IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120316

Docket: M61619

Registry:
Nanaimo

Between:

Jeremy Miller

Plaintiff

And:

Gordon James
Lawlor

Defendant

Before:
The Honourable Mr. Justice B.D. MacKenzie

Reasons for Judgment

[1]            
This is a personal injury claim arising from a significant motor vehicle
accident which occurred on January 22, 2009.

[2]            
Liability and causation are not in dispute. However, the parties differ
significantly on a fair and reasonable award for damages for soft-tissue
injuries to the plaintiff’s neck, back and right shoulder, and on the appropriate
award for past wage loss and loss of future earning capacity, if such a loss
has in fact been established.

Background

[3]            
The plaintiff, Jeremy Miller, is now 24 years old. At the time of
the accident, he was a 21‑year-old, second‑year apprentice
sprinkler pipefitter working for his father’s sprinkler-fitting company.

[4]            
He was a passenger in a relatively large pickup truck that was being
operated by a co‑worker, James Noon. Returning from a job site, the
plaintiff and Mr. Noon were stopped at a red light on the Inland Highway
just outside Nanaimo. Both were wearing seat belts.

[5]            
Both testified that they were rear-ended without warning and violently pushed
forward. The plaintiff estimated that the pickup moved 10 to 15 feet toward the
intersection.

[6]            
There was substantial damage to the pickup truck. It was repaired for
approximately $5,000. The vehicle that rear-ended the plaintiff and his co‑worker
was assessed as not worth repair due to significant front-end damage. The
plaintiff testified that he was in shock, he was dazed and confused, and his
“adrenalin was flowing.”

[7]            
First responders attended. The plaintiff did not go to the hospital because
he felt he was fine even though his knee and mouth were sore.

[8]            
The plaintiff’s mother came to the scene of the accident and drove him
home, where the plaintiff testified he was “dazed, confused and shaken up.” He
could not sleep, most of his body was sore, and he did not work the next day.
Two days later, he drove to Campbell River for a family function.

[9]            
En route to Campbell River, he had to stop and walk around because his
neck, back and shoulder were “really sore.” In Campbell River, he could only “lay
on the couch” due to overall soreness. At a walk‑in clinic, staff advised
him to use some Robaxacet or Advil, to go for physiotherapy and see his family
doctor.

[10]        
He returned to Nanaimo but did not work on Monday. He saw his family
doctor, Dr. Lisinski, on January 27, 2009.

[11]        
His knee and teeth were still sore, but these pains resolved around a month
later.

[12]        
Of greater concern by January 27, 2009, were pains in his lower and
upper back, right shoulder, neck and head. Dr. Lisinski diagnosed these as
signs of severe whiplash and recommended physiotherapy. The defendant described
this as a typical recommendation for soft-tissue injuries of the kind described
by the plaintiff.

[13]        
The plaintiff’s headaches tapered off after approximately three or four
months. They have recurred periodically.

[14]        
An x-ray taken shortly after the collision of the plaintiff’s neck, back
and shoulder showed nothing abnormal. He went to physiotherapy. After
approximately 28 visits, from January 29, 2009, to May 14, 2009, his
physiotherapist said he could not assist him anymore. He recommended that the
plaintiff get massage and chiropractic sessions. The plaintiff received eight massage
treatments between May 20, 2009, and July 13, 2009.

[15]        
The plaintiff testified that when he returned to work, his back and
right shoulder injuries limited him to light duties. His days ranged between
eight hours and less in length, depending on his body’s toleration. In cross‑examination,
he said that he would not still be employed as a sprinkler fitter but for his father’s
charity: he is now unable to consistently do all of the tasks that would
normally be assigned to him. His father confirmed that he now accommodates his
son with light duties when he is unable to carry on with the more demanding
above the shoulder work. Therefore the plaintiff says that his physical
limitations make him an unprofitable potential employee in pure business terms.

[16]        
The plaintiff testified that when he returned to work he did not do heavy
lifting, overhead drilling or pipe installation, but ground work and pipe
fitting.

[17]        
By May 2009, he was still not fully recovered. His lower and upper back,
right shoulder and neck were all still painful. He was doing primarily light
duties but even these could be difficult for him if he had to lean or bend
over.

[18]        
He received some massage treatments which relieved his symptoms for
about two days after each massage.

[19]        
He followed his doctor’s instructions and returned to an exercise
program. At a gym, he did cardio on the elliptical machine and engaged in a light‑weight
program using 30- to 40-pound weights. The plaintiff testified that he was only
able to bench-press 145 pounds instead of his pre‑accident level of
bench-pressing 225 pounds.

[20]        
The plaintiff saw a chiropractor, Dr. Whyte, on July 23, 2009,
twice more in July, twice in December, seven times in 2010, and six times in
2011. The plaintiff says that the chiropractic sessions help, but their benefit
lessens with time.

[21]        
The plaintiff’s injuries appear relatively stable now, except when he performs
overhead tasks at work or pushes himself too hard at the gym.

[22]        
The plaintiff did not go back to see his family doctor, Dr. Lisinski,
from the fall of 2009 to September 2011.

[23]        
In response to the defendant’s submission that by not visiting his
family doctor for two years this undermines the seriousness of the plaintiff’s
ailments, plaintiff’s counsel points out that there was no need for the
plaintiff to return to Dr. Lisinski because Dr. Lisinski did not
provide any treatment. He simply recommended that the plaintiff carry on with
his chiropractic sessions, massage, and exercise. I accept this.

[24]        
Despite some improvement, the plaintiff was still having lower and upper
back, right shoulder and neck pain in 2010 and 2011. In addition to the
chiropractic sessions, he was continuing with cardio and weight-lifting at the gym
and seeing a rolfer, who apparently performs a therapy akin to deep massage.

[25]        
In mid‑September 2010 and again in 2011 the plaintiff attended Camosun
College in Victoria for approximately six weeks in order to fulfill his
academic obligations for his apprenticeship program. The plaintiff drove from his
home to school, a trip which took him an hour and one‑half each way every
day. The plaintiff testified that his back would get sore from driving and sitting
in class. The plaintiff confirmed his aim was to complete his apprenticeship
program at the end of October 2012, and obtain his “red seal” journeyman ticket.

[26]        
He did not work much in the summer due to lack of jobs, but returned to
work again full time in November 2011. There is now steady work. He said he is
working full time but not at full capacity. He finds it difficult when he has
to maneuver pipe and go up and down ladders. Occasionally he is unable to
complete his eight‑hour shift and has to leave early. This varies with the
facts of the required job on any given day and its demands on his back. The
plaintiff testified that two older journeymen or his 70‑year-old father
would fill the gap if he was unable to finish the job.

[27]        
Although the plaintiff struggles with the heavier jobs especially
overhead pipe installation and drilling, he is by no means incapacitated. Since
April 2009, he has been working out at the gym and lifting weights. This
underscores his desire to regain full strength. I accept the evidence of the
witnesses who describe the plaintiff as a hard-working young man with a good
work ethic. I am satisfied he is not malingering with respect to these
injuries. It is clear that this young man has a strong work ethic. I am
satisfied the plaintiff is dedicated to maintaining his relatively strenuous
exercise regime in an attempt to alleviate or at least minimize the symptoms he
says he still experiences.

