IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120222

Docket: M070137

Registry:
Vancouver

Between:

Wayne Robert
Tompkins

Plaintiff

And

Tawnya Ley Bruce

Defendant

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice Curtis

Reasons for Judgment

[1]            
Wayne Tompkins claims damages for personal injuries he suffered in a
motor vehicle collision.

[2]            
On June 3, 2006, Wayne Tompkins was driving his Ford Explorer south on
the Sea to Sky Highway on his way to Chilliwack to see his three-month old
grandson.  It was a little after 11 o’clock on a nice clear evening with little
traffic.  Mr. Tompkins had just pulled out of the Petro-Canada station in
Squamish and was approaching what is locally known as Hospital Hill when he noticed
a northbound vehicle approaching him at high speed.  The vehicle suddenly
crossed the centre line into his lane and collided with him head on.  There was
nothing Mr. Tompkins could have done to avoid the collision.  His last
recollection before the crash was seeing a person with a ponytail slumped over
the steering wheel of the oncoming car.  The defendant Tawnya Ley Bruce has
been convicted of driving over .08 and dangerous driving.  The collision was
clearly caused by her conduct and I find Tawnya Ley Bruce 100 percent liable
for Mr. Tompkins’ ensuing injuries.

[3]            
The issues at trial concerned the proper assessment of Mr. Tompkins’
damages for pain and suffering and loss of enjoyment of life, past income loss,
reduced earning capacity in the future, future care costs, special damages and
two in trust claims for people who helped care for Mr. Tompkins.  The principle
factual issues that need to be decided in order to properly assess Mr.
Tompkins’ claims are the role which his previous medical conditions have played
in his post-accident condition, and what his past work history and evidence of
his stated intentions about working establishes concerning his wage loss and
earning capacity claims.  At the end of the trial, plaintiff’s counsel put
forward his claim at $1,914,004.62 in total, and the Third Party countered with
a suggested total of $685,000.

PRIOR MEDICAL CONDITION

[4]            
Mr. Tompkins had an open medial meniscectomy on his left knee in 1967
when he was 11 years old.  Dr. Werry testified that such an operation in those
years would involve removal of the entire medial meniscus.

[5]            
The Workers’ Compensation Board records put into evidence record that
Mr. Tompkins made 15 WCB claims between 1975 (when he was 19) and the date
of the accident in 2006 (when he was 50).  The claims are described as follows:
January 2, 1975, back; January 15, 1976, wrist; August 11, 1977, left eye;
January 24, 1978, left hand; June 28, 1978, right foot; September 15, 1978,
left eye; August 28, 1982, back; August 17, 1989, right wrist; June 15, 1993,
burn thumb and finger; November 15, 1999, right ankle; July 23, 2002, left arm;
March 14, 2003, face and hands; January 24, 2004, low back; March 4, 2004, low
back; February 20, 2006, left knee.

[6]            
At the time of his ankle injury on the 15th of November 1999, Mr.
Tompkins was employed with Neels Heating.  Correspondence from that employer
dated February 3, 2000 which states, “Now that WCB says you are able to return
to work, we find that we have a shortage of service work to employ you.”
suggests that Mr. Tompkins was off work for approximately two and a half
months following the injury to his ankle.

[7]            
While working at a company called Ecotex in Abbotsford where he was
employed as a sprinkler fitter, Mr. Tompkins was injured in a motor vehicle
accident May 31, 2001.  Mr. Tompkins made an application for Canadian Pension
Plan disability benefits on the basis of the injuries he sustained in the motor
vehicle accident which he described as “torn cartilages in the right knee as
well as damaged ligaments in same knee and hip.”  He stated, “Cannot do any
walking, climbing stairs, ladders or stand for long periods of time” and that
he had “previous broken ankle on right leg”.  He also indicated his activities,
slow pitch, skiing, search and rescue and tennis had ceased at the time of his
accident.  He consulted Dr. Rose, an orthopaedic surgeon, who after a visit
October 24, 2001 noted Mr. Tompkins had a meniscul injury to his right knee and
tronchanteric bursitis and that Mr. Tompkins could not move his right knee and
hip properly more than 100 feet.  This was more than five months after the
collision.  Surgery on the right knee was scheduled for November 2001 for which
the doctor listed the prognosis as good.  There is no evidence as to whether
the surgery took place or not – Mr. Tompkins had no memory of it.

[8]            
When Mr. Tompkins suffered the burn injury of March 14, 2003, he had to
take time off work as indicated on the WCB records where his claim is listed as
accepted, as were his claims for low back problems made February 24, 2004 and
March 4, 2004.

[9]            
On January 14, 2004, Mr. Tompkins was involved in a motor vehicle
collision.  The medical notes of Dr. Coward on January 31, 2004 show on that
date that Mr. Tompkins presented with back pain after feeling something
let go in his lower back at work.  Following his January 14^th car
accident his right neck and lumbar spine pain was improving until January 30th when
he was rolling heavy equipment (a hot water tank) up steps at work.  He
reported his pain to be seven to eight out of ten with radiation down his
buttock and legs.  A note concerning his March 4, 2004 claim dated March 20^th
records, “He complains of low back pain with transient (R) leg paraesthesis. 
On assessment lumbar spine was hyperlordotic and restricted to bending to mid
thigh.  All other lumbar movements were severely restricted.”  Also in March of
2004, Mr. Tompkins was experiencing severe abdominal problems which in the end
turned out to be related to Hepatitis C diagnosed in 1996, (since cured by
antiviral injections under Dr. Haniak’s care).

[10]        
His lumbar spine continued to bother him with as evidenced by his
doctor’s note of December 29, 2004 “Lumbar and low thoracic pain continues from
MVA which was WCB.  Pain particularly after driving and if has to work bending
over pain on straightening back up” and the note of March 2006 “Low back pain
started Monday when leaning in the back of work van putting in cabinets.  Seen
in emerg by Dr. Fisher.”  Mr. Tompkins was referred to physiotherapy for his
back on Dec  29, 2004 and records of complaints of back pain continue in the
medical notes of appointment  April 12, April 22”: “Physio to May 25^th
… a little better but still sore.  Would like to try back on light duties on
Monday – and try and will avoid heavy lifting”, April 27, May 10 “WCB – return
to work program suggested by then – I agree and Wayne feels is appropriate.
Continues physiotherapy.”

[11]        
On February 20, 2006, Mr. Tompkins injured his left knee while stepping
off a curb into a drainage area that was lower than expected while working.  He
was seen by Dr. Fisher February 23 on crutches.  On March 29 his doctor advised
WCB he could not return to work more than light duties until the results from
the MRI came in.  On April 4, he was noted to be limping more and by April 26
it was noted he had some right knee and hip pain from altered gait.  An April
10 MRI showed either a strain or an old tear of the anterior cruciate ligament,
with the posterior cruciate ligament intact, an almost absent medial meniscus,
mild chonetrocalcinosis and medial tibial bone edema.  The radiological report
of May 15, 2006 stated “There is a trace of fluid in the joint space.  No other
radiological abnormality”.  Dr. Coward’s note on May 27^th states: “4
hours work is just about what Wayne’s knees will take at the moment.  L is
improving.  R is still very sore and his lower back pain. P – continue with
physio – stay at 4 hours a day for now.”

[12]        
The records of School District 48 show Mr. Tompkins working May 29, 4.5
hrs, May 30, 4.5, May 31, 4.5 June 1, 4.0.  Mr. Tompkins testified he worked a
full day June 2.  He had an appointment with Dr. McConkey for further
evaluation of his knee but the accident intervened.  He told Dr. O’Connor he
was working light duties half time at the time of the accident.

