presented at first showing improvement, but then
some period of time after the accident complained of problems in his right
knee, that would signal the change was due to the osteoarthritis becoming
symptomatic on its own and not as a result of the trauma. Dr. Grover
agreed. If there was a bone bruise, he indicated the patients problem usually
resolve within 6 to 12 months although it was possible it could be attributable
to the accident. If something arose only by November 25, 2009 that would be due
to arthritis. There was no evidence of any intervening event.
[89]
Dr. Grover indicated that, had a patient not complained of knee
pain for a six-month period, it would be a significant gap leading him to
believe the result of any existing pain was as a consequence of arthritic
changes, occurring without a trauma, and not the result of an accident. Arthritis,
he agreed in cross-examination, does not follow a set pattern. I find however,
that the plaintiff had complained of pain to his right knee shortly after the
accident.
[90]
Dr. Grover indicated, however, that once there is onset of arthritic
pain, it may wax and wane but managing the pain becomes an issue that never
resolves. One of the recommendations made to patients is to strengthen the knee.
He was asked to assume that there was no apparent muscle wasting of Mr. Dulay
when the orthopaedic surgeon, Dr. McLeod, saw him in June of 2010. He was then
asked whether one would see muscle wasting attributable to the motor vehicle
accident if one had not seen muscle wasting by June 2010 given the patient was
exercising. His answer was no. He noted that Mr. Dulay has bowleggedness
referred to medically as genu varum. It was Dr. McLeods evidence that
genu varum, as well, was the consequence of arthritic changes. In
cross-examination it was suggested to him that there could be other causes and
he disagreed. He was asked: if the pain from the knee at present was caused by
the accident, would there have been a complaint of immediate pain? He responded
affirmatively and it was his evidence that a complaint within four days would
fall into the category of an immediate complaint in the circumstances of this
case given the additional injuries suffered by Mr. Dulay.
[91]
As emphasized by Dr. McLeod and Dr. Grover, if the first
complaint of pain is some period of time after the accident, for example, six
months to one year after, then it is more probable than not that the onset of
symptoms and pain is a consequence of changes which occurred on their own
without a triggering event. As was noted by both Dr. Grover and Dr. McLeod,
medical science has yet to ascertain what causes certain individuals to develop
osteoarthritic pain. Many individuals have the pain without a triggering event or,
as was conceded by Dr. Grover in cross-examination. The painful symptoms
can arise after a relatively inconsequential triggering event, such as even
stepping off a curb. Dr. Zsigmonds medical file was accordingly important
to document any complaints that may have been articulated by the plaintiff
coinciding with the time frame of the accident. Dr. Grover classified the
injuries as at the very least, moderate in intensity.
[92]
Dr. Grover indicated that Mr. Dulay suffered mild impairment of his
activities. He noted, for example, that Mr. Dulay continued such activities as
yard work, but did so with pain.
[93]
Dr. Grover concluded that Mr. Dulay has synovitis (meaning the lining of
his joint is inflamed) in his right knee with fluid buildup resulting in the
Bakers cyst. As a consequence, Dr. Grover found him to have significant pain
and a significant degree of general disability although he could perform the
activities with pain. He considered Mr. Dulays prognosis guarded and that he
was likely to need treatment in the future. While the plaintiff did not need
a knee replacement, his probability of needing arthroscopic surgery in the
future is more than fifty percent.
[94]
Dr. Grover opined that as a consequence of the motor vehicle accident,
Mr. Dulay would be limited regarding some physical aspects of his
employment, household chores, and yard work in the future.
[95]
I find Dr. Grover gave his answers in a straightforward manner and
that he readily conceded certain issues to the defence. I find him to be a
credible witness and accept his evidence.
10. Causation
(a) The Plaintiffs Position
[96]
The plaintiff asserts that his injuries arose from the accident. While
it is true that he had osteoarthritis before the accident, the plaintiffs
position is that his condition was rendered symptomatic as a consequence of the
accident.
[97]
The plaintiff relies on the report of Dr. Grover who wrote:
It is also my opinion that, but
for the motor vehicle accident in question, he would likely have remained pain
free and symptom free (as far as the right knee is concerned) for many years to
come, on balance of probability.
As noted above Dr. McLeod also found that the
osteoarthritis was rendered symptomatic from the accident.
(b) The Defendants Position
[98]
The defendant says, firstly, that causation has not been proved and that
it has not been shown that Mr. Dulays injuries resulted from the
accident. While he did have other injuries resulting from the accident, these
were largely resolved within 8 to 12 months after the accident. Secondly, the
defendant submits that the painful osteoarthritis the plaintiff now suffers was
a pre-existing condition that would have occurred even without the accident. There
was no evidence of muscle wasting in the plaintiffs left leg in July 2010
indicating he continues to use that leg. Any ongoing pain is simply a
consequence of the pre-existing osteoarthritis which was not triggered by the
accident.