Plaintiff’s family and co‑workers

[28]        
Bill Miller, the plaintiff’s father and owner of the company, has been a
pipefitter for 25 years and owner-operator of Alliance Mechanical for six
years. Mr. Miller Sr. confirms sprinkler fitting is a physically demanding
job: the steel pipe is heavy, and its installation often involves overhead work
in ceilings and rafters. Bending and leaning over in difficult spaces and
angles likewise can be quite problematic even for a completely healthy
pipefitter. However, some tasks involve lighter duties and plastic pipe.

[29]        
Mr. Miller Sr. stated business has been quite poor in the region
since 2007. In 2009, the company lost $126,000. Mr. Miller Sr. says it is improved
but “barely profitable” now.

[30]        
Mr. Miller Sr. plans to work until he can afford to retire or
cannot physically do the job, whichever comes first. Despite his supervisory
status, he clearly does to a degree all the tasks of a pipefitter, especially when
his son is unable to do a specific task and his father is the only alternative.

[31]        
Mr. Miller Sr. emphasized that his son was a very good worker and
prior to the accident would be “up on the ladders” to install the heavier
pipes. I have no hesitation accepting this evidence of his son’s capabilities
pre- and post‑motor vehicle accident.

[32]        
Mr. Miller Sr. also said that since the accident he has tried not
to make “accommodations” at work for his son, yet stated that if his son’s shoulder
became too painful, Mr. Miller Sr. would give him a lighter job on the
ground that avoided tasks such as overhead drilling. Mr. Miller Sr. confirmed
there have been occasions where his son would leave work early because of pain
in his shoulder, back, or both.

[33]        
Mr. Miller Sr. testified he would not hire a person with his son’s
physical limitations due to the competitiveness of the industry and the small
profit margin on each job. To employ someone without full capacity to do all
required tasks would undermine any company’s profitability. Mr. Miller Sr.
said it is only because the plaintiff is “family” that he is still employed at
his father’s company.

[34]        
Having said that, Mr. Miller Sr. then testified that the plaintiff
is “physically capable of doing the job” but has difficulty with the drilling.
This was why Mr. Miller Sr. testified that if his son went north and tried
to work 12- to 14-hour days, his ability to do so would be dependent on the
specific job he was required to complete. Mr. Miller Sr. said if it was
heavy work, he believed his son would be unable to put in such hours.

[35]        
With respect to having his son take over the family business, Mr. Miller
Sr. testified he would like the plaintiff to take over the business, but they
have not really discussed this. Mr. Miller Sr. expressed concerns about
the competitiveness of the industry. In his opinion the competition would “destroy”
his son in business. Mr. Miller Sr. said that if something suddenly
happened to himself, his son would not be able to step in and run the business.

[36]        
In cross‑examination, Mr. Miller Sr. confirmed the job is
strenuous. He himself has had massage and chiropractor treatments over the
years to relieve work-related aches and pains in his back and shoulder. He
confirmed massage has helped him and this is why he suggested his son should
see a rolfer in August 2011.

[37]        
Susan Miller is the plaintiff’s mother. She keeps the books for Alliance
Mechanical. She confirmed work has been sporadic in the past few years but is
now picking up. She confirmed her son did not work in June or July 2011, and worked
only 37 hours in August 2011. She reiterated her husband’s concerns about their
son’s capacity to lead their business.

[38]        
She also confirmed her son cannot do the same household chores he once
did. She said Mr. Miller Sr. now helps the plaintiff with chopping wood: this
is a significant chore since wood alone heats the residence.

[39]        
The plaintiff called several witnesses who confirmed the general tenor
of his evidence and who were not challenged to any significant degree by the defendant.
The plaintiff’s friend from Junior B Hockey, Mr. Pierce, testified that
the plaintiff’s pre‑collision capacity to surf “all day” has decreased to
one or two hours, and that his capacity to work out at the gym has diminished.

[40]        
Coral Miller, the plaintiff’s sister, testified that her brother no
longer plays tennis or roller blades since the collision, and that he is less
outgoing and athletic.

[41]        
The plaintiff’s foreman, Patrick Brown, confirmed that sprinkler
pipefitting is physically demanding labour intensive work. He confirmed that the
plaintiff works hard and wants to work, and while he had much to learn at the
beginning of his apprenticeship, he performed his work reasonably quickly and
was becoming much better at the job. He too observed a marked decline in the
plaintiff’s work capacity since the accident. This required exempting the
plaintiff from time to time from heavier overhead tasks or occasionally from a
full shift. This meant reassigning those tasks to another worker or to Mr. Brown
himself. He also said that the thin profit margins of the industry, especially
in the mid‑Island area, mean that the plaintiff would be considered too
inefficient now to be attractive to another employer.

[42]        
Mr. Noon is a former Alliance foreman and was driving the company truck during
the collision. He too described the plaintiff as reliable, punctual, and in the
process of learning the job well. Mr. Noon confirmed that after the
collision, the plaintiff was confined to light duties such as fabricating and
bringing equipment and material to the actual job location.

[43]        
Mr. Noon testified that the average earnings for a ticketed
journeyman sprinkler-fitter would range from $60,000 to $80,000 per year
depending on the location and available work, and a four‑year apprentice
should earn between $55,000 and $60,000. He confirmed in cross examination
that journeymen working for Alliance might earn less than $60,000 annually
because of the economy in the Nanaimo area. He said that business is brisk in Victoria.
He predicted that business would strengthen because of a coming shortage of mid‑career
workers in the pipe industry once workers born immediately post‑war all
retire.

Post-accident activities

[44]        
The defendant submits that the plaintiff is still an active young man. He
is building a garage on his parents’ property with a suite for himself and his
girlfriend. He confirmed that while he was not felling trees at this site he
was using a small chainsaw to take branches off trees but the required bending caused
discomfort to his back. The plaintiff also acknowledged that about a year after
the motor vehicle accident he returned to surfing, one of his passions. However,
instead of being able to surf several hours during the day, his shoulder pain
now limits him to an hour or two.

[45]        
Even so, the defendant stresses that the plaintiff is still able to surf.
Moreover, the frequency of his surfing trips has only declined from four or
five weekends a year in 2008 to “maybe” three weekends in 2009.

[46]        
On the other hand, before the motor vehicle accident, the plaintiff was
an avid snowboarder. He testified he has not been boarding since the motor
vehicle accident because he worries about “doing serious damage” to his
shoulder should he fall.

[47]        
The defendant also points out that the plaintiff testified he has only
seen the chiropractor three or four times since August 2011, up to the trial
date, the last two sessions being in December 2011. He has continued with his
exercise program at the gym. The defendant says this plaintiff is active and
not receiving significant physiotherapy or medication.

[48]        
The plaintiff confirmed he works out five days a week for one and three‑quarter
hours doing both weights and cardio exercises. However, he added that he needs
to minimize overhead lifts and restricts his shoulder exercises to 35 pounds at
10 repetitions. Nevertheless, the defendant submits that the plaintiff’s
discomfort is not as significant as he has described.