[13]        
In addition to WCB time off work, the School District records show
Request for Leave of Absence by Mr. Tompkins for medical reasons August 30, 31,
September 2, Oct 18, Nov 16, Nov 22, Dec 2, Dec 17, 2004, January 12, 21, Feb.
4, 11, June 1, 17, 30, July 14, 28, 29, August 5, 11, 12, 19, Sept 8, Oct 6, 7,
November 14, Dec 7, 8, 2005, Jan 20, Feb 3, 2006.

WORK HISTORY PRIOR TO JUNE 3, 2006

[14]        
On the 3^rd of June 2006, Wayne Tompkins was employed by
School District #48 Howe Sound working as a plumber and gas fitter, maintaining
six schools in Whistler and Pemberton.  He was hired April 5, 2004 earning
$24.14 per hour, eight hours per day, five days per week.  At the time of the
accident, he was working half time under a WCB claim for an injury to his left
knee February 20, 2006.

[15]        
Mr. Tompkins has a Grade 10 education and holds the following trade
qualifications: Steam/Pipefitter TQ Interprovincial, Gas Fitter Grade B,
Automated Buildings Systems Technology, Commercial Air Conditioning, Commercial
Air Conditioning (Shop), CFC/HCFC/HFC Certificate, Diploma Rooftop Units,
Diploma Mid & High Efficiency Furnaces, Energy Saver Certificate,
Certificate Building and Customer Relations.

[16]        
Mr. Tompkins’ initial employment after leaving school was in the oil
fields.  He testified that he worked for the BC Building Corporation for 11
years around the 1980s and did some contracting with his own business TTT
Heating.  Around 1989, he worked for Guardian Heating in Penticton.  From 1990
– 1995 he was self employed under a business called Gaspro Mechanical in
Penticton where he did heating, air conditioners, refrigeration and associated
work, and also around that time worked as Wayne’s Mechanical Heating Service in
Vernon.  From September 1995 through October 1996, he attended Selkirk College
in Nelson where he obtained his certificate in automated building services and
while attending college worked at Mohawk gas stations.  Following Selkirk
College from which he graduated in October 1996, he worked from May 26, 1997 to
March 31, 1999 with Energated Systems in Surrey, B.C.  His employment with Energated
Systems was terminated because, according to Mr. Tompkins’ evidence, he and his
employer agreed he could not do the type of work they wanted him to at that
point.  He then worked briefly at Sears and then in 1999 at Neels Heating in
Chilliwack where his employment was ended December 1, 1999 for lack of work
while he was off on a WCB claim for his right knee injured in November 1999. 
In 2000, he worked briefly at Galaxy Fire Protection Ltd., in 2001, and three
weeks for Ecotex Service Corporation which ended with his May 2001 motor
vehicle accident.  Mr. Tompkins was unable to recall details of his employment
in 2002.  He was employed by Mountain Air Industries Ltd. in Whistler B.C. from
March 6, 2003 until February 4, 2004.  He was terminated by Mountain Air,
allegedly for cause in disputed circumstances February 3, 2004 and subsequently
began his employment with School District 48 April 5, 2004.

[17]        
Mr. Tompkins’ Canada Pension Plan Statement of Contributions from 1974
to 2007 shows his reported pensionable earnings between a minimum of $3,500 and
the maximum of $42,100 (for 2006).  The statement describes the following:

[18]        
Tax returns and Notices of Assessment for Mr. Tompkins show the
following:

[19]        
Mr. Tompkins’ evidence about his past employment and earnings’ history
was often vague and shed no light upon how he managed to live in years of
little or no reported income.

INJURIES CAUSED BY JUNE 3,
2006 COLLISION

[20]        
Mr. Tompkins gave evidence that his last memory before the collision was
of seeing a person with a ponytail slumped over the wheel of the oncoming car. 
He has no memory of the collision itself, and testified that he was unconscious
until he heard someone talking to him inside the vehicle.  He remembered having
a hard collar put on him while he was in the car and the person telling him it
was going to hurt to untangle his legs in order to get him out of the car.  He
does not recall being put on the stretcher but he remembered being on the
stretcher and looking back at the cars smashed together.  He also remembered
being in the ambulance and telling about seeing the person with the ponytail,
but in between this were patches he did not recall.  At trial, there was some
issue about whether he had been knocked unconscious because the ambulance crew
report described him as alert and oriented and gave him a 15/15 score on the
Glasgow coma scale.  On the evidence, I find that he was probably initially
knocked unconscious following which he was conscious as described.

[21]        
Mr. Tompkins was taken by ambulance to the Squamish Hospital and then at
4:00 a.m. transferred to the Vancouver General Hospital because of the severity
of his injuries. Mr. Tompkins arrived at VGH with a splint on his right leg and
complaining of chest pain, pain in the right leg and pain in his left hip.

[22]        
X-rays taken in VGH June 4, 2006 showed:

1.       rib fractures with a small pneumothenex (collapsed
lung);

2.       minimally displace acetabular fracture of the
left hip;

3.       transverse fracture of the right femoral
shaft;

4.       comminuted
fracture of the right patella.

[23]        
He was also diagnosed as having an injury to his sternum.  His right
femoral fracture was fixed with a retrograde Synthes Locking Nail and his right
patella was wired back together with a tension band wiring system, both
operations being performed by Mr. Meek.  The acetabular fracture was treated
with bedrest and observation.  While in hospital, Mr. Tompkins sustained an
acute pulmonary embolism treated initially with anticoagulants and later,
because of bleeding with an inferior vena cava filter.  He required a blood
transfusion because of the bleeding and the vena cava filter had to be replaced
with a second radiological procedure.  He was also treated with antibiotics for
suspected pneumonia.

[24]        
In the hospital, Mr. Tompkins was initially confined to bed.  He had
multiple contusions to his face and head; his head looked like a football, his
testicles were swollen to the size of a grapefruit and he had jaw pain in
addition to all his other sources of pain.  Initially, he had to use a bedpan
rather than a toilet.  Toward the end of his 28-day stay, he was able to use a
walker and a rolling commode.  He was discharged in a wheelchair into the care
of his son, Robert and Robert’s partner Bobbi Beerstra in Chilliwack where
their son’s bedroom became a hospital room for him and a nurse came in
initially seven days a week.  He had a trapeze over his head to help him get
out of bed and Ms. Beerstra had to help him get up to go to the bathroom.  She described
it as an excruciating process if he had to get up.  She estimated she spent
five to six hours per day looking after him, which she was to able to do
because she was on maternity leave.

[25]        
On October 1, 2006, Mr. Tompkins moved into his own apartment.  Staying
with his son he had gradually become more independent and when he left,
Ms. Beerstra estimated her time caring for him was down to about two hours
per day.  Mr. Tompkins had been non weight bearing on his left leg for 12 weeks
following his discharge from hospital, after which he used crutches and then
required a wheelchair for extensive periods of time until December 2006.  To
enable him to live independently he had caregivers coming to his apartment. 
After his discharge from hospital, he used morphine to manage his pain.  He had
significant pain associated with the wiring in his right knee and also with his
left hip fracture, in addition to which he had neck and jaw pain, pain in his
right shoulder and vision and hearing problems.  He also experienced pain in
his left knee.

[26]        
Because of his continuing issues with pain, he was assessed again by Dr. Meek.
Dr. Meek concluded from examining a CT scan that Mr. Tompkins had a non union
of the posterior wall of his hip fracture and some suspected particles in the
joint.

