IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120427

Docket: M85933

Registry:
Kelowna

Between:

Brian Scott
Antonishak

Plaintiff

And:

Adrian W. Piebenga

Defendant

Before:
The Honourable Mr. Justice Wong

Oral Reasons for Judgment

Introduction

[1]          
This is a personal injury action arising from a motor vehicle accident
which occurred at an intersection in Downtown Kelowna on February 16, 2008. Liability
is admitted. That left assessment of appropriate damages.

The Background

[2]          
On February 16, 2008, the plaintiff, Brian Antonishak, driving his 1993
Mercury Sable automobile, was heading westbound on Highway 97 and waiting at
the intersection of Pandosy Avenue in order to turn left. When the traffic
light facing him eventually turned amber, he noticed that the oncoming traffic
was slowing to a stop. Accordingly, he commenced his left turn to go southbound.
The defendant, Mr. Piebenga, driving a 2003 Ford Ranger pickup truck, who
initially slowed his vehicle, suddenly accelerated through the intersection and
collided with the plaintiff’s vehicle with considerable force. The plaintiff’s
vehicle sustained extensive damage and was subsequently written off as a total
loss.

[3]          
As a result of the accident, Mr. Antonishak sustained the following
injuries:  soft tissue strain to neck and arm, right shoulder rotator cuff
tendinopathy, anterior and inferior instability of the right glenohumeral joint
and right ulnar neuropathy. Mr. Antonishak was then 27 years of age. He is now
32 years. These injuries have affected his employment duties and also
interfered with his active recreational pursuits and lifestyle. The plaintiff
complains that since the accident he has continued to suffer from right
shoulder and arm pain together with fatigue. At the time of the accident, the
plaintiff was employed as a waiter at the Hotel Eldorado Restaurant in Kelowna.
As a result of his injuries, he claimed he missed seven days from work and, on
other occasions, ended his shifts early due to increased pain and fatigue from
his injuries. He said there were also a number of employment tasks expected of
him that he was unable to perform due to his injuries. The plaintiff also said
his injuries continued to interfere with his employment and with his various
extracurricular activities. These ongoing functional impairments and
limitations cause him concern of what his future holds as it relates to his
ability to pursue various careers and occupations.

[4]          
On December 7, 2010, Mr. Antonishak’s family physician, Dr. Gayle
Klammer reported the following at Exhibit 1, tab 1(a):

1.         Mr.
Antonishak was originally seen on February 27, 2008 regarding the February 16,
2008 accident. He had not sought medical attention prior to the visit. At the
time he complained that his neck, right shoulder and right arm were sore. On examination
there was no bony tenderness. He was tender over the right cervical muscles and
right trapezius. He had good shoulder range of motion … with some discomfort
with full abduction, tightness with left neck rotation and tilt and mild discomfort
over left brachioradialis (forearm muscle). I question if my documentation of
the forearm tenderness should have been for his right arm. His symptoms and
examination were consistent with a soft tissue injury. He was referred to
physiotherapy.

On May 12, 2008 he reported new
onset decreased sensation in the R ulnar nerve distribution. On examination he
exhibited a well demarcated area of decreased sensation in the ulnar nerve
distribution. His grip strength was normal. On May 12, 2008, he was referred to
a neurologist and subsequently seen by Dr. D. Adams on August 7, 2008. Dr.
Adams conducted nerve conduction studies and diagnosed him with right ulnar
neuropathy. Dr. Adams reported that the latent onset of neuropathic symptoms
was not unusual. Mr. Antonishak was also referred for cervical spine x-rays
with flexion/extension views on May 12, 2008 which demonstrated minimal
degenerative changes in C4 — C6. On June 3, 2008, I requested an MRI through
ICBC.

Despite physiotherapy he continued
to have [right] shoulder pain and dysfunction and was referred to a physiatrist
(rehabilitation physician) on Sept 10, 2009, but because of wait lists, he has
still not been seen. He was referred to Dr. B. Monteleone, sports medicine
physician, on June 23, 2010 because of persistent [right] shoulder and scapular
pain and ulnar neuropathy. Dr. Monteleone diagnosed rotator cuff tendinopathy,
anterior inferior instability and possible labral tear of the right shoulder
and ordered an MRI arthrogram.

