IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120223

Docket: M100423

Registry:
Vancouver

Between:

James Kent Peers

Plaintiff

And

Bodkin Leasing
Corporation and Robert William Hall-Thomsen

Defendants

Before:
The Honourable Madam Justice Humphries

Reasons for Judgment

[1]          
Mr. Peers was injured in a motor vehicle accident on February 11, 2009,
when he was driving home from work near Gibsons, B.C. on Highway #101.  His
vehicle, which was stopped at a red light at an intersection, was struck from
the rear.  The impact sent his vehicle half way across the intersection. 
Liability is admitted.

Background

[2]          
Mr. Peers is now 53 years old.

[3]          
He had a difficult childhood and overcame many obstacles, including the
death of his mother, foster homes, and cancer, to become a hardworking,
productive, and valuable member of the community.

[4]          
He has worked his whole life in the forest industry as a boom boat
operator, a job he loved.  At the time of the accident he was working on the
log booming grounds for Sechelt Creek Contracting Ltd., a job he had held for
about 4 years.  His boss, Mr. Snedden, described him as the strongest man he
had ever seen.

[5]          
There is no question that the job is very demanding physically.  Mr. Peers
drove the dozer boat, a powerful boat about 20 feet long which is used to break
down log bundles by slamming into them.  He also operated the side-winder, a
smaller boat used to sort the bundles by type of wood, slamming into the
bundles and manoeuvring quickly back and forth in violent motion.  Mr. Peers
likened operating this boat to riding a bucking bronco.

[6]          
The logs are then jammed tight into “pockets” contained by boomsticks,
which are tied together at various intervals with ropes.  Mr. Peers was
required many times a day to run the ropes across the bundles from the
boomsticks on one side of the pocket to the other, and tighten them up, and
then close the boom off with heavy boom chains.  The job requires strength,
agility, balance, and stamina.

[7]          
Mr. Peers was also one of the best fast pitch ball players on the
Sunshine Coast, a valued teammate, and a popular coach.  According to the
witnesses called on his behalf, he was good company, a fun companion,
respectful of others.  His job, sports, and outdoor activities were what
defined him.  He particularly loved to fish.

Following the accident

[8]          
Following the accident in February of 2009, Mr. Peers developed pain
from his neck to his lower back.  He had physiotherapy and massage for several
weeks and tried to return to work in May, although he still had some symptoms
in his mid and lower back.  He worked for a week, and then was laid off for
three weeks due to lack of work.  He went back in June but was unable to work
due to the pain in his back.  He returned in July and did everything he was
asked to do, working with the pain.

[9]          
In 2009, Mr. Peers worked 20-30% fewer hours than he had in the previous
years.  He described the pain in his mid back and lower back as “brutal”.  His
mid back was the worst.  He would have to lie down on the floor of his boat
occasionally for 10 minutes to get some relief.  However, he did the job,
despite the pain.  Although Mr. Peers found long hours difficult, 2009 was the
worst year in recent history for the forest industry in any event, thus cutting
down the hours available for everyone.

[10]       
Mr. Peers played some fastball in the summer of 2009, but had to make
some compromises such as getting a designated hitter, something he had never
done before.  He started playing hockey and soccer to try to lose weight and
improve his health, and he started yoga.

[11]       
He felt his lower back was improving by the fall of 2009, and it does
not bother him at all anymore.  However, his mid back continued to give him
problems.

[12]       
2010 was a busy year, but Mr. Peers was unable to put in the overtime he
had done before.  He estimates that he missed 150-200 hours.  He continued to
lie down in the boat for short periods to relieve the pain in his mid back.  Sometimes
he would leave early, something he had never done before.  Fortunately, Mr.
Snedden is a very reasonable and fair employer.  He allows his employees
flexibility and there was no threat to Mr. Peers’ job.

[13]       
However, the more Mr. Peers worked, the worse the pain got.  In November
of 2010, Dr. Sparrow, his family doctor, told him he should think of looking
for a new job.

[14]       
Mr. Peers had stopped playing fast pitch by this time, as his doctor
told him twisting, pitching, and hitting was the worst thing for his back.  He
stopped coaching children’s ball because he did not want them to have to deal
with how grumpy he had become.