[27]        
On December 15, 2006, Dr. Meek performed a meniscectomy of the left
knee, removed the wires from his right knee cap and explored the left hip joint
finding some articular cartilage damage.  A plate was applied to the joint to
stabilize the non union.  Mr. Tompkins was discharged from hospital December
18.  It was not until March 2007 that Mr. Tompkins was able to start walking
again without crutches at which point he began an extensive physiotherapy and
rehabilitation program on a daily basis.

[28]        
The left hip did not get appreciably better – it ached constantly with
sitting, driving or walking; he felt unable to put any weight on his left leg
and encountered problems with pain and catching in his right knee.  The rib and
sternum injuries had healed.

[29]        
When Dr. Meek saw Mr. Tompkins December 6, 2007 his complaints were:

1.       headaches and ringing in his ears with some
memory loss;

2.       pain in the left temporomandibular joint;

3.       eye cataracts and a partial tear of one of
his retinas;

4.       right sided neck and shoulder pain;

5.       low back pain, bad if he was sitting and
driving;

6.       pain in right thigh with some spasms;

7.       anterior knee pain on the right knee, some
catching and loading and swelling at the end of the day;

8.       left
hip sore all the time, can’t sit and walked using a cane.

[30]        
Dr. Meek found him unable to go back to his previous employment,
unlikely to be employed in the near future and unable to do his previous
vigorous activities like skiing, hiking, tennis and slow pitch.

[31]        
Mr. Tompkins was referred to Dr. Werry because of the continuing left
hip problems.  Dr. Werry first saw him October 3, 2007.  Dr. Werry referred Mr. Tompkins
to Dr. McKenzie for his right shoulder pain.  Dr. McKenzie injected his right
biceps tendon December 16, 2008 which provided 80 percent relief for about six
months.

[32]        
Dr. Werry also referred Mr. Tompkins to Dr. Horlick for evaluation of
his left knee.  Dr. Horlick in his consultation report of February 16, 2009
stated that Mr. Tompkins had probably sustained a posterior cruciate
ligament injury and had some medial compartment degenerative change.  He
recommended an unloader brace but no surgery at that point.

[33]        
Dr. Werry found that Mr. Tompkins’ persistently painful left hip had
suffered some loss of the articular cartilage space and some loss of motion. 
He advised a total left hip replacement, which was done May 6, 2009.

[34]        
On October 9, 2009, Dr. Werry performed a right knee arthroscopy. 
Examination showed that the likely cause of his pain was post traumatic damage
and degeneration of the patellar cartilage and that of the opposing femoral
articular cartilage, as well as some degenerative change in the medial compartment.

[35]        
Following his left hip replacement in May of 2009, Mr. Tompkins again
had a lengthy period of non weight bearing.

[36]        
Dr. Werry’s opinion given in his letter of January 13, 2010 is as
follows:

2.         Mr. Tompkins’ motor vehicle accident June 3, 2006
resulted in multiple injuries. The cumulative effect of these injuries has
resulted in very significant restrictions on his mobility and physical capabilities
with implications for both his pre-accident leisure time activities and
pre-accident employment.

3.         With respect to his left hip, Mr. Tompkins has
required a total hip replacement procedure three years following his motor
vehicle accident because of trauma-induced degenerative changes in the
articular cartilage of that joint. The prognosis for his left hip is good in
terms of pain relief and the ability to walk and stand without limit, and to
sit more comfortably. His hip replacement however will not enable him to return
to any activity involving impact which excludes running, heavy lifting or
jumping and will preclude employment or activities causing him to assume a full
squat or to crouch down. He would be unable therefore to return to many of the
duties in his previous HVAC maintenance work as he described them to me. He
would not be able to return to some of the more vigorous activities that he
enjoyed prior to his motor vehicle accident such as ice hockey, downhill skiing
or working as a search and rescue volunteer. Hip replacements have limited
longevity because of wear of the prosthetic articular surfaces. Provided Mr.
Tompkins uses his hip replacement appropriately he can expect 15 years of
comfort and good hip function before he might have enough wear on the joint
surfaces that he would again experience some symptoms requiring surgical
replacement of part or all of his hip replacement. Should he require a revision
surgery in the future, perhaps in his late 60’s or early 70’s, he would again
require hospitalization for three or four days and a post-operative
convalescence of three to six months.

4.         Mr. Tompkins’ right knee at 3.5 years following
his motor vehicle accident already has significant post-traumatic degenerative
change as confirmed at recent arthroscopic examination. While Mr. Tompkins
right knee symptoms may be somewhat improved following his arthroscopic
procedure he can expect in the future a gradual increase in pain and perhaps
stiffness in the knee joint with a resultant decreased tolerance for walking,
standing and general exercise. Mr. Tompkins will probably require additional
surgical treatment for his right knee in the form of a total knee replacement. It
is not possible to accurately predict when this might occur but this may be
within the next ten years.

5.         If
Mr. Tompkins requires right knee replacement in future, he will first

require removal of the
intramedullary rod used to fix his femur fracture. There is no indication to
remove this intramedullary rod at present since doing so would mean additional
surgical trauma to his right knee which could potentially worsen his right knee
pain.

1.         Mr. Tompkins left knee probably had well
established degenerative changes in the medial compartment prior to his motor
vehicle accident, resulting from remote injury and open medial meniscectomy in
the late 1960’s. I have no documentation available of a left knee examination
at the time of Mr. Tompkins’ admission to Vancouver General Hospital. Dr.
Horlick’s opinion (which I requested) is that Mr. Tompkins in addition to the
pre-existing medial compartment degenerative change has a posterior cruciate
ligament injury. While it is not possible based on the evidence available to
ascribe the posterior cruciate ligament injury to the motor vehicle accident,
this type of injury can be produced in a motor vehicle accident by the usual
mechanism of the anterior portion of the leg just below the knee striking the
interior of the vehicle, such as the dashboard. The effect of the posterior
cruciate ligament injury will likely be to aggravate and hasten the progression
of the degenerative changes in the left knee pre-existing the MVA. It is not
possible at this time to predict the likelihood of the requirement for future
surgery for the left knee.

2.         Mr. Tompkins’ right shoulder pain has settled down
at following treatment. No significant anatomic abnormality has been
demonstrated in the right shoulder.

3.         Mr. Tompkins continues to have some pain from his
neck and his low back. These symptoms are probably related to degenerative
changes in the lower part of his neck and in his lumbar spine. They may have
been activated or aggravated by his motor vehicle accident.  The degenerative
changes however in all probability pre-existed his motor vehicle accident.

4.         I cannot provide comment or prognosis for the
other problems Mr. Tompkins has enumerated such as his visual problems,
headache, jaw joint problems, or memory problems.

5.         Mr. Tompkins’ injuries have rendered him
completely and permanently disabled for any type of physical employment of the
nature that he was engaged in prior to his motor vehicle accident.

6.         Mr. Tompkins may continue to experience discomfort
with prolonged sitting due to both low back pain as well as left hip area
discomfort which may make it difficult for him to sit for prolonged periods in
a classroom situation.

7.         He would probably also experience difficulty
teaching or demonstrating plumbing or some aspects of heating and ventilation
technology if that sort of instruction required hands-on physical work.

8.         Mr. Tompkins does have
expertise and special training. Whether he would be able to put this to use in
some form of sedentary gainful employment would need to be determined by a
vocational expert and possibly occupational therapist. It is probable however
that the combined effect of his physical limitations and symptoms would be to
significantly lessen his tolerance for full time employment even if appropriate
sedentary employment were available to him.