To my knowledge, Mr. Antonishak
does not have any prior or concurrent medical condition that is causative or
contributing to the diagnosed injuries or would have resulted in his current
symptoms at some time in the future, absent from the accident. He does not have
a prior or concurrent medical condition that would affect his ability to
recover from his injuries.

3.         As of
his last visit on October 5, 2010, Mr. Antonishak was still receiving
physiotherapy and acupuncture treatments but had plateaued and was not
improving significantly. His examination on that date revealed good shoulder
[range of movement], although it felt tight to him. He exhibited decreased
sensation in the [right] ulnar distribution. His grip strength was equal
bilaterally. He was on the wait list for an MRI arthrogram ordered by Dr.
Monteleone. Further treatment of his shoulder may be based on the findings of
the MRI arthrogram. I do not know if ongoing physiotherapy and acupuncture
treatments are indicated as I do not have documentation from the physiotherapist.

4.         Given
the chronicity of his symptoms, prognosis is guarded for full recovery, despite
ongoing treatment.

5.         Mr.
Antonishak’s ability to perform his duties as a server is limited by pain in
the right shoulder and decreased sensation and burning pain in the ulnar
distribution of the right hand.

6.         Given
the chronicity of his symptoms, it is reasonable to expect that he will
continue to have ongoing limitations in his ability to work as a server.

7.         I have
not specifically asked Mr. Antonishak about his ability to do all of his
household maintenance and/or yard work, nor has he complained of his inability
to do those tasks. He has complained of increase in symptoms with participation
in recreational activities which may involve similar range of motion required
for household maintenance.

8.         Given
the chronicity of his symptoms, it is reasonable to expect that he will
continue to have some functional limitations.

9.         Mr. Antonishak is not currently
using any prescription medications for his pain, He may benefit from
intermittent physical therapy and acupuncture to alleviate flare ups in his
symptoms. He may benefit from reassessment by a neurologist and repeat nerve
conduction studies if he has no further resolution of symptoms. He will
definitely benefit from maintaining a high level of fitness. I do not think he
will require any aids around the house. When he worked as a server he
accommodated his disability by decreasing the number of plates he carried at
one time. He will need to exercise regularly and take frequent stretching
breaks during work. He should also avoid irritating the ulnar nerve.

[5]          
Dr. Brad Monteleone, sport medicine specialist physician, in his January
23, 2012, report stated the following at Exhibit 1, tab 3(a):

Initial History:

This patient was initially assessed on July 26, 2010,
following a referral from Dr. G. Klammer. He states that in May 2008, he
injured his right shoulder when he was involved in a motor vehicle accident. He
stated that the car he was driving was T-boned. Initially, he had significant
amount of pain in his right shoulder. He is right handed. He then noticed some
numbness and tingling 2 months after the accident in the right fourth and fifth
fingers. He also had significant amount of neck pain. He states that he has now
some weakness in his right shoulder. He has been assessed by a Neurologist in
the past. His main concerns at the initial visit were pain, instability and
weakness. When the pain was at its worst it was a 60 out of 100. He found that
any activity or movement appeared to make his pain worse. He has tried some
massage and acupuncture in the past that improved his symptoms. He did have a
previous x-ray. His past medical history is unremarkable. He reported he had no
previous right shoulder injury. He is on no medications. He has no allergies.
He does not smoke.

Initial Physical Examination:

The patient looked well and was in no acute distress. There
was no evidence of any swelling, bruising, atrophy, or deformity of his right
shoulder or neck region. He did have some decreased sensation to light touch of
his right fourth and fifth fingers in the palmar aspect. He had negative
Tinel’s sign of his right elbow medially. There was no evidence of any
tenderness of his right elbow. His right shoulder had diffuse tenderness in the
anterior, lateral and posterior aspects. His active range of motion was normal
in elevation, forward flexion, internal rotation, and external rotation, but he
had pain at the extremes of motion. He did have positive Hawkin’s, Neer’s and Jobe’s
Impingements testing. He had a positive Speed’s test. He had increased
translation in the anterior and inferior directions of his glenohumeral joint,
He also had positive anterior apprehension. He had a positive O’Brien’s testing
for a labral tear. His distal neurovascular exam was normal.