[15]       
In early March of 2011, Mr. Peers began to get shocks emanating from his
back, which he said felt like someone was electrocuting him.  These shocks
occurred while he was twisting while operating the sidewinder.  Mr. Peers
decided the emergence of this new symptom was enough, and told Mr. Snedden on
March 11, 2011 that he had to quit his job.  Whether coincidence or not, Mr.
Peers had a fall that day while working on the boomsticks and injured his hip.

[16]       
Mr. Peers had one further electric shock symptom, a couple of weeks
after quitting work.

[17]       
Mr. Snedden testified that he knew Mr. Peers was having difficulty and
he was not surprised when Mr. Peers finally told him in March of 2011 that he
could not continue to work.

[18]       
Mr. Peers has recently moved to Powell River to be near his son and
grandchild.  He is not working or playing sports.  He is depressed and often
does not want to go out.  He describes himself as very busy and very social
before the accident; he says he felt he was put on earth to make people laugh. 
However he is in too much pain now and feels life has no purpose.  He has found
himself in tears, something that never happened before.

[19]       
Mr. Peers’ brother, Brian, Mr. Peers’ ex-wife, and several friends and
co-workers testified to the changes they have observed in Mr. Peers since the
accident.  Their evidence was consistent – from an outgoing, strong person who
was the center of sports in the community, Mr. Peers has become withdrawn.  A
relentless fisherman before, he will now just sit on a log or go home early. 
He no longer plays fast pitch.  All the witnesses say they worry about his
future.  His brother says Mr. Peers is in a “dark place” – the brothers
were brought up to find their identities through hard work and Mr. Peers no
longer has that option open to him.  Neither learned to save money and Brian
Peers assumed they would both work until they died.

[20]       
For the most part, these witnesses were not aware that Mr. Peers had
returned to work for two years after the accident, or that he had taken up
hockey and soccer since the accident.

Residual ability to work?

[21]       
Mr. Peers says his life has turned 180 degrees – he never expected to
lose his job, which he assumed he would work at until retirement at 65.  He
knows he has to find something different to do but has been unable to think of
anything he can do.  He says he has difficulty getting through a day and does
not see how he could work.

[22]       
He thought he might be able to run a water taxi, but after talking to
people in the business and undergoing his functional capacity evaluation, he
decided he could not do that.  It would involve pounding in rough water,
maintaining the boat, lifting hatches and loading equipment.  He says he has
made no other efforts to find work.

[23]       
Ms. Fischer, an occupational therapist, assessed Mr. Peers in
August of 2011.  She was asked only to consider whether Mr. Peers could return
to his occupation as a boom boat operator, not what jobs he could do.  She
concluded he could not return to his original occupation.  However, she also
identified Mr. Peers’ abilities and limitations so a vocational consultant
could take that information and incorporate it into an opinion as to whether
Mr. Peers could get a job.

[24]       
Ms. Fischer found that Mr. Peers had good dexterity and coordination. 
He did very well when moving, but holding static positions was difficult,
especially leaning forward at the waist.  He could stand for periods of time as
long as he could move.  He could sit as long as he could choose the position –
that is, he would lean back to take the pressure off his mid back.  He is
strong, but could not do continuous lifting without aggravating his back.

[25]       
Ms. Fischer said she knew Mr. Peers had been off work for five months by
the time she assessed him, but there was no issue with his ability to do the
activities she asked him to do.  He had maintained a level of fitness by going
to the gym, hiking, walking and yoga.  His physical limitations related only to
the mid back, not to deconditioning.

[26]       
She recommended 6 sessions of physiotherapy a year, that is, three
sessions in a row a couple of times a year, to provide a periodic review of his
condition so that exercises can be adjusted.

[27]       
She knew massage had been helpful and recommended more massage.  She
knew Mr. Peers had not had massage treatment since February of 2010 but does
not base a recommendation for continued massage on how often a patient has
gone, as treatments can be expensive.

[28]       
Ms. Fischer said Mr. Peers could manage housekeeping duties in a small
place.

[29]       
Mr. Nordin, a vocational consultant, assessed Mr. Peers using Ms.
Fischer’s test results and other aptitude and vocational interest test
results.  Mr. Peers scored well in some areas, and poorly on others.  His test
results indicated that he learns best on the job rather in a school setting. 
His interests were, predictably, geared towards physical outdoor work.