(c) The Law on Causation
[99]
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, on a balance of probabilities, that but for the actions of
the defendant, the injury would not have occurred. Chief Justice McLachlin
stated the test as follows at paras. 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, [2005
SCC 58] 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, [[1990] 2 S.C.R. 311] at p. 327, per Sopinka J.
[100] Accordingly,
it must be established by the plaintiff that the defendants negligence caused,
or materially contributed to, the injury on a balance of probabilities. Causation
does not require proof in a manner of scientific precision: Athey v.
Leonati, [1996] 3 S.C.R. 458, at paras. 13-17.
[101]
Once causation is established on a balance of probabilities, then damages
can be assessed. The governing principle is that the Court should attempt to
put the plaintiff in the same position he or she would have been but for the
tortious act of the defendant. As noted by McLachlin C.J.C., for the majority,
in Blackwater v. Plint, 2005 SCC 58 at para. 78:
Even though there may be several
tortious and non-tortious causes of injury, so long as the defendants act is a
cause of the plaintiffs damage, the defendant is fully liable for that damage.
The rules of damages then consider what the original position of the plaintiff
would have been. The governing principle is that the defendant need not put the
plaintiff in a better position than his original position and should not
compensate the plaintiff for any damages he would have suffered anyway: [Athey
v. Leonati].
[102] The
defendant need not compensate the plaintiff for any debilitating effects of a
pre-existing condition which the plaintiff would have experienced anyway however:
Athey v. Leonati at paras. 32-35. In Zhang
v. Law, 2009 BCSC 991, Sewell J. was considering a case similar to that of
Mr. Dulays, in that one of the conditions suffered by the claimant in that
case was not from the accident but rather triggered by the accident. Sewell J.
described the legal considerations that must be made as follows at paras. 73
and 74:
73 Mr.
Murray’s primary submission was that the depression suffered by Ms. Zhang was
not caused by the negligence of the defendants. In my view this case is
governed by the principles enunciated in the Supreme Court of Canada in Athey
v. Leonati [1996]
3 S.C.R. 458. On the issue of causation I have already found that the
injuries suffered in the motor vehicle accident were
a necessary cause of the depression. To paraphrase paragraph 41 of Athey,
I have found that it was necessary to have both the injuries from the accident
and the non-tortious causes for the depression to occur. As in Athey,
I have concluded that it was the combination of the accident, the effect of Mr.
Chen’s illness, the loss of the foetus and the termination of the second
pregnancy which caused the major and continuing depression. The depression and
continuing depressive symptoms are, in my opinion, an indivisible injury. The
other sources of Ms. Zhang’s difficulties, soft tissue injury and MTBI, are of
course entirely attributable to the accident.
His
reasoning continued:
74 The
analysis of damage does not end with causation. It is still necessary to
consider whether there was some realistic chance that the depression would have
occurred without the motor vehicle accident.
This does not go to the issue of causation but rather to the question of
assessing damages which will restore Ms. Zhang to her original position. If her
original position included a realistic chance that she would have suffered a
depression in any event, the principles of compensation require some reduction
in the damages awarded to avoid putting her in a better position than she would
have been in had she not received compensation for the accident. It goes
without saying that "better" does not mean better in fact but better
notionally because she will have received adequate monetary compensation for
the damages caused by the defendants’ negligence.
[103] The issue
here is would the plaintiff have become symptomatic in any event? I accept Dr.
Grovers evidence that the plaintiff would have enjoyed many more years without
the onset of symptomatic osteoarthritis. That said, however, there is a
realistic chance that he would have developed the painful symptoms in any event
both orthopaedic surgeons agreed that victims of osteoarthritis can have the
onset of symptoms arise at any time. Consequently, mindful of that, I must find
the appropriate award.
[104] Here it is
also argued by the defendant that the pre-existing osteoarthritis, which all
experts agree was indeed a pre-existing condition for Mr. Dulay, and the
fact that it became symptomatic, is not through any cause of the defendant. Firstly,
it is argued the knee did not become symptomatic at the same time as the
accident. Rather, it was some time later, some months after the accident, or
even later. On April 3, 2008, Dr. Zsigmond specifically mentioned the
right knee, although he was adamant under cross-examination that all his
references to the plaintiffs right side and leg, which dated from the first
visit only days after the accident, included the knee.