[49]        
Additionally, Dr. Lisinski’s clinical records note that in December
2009, the plaintiff was “working full duties” and that the chiropractic
sessions “made a huge difference.” Again, the plaintiff emphasized that while
he did indeed obtain relief, this only lasted for a few days. Even so, the
defendant emphasises that the plaintiff’s attendance for chiropractic
intervention has been very sporadic, hardly indicative of a person suffering
from chronic and significant pain or discomfort. The plaintiff also
acknowledged that prior to the accident he would visit a chiropractor two or
three times a year “just to get stretched out and keep everything in line.”

[50]        
Dr. Lisinski’s final clinic record noted that on September 20,
2011, the plaintiff had excellent muscle tone and strength and full symmetry
and range of motion in his neck, with tenderness in his right shoulder.

[51]        
There was also some discrepancy or confusion as to whether the plaintiff
worked from June to September 2011, or was laid off due to a lack of business
in July and August. Business records show there was not much work during this
time so either the plaintiff is mistaken when he stated to the medical
practitioners he thought he had worked rather steadily from June to September
2011, or he simply made an honest mistake. In fact, the plaintiff conceded he
“could be getting [his] dates mixed up.” I am satisfied this is an honest error
on his part and does not undermine his credibility.

Medical and functional capacity evidence

Dr. Adrian

[52]        
Dr. Adrian testified as an expert in physical medicine and
rehabilitation. He reported on the pain still occurring in the plaintiff’s
neck, upper and lower back and right shoulder and gave the opinion that the
symptoms were “causally related to the motor vehicle accident.” Because the
plaintiff has experienced persistent symptoms for over two years,
Dr. Adrian concluded the prognosis for further recovery is “poor,”
although he does not predict the recovery to date will deteriorate. His
prognosis of continued difficulties follows:

Mr. Miller will probably
continue to experience difficulty performing activities that place physical
forces onto the painful and injured structures involving his neck, upper back,
lower back, and right shoulder. Specifically, he will probably continue to
experience difficulty performing household, recreational, and employment
activities that involve prolonged static or awkward positioning involving his
spinal column; prolonged sitting; impact activities, such as running; forceful
or repetitive lifting; prolonged over shoulder level upper extremity activity;
and forceful pushing or pulling. These physical limitations are unlikely to
improve over time. In my opinion, Mr. Miller is probably permanently
partially disabled as a result of the injuries suffered in the motor vehicle
accident.

[53]        
Cross-examination of Dr. Adrian focused primarily on the fact that the
plaintiff reported seeing a chiropractor prior the motor vehicle accident for
various bodily aches and pains, primarily from hockey. On this point, Dr. Adrian
could not recall any specific or localized areas of concern but testified he
had the “impression” it was for neck, back and shoulder. During this assessment
on August 10, 2011, the plaintiff advised Dr. Adrian he was seeing a
chiropractor once a month or every two months.

Dr. Gouws

[54]        
Dr. Gouws is an expert in the area of occupational medicine,
fitness for work and rehabilitation. Dr. Gouws assessed the plaintiff on
September 9, 2011. He too was cross-examined by counsel for the defendant. His
report noted the following physical impairments: chronic neck,
upper back and low back pain; pain and stiffness in the right shoulder “with
ongoing impairment for heavier lifting and carrying activities, above shoulder height lifting and handling activities as well as sustained
body position activities”; and lessened capacity for “sustained reaching,
handling and lifting above shoulder level with his dominant right hand.” Dr. Gouws
agreed with Dr. Adrian’s prognosis of poor further recovery and
consequently a “permanent functional impairment” requiring accommodation within
his job.

[55]        
Dr. Gouws confirmed the plaintiff reported that his right shoulder still
hurt, and when he examined the plaintiff there was an objective indication of
reduced range of motion in the plaintiff’s right shoulder. He agreed that a
weight program like the one t had embarked upon in the summer of 2009 is an
important component of a shoulder rehabilitation program.

[56]        
With reference to Dr. Lisinski’s note that as of November 2, 2009,
“Mr. Miller was working full duties,” Dr. Gouws testified he understood the
plaintiff “was doing whatever he could, depending on the job and the amount of
assistance he had on the job.”

[57]        
Dr. Gouws testified that the plaintiff’s aptitudes fit his job. Dr. Gouws
confirmed Dr. Adrian’s opinion that the plaintiff’s injuries fortunately were
“unlikely to progressively deteriorate over time.” He agreed with Dr. Adrian’s
recommendations that the plaintiff should continue with his “active” rehabilitation,
including an ongoing exercise regime.

Dr. Lisinski

[58]        
Dr. Lisinski, the family doctor and a family friend, also described
the plaintiff as a “hardworking young man who was proud of his fitness.” He saw
the plaintiff five days after the accident and referred the plaintiff to
physiotherapy. He also recommended anti‑inflammatory medication, but
based on his knowledge of the family, did not think the plaintiff would take
prescription medicine unless “he felt it helped.” Dr. Lisinski saw the
plaintiff in April 2009, and recommended massage and chiropractic therapy. He
testified it was his understanding that the plaintiff was going to massage and
physiotherapy periodically from the date of the accident to September 2011, as
well as seeing a rolfer.

[59]        
Dr. Lisinski testified that after the January 27, 2009, visit he
saw the plaintiff in February and April 2009. In April, he noted the plaintiff
was back at work doing “light duties.” Dr. Lisinski also noted that in
November 2009, the plaintiff was “working full duties” but still had “occasional”
lower back pain.

[60]        
Dr. Lisinski acknowledged that there were no other interventions pursued
by the plaintiff except for chiropractic and massage treatment or rolfing as
needed. Dr. Lisinski confirmed an MRI taken November 17, 2011, found “no
evidence of rotator cuff tendon tear and no obvious intra‑tendinous
calcification.”

[61]        
The defendant says this is significant: Dr. Lisinski was concerned
about a rotator cuff problem or calcification due to the plaintiff’s expressed
symptoms from the accident onwards. The MRI also negated the suggestion
expressed by Dr. Gouws that the plaintiff might have suffered a rotator
cuff injury.

Mr. Hosking

[62]        
Andrew Hosking was declared an expert in physiotherapy and functional
capacity evaluation. He prepared a functional capacity evaluation on September
8, 2011 and was cross-examined by defendant’s counsel. Mr. Hosking’s
report clearly concludes that the plaintiff continues to have difficulties in
overhead manoeuvres required in the sprinkler pipefitting industry:

In summary during this Functional
Capacity Evaluation Mr. Miller partially met the physical demands of his
job as a Sprinkler Fitter (NOC # 7252.2). He did not meet the job demands for
lifting and carrying capacity. He exhibited a tendency to fatigue in his right
shoulder and neck during activities requiring repeated or sustained reaching at
or above shoulder level. He demonstrated full capacity without restriction for
crouching, kneeling, crawling, walking and reaching at or below chest level.

[63]        
Defendant’s counsel in cross-examination highlighted the fact that the
plaintiff told Mr. Hosking that he had “not done anything” for a “couple”
of months prior to the assessment in September. On this point, Mr. Hosking
testified the issue of not working prior to the functional assessment was
relevant but not determinative of any definite answer.