[37]        
In his supplemental report of November 29, 2010, Dr. Werry expresses the
opinion that:

1.       It is probable he will require a left knee
replacement within 10-15 years.

2.       The left knee posterior cruciate ligament
injury and resultant instability will probably be an aggravating factor for his
pre MVA degenerative change.

3.       It
is probably that the posterior cruciate ligament injury in Mr. Tompkins’
left knee was caused by his motor vehicle accident.

[38]        
 Mr. Tompkins was assessed by Dr. Russell O’Connor, a physical medicine
and rehabilitation doctor whose reports of April 29, 2008, April 19, 2010 are
in evidence and who gave evidence at trial.  In his 2010 opinion, Dr. O’Connor
states:

It is my impression that as a result the motor vehicle
accident Mr. Tompkins has suffered a combination of cognitive impairment and
multiple orthopedic and musculoskeletal injuries which have led to significant
limitation in his   physical capabilities. In addition to that, he suffered an
emotional and psychological deterioration with troubles with mood, sleep,
irritability, all as a result of the motor vehicle accident, in my opinion.
There have been significant ongoing financial strains, restrictions and
reduction in his social sphere or world.  The number of people he normally
socialized with has shrunk dramatically and his family is having a difficult time
coping with the fact that the majority of his time is spent dealing with the
motor vehicle accident.

As a result of the combination of all of these injuries, it
is my opinion that he is totally disabled and unable to perform his previous
work. At its best, once the surgeries are finished over the next 2-3 years, he
may be capable of light or sedentary work on part-time basis. However, this
would need to be with the support of an employer. This would be to help
supplement some of his income. He is going to have a difficult time competing
in a competitive job market with other employees who do not have the same
physical, cognitive, or emotional impairments and difficulties. He is never
going to be able to get back to the type of work that he did previously.  It is
too early to determine how well he will tolerate a sedentary-type job as he
still has several surgeries to go.  He may need re-training to do such a
lighter line of work.  His chronic pain, difficulties as a result of his brain
injury, and mood may also make it more difficult for him to do the cognitive
part of the re-training. If he was going to look at the re-training and
schooling, looking into some night school courses or part-time work now would
be reasonable, as if he waited until the end of all of his surgeries he would
not start some of the re-training until approximately 57 or 58 years old. If he
were to start now, he may still be able to do some form of light work on a
part-time basis.  I would not wait until all of the surgeries are done to look
at some of the re-training and vocational considerations, in my opinion.  I
think it would be good for him and his mental point of view to try to get back
to some form of work, even if it is light, as I think his connection to the
community would be important for his overall mental well-being. As mentioned, I
do not think that he is going to be competitively employable on a full-time
basis, even at the light level or sedentary level, given his multiple injuries,
his reduced sitting tolerance, and ongoing pain in the neck, shoulder, hips,
and knees.

Prognosis

He has essentially reached maximum medical improvement. His
level of function will deteriorate until he has his knee replacement. They are
trying to put this off as the knee replacement does not last as long as hip
replacements do. However, this means he will have increasing weight bearing
related pain and stiffness that will increase slowly until this procedure is
done. He has several surgeries that are still to be undertaken. During these
periods of time, he will have a reduction in his capabilities with the hope of
future stabilization of his physical capabilities and slight improvement
post-operatively. Future surgeries will likely involve right knee replacement
and, at a much later date, a possible left knee replacement. He is at increased
risk of requiring a left hip replacement again, but his is approximately 20
years down the road, in his early 70s.

As a result of his multiple orthopedic injuries, his brain
injury, and his pain, he is at increased risk of falls. This combined with his
osteoporosis, puts him at increased risk of fractures and increased risk of
requiring future surgeries for such fractures or injuries.  This, in my
opinion, is directly related to the motor vehicle accident as well.

As I outlined earlier, he is going to require earlier use of
mobility aids. He is going to need the use of a cane or walker sooner than he
would otherwise. He will need a cane or walker at least temporarily during the
periods of time where he has had surgery for his knee or hip.

He is going to require increased
and earlier assistance as he ages for his personal care, domestic duties, and
house and yard duties. He is not going to be able to return to his previous
recreational activities that he had enjoyed, in my opinion. He may be able to
tolerate a version of fishing or hunting that he did previously, but to a much
different extent with much less heavy work involved.  He will have to do so on
easier terrain and avoid the remote or backcountry-type situations that he
previously was accustomed to.

[39]        
The opinion of Dr. Voth, Mr. Tompkins’ general practitioner, is
generally supportive in its effect to that of Dr. Werry and Dr. O’Connor.

[40]        
Dr. Dian, whose field of speciality includes osteoporosis has reported
in his opinion of July 24, 2011 that Mr. Tompkins was found to have a very low
bone density of the lumbar spine, most likely the result of immobility and lack
of weight bearing from his injuries.  Subsequent tests showed significant
improvement in bone density following weight bearing during recovery.  In Dr.
Dian’s opinion however, Mr. Tompkins still has an elevated risk of
fracture – probably four-fold.

[41]        
Mr. Tompkins has suffered a significant mood change, including
irritability, depression and anger, consequent upon his injuries and
disabilities.  In respect of that, he was assessed by Dr. Kaushansky, a
neuropsychologist.  Dr. Kaushansky concluded that the results of his testing
suggested a man of generally average intellectual functioning with most skills in
core cognitive domaine (memory attention, speed of information processing,
executive skills, language, visual spatial functioning) generally commensurate
with his level of intellectual skills.  In Dr. Kaushansky’s opinion, the
cognitive inefficiencies which Mr. Tompkins reported were most probably secondary
to accident related factors of ongoing pain, and abrupt change in lifestyle,
and depression.  Dr. Kaushansky recommended continued psychological support and
a vocational assessment directed to getting Mr. Tompkins an appropriate
job in the community.

[42]        
The third party obtained a medical report from Dr. Robert McGraw, an
orthopaedic surgeon.  Dr. McGraw’s report of June 30, 2010 is in evidence.  Dr. McGraw
met with Mr. Tompkins May 6, 2010.  Dr. McGraw’s opinion includes the following
conclusions:

Right Knee

…

It
is the writer’s opinion that Mr. Tompkins will come to a resurfacing
arthroplasty of the right knee joint, also known as total knee replacement. In
this operation, the articular surfaces of the patella, femur and tibia are
removed and replaced by implants. Mr. Tompkins will have a 90% chance of a
satisfactory outcome following a technically good procedure. The initial cause or
failure to obtain a satisfactory outcome is ongoing pain which cannot be
explained on technical grounds. If Mr. Tompkins were to achieve a satisfactory
outcome from a total knee arthroplasty, he could expect the arthroplasty to
last at least 15 years before requiring a revision. The usual indication for
revision is wear of the polyethylene liner with a resultant particulate
synovitis, bone loss and loosening of the components. If Mr. Tompkins were to
achieve a satisfactory knee arthroplasty, he would be advised against resuming
pre-accident work activities such as, kneeling, crouching, climbing ladders,
carrying heavy objects and crawling into confined spaces. It is the writer’s
opinion that Mr. Tompkins will undergo this operation in five years or less.
One could anticipate, in the course of his natural life, one to two revision
arthroplasties, providing he has the potential for a normal life expectancy.