(d) Analysis and Conclusion
[105] While it
is true, as the defendant argued, that Dr. Zsigmond made no specific note
of the pain to his right knee being complained of by the plaintiff, as noted, I
accept his evidence that he felt it was incorporated in his note of the pain to
the plaintiffs right side. I accept his evidence that he felt he could not
possibly write down everything given the numerous complaints of the plaintiff.
I say this because it was only shortly after confirmed by the locum,
Dr. Eccleston, on December 17, 2007 that the plaintiff was complaining of
pain to this right knee and indeed had developed a Bakers cyst. It is not
correct to say, accordingly, that the plaintiff did not complain of pain shortly
after the accident. I accept the evidence of Dr. Grover and Dr. McLeod
that a gap of beyond six months between the accident and a complaint of knee
pain would be significant and likely mean the two events, the accident and the
triggering of the pain in a pre-existing condition, were not connected. While I
accept that evidence I find, nonetheless, that the plaintiff had, in fact,
complained of pain to his right knee shortly after the accident. I accept his
evidence and that of his colleagues that he had no difficulties at all before
the accident moving about difficult terrain for his employment. Nor did the
plaintiff have to take lengthy breaks while driving to work sites prior to the
accident. I accept the evidence of Kathy Strobbe respecting the plaintiffs
actions and his descriptions to her of the pain he was experiencing. His
colleagues noted his use of a rub and the painkillers he took, none of which he
required before the accident.
[106] There was
no evidence that any other event triggered the arthritis to become symptomatic.
While it was indeed the evidence of both orthopaedic surgeons that asymptomatic
arthritis can became symptomatic from no event at all, here, I find that the
complaints followed on the accident. I find on a balance of probabilities that
the plaintiff has proven the injury caused the osteoarthritis to become
symptomatic causing pain to his right knee and residual pain to his elbow. This
was as a consequence of the accident.
11. Damages Duty to Mitigate
[107] A
plaintiff has an obligation to take all reasonable measures to reduce his or
her damages, including undergoing treatment to alleviate or cure injuries: Danicek
v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111 at para. 234. In
the circumstances of this case, I find that the plaintiff endeavoured to carry
out all suggestions and directions made to him by his physicians and therapists.
He lost weight, went swimming, took up cycling, performed the exercises taught
to him by the physiotherapist, and ceased wearing the knee brace which, while
giving some relief, only aggravated the Bakers cyst. I find no evidence,
accordingly, that the plaintiff has not tried to reduce his damages. Indeed, he
has done everything he can to better his condition within his limits.
12. Analysis of the Plaintiffs Claim – Assessment of Damages
(a) Law on Non-Pecuniary
Damages
[108]
The majority in the Court of Appeal judgment in Stapley v. Hejslet,
2006 BCCA 34, outlined factors to aid in assessing non-pecuniary damages. At
para. 46 Kirkpatrick J.A. held:
The inexhaustive list of common factors cited in Boyd [v.
Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages
includes:
(a) age of the plaintiff;
(b) nature of the injury;
(c) severity and duration of pain;
(d) disability;
(e) emotional suffering; and
(f) loss or impairment of life;
I would add the following factors, although they may arguably
be subsumed in the above list:
(g) impairment of family, marital
and social relationships;
(h) impairment of physical and
mental abilities;
(i) loss of lifestyle; and
(j) the plaintiff’s stoicism (as a factor that should not,
generally speaking, penalize the plaintiff: Giang v. Clayton, 2005 BCCA
54).
There is no question that here the plaintiff has been stoic about his
injury and continues to work albeit with much pain.
[109]
In assessing injuries which depend on subjective reports of pain in
Price v. Kostryba (1982), [1986] 70 B.C.L.R. 397 (S.C.), McEachern C.J.,
referring to an earlier decision, held at p. 399:
In Butler v. Blaylock, [[1981] B.C.J. No. 31], I
referred to counsel’s argument that a defendant is often at the mercy of a
plaintiff in actions for damages for personal injuries because complaints of
pain cannot easily be disproved. I then said:
I am not stating any new principle
when I say that the court should be exceedingly careful when there is little or
no objective evidence of continuing injury and when complaints of pain persist
for long periods extending beyond the normal or usual recovery.
An injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer. But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence — which could be just his own evidence if the surrounding
circumstances are consistent — that his complaints of pain are true
reflections of a continuing injury.
[110]
The plaintiff is to be compensated by non-pecuniary damages for pain,
suffering, loss of enjoyment of life and loss of amenities. The award should be
made fairly reviewing other comparable cases, although it is important to bear
in mind they serve only as a guide each case is unique (see: Trites v.
Penner, 2010 BCSC 882 at paras. 188-189):
[188] Non-pecuniary damages are awarded to compensate the
plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities.