[30]       
Mr. Nordin was unable to identify any realistic employment options and
concluded that Mr. Peers, although not completely physically disabled, is
vocationally disabled.  In other words, Mr. Peers is not unemployable, but in
any realistic sense, given his age, physical limitations, aptitudes and
vocational interests, he is not hireable.

[31]       
In cross-examination, it was suggested to Mr. Nordin that he was
concerned only with barriers to employment, not with positive solutions, and
was painting the bleakest picture possible in order to assist Mr. Peers with
his case.

[32]       
To support this proposition, counsel for the defendants put a number of
jobs to Mr. Nordin, those jobs that Ms. Gallagher, the vocational consultant
called by the defendants, had listed as possibilities – operators of various
types of boats (Mr. Nordin said the constant jarring of boat operating
meant such work would not be appropriate from a physical standpoint), bridge
watch certificate (Mr. Nordin said that was a certificate taken by a
person already in the marine business to move from the deck to the captain’s
cabin within the existing hierarchy), heavy duty equipment operator (not
physically suitable due to jarring on the machine), BC Ferries worker (there
are many types of jobs but they involve standing; given Mr. Peers’ back problem
and his age he would be unlikely to be hired); small business work, such as
movie theater, pet supply shop (Mr. Nordin said Mr. Peers would need
experience and these jobs are not related to his background or interests; he
could do the job theoretically but it is unlikely he would be hired for any
particular job), security guard and retail clerks (a lot of standing),
dispatcher (needs computer experience, ability to sit for long periods, jobs
are given to people who work in the company already), flagger (stands all day),
park ranger (need a two-year diploma).  Mr. Nordin said Mr. Peers could
probably work in a gas station or as a courier, although he would be limited in
the weight he could lift as a courier.

[33]       
According to the evidence of Mr. Nordin, jobs requiring accommodation
for functional limitations are given to members of the relevant union or to
in-house people who must be accommodated.  There are no limited function jobs
on the booming ground.

[34]       
Mr. Dempster, a longshoreman superintendant for Howe Sound Pulp and
Paper, was called by the plaintiff.  He said they employ a large number of
people.  He deals with disabled people on light duties but has never hired
outside the company for those positions because they always have more people
requiring light duties than they have appropriate jobs.

[35]       
Ms. Gallagher suggested a number of things Mr. Peers might try, with
some short term training.  Those are the jobs that were put to Mr. Nordin –
heel boom operator, front end loader operator, a job with BC Ferries, a
position as a retail or rental clerk, or security guard.  Ms. Gallagher
provided average employment earnings for those occupations.  The heavy
equipment operators earned in the range of $55,000 to $60,000.  The
retail/rental/security/gas station jobs were in the range of $25,000 to
$43,000.

[36]       
Counsel for the plaintiff challenged Ms. Gallagher’s opinions on the
basis of her lack of experience and on her failure to consider whether any such
positions would be available on a realistic as opposed to a purely theoretical
basis.  Ms. Gallagher agreed it would be more difficult for Mr. Peers to
find a job, and that it would be more likely he would work part time rather than
full time.  She agreed Mr. Peers is limited because of his education
level.  However, she was of the opinion that Mr. Peers should not simply
give up a job search as impossible, but rather should get some job placement
assistance.

Medical evidence

[37]       
Dr. Sparrow is Mr. Peers’ family doctor.  He saw Mr. Peers on July 28,
2009 after the accident, and at various times thereafter.  Mr. Peers’ mid back
pain continued.  In September of 2009 Dr. Sparrow noted his impression of
osteoarthritis of the thoracic spine.

[38]       
In September of 2010 Dr. Sparrow noted that Mr. Peers was remaining
active and playing sports, but still had pain in his thoracic region.

[39]       
In November of 2010 Dr. Sparrow told Mr. Peers to consider other
employment options, as opposed to going on disability.  In testimony, Dr. Sparrow
says those decisions are out of his hands.  By advising Mr. Peers to look for
other employment, he was not saying that he knew there were other jobs
Mr. Peers could do.  He had always found Mr. Peers to be strongly
motivated to work and was of the view that the last thing he would want would
be to go on disability.  However, if there is nothing else a patient can do, he
must go on disability.