Left Hip

…

On
December 15, 2006, Dr. Meek undertook an open reduction internal fixation and
bone graft to the non-union of the pelvis. This did not solve the problem and
the hip became progressively painful. On May 15, 2009, Dr. Donald Werry carried
out a left cementless total hip arthroplasty.  The outcome of this operation
has been conventional for Mr. Tompkins to be advised not to engage in
pre-accident work activities such as kneeling, climbing ladders, carrying heavy
weights, or crawling into confined spaces. This type of activity could lead to
premature wear of the arthroplasty and in the case of squatting and crouching,
could lead to subluxation or dislocation of the prosthesis. One could expect a
satisfactory outcome from the present operation for at least 15 years before
revision arthroplasty might be necessary. Mr. Tompkins is currently 54 years of
age. One could anticipate, in the course of his natural life, one to two
revision arthroplasties. providing he has the potential for a normal life
expectancy.

Neck

Mr.
Tompkins is complaining of neck pain which he relates to the accident. The pain
is confined to the posterior aspect of the neck. On palpation, the right and
left trapezius muscles were tender as was the superior vertebral angle of both
scapulae.  Mr. Tompkins is known to have degenerative changes in the cervical
spine as seen on radiograph.  It is the writer’s opinion that the pain of which
Mr. Tompkins complains is soft tissue in nature and not related to the
vertebral column. The prognosis tor recovery is good. The discomfort in this
area may respond to a supervised active exercise program specifically directed at
these soft tissues.

Lumbar Spine

… The low back pain is of a
mechanical type: that is to say, there is no neurological basis for the pain
…

…
The writer would recommend a supervised active exercise program preferably conducted
by a university-educated kinesiologist or personal trainer.

Impairment and Disability

As a result of the motor
vehicle accident of June 2, 2006, Mr. Tompkins’ major impairment is in
both lower extremities in the form of right and left hip pain, and right and
left knee pain. The combined effect of these abnormal joints restricts Mr.
Tompkins in his work and leisure activities.

In the workplace, it would be
inappropriate for Mr. Tompkins to return to his pre-accident activities which
included squatting, kneeling, climbing and carrying heavy weights. These
activities are contraindicated even in the face of satisfactory arthroplasties.

In his leisure activities, Mr.
Tompkins identified the following activities as pastimes that he enjoyed very
much, namely golf, downhill skiing, biking, slo-pitch baseball, bowling,
tube-fishing, cross-country skiing and snowmobiling. It is the writer’s opinion
that Mr. Tompkins will never return to these activities at a level he formerly
enjoyed.  As he has not returned to any of these activities, it is not possible
for the writer to comment further.

Left Knee

 Mr. Tompkins’ left
knee was not normal prior to the motor vehicle accident …

 … Dr. Horlick was
of the opinion that the posterior cruciate ligament was causally related to the
motor vehicle accident …

 The
significance of a new posterior cruciate ligament injury would be to hasten the
already established degeneration of the knee joint.  While it is not certain
that the posterior cruciate ligament injury was caused by the accident, it is
probable, especially in the presence of a pre-accident MRI study in which the
posterior cruciate was not reported as abnormal.

[43]        
 Dr. Andrew Travlos, a specialist in Physical Medicine and
Rehabilitation also gave a report at the request of the Third Party.  Dr.
Travlos met with Mr. Tompkins July 19, 2010 and in his report of that date Dr.
Travlos states:

Left Hip

Mr. Tompkins’ left hip has
clearly been severely injured by the accident. He now has a total hip
replacement. The total hip replacement has improved things significantly but he
still has a lot of pain in the outer leg when walking. He clearly also has weakness
of the abductor muscles of the hip, as he walks with quite a significant
compensated Trendelenburg gait, this despite undergoing a lot of therapy and
continuing to exercise. It is probable that this has plateaued in its recovery
and these issues will remain. He does have pain over the greater trochanter. I
could not feel or palpate a bursitis that one does like to see. It is also
difficult to stretch the hip properly because of the hip replacement for fear
of dislocation. Having a cortisone injection into the area of the greater
trochanter could be very helpful, but could also put him at increased risk of
infection of the prosthesis. I would defer to my colleagues in orthopaedic
surgery as to whether or not it would be worthwhile doing a cortisone injection
to the area to see if this can further reduce his pains. As best he can, he
should try to stretch out the hip but he should obviously not overdo it or else
the hip will dislocate.

Hip replacements tend to last
a good 15 years and sometimes longer than that.  I think it is reasonable to
expect that Mr. Tompkins will require a second hip replacement surgery at some
point during his lifetime. Any future surgeries have increased risks of
complications, including injury to the sciatic nerve, infection and other such
complications.

Right Hip

Mr. Tompkins complains of
right hip pain. Although he describes it as being quite degenerative, his
examination findings are not consistent with degenerative changes to the hip.
He has a lot of pain with external rotation of the hip, which is typically seen
in soft tissue injuries. The right hip symptoms are likely soft tissue pains
and potentially a result of compensation because of the problems with the left hip.
It should be noted that he had similar right hip symptoms prior to the accident
when he had problems with his left knee. To what extent this is any different
is difficult to know, but it is clear that it was present both before and after
the accident.  The hip was not specifically injured at the time of this accident
and it is likely that this hip pain constitutes reasonable baseline symptoms
for him.

Left Knee

… He clearly now has a
ruptured ligament and it is probable that this must have occurred at the time
of the accident. Blunt trauma to the front or the leg bone at the knee while
flexed will typically produce this injury.

It is likely therefore that
Mr. Tompkins’ current knee problems are a combination of his remote injury to
the knee, his pre-accident problems from work and the accident itself. The degenerative
changes are likely a result of the pre-accident problems. Posterior cruciate
ligament injuries are not particularly problematic for the knee in that
patients do not require reconstruction and often do not require any surgery at all.
They can compensate for the ligamentous loss by strengthening the knee and usually
that is enough to suffice to manage the knee. Mr. Tompkins’ current left knee
limitations are therefore primarily a result of the pre-accident problems, but certainly
contributed to, not insignificantly, by the accident.

Right Knee

Mr. Tompkins’ right knee
problem is a direct result of the accident. He has had a significant fracture
of his kneecap and the kneecap is very thickened and enlarged. It is tethered
and it is quite painful. It is my opinion that Mr. Tompkins’ knee will become
progressively arthritic and will require further surgery. He will probably go
on to require total knee replacement on this side, as well; with time,
depending on how things evolve. He will likely require a period of time away
from any work activities and will require three to four months of therapy
following any further joint replacement.

OVERALL PROGNOSIS & EXPECTATIONS

Mr. Tompkins
appears to have made remarkable strides and improvement. He is nevertheless quite
significantly affected still. It is probable that he is plateauing roughly at
this level.   In multitrauma patients such as he, the process often evolves
over time as new issues and problems may arise relating to the original
injuries. Therefore, Mr. Tompkins will probably be faced with further
issues as they evolve directly and indirectly related to the accident. His
current level of function now will likely plateau for a period of time and then
depending on further interventions and surgeries so he will require more
therapies and treatments. Unfortunately, Mr. Tompkins’ level of functioning has
been impacted for the long term and he will not fully recover from this
accident.

In the long term,
Mr. Tompkins will be faced with further surgeries and more therapies He may
require additional counseling.

RESIDUAL
FUNCTIONAL ABILITIES OR RESTRICTIONS

Mr. Tompkins will
be left with significant ongoing restrictions. He is going to have problems
doing simple activities around the home and will require assistance in the
home. He will need some assistance for activities such as cleaning the home,
sweeping floors, etc. He will be able to do simple chores but that is all. He
will not be able to do much in the way of yard work and will not be
consistently able to do things around the home or in the yard. He will have
problems doing shopping and will have difficulties lifting and carrying
groceries and other such items. He will likely require some assistance in that
regard.

Mr. Tompkins is not
likely to return back to many recreational activities. He will be able to do
some sedentary activities but even those will be limited by his sitting
tolerance and his pains. In other words, Mr. Tompkins’ effects from this
accident are substantial. 