The compensation awarded should be fair and reasonable to both parties: Andrews
v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 [Andrews]; Jackson
v. Lai, 2007 BCSC 1023 at para. 134 [Jackson]; Kuskis v. Hon
Tin, 2008 BCSC 862 at para. 135 [Kuskis].
[189] For the purposes of
assessing non-pecuniary damages, fairness is measured against awards made in
comparable cases. Such cases, though helpful, serve only as a rough guide. Each
case depends on its own unique facts: Andrews; Jackson; Jenkins
v. Bourcier, 2003 BCSC 388 at para. 87; Radford v. Drobot et al.,
2005 BCSC 293 at para. 62; Kuskis at para 136.
(i) Plaintiffs Position
[111] The
plaintiff asserts there should be an award in the range of $80,000 to $85,000.
The plaintiff relies on Penner v. Silk, 2009 BCSC 1682 [Penner].
In that case the trial court would have awarded $100,000 but reduced that award
by 20% for failure to mitigate. On appeal to the British Columbia Court of
Appeal, 2011 BCCA 135, the Court upheld the award of $80,000 for non-pecuniary
damages but disallowed many of the separate items forming the claim for future
care, including the claim for yard work and housework assistance. Additionally,
the plaintiff in that case had undergone surgery, and numerous treatments.
While similar to the plaintiffs problems, I find the plaintiff in Penner
to have suffered more severe injuries.
[112] In Streichert
v. Lautard, [1993] B.C.J. No. 1809 (QL) (S.C.) upheld at [1996]
77 B.C.A.C. 31 [Streichert], the plaintiff, like Mr. Dulay, had
arthritis which became symptomatic following a motor vehicle accident. At the
time of the accident he had injuries to both knees, including laceration to
one. An arthroscopy had been performed. He was found additionally to have an
area in his knee denuded of articular cartilage, not in a place one would
ordinarily expect such arthritic changes, which were on a balance of
probabilities caused by the accident. The plaintiff was awarded $60,000 for
non-pecuniary damages. I find these injuries to be more severe than suffered by
Mr. Dulay.
[113] In Haley
v. Gust, 2010 BCSC 1143, the 35-year-old plaintiff
suffered an injury to her right knee including a rupture of her posterior
cruciate ligament. She required a wheelchair for one month followed by
crutches. She was awarded $75,000 for non-pecuniary damages. I find this injury
to be more severe and different in nature to the plaintiffs.
[114] In Parker
v. Ingalls, 2007 BCSC 1763, the 41-year-old plaintiff suffered injury to
his anterior cruciate ligament and cartilage in his right knee which required
that he undergo surgery. He was awarded $80,000 in non-pecuniary damages. I
find that situation more severe than the plaintiffs.
[115] It is
important to bear in mind that none of the experts are recommending surgery in
the nature of a joint replacement. Dr. Grover recommended first shots and then
arthroscopy. Only in some time was it considered a possibility that joint replacement
would be considered, but that was not in the present plan for the plaintiffs
treatment.
(ii) Defence Position
[116] In Morrison
v. Peng, 2010 BCSC 562, the court concluded the plaintiff had sustained
soft tissue injuries to her lower, mid and upper back, neck, shoulders and
right arm. While her injuries which extended beyond one year were characterized
as mild to moderate in severity, the court awarded only $18,000. I find that
case to be different from the circumstances here where, in addition to the soft
tissue injuries sustained by the plaintiff, there is the triggering of the pain
of his osteoarthritis.
[117] In Battagliola
v. Wal-Mart Canada Corp., 2011 BCSC 784, Masuhara J. awarded $28,000 in
non-pecuniary damages to a 53-year-old plaintiff injured by metal shelving at
the defendants store. She was found, however, not to have osteoarthritis and
the doctor indicated that her injury should slowly resolve over time.
[118] In Foley
v. Imperial Oil Limited, 2010 BCSC 797, Associate Chief Justice MacKenzie (as
she then was) awarded $40,000 for an injury arising from a slip and fall. At
paras. 162 to 168, the Court reviewed the circumstances of the plaintiff
and the comparable case law. The injury had, in fact, been a dislocated right
knee cap. While the plaintiff still suffered a low level of pain, the pain had
largely abated. He did not have osteoarthritis. In that case no award was made
for loss of future capacity.
[119] In Hartman
v. Dias, 2006 BCSC 478, Wong J. awarded $30,000 in a situation where the
plaintiff, while injured and suffering pain for a number of years, was still,
according to the experts, improving. That is not the case here.