[40]       
Dr. Sparrow said he thought Mr. Peers’ fall on March 11, 2011 would have
led to a flare up of pain, but his decision to go off work was due to the
pre-existing injury.

[41]       
Two orthopaedic surgeons gave opinions – Dr. Kokan was called by the
plaintiff and Dr. McGraw by the defendants.  There is an issue between them as
to the diagnosis and significance of the electric shock symptoms Mr. Peers
experienced just prior to quitting his job on March 11, 2011.

[42]       
Dr. McGraw said the subject of the shocks arose as Mr. Peers was leaving
his office after the examination.  Dr. McGraw asked Mr. Peers if he had told
him everything he wanted him to know.  Mr. Peers said he had forgotten to
mention the new symptom of electric shocks.  He described the shocks as going
into his upper and lower extremities, which Dr. McGraw said suggested
neurological involvement, not related to the thoracic spine.

[43]       
Dr. Kokan and Dr. Sparrow said Mr. Peers reported the electric
shocks as emanating from his back but he did not tell them the sensation went
into his arms.

[44]       
While giving testimony, Mr. Peers described the shocks as coming from
his back when he twisted on the sidewinder.  He said they lasted a second.  He
said they would make his whole body go “bang”.  He demonstrated the shocks by
making a “zzzzzzzt” sound, and jolting his entire body, which included a
movement of his arms.  However he said he did not recall telling Dr. McGraw
that the shock radiated into his hands.

[45]       
Dr. Kokan was of the view that the shocks experienced by Mr. Peers this
past spring indicated an annular tear as a result of the accident that may be
progressing into a herniated disk.  That could lead to neurological changes
including numbness to his lower extremities and even weakness with loss of
bowel and bladder control.  Mr. Peers would likely need surgery which could
reduce but not necessarily eliminate the pain.

[46]       
Dr. Kokan based this opinion solely on clinical findings – that is the
specific location of pain on palpation.  He acknowledged that such a herniation
in a thoracic disk is extremely rare.  He did not think a neurological
examination was warranted, although there would be no harm in having one done.

[47]       
Dr. McGraw said that while annular tears are normal, a herniated disk at
that location would be one in a million.  Dr. McGraw located tenderness at the
T-7 vertebra, but detected no muscle spasm on either side.  His conclusion with
respect to Mr. Peers’ back was it was a soft tissue injury.  He noted that Dr.
Sparrow had indicated he thought Mr. Peers had osteoarthritis, and Dr. McGraw
agreed with that.  He did not think yoga, as recommended by Dr. Kokan, would be
helpful as it strains the spine.

[48]       
Dr. McGraw found Mr. Peers to be straightforward and motivated to work. 
He thought Mr. Peers had returned to work in a normal fashion after the
accident, although he knew Mr. Peers was continuing to have symptoms in his
thoracic spine.  He agreed that Mr. Peers has ongoing back pain as a result of
the motor vehicle accident.

[49]       
Dr. McGraw was more concerned about the electric shock symptom because he
understood that after working normally for two years post-accident, Mr. Peers
suddenly stopped work as a result of that symptom.  Dr. McGraw had not been
told about the fall on March 11.

[50]       
Dr. McGraw agreed that if he knew of the prior difficulties Mr. Peers
was having which required him to work shorter hours, lie down in the boat
during working hours, and reduce his sports activities, and if he had known
that Mr. Peers had discussed going off work with Dr. Sparrow for some months,
he would agree that the motor vehicle injuries were a substantial contributing
factor to Mr. Peers’ decision to go off work.

[51]       
However, Dr. McGraw was concerned that Mr. Peers was so frightened
by the electric shocks that he thought he could do nothing at all, especially
since Dr. Kokan said the shocks meant he was at risk of a disk herniation,
with possible serious consequences.  In Dr. McGraw’s opinion, Mr. Peers should
not be frightened into inactivity by the shocks.  However, Dr. McGraw said he is
concerned about the shocks, regardless of whether they emanate from the mid
spine or go down the arms, and would want further neurological examination.

[52]       
In any event, despite the significance of the shocks, Dr. McGraw agreed,
when presented with additional facts which have been established in the
evidence, that the injuries from the motor vehicle accident were at least a
substantial cause of Mr. Peers leaving work in March of 2011.