[64]        
Mr. Hosking testified that the plaintiff can do the job, but needs
assistance with respect to the work load, especially when a specific task
requires lifting or overhead work. This limitation exists despite the fact that
during the assessment, the plaintiff was rated in the 97th percentile for “manual
dexterity” at shoulder level which according to Mr. Hosking “is an
excellent result.” The defendant also points out that when tested for “whole
body range of motion and reaching,” the plaintiff exceeds industrial standards
“with only modest discomfort.” Nevertheless, given the results of all the tests
conducted by Mr. Hosking, he reported the plaintiff only “demonstrated a
tolerance for medium physical activity.”

Mr. Bruce

[65]        
Mr. Bruce is a vocational consultant and prepared a vocational
assessment on October 18, 2011, at the request of the plaintiff.

[66]        
Under the heading “Aptitudes,” Mr. Bruce reported:

Mr. Miller scored in the low
average range in general learning ability, form perception and clerical
perception … the below average range in verbal aptitude and numerical aptitude
His scores are somewhat lower than expected, given he is a high school
graduate.

[67]        
Mr. Bruce noted the concerns expressed by Mr. Hosking with
respect to the plaintiff’s difficulties in overhead work and heavy lifting and
concludes:

In my opinion Mr. Miller remains
employable in his current position as an Apprentice Sprinkler System Installer,
employed with his father’s company. However, if he were to lose this position,
his ability to compete in a similar role in the open labour market would be
severely compromised. Mr. Miller’s best means to remain engaged in the
labour force is to complete his training and qualify as a Journeyman Sprinkler System
Installer, remaining with his father’s company.

Position of the plaintiff

Non-pecuniary damages

[68]        
Mr. McIver on behalf of the plaintiff emphasizes the plaintiff is
only 24 years of age. At the time of the accident he was beginning what he
clearly hoped to be a lengthy career as a sprinkler fitter.

[69]        
Prior to the accident the plaintiff was extremely fit and active, participating
in many sports including hockey, surfing, snowboarding, tennis and
rollerblading. His ability to fully participate in these activities has now
diminished. Counsel submits that due to the relatively high-velocity accident, the
plaintiff continues to have unresolved chronic soft-tissue injuries to his
shoulder, neck and back.

[70]        
On this point, Mr. McIver acknowledges that when considering soft-tissue
injury claims, credibility is generally the most significant issue when
attempting to determine an appropriate award for alleged pain and suffering.

[71]        
In these circumstances, Mr. McIver says the plaintiff is credible
and should be believed. He says the plaintiff’s testimony has been confirmed by
the medical experts, has been consistent throughout and is also confirmed by
his co‑workers, his parents and other witnesses. Counsel submits that Dr. Adrian’s
conclusion that the plaintiff is “probably permanently partially disabled” is
accurate and consistent with the injuries the plaintiff says he still suffers
from.

[72]        
As a result, all of the medical witnesses accept the conclusion that the
plaintiff needs a “sympathetic employer” or accommodation by any employer in
order to carry on as a sprinkler pipefitter given the strenuous nature of this
particular job.

[73]        
The plaintiff says his “competitive employability” has been affected by
the pain that occurs in his right shoulder when he is required to complete
heavy tasks at work.

[74]        
Moreover, the plaintiff says the medical experts agree that the plaintiff
has reached a point of maximum medical improvement. This might be overcome
however, in my opinion, by the plaintiff’s dedication to his exercise and
rehabilitation program. By the same token, the medical reports conclude the
plaintiff’s condition is not expected to get worse.

[75]        
In these circumstances, the plaintiff says a fair award for non‑pecuniary
damages would be in the range of $70,000 to $100,000 and that, in the plaintiff’s
particular circumstances, $80,000 would be an appropriate award.

Past wage loss

[76]        
The plaintiff also submits that the material supplied by Mrs. Miller,
the Company bookkeeper, suggests the plaintiff lost $16,512 in earnings from
the date of the accident to October 1, 2009. The plaintiff also says a
reasonable “estimate” of past lost wages from October 1, 2009 to the fall of
2011 would be an extra $5,000 per year over roughly a three‑year period for
a total of around $31,000 for a past wage loss claim.

Loss of future earning capacity

[77]        
The most significant aspect of the plaintiff’s claim is his claim for
damages for loss of future earning capacity.

[78]        
Mr. McIver acknowledges there is little doubt that the plaintiff will
complete his apprenticeship program and become a ticketed journeyman sprinkler
pipefitter. However, because of the accident, he submits the plaintiff will be
unable to compete on the open job market and will only be employable if his
father continues to own the sprinkler fitting business and his father or his
foreman make accommodations for his inability to put in a full eight‑hour
day.

[79]        
As such, the plaintiff says the appropriate assessment for loss of
future earning capacity is somewhere in the range of $200,000 to $400,000. The
plaintiff acknowledges that this category of damages requires a “rough and
ready” approach by the court in order to make a fair and equitable assessment.
(See Brown v. Golaiy, [1985] 26 B.C.L.R. (3d) 353, 35 A.C.W.S. (2d) 96
(S.C.), at para. 11 (“Brown”)).

Special damages

[80]        
There was no serious controversy with respect to this aspect of the claim.
The claimant seeks special damages of $3,598.92 which includes physiotherapy,
massage and chiropractor visits as well as mileage and expenses travelling to
Vancouver to meet with the doctors and Mr. Hosking.

The defendant’s position

Non-pecuniary damages

[81]        
The defendant says that the award for non‑pecuniary damages should
fall within the range of $20,000 to $25,000. The defendant says this as an appropriate
range where the “acute phase” of the plaintiff’s injuries subside after a
period of approximately six to nine months. The defendant says the plaintiff
was back at work by March 2009 and suffered only mild discomfort. The defendant
says I should not accept the plaintiff’s testimony as to the severity of his ongoing
complaints.

[82]        
In support of this submission, the defendant points out that after the
plaintiff’s visit to Dr. Lisinski in the fall of 2009, he did not return
for two years and then only to allow Dr. Lisinski to prepare a report for
litigation.

[83]        
While the defendant agrees with plaintiff’s counsel that the actual
number of visits to the family doctor is not the issue, the reason for the
plaintiff’s lack of appointments with his family doctor is a relevant and
material question in these circumstances.

[84]        
The defendant submits the reason the plaintiff did not go back to Dr. Lisinski
was because he was not in serious discomfort. In addition, Dr. Lisinski
recommended the usual treatment for a moderate soft-tissue injury: medication
and physiotherapy. The plaintiff was already getting some massage and other
treatment for back, neck and shoulder problems before the accident, presumably
because of his active lifestyle. The defendant points out that since the
collision the plaintiff has had only 12 chiropractic visits and one or two
rolfings, hardly indicative of someone with chronic pain. The defendant says
this modest attendance for treatment does not support a claim for damages in
the range suggested by the plaintiff.

[85]        
The defendant takes these facts and combines them with the plaintiff’s
testimony from his examination for discovery. When asked the question, “Have
you missed any work during 2011 because of your injuries from this accident?,” the
plaintiff replied “Not in 2011.” Based on this, the defendant says that the
plaintiff’s injuries are not as significant as he suggests.

