IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120713

Docket: S080143

Registry:
Vancouver

Between:

Glen
Weber

Plaintiff

And

Michael deBrouwer

Defendant

Before:
The Honourable Mr. Justice Greyell

Reasons for Judgment

[1]            
On the morning of July 28, 2007, following a morning walk with his wife
around their neighbourhood in Harrison Hot Springs, Mr. Weber was brutally
assaulted by the defendant, Mr. deBrouwer.

[2]            
Mr. Weber claims non-pecuniary damages, punitive damages, loss of
past and future wages, damages for lost pension benefits, and special damages
arising from the assault.

[3]            
The plaintiff commenced this action on January 9, 2008.

[4]            
Mr. deBrouwer was convicted of assault causing bodily harm on July
29, 2008.

[5]            
Mr. deBrouwer filed a Statement of Defence denying the assault. Mr. Justice
Stewart ordered Mr. deBrouwer’s Statement of Defence struck out as an
abuse of process. The defendant filed a new Statement of Defence admitting he
assaulted Mr. Weber, but denying Mr. Weber was seriously injured by
the assault.

[6]            
The hearing before me proceeded by way of an assessment of damages under
Rule 9-7 of the Supreme Court Civil Rules. Mr. deBrouwer filed no
material in response to the application but appeared and addressed the issue of
the quantum of damages.

Background

[7]            
Following a lengthy career in public works in Radium Hot Springs, which
started in 1981 at the age of 24 and saw him move into progressively more
responsible positions, Mr. Weber applied for and was hired as the
Superintendent of Public Works in the Village of Harrison Hot Springs (“Harrison”).
He started in the position on May 24, 2005.

[8]            
Mr. Weber took the job at Harrison as he wanted to advance his
career by taking on a supervisory position with greater responsibilities.

[9]            
His new responsibilities included planning, coordinating, and
supervising the day-to-day operations on Harrison’s public infrastructure,
buildings, and parks in accordance with municipal policies and practices. He
was also responsible for supervising all Public Works staff. He reported to the
Chief Administrative Officer (“CAO”).

[10]        
Mr. deBrouwer was employed in Harrison’s Operations Department. Mr. Weber
was his supervisor.

[11]        
Mr. Weber brought a new management style to the direction of his
staff. There soon developed a tension between him and other members of the
public works staff whom Mr. Weber supervised, including Mr. deBrouwer. Mr.
deBrouwer showed intransigence and an unwillingness to follow instructions
given to him as to the manner in which he was to perform his work.

[12]        
Mr. Weber encountered problems with the defendant’s work
performance and his attitude. He suspended the defendant several times,
sometimes on the instruction of the CAO. The CAO also instructed Mr. Weber
to assign the defendant to different work duties.

[13]        
The union representing Mr. deBrouwer successfully grieved several
of the suspensions.

[14]        
Relations between the two worsened. They had several heated discussions
over work assignments. There were instances when Mr. deBrouwer would
follow Mr. Weber or would drive past his home.

[15]        
Mr. Weber testified his health began to decline as a result of the
stress of dealing with the defendant and others on his staff. He twice sought
to resign his position, but was talked out of resigning by Harrison’s CAO. He
went on medical leave twice as a result of the stress of dealing with “the lack
of respect and work performance” of individuals employed in the public works
crew. The second time he took such leave was in the middle of February 2007.

[16]        
In May 2007, two months prior to the date of the assault, Mr. Weber
submitted his resignation for the third time and Harrison accepted it. He
resigned because of the stress, as well as Harrison’s apparent unwillingness to
hire a foreman to deal with issues concerning the direction of the work force.

[17]        
He resigned effective May 22, 2007, took accumulated vacation and then went
on employment insurance benefits. As a result of his resignation, his
participation in the municipal pension plan was terminated.

[18]        
Following his resignation, Mr. Weber contemplated starting his own
business doing home repairs. After the assault he and his wife made the
decision to leave Harrison.

The Assault

[19]        
On the morning of July 28, 2007, Mr. Weber and his wife were out
for a morning walk. After finishing walking a loop of their neighbourhood, Mrs. Weber
decided to return home. Mr. Weber continued walking.