Initial Investigations:

– On April 28, 2011, he had an x-ray of his right shoulder.
It was reported as, "no bone, joint or soft tissue abnormality is seen.
There is normal alignment."

Initial Assessment:

1.         Right shoulder — rotator cuff tendinopathy

2.         Right shoulder — anterior and inferior instability

3.         Right shoulder — possible labral tear

Initial Management Plan:

The patient was given some information concerning his right
shoulder injury and pain. It was suggested that we obtain an MRI Arthrogram to
see if there’s evidence of a labral tear or a possible suprascapular cyst in
the notch. He will continue with his daily stretching and strengthening
program. This will include both the rotator cuff muscles and tendons as well as
the muscles that stabilize the scapular. He will continue with his activities
as tolerated. He was to follow-up in six weeks time for reassessment.

Clinical Course:

The patient was then assessed on September 7, 2010. He was
obtaining sonic acupuncture. He felt that his right shoulder conditioned had
plateaued. He will continue with his physiotherapy and home rehabilitation of
his shoulder. This will include a home exercise stretching and strengthening
program. We will continue to await the MRI Arthrogram of his right shoulder. He
will follow-up when we have the results of the MRI and further treatment
options will be considered then.

The patient was then assessed on January 12, 2011. He states
that he was getting "locking" of his right shoulder. He did see Dr.
Adams, a Neurologist, for Nerve Conduction Testing. He is working with a
physiotherapist and he is having acupuncture. It was recommended that he
continue to wait for the MRI Arthrogram of his right shoulder. He will continue
working on his home rehabilitation exercise program.

On May 9, 2011, the patient was assessed. He still felt weak
in his right shoulder. He does feel unstable. On April 28, 2011, he obtained
his MRI Arthrogram of his right shoulder. Impression was, "normal
study." We reviewed the MRI report. He still had positive impingement
signs. His strength was normal. He did have some anterior and inferior
apprehension. He still had a positive O’Brien’s test. The patient was going to
continue with his daily exercise program.

He was to continue with his activities as tolerated. He was
to follow-up in two months time for reassessment. If there was no significant
improvement of his function then consideration will be made for an Orthopedic
Surgery consultation.

The patient was then assessed on September 1, 2011. He still
felt some weakness and pain in his right shoulder, He was going to attend BCIT.
He still had some anterior apprehension. He had positive impingement signs. He
had a negative O’Brien’s test. His strength was normal. It was felt that his
right shoulder condition had plateaued. He was to continue to avoid at risk
activities. He was doing a stretching and strengthening program. He was going
to follow-up as needed in the future.

The patient was last seen on January 5, 2012. He was now
living in Burnaby. He still had some numbness in his fourth and fifth fingers.
He had no recent physiotherapy.. He was stretching and doing some yoga. He was
taking no medications. He states that he was scheduled to see a Neurologist in
Vancouver. His range of motion was normal of his right shoulder with pain at
the extremes of motion. His strength was normal. He did have some anterior
apprehension. He still had a positive impingement testing. It is felt that he
did have some rotator cuff tendinopathy and some micro instability of his right
shoulder. He will continue to avoid at risk activities. He will perform his
daily stretching and strengthening program.

The following are the responses to your questions of your
letter dated September 26, 2011.

1.         What
injuries did Mr. Antonishak sustain as a result of the accident — what is your
diagnosis?

As mentioned above, the initial
diagnoses were right shoulder rotator cuff tendinopathy and anterior and
inferior instability of the glenohumeral joint.

2.         Did
Mr. Antonishak have any prior or concurrent medical condition that:

a.         Is
causative or contributing to your diagnosed injuries? If yes, to what extent?

No.

b.         Would
have resulted in his current symptoms at some time in the futures, absent the
accident?

No.

c.         Has
affected his ability to recover from his injuries?

No.

3.         What
treatment does Mr. Antonishak require now, or in the future as result of the
injuries sustained in the accident? In particular, which surgery would he
benefit from in the future?