[120] In Olianka
v. Spagnol, 2011 BCSC 1013, the plaintiff had a limited period of pain
resulting from soft tissue injuries of 27 months. Non-pecuniary damages were
assessed at $30,000. Again the facts differ from the present case where the
pain is ongoing and, according to the expert, not likely to improve, but only to
worsen.
[121] Given my
finding on the rendering of the plaintiffs symptoms symptomatic as a
consequence of the accident, while I have taken note of the defendants
position and reviewed the cases provided, I find the cases are distinguishable.
[122] I have
reviewed the defence argument that there be an adverse inference drawn from the
failure to call the plaintiffs physiotherapist. I find that given the defence
had the records of the physiotherapist, and relying upon the reasoning of the court
in Djukic v. Hahn, 2006 BCSC 154, affd 2007 BCCA 203, I decline in the
circumstances to draw an adverse inference respecting the physiotherapist not
having been called as a witness.
[123]
There is no issue that Mr. Dulay has suffered a loss. He will
no longer be able to enjoy all the activities he did with his family and for
his temple. Further, as noted by Griffin J. in Fata v. Heinonen, 2010
BCSC 385, the injury to a person nearing retirement is frequently more
difficult to endure. As aptly stated by Griffin J. at para. 88:
[88] The retirement years are
special years for they are at a time in a persons 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.), revd on other grounds (1996),
21 B.C.L.R. (3d) 190 (C.A.).
[124] I find
Griffin J.s reasoning apt here in Mr. Dulays case where he is nearing
retirement and has lost the ability to function in a way that has altered how
he lives.
[125] Additionally,
Mr. Dulay continues to work and perform everything he can. He has not
asked for his employer to accommodate him. He is a team player and endeavours
to do everything he can even though he must stop, take medication, and bear
much pain. Again, as stated by Verhoeven J. citing Stapley v. Hejslet,
2006 BCCA 34 at para. 46 in Power v. White, 2010 BCSC 1084 at para. 68:
Stoicism of the plaintiff should
not reduce the award.
[126] In all the
circumstances of the case I award the plaintiff $75,000 in non-pecuniary
damages.
(b) Law on the Loss of
Future Earning Capacity
[127] A claim
for loss of future earning capacity raises two key questions: firstly, has the
plaintiffs earning capacity been impaired by his or her injuries? If so, secondly,
what compensation should be awarded for the resulting financial harm that will
accrue over time? The assessment of loss must be based on the evidence,
and not an application of a purely mathematical calculation. The assessment of
damages is a matter of judgment, not calculation: Rosvold v. Dunlop,
2001 BCCA 1 at para. 18.
[128] Insofar as
it 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. The
essential task of the Court is to compare the likely future of the plaintiffs
working life if the accident had not happened with the plaintiffs likely
future working life after the accident: Gregory v. Insurance Corporation of
British Columbia, 2011 BCCA 144 at para. 32.
[129]
The principles that apply in assessing loss of future earning capacity
were summarized by Low J.A. in Reilly v. Lynn, 2003 BCCA 49 at para. 101:
[101] The relevant principles
may be briefly summarized. The standard of proof in relation to future events
is simple probability, not the balance of probabilities, and hypothetical
events are to be given weight according to their relative likelihood: Athey
v. Leonati, [1996] 3 S.C.R. 458 at para. 27. A plaintiff is entitled
to compensation for real and substantial possibilities of loss, which are to be
quantified by estimating the chance of the loss occurring: Athey v. Leonati,
supra, at para. 27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d)
133 at 135 (C.A.). The valuation of the loss of earning capacity may involve a
comparison of what the plaintiff would probably have earned but for the
accident with what he will probably earn in his injured condition: Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the
end of the inquiry; the overall fairness and reasonableness of the award must
be considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11; Ryder
v. Paquette, [1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task
of the Court is to assess the losses, not to calculate them mathematically: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.).
Finally, since the course of future events is unknown, allowance must be made
for the contingency that the assumptions upon which the award is based may
prove to be wrong: Milina v. Bartsch, supra, at 79.
[130] Accordingly
the question is answered not on the basis of a balance of probabilities, rather
was there a real and substantial possibility of loss.
(i) Analysis on Loss of Future Earning Capacity
[131] In Perren
v. Lalari, 2010 BCCA 140 [Perren], 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 (1985), 26 B.C.L.R. (3d) 353
(S.C.) [Brown] 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 at paras. 12, 30 and 32).
[132] As set out
in Brown at para. 11, the four factors to take into consideration are
(1) whether the plaintiff as a consequence of the accident has been rendered
less capable overall from earning income from all types of employment, (2)
whether the plaintiff is less marketable to potential employers, (3) whether
the plaintiff has lost the ability to take advantage of all job opportunities
which but for the accident would otherwise have been open to him, and (4)
whether the plaintiff is less valuable to himself as someone capable of earning
income in a competitive labour market.