[20]        
In his affidavit of April 6, 2011 he described what then occurred.

[21]        
After he walked a short distance further he saw Mr. deBrouwer’s vehicle
stopped at a nearby intersection. The defendant got out of his vehicle and approached
Mr. Weber and asked him how he was doing. Mr. Weber replied “okay” and turned to
walk around the defendant. Mr. Weber testified Mr. deBrouwer jumped
in front of him to stop him from walking and asked him to take his glasses off.
Mr. Weber refused, turned away and again tried to walk around Mr. deBrouwer.

[22]        
Mr. Weber said Mr. deBrouwer then hit him on the right side of his
face along his jaw. When Mr. Weber responded “don’t Mike, don’t, or I will
charge you” Mr. deBrouwer struck him again, knocking him to the ground. He
then punched Mr. Weber a number of times on his head and face and kicked him.

[23]        
Mrs. Weber described what she observed in her affidavit filed on the
same date as that filed by Mr. Weber.

[24]        
Mrs. Weber was sitting at her computer desk in front of a window that
looked onto the street. She first saw Mr. deBrouwer jogging on the street
in front of their residence. She then saw him run “as fast as he could” and
heard a “scuffling” noise. When she looked up again she could see Mr. deBrouwer
pull Mr. Weber’s shirt off him, push him to the ground, and kick him. She said
the defendant then started “pounding” on Mr. Weber’s face.

[25]        
Mrs. Weber ran from her residence to assist Mr. Weber, calling for
help as she went. When she reached him, she deposed the defendant had his left
arm around Mr. Weber’s head while punching him in the face with his right
fist. She heard Mr. deBrouwer say “This is for what you are doing to my
family.” Mrs. Weber demanded the defendant leave. She said Mr. deBrouwer
lunged at her. She told him “don’t even think about it” and again told him to
leave. She said Mr. deBrouwer then ran off.

[26]        
The police and an ambulance were called and Mr. Weber was taken to
Chilliwack Hospital. He was bleeding, his jaw hurt, and his teeth “did not feel
right.” He had a cut on the ridge of his nose, a scrape on his right knee, a
cut on his pinky finger and felt dizzy. His face was badly bruised.

[27]        
In the emergency department Mr. Weber told the physicians he could
not close his mouth properly. He was x-rayed, but no fractures were found. He
was diagnosed with a concussion and discharged.

[28]        
Several days later Mr. Weber returned to the hospital because of
continuing complaints. He had another x-ray. He also had a CT scan of his head
because of increasing dizziness. The x-ray showed he had a fractured nose; the
CT scan showed several facial fractures, including a fracture of the right
maxillary sinus and right cheek bone.

[29]        
Mr. Weber continued to have difficulty with his balance for some
number of months, requiring the use of a cane. He had difficulty finding the
right words when speaking and in forming sentences.

[30]        
In October 2008, Mr. Weber had nasal surgery to correct a distorted
nasal septum damaged by the assault. His physical injuries gradually cleared up.
His mental health issues have not.

[31]        
As a result of continuing anxiety and fear of the defendant, Mr. Weber
has had ongoing thoughts and nightmares about the assault. Because of his fear
of the defendant Mr. Weber and his wife moved their possessions from Harrison
quietly and in the middle of the night. They moved first to Victoria and then
to the interior of the province. The nightmares have decreased over time with
the assistance of a counsellor provided by Crime Victim Assistance Program; Mr.
Weber is, however, still very much impacted by the psychological issues caused
by the assault.

[32]        
In March 2009, as a result of difficulty concentrating and finding and
pronouncing words, Mr. Weber consulted Ms. Jennifer Moll. Ms. Moll is a
speech pathologist employed by Interior Health Authority Acquired Brain Injury
Services. He ultimately took six sessions of speech therapy during 2009, which
assisted in resolving most of his speech difficulties.

[33]        
Mr. Weber saw a counsellor, Ms. DeVan in the spring of 2009 who treated
him on a number of occasions for anxiety attacks and post traumatic stress
disorder. He was discharged from such treatment in April, 2009.