The patient still has a symptomatic
right shoulder from both pain and apprehension point of view. If he finds over
the next while, the pain does not improve and he still has some sense of
instability he may require stabilization shoulder surgery.

4.         What
is your prognosis for Mr. Antonishak following the recommended treatment?

I feel that his prognosis is good.
He may have the occasional pain in his right shoulder. He will have to continue
with his daily stretching and strengthening program. He will have to avoid
repetitive lifting, reaching, or carrying overhead.

5.         Given
Mr. Antonishak’s injuries, is he currently able to engage in his employment?
Does Mr. Antonishak’s have any limitations or restrictions on his ability to
perform the usual tasks required of his employment? Please assume that at the
time of the accident Mr. Antonishak was employed as a restaurant server, and
the physical tasks associated with this job. If you require further information
concerning Mr. Antionishak’s [sic] occupation or accompanying duties, please
contact our office.

I feel that this patient is able to
be employed as restaurant server.

The patient may have to limit the
amount of lifting, reaching, and carrying overhead that is part of his job
duties.

6.         Given
your prognosis, will Mr. Antonishak have any limitations or restrictions on his
ability to work in the future?

I feel with his current right
shoulder condition that he will be unable to participate in a job with duties
that include heavy lifting or carrying, reaching, or pushing or pulling, that
are repetitive.

7.         Given
Mr. Antonishak’s injuries, is he currently able to engage in all of his
household maintenance and/or yard work or does he have any limitations?

In my opinion, he is able to engage
in all of his household maintenance and/or yard work.

He does have limitations on the
amount of weight he can lift, carry, push, and pull.

8.         Given
your prognosis, will Mr. Antonishak have any limitations or restrictions on his
ability to carry out his usual household maintenance tasks and for yard work
duties in the future?

I feel that in the future, he may
have the above limitations with respect to household maintenance tasks and/or
yard work.

9.         What,
if any, medical care do you anticipate Mr. Antonishak will require in the future,
including any medications, treatment modalities, aids around the house, or at
work as a result of the injuries sustained in the accident?

I feel that the patient may require intermittent
physiotherapy, massage therapy and/or medications to treat his right shoulder
conditions. If he is involved in activities that may flare-up his shoulder
conditions he may require one or all of these treatment modalities. In
addition, surgery may be required if his shoulder instability becomes a more
significant concern.

[6]          
Ms. Jodi Ann Fischer, occupational therapist and work capacity
evaluator, in her January 30, 2012, functional work capacity evaluation report
of the plaintiff stated the following at Exhibit 1, tab 4, at pages 21 to 24:

Summary and Recommendations

The summary and recommendations set out in this section of
the report are based upon interview findings, clinical results of functional
testing, and my opinion as an occupational therapist.

In summary, Mr. Antonishak is a 32-year-old man who was
involved in a motor vehicle accident on February 16, 2008. He was seen on
January 26, 2012 for an evaluation of his upper extremity physical/functional
abilities and limitations.

Summary/Recommendations are divided into the following
sections:

1.         Presentation
during Functional (Work) Capacity Testing

2.         Functional
Profile — Overall Abilities and Limitations

3.         Job
Specific Abilities

4.         Activities
of Daily Living

5.         Sports/Leisure

1. Presentation during Functional/Work Capacity Testing

Physical Effort:

Overall clinical findings identified the presence of full
levels of physical effort on Mr. Antonishak’s behalf, Functional capacity
results, therefore, provide an accurate representation of his physical
abilities and limitations.

Reliability of Reported Pain and Disability:

Overall clinical findings identified Mr. Antonishak’s reports
of pain and disability to be reliable and consistent with the objective test
findings.

2. Functional Profile — Overall Abilities and Limitations

Reaching, Handling and Upper Limb Coordination:

Reaching: His speed was slower than normative expectations
for dynamic overhead and forward reaching movements, related to right shoulder
pain. He is, therefore, not capable of more than short periods of repetitive
overhead and forward reaching. He is unable to tolerate repetitive rotational
movements with his right arm (e.g. wrench/tool use, sports requiring repetitive
overhand reaching).