VOCATIONAL ABILITIES AND LIMITATIONS

Mr.
Tompkins is not likely to be competitively employable now or in the future.
Although he probably could do some sedentary work, he would not be consistently
able to put in an eight-hour day on a regular basis. He may be able to work part-time,
with an understanding employer in a light or sedentary capacity. There would be
substantial accommodation needed in the workplace either way. Realistically, it
is my opinion that Mr. Tompkins is not competitively employable for anything
other than limited part-time work.

[44]        
The expert opinions clearly outline Mr. Tompkins’ injuries and their
relationships to the June 3, 2006 collision.  There is no disagreement on the
essential nature or course of the orthopaedic injuries he suffered − the
fractures and  ensuing consequences as described.  It is recognized that Mr.
Tompkins had a pre-existing degenerative condition in his cervical spine that
was made worse by the accident, that he had previous significant low back pain,
previous problems of lesser significance with his right hip, and a previous
significant condition with his left knee, which has been made worse by the
accident injuries.  He has had a left hip replacement that is likely going to
have to be replaced in 15 years, he will need a right knee replacement in the
relatively near future and perhaps a further replacement of that knee and a
left knee replacement in the more distant future.  There is complete agreement
that his orthopaedic condition permanently prevents him from going back to the
type of work he was doing for the School District, or any other heavy working
involving his lower limbs, and that even sedentary work is likely to be limited
by problems sitting and standing.

[45]        
It is also beyond dispute that Mr. Tompkins to date has suffered a
significant psychological mood change caused by his injuries and disabilities
resulting in irritability, anger and depression, but there is reason to believe
that time and treatment will improve this.

[46]        
No claim is made for mild traumatic brain injury.  There is no expert
evidence that his vision or hearing problems were caused by the accident or
that they are serious.

CONSEQUENCES OF
ACCIDENT INJURIES

[47]        
Wayne Tompkins was 50 years old, living in Pemberton and happily
employed as a tradesman when the June 3, 2006 collision occurred.  As a result
of the injuries suffered by Mr. Tompkins which were caused by the negligent and
criminally irresponsible driving of Tawnya Ley Bruce, Mr. Tompkins’ life has
been permanently and very significantly altered.

[48]        
He has lost his ability to work in his trade at employment he enjoyed. 
He has lost a great deal of his mobility and cannot enjoy activities such as
skiing, hiking, snowmobiling, slow pitch, tennis and similar activities as he
once did.  He cannot stand or sit for long periods of time.  His mood is
depressed and his anger harms his relationship with other people −
particularly in the case of Nancy Larkin, his romantic partner after the
accident who left him largely because of his anger and irritability.  In
addition, Mr. Tompkins now faces the prospect of further surgeries, such as two
knee replacements, another hip replacement, the prospect that the condition of
his knees and hip may get worse − and that each surgery comes with a risk
of loss of function, dangerous embolisms, scar tissue, long recovery periods
and possible poor results.

[49]        
On the other hand, Mr. Tompkins is an intelligent man whose depression
and anger can quite likely be treated and improved.  He now has his own home in
Chilliwack where he lives with his dog close to his sons and grandson.  He is
capable of driving his car, at least as far as Chilliwack to Whistler.  There
is a good chance that continued physical training will maintain his strength
and may well improve his mobility and flexibility − he has been capable
of walking without a cane in the past, and even of lifting Nancy Larkin who
weighs 115 pounds from her wheelchair into a car and it is not unlikely that
his condition may again reach that level.  He did own and operate a boat after
the accident and could again, and fishing is still possible.  While his trade
work as he once did it is no longer open to him, there is the possibility he
may find rewarding employment in some other field.

[50]        
Having reviewed the authorities cited to me, I am not persuaded that
Mr. Tompkins’ injuries and disabilities, as bad as they are, are such that
the award for non pecuniary damages should be the upper limit as established by
the cases, which would now be about $330,000.

[51]        
In the case of Forde v. Inland Health Authority, 2010 BCSC 91,
Sinclair Prowse J. discusses upper limit cases at paras. 265 to 270:

[265]     The general rule is that plaintiffs who have
suffered a catastrophic (that is, a severe or devastating injury) are entitled
to an upper limit award: Andrews and Lindal v. Lindal, [1981] 2
S.C.R. 629.

[266]     As was summarized by this Court in Izony v.
Weidlich, 2006 BCSC 1315 at para. 45:

In Lindal, the Court
expressly confirmed that the upper limit derives primarily from policy
considerations and does not bear a direct relationship to the nature or
severity of the injuries, once they reach the “catastrophic” threshold. The
upper limit thus applies equally to a plaintiff with serious brain injury but
little physical impairment, and to a plaintiff rendered quadriplegic with no
cognitive impairment. The Court also emphasized that non-pecuniary damages be
assessed on the understanding that any ascertained or ascertainable pecuniary
loss will be compensated under the appropriate heads of pecuniary damages.

[267]     Once the plaintiff’s injuries are found to be
“severe” or “devastating”, it is not open to the Court to give less than the
upper limit merely because those injuries are different from or less severe
than those in the trilogy cases: Blackstock v. Patterson Estate (1982),
35 B.C.L.R. 231 at para. 10 (C.A.).  In other words, “[t]he British Columbia
Court of Appeal has made it clear that the upper limit of non-pecuniary damages
is appropriate in any case in which the plaintiff has sustained ‘devastating’
injuries.  There is no basis for drawing fine distinctions between different
types of severe injuries”: Cojocaru v. British Columbia Women’s Hospital,
2009 BCSC 494 at para. 256.

[268]     Ken Cooper-Stephenson in Personal Injury Damages
in Canada, 2nd ed. (Toronto: Thomson Canada Ltd., 1996) states that
plaintiffs who are “severely” injured are prima facie entitled to the upper
limit of non-pecuniary damages, subject to “exceptional circumstances”
justifying a higher or lower award (at 508).

[269]     A review of the case law reveals that the Courts
have granted upper limit awards for the following injuries:

(1)      quadriplegia: Andrews and
Thornton v. Prince George School District No. 57, [1978] 2 S.C.R. 267;

(2)      serious brain injuries: Macdonald
v. Neufeld (1994), 85 B.C.L.R. (2d) 129, Lindal, Arnold v. Teno,
[1978] 2 S.C.R. 287, and Coutler v. Leduc, 2005 BCCA 199; and

(3)      multiple injuries: Blackstock
and Fenn v. Peterborough (City) (1979), 25 O.R. (2d) 399.

[270]     Courts, however, have
been reluctant to award the upper limit in cases of incomplete quadriplegia. Grewal
v. Brar, 2004 BCSC 1157, was the only decision I could find in which the
Court awarded the upper limit of non-pecuniary damages to a plaintiff with
incomplete quadriplegia and, in that case, the plaintiff also suffered a
traumatic brain injury and a sexual function disorder.

[52]        
Leone Forde was quadriparetic, meaning that she had partial paralysis in
both arms and legs and although she could stand and walk for short distances
she was wheelchair dependent and could not control her bladder function.  She
suffered ongoing pain, was 46 when injured and her life expectancy was
shortened.  She was awarded $280,000 in general damages.

[53]        
Mr. Tompkins has been particularly unfortunate in having three major
joints − both knees and his left hip damaged in the collision.  Those
injuries are permanent and the condition of those joints likely to get worse. 
Considering that and his altered mood and other injuries, I find the sum of
$200,000 a fair and reasonable amount for non pecuniary damages.