[133] While not
a concrete plan, as noted, Mr. Dulay had in the back of his mind the
consideration of going to the private sector following a further minimum of
five years with the Ministry. His prospects of obtaining a position, given his
background of design and project management, are considered good. The question
is: would he have sought a job in the private sector had he not suffered the
injuries caused by the accident? I find that given his financial obligations at
present of a large mortgage and the financial responsibility of a son who
wishes to pursue a post-graduate education, it is more probable than not that
Mr. Dulay would have worked for the Ministry a further six years and then would
have sought employment in the private sector as a consultant.
[134] No
admissible evidence was before the court other than hearsay respecting the
amount a private consultant earns nor was an economist called.
(ii) Summary of Loss of
Future Earning Capacity
[135]
While not a mathematical calculation I find that the plaintiff would
have worked for at least a further six years then sought to be employed in the
private sector. I accept Dr. Grovers opinion in his report that, but for the
accident, he would have, on a balance of probabilities, remained pain-free for
many more years. He supported his other children through their education and I
find it more probable than not that he would have continued to do so for his
youngest son in addition to working to pay off the mortgage. I also find it
probable that he would have worked for five years at the highest level he could
to earn the maximum pension. And while an attractive candidate for the private
sector, he has lost the confidence to apply to an industry where the work
pressure would only increase in a situation where his physical pain is only worsening.
He is unable to climb the steep inclines without difficulty; his driving would
only increase in the private sector.
[136] In the
decision of Millala v. Shaw-Smith, 2008 BCSC 1481, the
court dealt with circumstances very similar to those of Mr. Dulay. In that case
the plaintiff, as here, could not point to any ongoing income loss. The defence
also argued there was neither loss of future earning capacity nor any loss of a
competitive advantage. Arnold-Bailey J. reviewed the applicable authorities
provided to her and found that the plaintiff, while not having realized an
ongoing loss, was nonetheless entitled nonetheless to loss of future earning
capacity. She reviewed the case law as follows to note the assessment is whether
the plaintiff has been, despite the fact they continue to work, nonetheless
been rendered less competitive, less attractive as an employee:
[108] The first is Isert v. Santos, [1999
BCCA 42] in which Southin J.A. (for the majority) reduced the plaintiff’s award
for loss of future earning capacity from $80,000 to $40,000. In a motor vehicle
accident with a fairly heavy impact the plaintiff’s head was jammed against the
roof of her car. The award was founded on the plaintiff’s evidence that her
injuries prevented her from staying in one position at a computer and she
therefore had to dictate to other employees to input data into computer
records. She worked for her family’s business, which was accommodating with
respect to her difficulties. The trial judge had noted that if the plaintiff’s then-present
level of impairment continued she would be "less attractive as a potential
employee". Her marketability to other employers was therefore impaired to
some degree. The plaintiff was 39 at the time of the accident and 42 at the
time of the trial.
[109] The trial court decided that the plaintiff’s
injuries would not "prevent her continued employment" but there was a
reasonable possibility that she would not continue to earn the same level of
bonuses that she had in the past. In arriving at an award of $80,000 the court
took account of the bonuses. Southin J.A. explained (at para33) that to do so
was "dangerously on the speculative" given that the bonuses were
purely discretionary in the first place. The court concluded (at para34) that "$40,000.00
is more than ample for what is, at most, the possibility that at some time in
the future the respondent’s sore back, assuming it continues to exist, will
reduce her earnings from what they would have been had there been no
accident".
[110] Another such case, which focuses on loss of
competitive advantage, is a decision of the Court of Appeal in Sinnott v.
Boggs [2007 BCCA 267]. In that decision Mackenzie J.A. (for the court)
reviewed the trial judge’s award of $30,000 to the plaintiff for loss of
earning capacity for "being less marketable as an employee because of the
limitations on her ability to work competitively in all jobs that were
previously open to her" (para7). The plaintiff, who was 16 years-old at
the time of her accident, was injured when the van she was driving was hit from
the rear by a pick-up truck driven by the appellant. She suffered soft tissue
injuries to her neck and shoulders and also experienced back pain.