Grip Strength: He presented with significantly reduced right
grip strength. He is right hand dominant and now weaker with his right as
compared to left hand. He is, therefore, not capable of heavily resisted
gripping with his right hand.

Dexterity: He presented with reduced right hand coordination
during medium dexterity testing. He is, therefore, not well suited to jobs necessitating
a high level of dexterity,

Handling: He presented with reduced tolerance for light
strength handing. Longer periods (i.e. 20 minutes) resulted in reduced right
hand coordination and greater need for reliance on his left hand for the
strength/handling component. He is, therefore, not well suited to long periods
of light strength handling activity.

Sustained holding of weight in awkward hand postures (e.g.
holding items in palm of hand with flexed fingers, such as required when
carrying items as a waiter) is limited to short periods only.

Writing: He is limited to short periods of writing due to
cramping in his right hand.

Strength – Lifting, Carrying, Pushing and Pulling:

Lifting: Mr. Antonishak’s lift capacity is largely depending
on the range/height of lifting. He is weaker when lifting loads up to shoulder
level (as compared to waist level). When lifting loads up to shoulder level, he
is limited to weights classified in the Medium strength range (e.g. 50 pounds).

In contrast, when lifting loads from floor to waist level, he
is capable of lifting loads classified in the entry level Heavy strength range
(e.g. 70 pounds).

Carrying: With bilateral carrying of loads (and assuming the
weight is close to his body and he can get a firm grip with both hands), he is
limited to weights in the entry level Medium strength range (e.g. 30 pounds)
due to shoulder limitations.

Sustained holding of loads is more difficult for him than
moving (lifting) loads. When required to support and hold even light loads
(e.g. 5 pounds) on his right forearm/palm, he should be limited to short
intervals of time due to increased shoulder pain and weakness.

Pushing and Pulling: With whole body pushing and pulling of
loads, he is limited to handling loads in the Medium strength range due to his
shoulder limitations,

Overall, Mr. Antonishak is capable of work activity in the
Sedentary, Light, and Medium strength categories as per the Dictionary of
Occupational Titles … According to the National Occupational Classification
he is able to perform Limited, Light, and Medium strength work activity. While
able to perform some entry level Heavy strength lifting, this is only when
lifting loads from floor to waist level and does not apply to carrying,
pushing-pulling, or lifting to shoulder level.

3. Job Specific Abilities

Current Occupation: Mr. Antonishak has worked as a waiter for
the last 11 years. At the time of the February 16, 2008 [motor vehicle
accident], he was working full time as a waiter at the Eldorado Hotel in
Kelowna. This job included not only serving duties, but also heavier lifting
and carrying associated with stock replenishment (i.e. lifting and carrying
liquor) and set up and take down of tables and chairs in the banquet halls.

He has recently relocated to Vancouver and is working as a
Waiter at a new fine dining establishment called Black and Blue. Once again,
his duties extend beyond simply serving, and also include set up of the
restaurant (e.g. repetitive lifting and carrying of large bins of cutlery,
glasses, and plates weighing up to 35 pounds up and down the stairs).

The National Occupational Classification … rates the strength
demands of Food and Beverage Servers … as requiring a Light level of strength
(i.e. handling forces up to 22 pounds). Some of Mr. Antonishak’s job duties
would also be classified under Food Service Helpers … due to the Medium
strength components of his job (i.e. handling forces up to 4.4 pounds).

Mr. Antonishak reported he is able to perform his job duties
as a waiter, although finds that the heavy and repetitive lifting aggravates
his right upper limb symptoms. Routine duties as a waiter in larger scale
restaurants involve carrying multiple plates at once on the arms when serving
and clearing tables. As he finds sustained carrying on his right forearm/palm
aggravating to his shoulder and hand symptoms, he takes fewer items and makes
more trips back and forth from the kitchen to tables. On busier nights in the
restaurant it is not always as easy to make this modification. With more
customers and larger groups to serve, there are greater and more frequent
carrying demands, and on these nights he reported his right upper limb symptoms
are more elevated. This has caused him to recently question whether he should
be continuing to perform work as a waiter due to this causing continued
aggravation of his right upper limb symptoms.