[34]        
Also in March 2009, Mr. Weber was assessed by Dr. Martzke, a
neuropsychologist. Dr. Martzke recommended Mr. Weber continue counselling
and avoid multi-tasking. He advised that Mr. Weber consider self-employment.

[35]        
In June 2009, Mr. Weber saw Dr. Berry, a neurologist, who
diagnosed him with mild traumatic brain injury caused by the assault and
recommended he see a psychiatrist. Mr. Weber then saw psychiatrist Dr. Derryck
Smith in October, 2010. Dr. Smith diagnosed him with post traumatic stress disorder
in mild remission and a mild traumatic brain injury. Dr. Smith was of the
opinion both of these diagnoses were the result of the assault. He recommended
continued therapy and a trial of anti-depressants.

[36]        
Mr. Weber is not currently receiving any treatment other than
visiting his family physician occasionally. He is not taking anti-depressant or
other medication relating to the injuries he sustained.

Mr. Weber’s work history subsequent to the assault

[37]        
I have earlier outlined Mr. Weber’s work history prior to the
assault.

[38]        
Starting in July 2007, Mr. Weber applied to a number of
municipalities for positions in the public works area. He was offered several
positions.

[39]        
On October 17, 2007, he started working as public works foreman in the
Village of Montrose, British Columbia. The position was subject to a
probationary period of 90 days.

[40]        
Mr. Weber was terminated from the position at the end of his
probationary period on January 10, 2008, for reasons relating to his “[f]ailure
to demonstrate an aptitude to assume the responsibility to supervise employees”
and for his “[f]ailure to assume overall responsibility” of the Public Works
Department. He was earning $63,000 a year plus benefits under a union
collective agreement.

[41]        
Mr. Weber then went on employment insurance benefits for a period
of time, but continued to search for employment. Between January 11, 2008, and
April 1, 2008, he sent out 17 applications for employment to various
municipalities.

[42]        
Following his assessment by Dr. Martzke, and based on Dr. Martzke’s
advice he should look for self-employment, Mr. Weber stopped looking for active
employment. He and his wife purchased an eight-room hotel in south-eastern
British Columbia. The hotel has not been as profitable as they had hoped.

Mr. Weber as a person

[43]        
Mr. Weber was 54 years of age at the date of the trial.

[44]        
He quit school when he was 16 years old, completing grade 10. After
working several years he returned to school to finish his grade 12.

[45]        
He has been married to his wife, Elaine, for 30 years. The couple have two
grown children.

[46]        
Mr. Weber has been in generally good health throughout his life. Prior
to the assault he had no difficulty physically. He did not have dizzy spells,
loss of balance, or difficulty concentrating. While he found his job with Harrison
stressful because of the difficult labour relations environment, he had never
been treated by a psychologist or psychiatrist. Nor had he had insomnia,
nightmares, or anxiety attacks prior to the assault.

[47]        
Mr. Weber now has difficulty dealing with conflict or situations
which he finds stressful. He avoids dealing with guests at the hotel, even to
the extent of explaining “the ground rules” when guests check in. If a
situation arises concerning guest behavior, his wife handles the matter.

[48]        
Mr. Weber still has anxiety and intrusive thoughts about the defendant.
The Webers do not put their name in the telephone book or otherwise broadcast
their presence in the small community where they currently live. Mr. Weber
says he lives in fear of a further attack by the defendant.

[49]        
Prior to the assault Mr. Weber and his wife were socially active. They
went out dancing and for dinner with friends. They walked together often. Mr. Weber
says he no longer participates in these activities because of his “social
phobia” and worries he will be approached by the defendant.

Medical Evidence

[50]        
I have earlier reviewed some of the medical evidence but will now
address some of the evidence in more detail.

Dr. Donald Cameron

[51]        
Dr. Cameron, a neurologist, saw Mr. Weber on September 28, 2010, for a
neurological assessment at the request of Mr. Weber’s counsel. His medical-legal
report dated January 4, 2011, was introduced in evidence at the hearing.