[86]        
The defendant therefore urges caution when I consider damages in a case
such as this: much of the evidence of injury is subjective, and the court must
rely on the plaintiff’s reporting of the injuries he claims. I agree, and note
the comment of McEachern C.J. (as he then was) when he stated in Price v.
Kostryba (1982) 70 B.C.L.R. 397 (S.C.), in referring to an earlier
decision, the following:

"An injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer. But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence — which could be just his own evidence if the surrounding
circumstances are consistent — that his complaints of pain are true
reflections of a continuing injury."

Past Wage Loss

[87]        
The defendant submits that any award for past wage loss should be
restricted to the initial few weeks after the accident.

[88]        
The defendant says the reason to restrict past wage loss to this time
frame is because the payroll records kept by Mrs. Miller are imprecise and
insufficient. Mrs. Miller acknowledged she did not record the cause of
reduced eight‑hour shifts for employees at Alliance Mechanical.

[89]        
The defendant also says it is more reasonable to conclude that once the
plaintiff returned to work, any future shortfall in hours worked were because
of the slow economy, especially in the Nanaimo area, and not because of pain
from his back and right shoulder.

[90]        
The defendant reminds the court that Dr. Lisinski advised the
plaintiff to see him again only “if things don’t progress.” As he did not see Dr. Lisinski
for approximately two years, the defendant says the court should not accept the
plaintiff’s evidence that he missed work after March 2009, because of pain in
his shoulder and back.

[91]        
Finally, the defendant notes that Dr. Lisinski and Dr. Gouws
reported that the plaintiff returned to work at the beginning of March 2009.

[92]        
Moreover, the defendant points out that according to his mother’s
payroll records, the plaintiff lost only $114 in wages in July, yet he was
receiving chiropractic treatments for his injuries. Contrasting that with a significant
wage loss in August (approximately $1,500) and September ($1,800), the
defendant says it is illogical that he would miss more work in August and
September due to injuries than he did in July.

[93]        
The plaintiff’s response to this argument is straightforward. The
plaintiff testified that his ability to put in a full eight‑hour shift
primarily varied with the specific work he had to do on any given day.

[94]        
Nevertheless, the defendant maintains that I should find the plaintiff’s
sole wage loss due to injury was in the six weeks from January 22, 2009, to the
start of March 2009. The defendant says this amount should be in the range of
$7,000 to $8,000.

Loss of future earning capacity

[95]        
Because the plaintiff has returned to his pre‑accident employment,
the defendant argues the plaintiff has not established a real and substantial
possibility of loss of future earning capacity.

[96]        
The defendant says the plaintiff’s situation is similar to others where
the plaintiff has been injured but is able to return to his pre‑accident
employment and is in fact now earning more than he did previously.

[97]        
The defendant says it does not matter that the primary reason the
plaintiff earned more in 2011 is because work is now “booming.” He is working
and earning income despite his injuries. The defendant therefore says that the
plaintiff has not established that the injuries he says he still suffers from
have resulted in a “real potential for loss of future income.”

[98]        
Alternatively, the defendant argues that if the plaintiff has
established a loss, the award should be lower than what he asks for. The
defendant says the examples put forward by the plaintiff’s consultant,
Mr. Benning, lack “common sense” and do not properly consider that the
plaintiff is working at the same job as before the accident, albeit at somewhat
reduced capacity according to the plaintiff’s evidence.

[99]        
The defendant says that if the court concludes the plaintiff’s capacity
to earn an income has been diminished as a result of the accident, and that
this will result in a pecuniary loss, then the applicable approach to a fair
and reasonable award is the capital asset approach adopted by the court in Bray
v. Gaete, 2004 BCSC 335 (“Bray”); Brown; and Pallos v.
ICBC, (1995), 53 B.C.A.C. 310 (“Pallos”). In these cases the
court awarded the equivalent of one year’s loss of income.

Conclusion on non-pecuniary damages

[100]     I agree
with the plaintiff that the medical opinions have not been seriously challenged
by the defendant.

[101]     These
expert opinions, coupled with the evidence of the plaintiff and his father and co‑workers,
substantiate the plaintiff’s claim that he probably suffers from a permanent partial
disability that still causes discomfort and pain mostly when he is engaged in
strenuous above-the-shoulder tasks and bending over in restricted areas at work.

[102]     I found the
plaintiff, his father and co‑workers to be credible witnesses. I accept the
plaintiff’s evidence that he continues to work through this pain. He is
determined to do all he can to reduce the limitation caused by his shoulder and
back problems.

[103]     I accept his
testimony when he says he still suffers from some pain and discomfort when he
is required to perform the heavier tasks at work. The evidence clearly
establishes that prior to the accident. The plaintiff had no physical
limitations in performing the demanding work of a full‑time sprinkler
pipefitter. I accept his explanation as to why he mistakenly answered in his
examination for discovery that he did not miss any work in 2011 due to
injuries.

[104]     With
respect to an assessment of non-pecuniary damages, factors the court needs to
consider have been outlined in Stapley v. Hejslet, 2006 BCCA 34 (“Stapley”).

[105]     This list
is not exhaustive and each case will depend on its own specific circumstances.
However, the factors outlined in Stapley, at para. 46, by our Court of
Appeal include:

a)    age of the
plaintiff

b)    nature of the
injury

c)     severity
and duration of pain

d)    disability

e)    emotional
suffering

f)      loss
or impairment of life

g)    impairment of
family, marital and social relationships

h)    impairment of
physical and mental abilities

i)       loss
of lifestyle

j)      plaintiff’s
stoicism (as a factor that should not, generally speaking, penalize the
plaintiff; Giang v. Clayton, 2005 BCCA 54, at para. 55).

[106]     In this
case the plaintiff relies on the following cases supporting an award of $80,000
for general or non-pecuniary damages:

1)    Pett v. Pett,
2008 BCSC 602; $85,000 for non‑pecuniary damages for a 23‑year old
in the construction industry.

2)    MacKenzie v.
Rogalasky, 2011 BCSC 54; $100,000 for a 41‑year old chef who had
symptoms of chronic pain for nearly seven years.

3)    Elsau v.
Myles, 2010 BCSC 43; $70,000 for a 24‑year old with chronic pain
“with flare ups of severe pain” (at para. 21).

4)    Kasidoulis v.
Russo, 2010 BCSC 978; $90,000 for “debilitating mid and low- back pain” (at
para. 40).

5)    Knight v.
Belton, 2010 BCSC 1305; $75,000 for chronic mid‑back pain and
periodic right shoulder pain.

6)    Andres v.
Leslie, 2005 BCSC 1096; $65,000 for a 23‑year old esthetician with
chronic pain that affected her recreational life.

[107]     Plaintiff’s
counsel suggests these cases are reasonably similar to the plaintiff’s
circumstances and reflect an appropriate award for damages in his case.

[108]     The
defendant, on the other hand, relies upon the following cases as supporting an
award of $20,000 to $25,000:

1)    Robinson v.
Anderson, 2009 BCSC 1450; $25,000 in the absence of a permanent or
long-term injury with an absence of enduring pain.

2)    Hill v.
Durham, 2009 BCSC 1480; $40,000 for moderate soft-tissue injury that
remained “problematic” almost four years after the accident.