PAST WAGE LOSS

[54]        
Mr. Tompkins has been unable to work from the date of the collision,
June 3, 2006 to the present time.  He certainly could not have gone back to his
previous employment and given the nature of his injuries, the multiple medical
procedures, the disruption of his life and the mood changes he has experienced
as a result of all that, it would be unreasonable to expect him to have had any
gainful employment up to the present time.  He has been working to try and
recover his health.

[55]        
I am satisfied that over the almost six year period from the collision
to the present time that Mr. Tompkins would have continued his employment with
the School District.  Despite his indifferential work history in the past, it
is clear that Mr. Tompkins had finally found work which suited him perfectly. 
He was a union employee and his job was secure.  He would likely have had
occasional periods of time off work due to work related injuries as he did in
the past.  Such occasions would, as in the past, be WCB claims which would not
result in a significant loss of income.

[56]        
Associated Economic Consultants Ltd. report of June 6, 2011 provides the
following table of past income loss for Mr. Tompkins, assuming he would have
worked 40-hour weeks, eight hours per day.

[57]        
Had Mr. Tompkins worked that time his employer would have made
contributions to his mandatory non wages benefits (Canada Pension Plan,
Employment Insurance and Workers Compensation Board) and Health and Welfare
plan benefits (Medical Services Plan of B.C., extended health, group life
insurance, dental, long term disability and employee family assistance plan).

[58]        
The report estimates Mr. Tompkins’ employer would have spent about five
percent of earnings or $16,981 for the mandatory benefits.  After the accident,
Mr. Tompkins paid $2,900 per year for his health and welfare plan – of
which the employer would have paid half, which represents a loss of about
$7,961 to the present.

[59]        
Mr. Peever, the author of the report, estimates on the basis of the
foregoing that Mr. Tompkins’ total past loss of earnings amounts of $364,555
and using a calculation for taxes based upon a year by year calculates the
total past loss as $284,803.

[60]        
Mr. Hildebrand of Columbia Pacific Consulting takes issue with Mr.
Peever’s calculation of past loss of income.  He writes in his report:

Mr. Peever’s wage loss
calculation assumes that the Plaintiff would have worked on a full-time,
full-year basis from the accident date to the trial date had the accident not
occurred.  Since Mr. Peever has excluded the possibility of unemployment
or disability,  the Plaintiff could not have received any EI or WCB benefits. 
I further note that current contribution rates toward the CPP program are such
that net benefits from the program (if any) are likely to be much less than the
employer contribution.   Including employer contributions towards these plans
as benefits to the individual overstates the income loss.

Mr.
Peever assumes that the Plaintiff had no with-accident income in the past
period.  After deducting income tax and EI contributions, Mr. Peever
estimates the net past loss at $180,679 if the deduction is calculated on a
"one-time" approach or $225,839 if the deduction is calculated on a
“year-by-year approach.”  Excluding mandatory benefits from the last loss would
reduce Mr. Peever’s estimate of the gross past loss to $274,263.  If the tax
deduction is calculated on a “lump-sum” basis, then Mr. Peever’s estimate of
the net past loss would decrease to about $173,137.  If the tax deduction
is calculated on a “year-by-year” basis, then Mr. Peever’s net past loss
estimate would decrease to around $212,443 – $216,543.

[61]        
 Mr. Tompkins has had no need of Workers Compensation coverage nor
Employment Insurance since this injury, and has suffered no loss in not having
these premiums paid for him by his employer. It is difficult to say what net
loss he has suffered by losing the employer’s contribution to the Canada
Pension Plan over the time since the collision, however I do accept that there
has been some loss with respect to the CPP.  I exclude the lack of WCB and EI
contributions from his loss, and making some allowance for his loss of CPP payments,
I fix the sum of $215,000 as proper compensation for Mr. Tompkins’ loss of
income to date.

LOSS OF CAPACITY TO EARN INCOME

[62]        
Mr. Tompkins has presented his case for loss of capacity to earn income
in the future on the basis that he would have continued working until he was at
least 70.  That position however does not properly recognize that Mr. Tompkins’
job was very demanding physically, and that the physical nature of his work was
already taking its toll before the accident.  As Mr. Tompkins grew older this
would increasingly be the case.  I find that he probably would not have worked
past 65 years of age.

[63]        
It is of course not certain that Mr. Tompkins would have remained
employed with the School District until he was 65.  I find, however, that it is
a real possibility that he would.  He was happy living in Pemberton, the work
suited him and was secure.  There is however a lesser but real possibility Mr.
Tompkins would not have stayed with the School District until he was 65.

[64]        
On the other hand, Mr. Tompkins can clearly not go back to his trade
work, nor can he do any work that is physically demanding and he is as noted,
impaired, even if it is sedentary work.  It is recommended for his health and
well being that he take some kind of part time employment or, at least, do
voluntary work.  Mr. Tompkins has yet to adjust fully to his situation. 
In particular, his mood difficulties still impair him to a significant degree. 
It is likely that with time and proper treatment there will be an improvement
in this area.  I accept that physically while he may get back to the best he
has been since the accident, it is likely he will not get any better.

[65]        
I find it fair to conclude that while there is a real possibility that
Mr. Tompkins who will be 56 May 20, 2012, will find some gainful employment
between now and 65 years of age, that employment will likely be for less
remuneration than his former trade, and is unlikely to be full time.

[66]        
Mr. Hildebrand’s report states that if Mr. Tompkins worked until he was
65 and earned $64,500 per year, the present value of his loss of earnings would
be $501,812 and calculating his employer’s contribution to non wage benefits at
5%, the figure for that loss is $25,091.

[67]        
Considering the nature of Mr. Tompkins’ employment, his work history,
his pre-existing health, and his physical and mental state resulting from his
June 3, 2006 injuries, I assess the sum of $425,000 as being fair and
reasonable compensation for Mr. Tompkins’ reduced earning capacity and loss of
income in the future.

[68]        
Mr. Tompkins also claims damages for loss of pension income caused by
the accident which Mr. Peever calculates to be $15,577 on the basis of
retirement at age 70.  Mr. Tompkins’ employment included a Municipal Pension
Plan.  Although Mr. Tompkins ceased making contributions to the pension after
the injury, contributions are deemed to have been made, and the time deemed to
have been pensionable service under the Municipal Pension Plan Rules.  It is
submitted on behalf of Mr. Tompkins that this coverage is a benefit collective
bargaining achieved for Mr. Tompkins which should be treated as though it were
a contract of insurance.  In support of this proposition, the case of Cunningham
v. Wheeler, [1994] 1 S.C.R. 359 was referred to.  In the Cunningham
case, the plaintiff was injured in a car accident.  While off work, he
collected disability payments pursuant to a collective agreement.  He did not
have to repay any party if he recovered the loss for which he received the
payments.  On the issue of whether the disability payments received should be
deducted from the damage claim, the court head at p. 42:

 No deductions were
made from his pay for the disability benefits However, there was evidence
accepted by the trial judge which demonstrated that collateral benefits formed
an important aspect of the negotiations between the company and its various
unions.   A union representative and the company vice-president of human
resources explained that if the indemnity   coverage was increased, there would
be a proportionate decrease in either the hourly wages or the other collateral
benefits paid to the employees.  Put another way, it was said that under the
collective bargaining agreement the employees were entitled to receive an
hourly wage package. That package was made up of an hourly rate of pay together
with the collateral benefits.  If the disability benefits were to be abandoned,
then the hourly  wage rate would be proportionately higher.  The company held
the funds for the disability payments and turned them over to the Aetna Group
Canada for management.  Mr. Cunningham was not required to repay the weekly
disability benefits he recovered from the defendants either to B.C. Rail or to
Aetna Group Canada.