During his Functional Capacity Evaluation, Mr. Antonishak
presented with signs of pain and limitation in his right shoulder and hand with
carrying light to medium loads, particularly when carrying light loads for
longer periods in his right arm/hand. In addition, after engaged in a
continuous period of functional tasks involving reaching, handling, gripping,
lifting, and carrying, etc, for approximately 3 1/2 hours, he showed signs of
reduced right shoulder strength, as compared to at the onset of his evaluation.
Such findings suggest that while Mr. Antonishak has demonstrated over time the
ability to continue working full time as a waiter, this has required
modification to his serving technique and resulted in post work upper extremity
pain.

In the absence of the accident, Mr. Antonishak had planned to
eventually pursue a different occupation. He recently enrolled in the Marketing
Management Program at BCIT. The type of job he will eventually obtain following
graduation will likely be less physically demanding than work as a waiter. He
has an interest in pursuing work of an entrepreneurial nature. He has
considered combining his marketing with his experience in the restaurant industry
(e.g. opening a restaurant), although his future career plans still remain
uncertain until he finishes the program at BCIT. When making future career
decisions, he will have to be cognizant of his right upper limb limitations and
is best to pursue a career that does not place him in circumstances where he is
required to do significant reaching, handling, and lifting (as per FCE
guidelines on pg. 20-21).

At present, his employability (i.e. greatest earning
capacity) is primarily limited to the restaurant industry as a waiter as this
has been his occupation for the last 11 years. The sooner he is able to
complete the marketing program at BCIT, the sooner he will have more options
for less physically demanding work and consequently less frequent pain in his
right upper limb.

Given the degree of pain and tightness he develops in his
shoulder region with reaching, lifting, and carrying activities, I would
recommend funding be made available for massage therapy/physiotherapy to help
make his pain more manageable. I would suggest funding for two sessions per
month (24 sessions per year) while he attends BCIT, assuming he is working part
time as a waiter. Once no longer working as a waiter, I would suggest reducing
treatment to 12 sessions per year (on an ongoing basis) given the apparent
chronic nature of his condition. The cost of massage therapy or physiotherapy
is typically $55.00 to $65.00 + HST per session. The cost of 12 sessions per
year would be $720.00, and 24 sessions would be $1,440.00 + HST.

4. Activities of Daily Living

Mr. Antonishak is capable of performing basic housecleaning
tasks. When he recently moved, he stated he was more reliant on the services of
professional movers as lifting heavy and awkward items would have aggravated
his right upper limb symptoms. Results of functional strength testing indicate
he is not capable of heavy lifting, carrying, pushing and pulling.

He is currently living in a house where there is a yard to
maintain. He stated he is able to manage mowing the lawn without aggravating
his symptoms (requiring light bilateral pushing and pulling). I do not know of
the landscaping requirements of his existing property, but with any high level
pruning this is best avoided as it would aggravate his shoulder symptoms. He
will have to pace himself with seasonal yard tasks such as raking, weeding, and
planting, and depending on the property he may find the need to obtain
assistance if prolonged or heavy.

5. Sports/Leisure

Mr. Antonishak has always been
highly active in a wide variety of sports such as tennis, volleyball, golf
Frisbee, wake boarding, swimming, and rock climbing. He no longer participates
in wake boarding given the degree of pain he feels with resistive pulling. He
no longer participates in rock climbing, due to reduced shoulder strength and
concern of re-injury. He still engages in a number of others sports,: although
at a reduced capacity and often with resulting symptoms aggravation. During his
FCE, he presented with findings of reduced tolerance for repetitive reaching and
handling {particularly when required to exert strength at shoulder level). He
is best to avoid sports that involve repetitive reaching with resistance,
particularly above shoulder level.

Analysis

[7]          
At trial, Mr. Antonishak projected as an energetic, ambitious, and
engaging person. He is certainly not a malingerer nor a layabout. He has plans
for a future in the restaurant/hospitality industry as an entrepreneurial owner.
When not working, he also likes to engage in active recreational sport pursuits
and extensive international travel. He has a natural curiosity about foreign
cultures and environments. He enjoys his present occupation as a fine dining
server, but encounters pain and fatigue if he overworks his right arm and
shoulder. He has curtailed some, but not all of his active recreational
activities for fear of aggravating his weakened right shoulder and arm.