[53]       
I am satisfied that Mr. Peers made a determined effort not to let the
pain interfere with the work he loved, but it eventually proved too much for
him, and he was force to quit.  It may be that the shocks should be further
investigated, and that Mr. Peers should not be as frightened of the
potential for disk herniation as Dr. Kokan suggests.  Nevertheless, I accept
that pain from the accident was the eventual cause of Mr. Peers’ inability
to continue to work as a boom boat operator and at physical jobs in general.

DAMAGES

Past wage loss

[54]       
Past wage loss is agreed at $76,000.  This amount is gross and is
subject to tax consequences, to be worked out by counsel, with liberty to
apply.

Non-pecuniary damages

[55]       
The plaintiff says an appropriate award for non-pecuniary damages is
$85,000.  The central core of Mr. Peers’ life, his physicality, is
substantially diminished.  He was the strongest man on the work site, the
strongest man on the ball team.  He enjoyed an uninhibited pursuit of outdoor
activities.  His strength gave him his confidence and was the basis of his
personality.  Now he can no longer work as a boom boat operator, is limited in
his sports abilities and recreational activities, and is depressed.

[56]       
Cases cited by the plaintiff include: Schnare v. Roberts et al,
2009 BCSC 397; Demarz v. Michaud,2010 BCSC 255; Gold v. Joe, 2008
BCSC 865.

[57]       
The defendants say Mr. Peers had lower back and neck problems that
resolved in a year.  They agree he continues to have dull mid thoracic pain and
emotional symptoms.  The defendants say the appropriate range for non-pecuniary
damages is $55,000 to $60,000.

[58]       
Cases cited by the defendants include: Langley v. Heppner, 2011
BCSC 179; Filsinger v. ICBC, 2009 BCSC 232; Driscoll v. Desharnais,
2009 BCSC 306.

[59]       
Mr. Peers must cope with a life that is very different from the one he
led previously, and at the age of 53, he is unlikely to return to the
activities he loved, even at a reduced level.  He has lost the ability to rely
on his great strength and agility, which sustained his confidence and
self-esteem, and although he can still participate in some activities, he is
simply not the person he was.  He has tried, since the accident, to stay in the
working world which defined him, and to remain active and replace the sports he
loved and excelled at with others that he could at least participate in.  Since
he quit work in March of this year when his symptoms became too much to handle
and moved to Powell River, he describes a life which is reclusive and lonely.

[60]       
However, the future is not, in my view, completely bleak.  While
testifying, Mr. Peers displayed stoicism and a sense of humour, underneath
his evident uncertainty about the turn his life has taken.  Having only
recently quit work, he is obviously still coming to terms with the need to find
a different lifestyle to fulfil himself.  He has a number of concerned friends
and family members who worry about him and want to assist him in improving his
life and increasing his social contacts.  He has moved away from his long time
home in the Gibsons/Roberts Creek area, but now lives near his son and
grandchild.  This should provide him with opportunities to join in community
activities if he will avail himself of them.

[61]       
Nevertheless, the loss of his former work and lifestyle is profound.  The
cases cited by the defendants do not deal with such substantial loss.  I accept
the plaintiff’s position that non-pecuniary damages should be $85,000.

Future wage loss

[62]       
There is no issue that Mr. Peers has suffered an impairment to his
ability to earn income.  The issue between the parties is whether Mr. Peers has
established that he has no residual earning capacity.

[63]       
It is Mr. Peers’ position that his ability to work has been destroyed by
the accident.  While not completely physically disabled, he is functionally and
vocationally disabled.

[64]       
The plaintiff says he will never be able to work at anything again, and since
his average income can be established, he should be entitled to future loss
calculated under the approach set out in Steenblock v. Funk (1990), 46
B.C.L.R. (2d) 133 (C.A.).  Counsel starts with Mr. Peers’ average earnings for
the years 2006-2008, which is $69,800, adjusted for the occasional slow year to
$66,500.  Using the economic multiplier provided by Mr. Benning ($7,105) which
includes labour market contingencies (non-participation in the work force –
either voluntary or involuntary, unemployment, part-time work and part-year
work), the loss would be $565,250 on $69,800 or $472,500 on $66,500.