Here, it is unlikely that Mr. Dulay would choose a different
line of employment at this age. In that regard Arnold-Bailey J. noted, in
respect to a like argument before her:
[111] While the appellant argued that the plaintiff
would need to be precluded from particular types of work in order for an award
to be appropriate (and there was no evidence to show that she was), the court
held (at para14) that "[t]hree of the four factors outlined in Brown
are broad enough to support an award in circumstances where a plaintiff is able
to continue in an occupation but the ability to perform and the earning
capacity resulting from that ability are impaired by the injury". There
was no reason why an injury that permitted a plaintiff to continue in a
particular occupation, but at a reduced level of performance and income, should
not be compensated for that pecuniary loss through damages for loss of earning
capacity. The plaintiff was in a category of those who were young and without a
settled line of work. The trial judge found that the plaintiff faced
limitations on her ability to work competitively in jobs that were previously
open to her, and that finding was an adequate foundation for the trial judge’s
award. The Court of Appeal found that there was evidence to support the trial
judge’s conclusions on the facts and further, that there was no palpable or
overriding error of fact that would permit the court to disturb the award.
[112] From among the defendants’ cases I find the
decision of Chang v. Feng [2008 BCSC 49] to be of assistance. In that
case, Bauman J. awarded the plaintiff $20,000 for loss of future earning
capacity in relation to injuries suffered in a motorcycle accident that
restricted him from returning to full-time employment for about one year. The
court found that it would be an overstatement of the facts in the case to say
that the plaintiff’s injuries would "have a significant effect on his
career." At para60 Bauman J. explained that the plaintiff returned to his
work duties as a shipper/receiver and was able to properly carry them out for
an extended period, and that he had more recently worked successfully at a
sports retail outlet. It was noted that the plaintiff did have difficulties
with certain positions required in an airline cargo position he had, and that
he therefore had lost something of his future earning capacity. In other words,
his present physical status did preclude his full participation in some types
of work (para69).
[113] In arriving at $20,000, the court found that
the effect on the plaintiff’s future earning capacity was not likely to be
extensive. There were also strong negative contingencies including that it was
unclear on the evidence whether the plaintiff’s knee problems would resolve in
the future. The court carefully reviewed the law, beginning with Andrews v.
Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, and after considering Parypa
v. Wickware [1999 BCCA 88] and Steward v. Berezan, [2007 BCCA 150], Bauman
J. concluded (at para76) that the jurisprudence required the court to
"first enquire into whether there is a substantial possibility of future
income loss" before going on to then assess the loss, whether it be by the
"capital asset approach" or otherwise.
[137] Many
similarities exist between Mr. Dulays case and the case before Arnold-Bailey J.,
notably the discomfort he experiences at work testified here to by Mr. Fraser,
Mr. Dacho and Ms. Strobbe. In connection with work place difficulty, the court
continued in Millala:
[114] I find that in the present case there is a
substantial possibility of future income loss in relation to the plaintiff for
a number of reasons. First, it is clear that while Mr. Millala’s partners value
his contribution to Media One very much and regard him to be talented at the
design work he does, they agree that he works fewer hours since the accident,
they see his apparent discomfort and the limitations in terms of his
productivity, and while there are no signs at present that they would move to
limit his income or terminate his involvement in the business, there is a
substantial possibility that this may occur in the future should the imbalance
continue.
The question, noted Arnold-Bailey J., is whether the
plaintiff has not just been rendered less capable overall but with a particular
view to their chosen employment together with all types of similar employment:
[115] Addressing the factors from Brown v.
Golaiy, as endorsed in Rosvold v. Dunlop, in the context of this
case I am of the view that the plaintiff has been rendered less capable overall
from earning income from all types of employment, particularly as his chosen
field already represents employment without significant physical demands,
except in terms of prolonged sitting. Second, without the ability to put in the
extra-long weeks at work, the plaintiff is less marketable and less attractive
as an employee or as a business partner. Third, there is a real possibility
that lost to the plaintiff are further opportunities to start similar
businesses in the future, or to take advantage of all job opportunities that
might otherwise have been open to him had he not been injured. Finally, I
accept that the plaintiff is less valuable to himself as a person capable of
earning income in a competitive labour market.
Like Mr. Dulay, the plaintiff continued to work but this
would not preclude the court from assessing damages under this heading.
[116] However, I am mindful that the plaintiff has
to date worked productively within his limitations since the accident and that
his income has risen and his business has thrived over that past several years.
I find that the ongoing impact of the injuries sustained in the accident on the
plaintiff’s future earning capacity is not likely to be extensive.
The court awarded $30,000 in Millala in all the
circumstances for loss of future earning capacity.