[8]          
For the foreseeable future, Dr. Monteleone has suggested cautious
monitoring of Mr. Antonishak’s condition with continued stretching and muscle strengthening
program. If his present condition eventually becomes intolerable relative to
his future career and lifestyle, then stabilizing shoulder surgery may need to
be done. This would involve major surgery with potential six-month recovery
time thereafter. In the meantime, the plaintiff lives with a weakened
right-hand grip and chronic troubling pain and fatigue if he overtaxes himself
in above-shoulder or extensive reaching or pulling activities.

Damages

1. Non-Pecuniary General Damages

[9]          
After four years of chronic troubling pain and fatigue with guarded
prognosis of future improvement together with curtailed recreational
activities, I fix this item of damage at $60,000.

2. Special Damages

[10]       
This item of out-of-pocket expenses has been agreed and settled between
the parties at $2,056.12 and I would certainly endorse this amount.

3. Past Wage Loss

[11]       
The plaintiff lost seven days of substantiated available work
post-accident with components of basic hourly wage plus gratuities net tax at
$1,123.50. I am satisfied this loss occurred and would allow that amount. The
plaintiff also claimed that there were some occasions when because of pain and
fatigue his employer relieved him from finish6ing his work shift and sent him
home early. Consequently, there was work loss opportunity. However, the times
and extent of those occasions were not documented and I do not think it fair to
impose such vague and speculative costs allegations on the defendant. Accordingly,
past wage loss is restricted to the previous stated sum of $1,123.50.

4. Loss of Future Income and/or General Earning Capacity

[12]       
The plaintiff is currently 32 years of age with a long future working
life ahead of him before retirement. His overall general employment and
marketability and attractiveness opportunities are certainly affected; see Brown
v. Goliay (1985), 26 B.C.L.R. (3d) 355 (B.C.S.C.). However, I also think
the plaintiff will likely eventually have stabilization shoulder surgery which
will enable him to be close to his previous pre-accident condition. That should
be regarded as a positive contingency, but with a potential six-month recovery
period that may also affect his ability to carry out gainful employment until
he fully recovers. His most gainful income as a server in the past was
approximately $3,000 per month. Taking into account the uncertainty as to when
the plaintiff will eventually undergo the surgery with a likely six-month
employment loss together with his overall diminished employment marketability
until surgery, I would fix this overall loss at $35,000.

5. Costs of Future Care

[13]       
To assist the plaintiff in his future pain management, Ms. Fischer, the
occupational therapist, recommended funding be provided for massage therapy,
physiotherapy for 24 sessions per year for the first year and 12 sessions per
year thereafter. I would adopt this recommendation for a period of three years,
24 sessions for the first year and 12 sessions for each of the following two
years thereafter at the cost rate of $60 per session plus HST, this amounts to
$3,225.60.

Conclusion

[14]       
Damages are assessed as follows:  (1) non-pecuniary general damages,
$60,000; (2) special damages previously settled, $2,056.12; (3) past income
loss, $1,123.50; (4) loss of future earning capacity, $35,000; (5) cost of
future care, $3,225.60; total, $101,405.22.

[15]       
If applicable, the plaintiff is entitled to costs and court-order
interest on the applicable items of damage.

[16]       
I commend counsel for their expedition and assistance in the conduct of
this trial. Is there anything further before I adjourn?

[17]       
MR. PIHL:  No, My Lord.

[18]       
THE COURT:  There is no issue with respect to the matter of costs?

[19]       
MR. EYFORD:  Well, I had assumed, just in terms of your comment, that
perhaps my friends and I could discuss this and, if necessary, bring it back
before Your Lordship if there is an issue.

[20]       
THE COURT:  Was there an offer?

[21]       
MR. PIHL:  There was an offer.

[22]       
THE COURT:  And has the award exceeded it?

[23]       
MR. PIHL:  The award has exceeded our formal offer.

[24]       
THE COURT:  All right. Leave is granted to speak to the matter of costs,
if necessary.

“Mr. Justice R.S.K. Wong”

__________________________

Mr. Justice R.S.K. Wong