[65]       
If the court began with the actuarial multiplier ($9,949), which
contemplates no labour market contingencies and applied it to $66,500, the
amount of loss is $661,608.  Applying a percentage for contingencies, which
counsel submits would be in the range of 25-33%, the loss would be between $440,000-$495,000.

[66]       
If the court were to find a residual ability to work, the appropriate
amount would be deducted on either method.

[67]       
The defendant takes the position that Mr. Peers is not completely
vocationally disabled, and that he has not discharged the onus upon him to
prove that he has no residual earning capacity.  While his life has to change,
he has made no efforts at all to look into other possible occupations.  The
vocational consultant who examined Mr. Peers simply gave up and did not
try to come up with anything Mr. Peers might be able to do.  Mr. Peers has come
to court with an unclear picture about his future because he has made no
efforts to find work.  He simply asks the court to make assumptions based on no
evidence.

[68]       
The defendants say the plaintiff was a self-starter and a useful member
of society.  He will be again if he makes an effort.  Instead he has had unreasonable
restrictions placed on him by the fear of an evolving disk herniation, a
diagnosis offered by Dr. Kokan but which is extremely unlikely.  Fear of this has
caused him to cease activity, when Dr. McGraw says he does not need to be
fearful of that, and should instead get the shock symptom properly
investigated.

[69]       
The defendants take the position that the shocks occurred two years
after the accident and their relation to the accident, if any, has not been
proven.  As well, retirement age in the logging industry is likely to be
younger than 65 – the national average age for retirement age for workers in
the forestry and logging industry is 57.9 years old.

[70]       
The defendants say Mr. Peers has significant residual earning capacity
and could access jobs in the range of $25,000 to $43,000.  An appropriate range
of loss of one to two years of pre-accident income ($67,000 – $134,000).

[71]       
I do not accept that Mr. Peers is entirely unemployable.  Mr. Peers is
still strong and, according to the doctors, he has always been strongly
motivated to work; indeed he worked for two years after the accident coping
with pain.  While severely limited in the heavy physical jobs he can do, he
still has good dexterity and coordination.  He is able to sustain positions as
long as he is free to move about.  He can lift fairly heavy weights, but not
repetitively.  He is adjusting to a new community and feels lonely and
isolated, but he is naturally a friendly and social person and can be expected
to make contacts as he becomes more familiar with Powell River.

[72]       
While the electric shocks caused Mr. Peers to quit his job as a boom
boat operator, he has suffered only one further shock since he stopped the
twisting motion required on the side winder.  While it seems prudent to
investigate this further, that is up to Mr. Peers.  However, there is no
evidence that the shocks render Mr. Peers immobile or that they should preclude
a return to a job that does not have inappropriate physical demands and
movements.

[73]       
While a specific job that Mr. Peers can do in Powell River has not been
identified, it is not up to the defendants to do so.  Mr. Peers has the
obligation to establish that he can do nothing at all, and I am not persuaded
that that is the case.  He has some residual earning capacity, at least for
part time work.  However, it is unlikely that such a job would be found in the
resource industries, given the prevalence of unions and the necessity of
placing existing employees who require job accommodation into less strenuous
jobs.  As well, given all the limitations facing Mr. Peers, including his
physical problems, his age, his lack of training in anything other than the
forest industry, his lack of aptitude for school, and the evidence that part
time work is most likely, I do not think there is a substantial possibility
that Mr. Peers can find a job that will pay $25,000 to $43,000 per year.  The
evidence is clear that he is most likely to work part time, if he is fortunate
enough to find a job.  The jobs he is capable of are at the low end of the
range suggested by the defendant.  There is a substantial possibility that Mr.
Peers, once he settles in to Powell River and looks for work, would be able to
earn in the range of $12,000 to $15,000 per year.

[74]       
I am satisfied that Mr. Peers was a motivated worker for the long term,
in a good position with a stable employer.  There is no evidence to suggest
that he would have worked part-time or part-year.  Other than high blood
pressure, which did not seem to be of concern to any of the doctors who saw
him, he was strong and healthy.