[138] Here,
there is evidence, which I accept, that the plaintiff wanted to go into private
consulting following his retirement from the Ministry. I find that to be a real
and substantial possibility that he now has lost. His physicians have opined
that his condition is only going to deteriorate. In private consulting he would
not be restricted to only the area of the province he presently services. He
could be required to travel anywhere. He would also need to inspect the sites
being developed. His ongoing pain has resulted in a probability of a real
possibility of a loss of earnings given the opinions of the two orthopaedic
surgeons that his condition will only worsen and the fact that it is likely on
a balance of probabilities that Mr. Dulay will in fact require a procedure in
the future to help him with his knee being arthroscopy.
[139] In all the
circumstances I start with the finding that, it is an assessment for the court
not a mathematical calculation. Given the lack of evidence on the income of
private consultants the task is more challenging. Nonetheless, I have found
there is a real and substantial possibility of loss. In the absence of
contingencies, $60,000 for loss of earning capacity I find, would be an
appropriate award. However, allowance must be made for the contingency that the
basis of this award may not turn out as thought. I reduce this award to $40,000
in recognition of future contingencies.
(c) Costs of Future Care
[140] The
plaintiff is entitled to compensation for the cost of future care based on what
is reasonably necessary to restore him to his pre-accident condition. When full
restoration cannot be achieved, the Court must strive to assure full
compensation through the provision of future care. The award must to be based
on what is reasonably necessary to preserve and promote the plaintiffs mental
and physical health based on the medical evidence available: Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) [Milina]; Williams v.
Low, 2000 BCSC 345; Spehar v. Beazley, 2002 BCSC 1104. An assessment
of damages for cost of future care is not a precise accounting exercise: Krangle
(Guardian ad litem of) v. Brisco, 2002 SCC 9 at para. 21.
[141] The test
for determining the appropriate award for future care is an objective one based
on medical evidence. For an award of future care: (1) the claims for cost of future
care must be medically justifiable; and (2) they must be reasonable: Milina at
p. 84.
[142] Future
care costs must be both medically necessary and likely to be incurred. The
award of damages is accordingly a matter of prediction. If a plaintiff has not
used a particular item or service in the past it may be inappropriate to
include its cost in a future care award: Izony v. Weidlich, 2006
BCSC 1315 at para. 74. The plaintiff has not yet tried the injections of
visco-supplements despite his high level of pain complaint. I do not award
anything for these supplements which, as yet, are unproven with regard to his
treatment. I do award a sum for ongoing analgesics and the topical medicines to
assist with the Bakers cyst. The report of an economist, Ms. Christiane Clark,
was tendered into evidence with respect to an appropriate present value discount
rate, which, I accept, and was not disputed by the defence.
[143]
I decline to make an award for the loss of handyman services and
housework. These services are performed by his son and wife.
[144] The
extent, if any, to which a future care costs award should be adjusted for
contingencies depends on the specific care needs of the plaintiff. In some
cases negative contingencies are offset by positive contingencies and,
therefore, a contingency adjustment is not required. In other cases, however,
the award is reduced based on the prospect of improvement in the plaintiffs
condition or increased based on the prospect that additional care will be
required. Each case falls to be determined on its particular facts: Gilbert
v. Bottle, 2011 BCSC 1389 at para. 253. Here, as the plaintiff has not
yet tried certain remedies, I decline to adjust for contingencies; further
there was no evidence he was improving. There was only the certainty his osteoarthritis
pain would continue.
[145] In all the
circumstances, I award the plaintiff $9,800 in future care costs which consists
of the costs of the medication he will need to help him.
(d) Special
Damages
[146] It is well
established that an injured person is entitled to recover the reasonable
out-of-pocket expenses they incurred as a result of an accident. This is
grounded in the fundamental governing principle that an injured person is to be
restored to the position he or she would have been in had the accident not
occurred: X. v. Y., 2011 BCSC 944 at para. 281; Milina at
p. 78. I award the plaintiff $2,901.85 for the special expenses, being the
medicines, knee brace, bicycle accessories, therapies (both physiotherapy and
massage therapy), and pool admissions, he has incurred as a consequence of this
accident. I find that the plaintiff here only sought to relieve his pain
through his exercises and treatment and I accordingly allow them.
(e) Past Wage Loss
[147] As noted
earlier, the amount of $4,900 was the subject of agreement between the parties.
13. Summary of Award
[148]
In summary, damages are awarded as follows:
Non-Pecuniary Damages | $75,000.00 |
Loss of Future Earning Capacity ($60,000 reduced by $20,000 to | $40,000.00 |
Costs of Future Care | $9,800.00 |
Special Damages | $2,901.85 |
Past Wage Loss | $4,900.00 |
T o t a l | $132,601.85 |
14. Costs
[149] If the
parties are unable to agree on costs, they may speak to the issue by advising
the Registry within 30 days of the date of release of this judgment.
The Honourable Madam
Justice Maisonville