[52]        
Dr. Cameron opined Mr. Weber suffered a mild traumatic brain injury as a
consequence of the assault of July 28, 2007. Mr. Weber indicated to Dr. Cameron
that his cognitive problems had largely resolved and that he felt “90% back to
normal.” Dr. Cameron noted that the amount of alcohol Mr. Weber was consuming
at the time (three to four drinks per day) was excessive and was likely “a
significant ongoing contributing factor to Mr. Weber’s mild cognitive
complaints”, along with his “ongoing psychological dysfunction in the form of
anxiety” arising from post traumatic stress disorder. He noted Mr. Weber’s
decreased interest in socialization, increased mood swings, ongoing
intermittent nightmares, decreased self esteem, and ongoing anxiety attacks.

[53]        
Dr. Cameron recommended Mr. Weber continue to receive psychological
counselling in the future.

Dr. Jeff Martzke

[54]        
Dr. Martzke is a registered psychologist. Mr. Weber was referred to him
for an assessment by his treating physician, Dr. Kailia. Dr. Martzke’s neuropsychological
assessment, dated March 19, 2009, was filed as an exhibit in the proceedings.

[55]        
Dr. Martzke opined that Mr. Weber sustained a mild traumatic brain
injury in the assault. He noted that the cognitive effects of the injury
included weakness in verbal expression, speed of thinking, and verbal working
memory. He also opined that Mr. Weber had persistent symptoms of partially
resolved PTSD. He stated Mr. Weber would benefit “from not having to work
quickly and avoiding having to multitask.” Dr. Martzke recommended Mr. Weber
continue with counselling to assist in the resolution of his PTSD and advised
that self employment was a “good option” as he and his wife were able to share
tasks suited to their individual strengths.

Dr. Derryck Smith

[56]        
Dr. Smith, a clinical professor of psychiatry in the Department of
Psychiatry at the University of British Columbia, conducted a psychiatric
assessment of the plaintiff on October 21, 2010.

[57]        
As stated earlier, Dr. Smith agreed Mr. Weber had suffered a mild
traumatic brain injury as a direct result of the assault. He stated that while
individuals who sustain such brain injury usually go on to complete recovery,
Mr. Weber still had “mild weaknesses with processing speed and his working
memory.” He noted that Mr. Weber’s word-finding difficulties had improved after
six treatments of speech and language therapy. He also concluded Mr. Weber
suffered from PTSD and recommended 12 to 20 additional sessions of therapy by a
psychologist “sooner rather than later.” However, he also noted that “as long
as Mr. Weber and his wife are living in fear of another attack from Mr. de Brouwer
… his symptoms are unlikely to remit even with the best treatment.” Dr. Smith
recommended a trial treatment of an anti-depressant.

[58]        
Dr. Smith noted that Mr. Weber is “no longer able to work in a capacity
where he has to supervise other employees because of heightened anxiety.”

[59]        
He concluded with the following prognosis:

This assault has shaken Mr.
Weber’s self-confidence in himself. It is reported by both him and his wife
that he is now a more timid man. He cannot deal with confrontations of any type.
It is expected that even if his symptoms of PTSD resolve he will remain
permanently impaired by symptoms of anxiety, particularly in dealing with
interpersonal confrontations.

[60]        
Mr. Weber has not taken the psychotherapy treatments recommended by Dr.
Smith and is currently not receiving treatment other than attending his family
physician

Position of the defendant, Mr. deBrouwer

[61]        
Mr. deBrouwer appeared in person at the hearing and represented himself.
As stated he did not file any materials in response to the materials filed by
the plaintiff in support of the application.

[62]        
Mr. deBrouwer argued the assault was not as serious as alleged and he
pointed out what were alleged to be various inconsistencies in the affidavits
of Mr. Weber and his wife as to the nature of the assault.

[63]        
In addition, Mr. deBrouwer argued Mr. Weber had resigned employment with
Harrison because of difficulties with a number of employees – that is, that Mr.
deBrouwer’s conduct had not been the cause per se of such resignation.

[64]        
I do not accept Mr. deBrouwer’s position concerning the seriousness of
the assault. The evidence establishes Mr. Weber was seriously injured by the
assault. The results of the damage inflicted by Mr. deBrouwer’s blows are
evident from the evidence of both Mr. and Mrs. Weber and from the medical
reports before the court.