3)    Bray;
$20,000 for minor and moderate soft-tissue injuries before mitigation
deduction.

4)    Nicholas v.
Henry, 2006 BCSC 694; $20,000 where plaintiff had been symptomatic for four
years since the accident and soft-tissue injuries were unlikely to resolve
completely.

5)    Loik v.
Hanna, 2009 BCSC 1196; $25,000 for soft-tissue injuries before mitigation
deduction, where the court could not conclude if injuries were permanent.

6)    Hsu v.
Williams, 2011 BCSC 1412; $30,000 before mitigation deduction.

7)    Chang v.
Feng, 2008 BCSC 49, $45,000 where the court concluded it was unclear
whether injuries would resolve.

[109]     Although
useful as a flexible guideline, the authorities provided by both parties are
all distinguishable from this particular case. Non‑pecuniary damages are
awarded to compensate each individual plaintiff for pain, suffering, loss of
enjoyment of life and loss of amenities. Moreover, the compensation award
should be fair and reasonable to both parties. (See Andrews v. Grand &
Toy Alberta Ltd., [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452;
Jackson v. Lai, 2007 BCSC 1023, at para. 134; and Kuskis v. Hon Tin,
2008 BCSC 862, at para. 135.)

[110]     In this
case, the medical evidence is consistent in concluding that the plaintiff suffers
from chronic pain and discomfort in varying degrees. I accept that his quality
of life has clearly been diminished. The accident affected his ability to help
at home with heavier chores such as chopping wood. He now curtails his surfing.
He has become so cautious with respect to snowboarding that he does not do it
at all.

[111]     The
plaintiff testified he continues to suffer sporadic pain and discomfort from
the injuries he suffered because of the accident. I accept his evidence. I
agree with Mr. McIver that the plaintiff has chronic soft-tissue symptoms
that, according to the medical opinions, are likely to persist. They have continued
for over three years and have affected his overall lifestyle as well as his
ability to fully function at work. According to Dr. Adrian “’the prognosis
for further recovery … over time is poor.” Unlike some, this plaintiff has not
made numerous trips to a chiropractor or physiotherapist or massage therapist.
I am satisfied this is because of his stoic personality coupled with the advice
he has received from the medical personnel that his exercise regime is now the
best thing he can do to minimize his symptoms. The infrequency of massage and
chiropractic sessions should not be held against him.

[112]     Taking
into account the totality of the evidence and the authorities presented by both
counsel, I am satisfied that an appropriate award of non-pecuniary damages here
is $65,000.

Loss of future earning capacity – Analysis

[113]    
The court must enter into the realm of “crystal ball gazing” to determine
impairment of future earning capacity. As Cumming J.A. said in Parypa v.
Wickmare, 1999 BCCA 88, at para. 62:

It is clear that this determination is not a precise or
mechanical exercise. The difficult and inherently uncertain task of predicting
the future is described in the following oft quoted passage by Dickson J.
in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 251,

We must now gaze more deeply into the crystal ball. What
sort of career would the accident victim have had? What were his prospects and
potential prior to the accident? It is not loss of earnings but, rather, loss
of earning capacity for which compensation must be made: The Queen v.
Jennings, supra. A capital asset has been lost: what was its value?

MacKenzie J. (as she then was)
said in Romanchych v. Vallianatos, 2009 BCSC 669, at para. 89 (“Romanchych”):

The future or hypothetical
possibility will be taken into consideration as long as it is a real and
substantial possibility and not mere speculation: Athey v. Leonati, [1996]
3 S.C.R. 458, 140 D.L.R. (4^th) 235 at paragraph 27.

[114]    
In determining whether the plaintiff has established a real and
substantial possibility of a loss of future earning capacity, I need to refer
to the four factors noted by Finch J. (as he then was) in Brown. They
include whether:

1)     The
plaintiff has been rendered less capable overall from earning income from all
types of employment;

2)     The
plaintiff is less marketable or attractive as an employee to potential
employers;

3)     The
plaintiff has lost the ability to take advantage of all job opportunities which
otherwise might have been open to him had he not been injured; and

4)    
The plaintiff is less valuable to himself as a person capable of earning
income in a competitive labour market.

[115]     Counsel
says that if I accept the plaintiff’s evidence along with the medical evidence,
the court should have no difficulty in making a substantial award for loss of
future earning capacity: it is clear that his earning capacity has been
impaired to a relatively significant degree by the chronic pain he continues to
suffer from. The injuries caused by the accident continue to prevent him from
being able to complete sustained over-the-shoulder jobs that he otherwise would
be able to complete, even though the plaintiff tries to push through his pain
and suffering in order to be a productive employee.

[116]     In these
circumstances, the evidence establishes that the plaintiff has been rendered
less capable of earning income from all types of employment as well as being
less marketable or attractive to potential employers. I am satisfied that the
plaintiff is working full time as a sprinkler pipefitter only because his
father is his employer and has accommodated him when it comes to excusing him
from an eight‑hour day of overhead work. I accept that no other sprinkler-fitting
employer would be so accommodating as the plaintiff’s father. He has also lost
the opportunity to work long hours in the north. Although he has not done so
yet, it is not an unreasonable possibility given the demand for skilled
sprinkler pipefitters in Saskatchewan and northern British Columbia, as
outlined in Mr. Noon’s testimony. The plaintiff has established he is
unable to take advantage of all job opportunities which might otherwise be open
to him.

[117]     Finally, he
is certainly less valuable to himself as a person capable of earning income in
a competitive labour market.

[118]     Even
though the plaintiff has returned to his prior employment, given the totality
of the evidence, including the uncontradicted medical evidence of a probable
partial permanent physical disability which will have an effect on the
plaintiff’s capacity to work and on his employability in the future, I am
satisfied he has established that there is a substantial possibility of a
future event leading to an income loss. (See Athey v. Leonati, [1996] 3
S.C.R. 458).

[119]    
As Garson J.A. confirmed in Perren v. Lalari, 2010 BCCA 140, at para. 32
(“Perren”):

A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment. That was the case in both Pallos and Parypa.

[120]     The
plaintiff’s evidence establishes that he faces limitations on his ability to
work competitively as a full-time sprinkler fitter. This proves a loss of
future earning capacity.

Method

[121]     I must now
decide which of two general approaches (earnings or capital asset) to use in
assessing fair and reasonable quantification (see Pallos, at para. 27).

[122]     In Perren,
at para. 12, Garson J.A. reviews these two basic approaches to
quantifying a plaintiff’s loss of future earning capacity. The earnings
approach

may be appropriate where a
demonstrated pecuniary loss is quantifiable in a measurable way; however, even
where the loss is assessable in a measurable way (as it was in Steenblok),
it remains a loss of capacity that is being compensated….

[123]     Alternatively,
the capital asset approach

… is more appropriate where the
loss, though proven, is not measurable in a pecuniary way. An obvious example
of the Brown [capital asset] approach is a young person whose career
path is uncertain.