And at p. 56:

 The application of the insurance exception to
benefits received under a contract of employment should not be limited to cases
where the plaintiff is a member of a union and bargains collectively. Benefits
received under the employment contracts of non-unionized employees will also be
non-deductible if proof is provided of payment in some manner by the employee
for the benefits.  Although there may not be evidence of negotiations for the
wage/benefits package which makes up the employee’s remuneration, evidence that
the employer takes the cost of benefits into account in determining wages would
adequately establish that the employee contributed by way of a trade-off
against higher wages. Clearly, if the non-union employee contributed to the
plan by means of payroll deductions, that would prove the employee’s
contribution.  Again, these suggested methods of proof are not an exhaustive
list.

 In this appeal, there
is evidence that the plaintiff paid for the benefits pursuant to his collective
agreements through the trade-off of a reduced hourly wage rate.  For this
reason, this case is distinguishable from Ratych v. Bloomer, since there
is evidence to bring him within the insurance exception.

[69]        
The evidence in this case was to the same effect − the benefit was
earned by Mr. Tompkins as part of his pay.  As such, Mr. Tompkins is entitled
to recover his loss on his pension caused by the collision.

[70]        
Mr. Peever calculated his loss as follows:

[71]        
These calculations are done by estimating the employees’ contributions
to the pension plan and deducting them from the present value of the future
benefits to determine the employees “net” pension benefit.  The calculation
from age 65 onwards shows no pension loss, so no loss is recoverable on the
evidence presented.

COST OF FUTURE CARE

[72]        
Mr. Tompkins is clearly in need of future care in the circumstances of
this case and requires an award of damages to cover such future care costs as
are medically justifiable and are reasonably required on the facts of this
case.

[73]        
In her report of June 29, 2010, Alison Henry, an Occupational Therapist
and Certified Work Capacity Evaluator summarized her opinion on the necessary
future care for Mr. Tompkins as follows:

PRICE SUMMARY

[74]        
Mr. Peever in his report of August 11, 2011 provides the following “high
costs” estimates:

[75]        
The plaintiff submits there should be added to Mr. Peever’s number of
367,622, an additional $7,264.80 for “lifeline” services, $38,739.60 more for
counselling, plus additional funding for employment related benefits of
$41,276.60  and suggests using a “halfway” figure of $353,091.50 plus the
additional costs that the appropriate award is $440,223.50.

[76]        
In my opinion, that amount vastly exceeds what is medically justified
and reasonable in Mr. Tompkins’ case.

[77]        
Mr. Tompkins does not need the lifeline services at $7,264.80.  He is
not a fragile, disoriented elderly person incapable of caring for himself.  He
does not need a scooter at a cost of $3,500 every 10 years – he can walk and
drive.  While he does need psychological counselling to assist him with his mood
issues, this would be a course of treatment after which the need for continued
counselling should be minimal.  There is some issue whether Mr. Tompkins would
take counselling in any event as he terminated the counselling he had, however
it is medically justified and I expect he would be prepared to follow a more
modest course of counselling than proposed by the $38,739.60 figure.  He is
capable of walking his dog or otherwise exercising it by throwing a ball and
the claim $50,840 plus $6,101 for HST to have someone else do that for him
certainly does not qualify as reasonable.  Likewise, $8,799 to have someone
else cut his toenails when he agrees he can do that himself seems like
over-reaching.

[78]        
I find the following awards for future care are medically justifiable
and reasonable, and those not included are not:

SPECIAL DAMAGES

[79]        
The third party does not contest the following special damages which
total $31,845.13:

[80]        
I do not award any damages for the cost of Mr. Tompkins belonging to the
British Columbia Automobile Association − many entirely healthy people
choose to belong to that for the benefits available and Mr. Tompkins’ injuries
do not require him to do so.  I do not award $181.26 for ambulatory service,
cancellation fees for appointments Mr. Tompkins neglected to cancel, nor the
no-show fee from his GP’s office, nor the dog walking expense.

[81]        
The claim for $3,663.83 for a reclining sofa and associated love seat
does not qualify as a special damage − it is a normal piece of furniture.

[82]        
I accept that it was reasonable for Mr. Tompkins to pay something for
lawn and garden care and fix that amount at $3,000.

[83]        
I do not award the $54.38 for meals attending medical examinations, he
could have eaten at this usual cost had he chosen to.  Nor do I award anything
for money to be paid to family members to help him move, for family and friends
often help people move for no charge.

[84]        
The $1,288.61 for security for his home does not qualify as a special
damage. I  do not accept that his injuries have made him require a home
security system anymore than the average person in society − it is a
matter of choice whether to have one or not.

[85]        
Nor do I award $972.87 for pet waste removal.  I do accept that Mr. Tompkins’
evidence that the jaw splint and enamel repair on his teeth which cost him
$925.91 were a result of his injuries.

[86]        
In summary of the contested special damages, I award $3,000 for yard
care, $925.91 for dental care and the $31,845.13 agreed to for a total of
$35,771 for special damages.

IN TRUST CLAIMS

[87]        
Mr. Tompkins seeks damages in trust for his daughter-in-law Bobbi Beerstra
who cared for him on her maternity leave when he was first released from
hospital and his romantic partner Nancy Larkin who cared for him in his house
in Chilliwack.

[88]        
In the case of Bysted v. Hay, 2001 BCSC 1735 at p. 180, the
following are set out as factors to be considered in an “in trust’ claim:

(a)  the
services provided must replace services necessary for the care of the plaintiff
as a result of a plaintiff’s injuries;

(b)  if the
services are rendered by a family member, they must be over and above what
would be expected from the family relationship (here, the normal care of an
uninjured child);

(c)  the maximum
value of such services is the cost of obtaining the services outside the
family;

(d)  where the
opportunity cost to the care-giving family member is lower than the cost of
obtaining the services independently, the court will award the lower amount;

(e)  quantification
should reflect the true and reasonable value of the services performed taking
into account the time, quality and nature of those services. In this regard, the
damages should reflect the wage of a substitute caregiver. There should not be
a discounting or undervaluation of such services because of the nature of the
relationship; and,

(f)   the family members providing the
services need not forego other income and there need not be payment for the
services rendered.

[89]        
Ms. Beerstra testified that initially she had to care for Mr. Tompkins
six to seven hours per day, but as time progressed this decreased.  She was
caring for him on an intensive basis over several months − certainly
beyond what would normally be expected.  She is deserving of an in trust award
and I fix the value of her services to Mr. Tompkins at $7,500.

[90]        
Nancy Larkin, who is in a wheelchair herself, moved in with Mr. Tompkins
as a roommate and then became a romantic partner.  She gave him care assistance
during her residence with him but some of that such as cooking meals, she would
have done in the ordinary course of the relationship.  As shown in the video of
Mr. Tompkins lifting Ms. Larkin in and out of his vehicle, he also helped
to care for her.  Considering these factors, I find that Ms. Larkin is also
entitled to an in trust award but in a more modest amount than the $29,000 put
forward in the claim.  Based upon the reasonable cost of the services provided
by Ms. Larkin beyond what would be expected from a relationship with an
uninjured Mr. Tompkins, I award $10,000 for the in trust claim for Ms. Larkin.

SUMMARY

[91]        
I find Wayne Robert Tompkins entitled to damages for the June 3, 2006
motor vehicle collision as follows:

[92]        
The parties may address such issues as must be decided as a result of
this Judgment, such as tax gross up and interest and such others as arise.

“V.R.
Curtis J.”