[75]       
Mr. Peers just assumed he would continue to work as a boom boat operator
until he was 65.  Mr. Snedden said all of the employees who have retired since
Mr. Peers started retired at over 50; one was 65.  While Mr. Peers may not
have continued to run a boom boat until 65, I accept that he would have
attempted to continue to work in some forest related occupation until he was 65,
given how important his work was to him and how good he was at it.  In such a
dangerous and physical industry, there is always a realistic possibility that
such a goal would not be fulfilled, and injury is not unlikely – for example,
on his last day at work, Mr. Peers suffered a fall.  As well, there are down
years in the forest industry, with less work and the possibility of layoffs,
such as occurred to Mr. Peers on his first return to work in May of 2009.

[76]       
In these circumstances, it is appropriate to use the actuarial
multiplier and to apply a percentage for contingencies.  In all the
circumstances, which include Mr. Peers’ age and the demanding physical
nature of his job, I apply a 33% contingency rate.  Mr. Peers’ residual ability
to work must also be taken into account.  The multiplier must be applied to
that figure as well.  Bearing in mind that such an exercise is an assessment
and not a calculation, I set Mr. Peers’ loss of future earning capacity at $375,000.

Special Damages

[77]       
The defendant agrees to special damages of $3,232.11.

[78]       
The defendant disputes two items – moving costs to Powell River ($621.42)
and housekeeping costs ($500).  The move to Powell River was to allow Mr. Peers
to be with his son and grandchild.  The functional capacity evaluator said Mr. Peers
did not require housekeeping assistance for a small place.

[79]       
I agree that the expense of moving to Powell River is not connected with
the accident.  Moving was simply a personal choice Mr. Peers made, unrelated to
the accident.  However, Mr. Peers is not a person to shirk any work he can do. 
I accept his evidence that he hired a housekeeper on several occasions because
he could not do the heavier work himself at that time.  Therefore that expense
of $500 is allowed, for a total of $3,732.11.

Future Care

[80]       
Mr. Peers seeks damages for a yearly gym pass, exercise therapy, yoga,
massage therapy, and stocking firewood (although this latter cost is not being
incurred), to age 80.

[81]       
As well, ten sessions of psychological counselling were recommended by
Dr. Flamer, at a cost of $175 – $225 per session.  Mr. Peers did not
follow this up, and when asked why on cross-examination, said he did not know
why he had not done so.  Dr. Zoffman, the psychiatrist who prepared a report
for the defendants, said Mr. Peers is at risk of developing clinical depression
if he does not regain a sense of his identity through work and sports.

[82]       
The plaintiff says the range for cost of future care is between $35,000 to
$40,000, applying Mr. Benning’s multiplier.  The cost of counselling was not
included in Mr. Benning’s calculation.

[83]       
The defendants say the only common sense and reasonable recommendations
are for exercise and yoga for 5 to 10 years, not ongoing massage and exercise
therapy until age 76 or age 80, as assumed in Mr. Benning’s report.  Nor should
there be any account of psychological assistance, as Mr. Peers did not follow
up the recommendation made by Dr. Flamer.  The defendants say a reasonable
award is $5,000 to $7,500.

[84]       
While exercise therapy, massage, and yoga have been recommended, I am
not persuaded that there is a medical basis to order the therapies that are
sought to age 76 or 80.  I agree with counsel for the defendants that five to
ten years is a reasonable period.

[85]       
I do, however, think that psychological counselling, as recommended,
would assist Mr. Peers.  In O’Connell v. Yung, 2012 BCCA 57, the
Court of Appeal said future care awards must take into account whether future
care costs will actually be incurred.  Mr. Peers did not know why he had not
followed up on the counselling recommendation, but in my view, counselling
would be of such obvious assistance to him that I am satisfied Mr. Peers will
consider it when he is able to do so financially.

[86]       
I award $10,000 for cost of future care, to cover counselling, gym passes,
yoga, and massage for a reasonable period.

Pension Loss

[87]       
Pension loss is agreed at $20,748.

Result

[88]       
Accordingly, I award the following amounts:

[89]       
The plaintiff received an advance of $2,000 which should be deducted
from the award.

[90]       
Unless there is a reason to speak to costs, the plaintiff is entitled to
costs at Scale B.

“M.A. Humphries J.”
The Honourable Madam Justice M.A. Humphries