Plaintiff’s approach

[124]     The
overriding principle the court must follow is “the overall fairness and
reasonableness of the award”: Rosvold v. Dunlop, 2001 BCCA 1, at
para. 11. Plaintiff’s counsel submits a fair and reasonable award in these
circumstances would be $350,000. In support of this submission the plaintiff
submitted a report written by Mr. Benning, President of Peta Consultants
Ltd. The primary purpose of this report was to estimate, after taking into
consideration various contingencies, that the plaintiff’s without accident
income to age 65 would be $1,957,927. Plaintiff’s counsel submitted I could
take a percentage of this amount when assessing what would be an appropriate
award under this subhead of damages.

[125]     Mr. McIver
also provided an alternative method by which to assess loss of future earning
capacity. This incorporates the projected future minimum annual income loss
approach noted by Finch J.A. in Pallos. Utilizing this method the court
assumes a minimum annual income loss to retirement and then uses a multiplier
to calculate a present value for this amount. In Mr. McIver’s examples, he
used annual income losses of $10,000 and $20,000 which would result in a loss
of potential earning capacity in the amounts of $220,220 and $440,440
respectively. Counsel acknowledged however that these estimates of projected
annual income loss are simply examples of the methodology employed and that this
type of analysis is not based on any specific evidence as to how much the
plaintiff may or may not lose per annum. Rather, these examples were provided
to give some guidance to the court as to what the plaintiff submits is a
reasonable award.

[126]     Again, I
note that this method is more attractive when the court has some evidence of
the annual income before the accident and the annual income the plaintiff is presently
earning when working at a different, perhaps less demanding job. The projected
future earnings approach is generally more useful when the court is dealing
with a plaintiff who has a reasonably long track record or relatively steady
earnings that can result in an accurate quantification of loss of future
earning capacity.

[127]     The
approaches proposed by the plaintiff therefore do not fit the profile of the
plaintiff’s career thus far. The plaintiff has some pattern of earnings, but he
has not worked full time because he is attending school and has been laid off
for several months over the last two years due to a sluggish economy in
mid-Vancouver Island.

Defendant’s approach

[128]     The
defendant agrees the capital asset approach is appropriate. Within that larger
method, defendant’s counsel says the method of calculation used by Finch J.
in Brown of awarding one year of annual income for loss of future
earning capacity is appropriate. The defendant says the evidence establishes
that an apprentice at Alliance earns approximately $40,000 to $50,000 a year
and this would be a fair and reasonable award for loss of future earning
capacity.

Conclusion on loss of future earning capacity

[129]    
I find the capital asset approach suits these circumstances. As Tysoe J.A.
observed in the appeal in Romanchych, at para. 15:

[15]      … the quantification of
the loss of future earning capacity is more at large when the injured plaintiff
is a young person who has not yet established a career. This is in contrast to
the situation in Steward v. Berezan, 2007 BCCA 150 (CanLII), 2007 BCCA 150, 64
B.C.L.R. (4th) 152, where the plaintiff was near the end of his working career
and had no intention of returning to the trade which he was unable to perform
due to his injuries.

[130]    
 In order to ascertain a reasonable quantum of damages, it is
appropriate to refer again in general terms to the considerations set out in Brown,
at para. 8. The Court of Appeal in Romanchych agreed that it is
appropriate to make reference to these considerations not only when finding the
existence or absence of a loss of future earning capacity, but also when
addressing “the quantum of the damages” (para. 11). I agree with the plaintiff
when he says all four of these considerations apply to Mr. Miller.

[131]     In global
terms, it is also necessary to acknowledge the potential for various positive
and negative contingencies occurring over the working career of any plaintiff.
These include “potential improvements in health, opportunities for advancement,
decline in the economy and loss of employment, as well as the usual chances and
hazards of life” (see Trites v. Penner 2010 BCSC 882, at para. 228).
This assessment necessarily requires that the trier of fact make what
Finch J. (as he then was) termed in Brown a “rough and ready”
valuation, and similarly relieves the trier of fact from attempting a
formulistic mathematical calculation (Romanchych, BCCA, at para. 13).

[132]    
In fact, Mr. Justice Groberman has recently said in Bradshaw v.
Matwick, 2011 BCCA 111, at para. 33:

As this Court has noted on many
occasions, an assessment of future income loss is an exercise in judgment and
assessment, and not a mathematically precise calculation – see Parypa
v. Wickware, 1999 BCCA 88 particularly at para. 36.

[133]     One
occasion was in Morris v. Rose Estate (1996), 75 B.C.A.C. 263. At
para. 28, Donald J.A. said, “it is the judge’s sense of what is fair
compensation that matters. There is much more art than science in the process.”

[134]     Following
these appellate directions, I agree with the defendant that in these
circumstances, it is appropriate to use the capital asset approach put forward
by Finch J.A. in Pallos at para. 43, and “to award the plaintiff’s
entire annual income for one or more years.” I do so primarily because of the
plaintiff’s youth, his ongoing apprenticeship, and the positive and negative
contingencies outlined above.

[135]    
In fact, the plaintiff’s facts are similar to those in Romanchych.
At trial, MacKenzie J. (as she then was) considered the loss of earning
capacity for a 24‑year old woman who at the time of the accident was a
university student but working part time as a lab technician as part of the
university’s co‑op program. Similarly, the plaintiff was 21 at the time
of the accident and just embarking upon his apprenticeship program.

[136]    
In Romanchych — unlike the decisions in Brown and Bray
v. Gaete — MacKenzie J. concluded that instead of one year of income,
the equivalent of two years’ income would be a fair and appropriate assessment
of Ms. Romanchych’s future loss of earning capacity.

[137]     However, I
have found no authority that restricts an award for loss of future earning
capacity utilizing this method to one or two years of annual income, and the
defendant agrees. Mr. Justice Finch in Pallos, again, uses the
phrase “one or more years” [emphasis added]. Indeed, in Phoutharath
v. Moscrop, 2002 BCSC 686, Garson J. (as she then was) referred
at para. 57 to Kahle v. Ritter, 2002 BCSC 199, and Letourneau v. Min,
2001 BCSC 1519, as well as Pallos, and concluded that Mr. Phoutharath’s
“risk of demotion is greater than” the plaintiffs’ in those three cases, adding
that if she chose that method she “would award three years’ lost income.”

[138]     As in Pallos,
the plaintiff continues in the same work he had prior to the accident. It is
unknown how long that will last. He might realize his goal of taking over his
father’s business if he can learn the business end of the operation. This might
require him to reduce his number of hours on the job in order to understand and
appreciate this aspect of the sprinkler fitting business. He might be able to
secure employment that will not require as much over-the-shoulder,
off-the-ground work. He might retrain for other “labouring” opportunities. He
could follow in the footsteps of Mr. Noon and become a union
representative. As in the past, he could be out of the work force for a
considerable period of time depending upon what might happen in the
construction industry in the future. However, with his strong work ethic I have
little doubt he will continue to work in some capacity. Finally, given that
Dr. Adrian concluded the plaintiff is “probably” permanently partially
disabled, there is some prospect his shoulder and back pain might decrease to
the point where he could manage all the heavy duties of a sprinkler fitter.

[139]     Considering
all of the evidence, I find the plaintiff also stands a higher risk of loss of
future earning capacity than did the plaintiffs in the cases canvassed by
Garson J. in Phoutharath, at para. 57. I conclude
therefore that a fair award for the plaintiff would be the equivalent of three
years’ annual income for a journeyman sprinkler-pipefitter on Vancouver Island.
According to Mr. Noon, the suggested range of annual income is between
$60,000 and $80,000.

[140]     Given the
totality of the circumstances and taking into consideration the various
contingencies I have referred to, I am satisfied a fair and reasonable award
for loss of future earning capacity would be three years of annual income at
the medium range, for a total of $210,000.

Loss of past wages

[141]     The
plaintiff says the evidence establishes he missed work because of injuries suffered
in the motor vehicle accident. It is clear he has lost some wages, but counsel
again differ on how much work the plaintiff lost due to his injuries given that
Mrs. Miller was unable to verify the exact reason why her son might have
worked less than 40 hours a week up and until November 2011.

[142]     In fact, counsel
has acknowledged that “no specific records were kept as to the days the
plaintiff left work early or missed out on work” because of injuries due to the
accident. As such, the plaintiff acknowledges he “will suffer a penalty as a
result thereof.”

[143]     The defendant
submits that the plaintiff has not proven a past wage loss apart from the first
few weeks after the accident. The defendant says the plaintiff has not
established on a balance of probabilities that other lost hours are
specifically related to his injuries.

[144]     The
plaintiff entered a letter from Mrs. Miller calculating his wage loss from
the date of the accident to April 1, 2009 to be $10,722.04. In addition,
Mrs. Miller provided calculations for wage loss from April through to September
2009 of $5,789.56. Including an “estimated” annual reduction in past wages for
three more years at $5,000 per year, the plaintiff claims approximately $31,512
in lost past wages.

[145]     As the defendant
points out, the letter from Mrs. Miller and the calculations are simply
“how much less the plaintiff earned than he would have earned working a 40‑hour
week from January to September 2009.”

[146]     The
defendant also points to the fact that the plaintiff was laid off from time to
time and received almost as much in EI benefits as he did from working in 2010,
supporting the defendant’s submission that the plaintiff’s reduced employment
income came from a lack of work and not from his inability to do the job. In
addition, the plaintiff confirmed this was “regular” employment insurance, not
medical employment benefits.

[147]     The defendant
again emphasized that the plaintiff was asked at the examination for discovery,
“Have you missed any work during 2011 because of your injuries from this
accident?,” to which the plaintiff answered, “Not in 2011.”

[148]     I have
already accepted the plaintiff’s explanation that that particular answer was
“not accurate” and was an error on his part. As a result, I find that he did in
fact miss some work in 2011 because of pain and discomfort in his shoulder and
back.

[149]     As such I
am satisfied that the plaintiff has established that there should be some award
for past wage loss in addition to his wage loss immediately following the
accident.

[150]     With
respect to the wage loss in the first few months after the accident, the
defendant says the plaintiff was back at work at the beginning of March. Therefore
the plaintiff lost only six weeks of work. His past wage loss should therefore
be approximately $7,000 to $8,000 with no award for any loss since March 2009,
due to incomplete and uncertain records kept by his mother.

[151]     This
submission focuses on the contents of Dr. Lisinski’s letter of
December 7, 2009, and Dr. Gouws’ report of October 17, 2011. Dr. Lisinski
reports that “he had returned to work apparently at the beginning of March to
do light duties, but was not capable of doing anything more than that for at
least two or three months.” Dr. Gouws notes that “following the accident
in 2009, the plaintiff said he stayed home and rested and returned to light
duties at the beginning of March 2009” (para. 36). This, however, is
contradicted by the plaintiff when he testified that he returned to work in
April 2009. He testified he was doing light duties in April. In
cross-examination he said he was off work all of February and March. He testified
he returned to work in April, but missed “numerous times” or else had to leave
early. In these circumstances, I accept the plaintiff’s evidence on this point as
well. I am of the opinion the plaintiff has established that he returned to
work in early April, 2009. As such he is entitled to an award for past wage
loss for this period of time. I accept the evidence of Mrs. Miller that
this loss is $10,722.04.

[152]     With
respect to the remainder of 2009, having accepted the plaintiff’s testimony
that he would leave work early because of injury, and that this was quantified
by Mrs. Miller’s records, I am satisfied it is appropriate to accept the
calculation provided by Mrs. Miller for wage loss from April through to
September 2009. This total is $5,789.56. The total wage loss from the date of
the accident to October 1, 2009, is therefore $16,511.60.

[153]     The
evidence then is silent as to how many hours of work the plaintiff might have lost
due to his injuries from October 1, 2009, until November 1, 2010. The plaintiff
provided no records showing how many hours of work he missed for whatever
reason during this period. The defendant also points out that the plaintiff
received significant EI benefits in the years 2009, 2010 and 2011 and as such,
“the evidence indicates the decline in his earnings was due to a declining
economy, not due to injuries.”

[154]     In an
attempt to quantify a wage loss for this time frame, Mrs. Miller did provide
payroll summaries from November 2010 to December 2011 for the plaintiff, Mr. Brown
and a third employee, Mr. Kress.

[155]     These
summaries showed that in some months the plaintiff would work fewer hours than
Mr. Brown or Mr. Kress, and sometimes more. They show significant
layoffs for all three and again fail to differentiate when the plaintiff would
have left early because of pain in his shoulder or back, a lack of work, or for
some other reason.

[156]     Moreover,
Mr. Brown testified he was aware of the plaintiff having pain at the end
of the day or in the afternoon. He said the plaintiff would leave early “the
odd day,” “probably three or four times a month,” but that things were “slowly
getting better” and he was now taking less time off work.

[157]     Finally,
the evidence is unclear as to whether the plaintiff would have been on the same
job site necessarily putting in the same hours as either Mr. Brown or
Mr. Kress. As such, I am not satisfied I can accede to Mr. McIver’s
submission that I can calculate a past wage loss by comparing the hours these
employees worked with the plaintiff’s hours.

[158]     In these
circumstances I agree with Mr. Ridgway that the evidence pertaining to
this part of the wage loss claim is very uncertain. However, as I have accepted
the plaintiff’s testimony that he would leave work early from time to time, on
the “odd day” according to Mr. Brown, I am satisfied the plaintiff did
incur some wage loss during this time period as a result of the accident. As
Hall J.A. said in Pett, at para. 25, “doing the best I can
with the evidence,” I award an additional $2,500 in past wage loss. The total
award for past wage loss will therefore be $19,011.60.

Special Costs

[159]     As I
mentioned earlier, there was no significant disagreement as to the calculation
of special costs. The plaintiff is entitled to judgment under this heading in
the amount of $3,598.92.

Summary

[160]     The
plaintiff is entitled to the following:

a)    Non-pecuniary
damages, $65,000;

b)    Loss of future
earning capacity, $210,000;

c)     Past wage
loss, $19,011.60;

d)    Special damages,
$3,598.92.

Costs

[161]    
The plaintiff is entitled to costs on Scale B. If there are matters I am
unaware of counsel may make further submissions in due course on this issue.

                     “B.D.
MacKenzie, J.”                 

Mr.
Justice B. MacKenzie