Appropriateness of Deciding this Action Under Rule 9-7 – Summary Trial

[65]        
Mr. deBrouwer filed no material in response to the application. He did,
however, admit to the assault in his Statement of Defence.

[66]        
I find that this is an appropriate case for determination pursuant to Rule
9-7 of the Rules of Court. There is no conflicting evidence
before the court which would require a trial. The issue is one of an assessment
of damages.

Damages

[67]        
The plaintiff seeks an award of non-pecuniary damages, special damages,
damages for loss of past and future earnings, punitive damages against Mr.
deBrouwer. I will consider these heads of damage separately. Mr. Weber also
asks for costs.

[68]        
It is clear the plaintiff was seriously injured by the unprovoked and
brutal physical assault on him by the defendant, Mr. deBrouwer on July 28, 2007.
I accept the opinions of the various physicians which have been filed in support
of this application as setting out accurate diagnoses and prognoses of Mr.
Weber’s injuries and the effect those injuries have had and are having on his
life.

Non-Pecuniary Damages

[69]        
The principles underlying an award of non-pecuniary damages are set out
by Madam Justice Kirkpatrick in the often cited case of Stapley v. Hejslet,
2006 BCCA 34 at para. 46. The considerations to be taken into account include
the age of the plaintiff; nature of the injury, severity and duration of the
pain; disability; emotional suffering; loss of impairment of life; impairment
of family, marital and social relationships; impairment of physical and mental
abilities; and loss of lifestyle.

[70]        
The above list is not an exhaustive one, but remains open depending upon
the circumstances of each case.

[71]        
While reference to other cases is useful as a guide to the court in
assessing damages, non-pecuniary damages must be assessed in each case based on
the unique circumstances of the case before the court: Trites v. Penner,
2010 BCSC 882 at para. 189.

[72]        
In this case, Mr. Weber was 49 years old at the time he was assaulted. The
assault caused him significant injury and pain and suffering. He suffered
facial injuries, including several fractures, dental injuries, bruising, rib
and chest injuries, knee and hand injuries, soft tissue injuries to his back
and neck, and a mild traumatic brain injury with ongoing cognitive and speech
difficulties which took some time to resolve. Mr. Weber remains affected by
depression, anxiety, and post traumatic stress disorder. He avoids
confrontational situations.

[73]        
Mr. Weber sought employment with another municipality when he thought he
was able to return to work. He was terminated from employment with Montrose on
January 10, 2008, at the end of his probation period because he was not able to
effectively communicate with either the employees he was to supervise or with
his superiors. I note Mr. Weber told Dr. Smith that he had been asked to undertake
progressive discipline with an employee and that he began to experience anxiety
attacks. Given his diagnoses it is not surprising Mr. Weber had issues
supervising employees following the assault. I will return to this issue later
when I consider the issue of past and future wage loss.

[74]        
Counsel for the plaintiff submits $200,000 would be an appropriate
amount to award for Mr. Weber’s pain and suffering. He relies on Burdett v.
Eidse, 2010 BCSC 219, var’d but not on this point, 2011 BCCA 191 (award of $200,000
non-pecuniary damages for “significant” brain injury); Moskaleva v. Laurie,
2009 BCCA 260 (jury award of $245,000 (considered to be “undoubtedly high” by
the Court of Appeal but upheld: see paras. 131-133) for a mild traumatic brain
injury which had “devastating, if not catastrophic, effect” on the plaintiff:
at para. 90) and Young v. Anderson, 2008 BCSC 1306 (award of $200,000
for mild traumatic brain injury, major depressive disorder, chronic pain in
back and left leg, severe tinnitus which affected him daily, and a number of
other ongoing complaints. The plaintiff in Young was unemployable in his
former career as a cameraman because of his injuries).

[75]        
In the present case, Mr. Weber is now 54 years old. A number of his
injuries, including his headaches, bruising and soft tissue injuries cleared up
after several months. For a considerable time after the assault he was bothered
with nightmares and had difficulty sleeping. He is left with a number of
problems. He has difficulty with the alignment of his jaw; he still is clumsy
and, while greatly improved, he has difficulty finding and pronouncing some
words. Mr. Weber remains anxious and fearful of the defendant and avoids going
places where the defendant might be. He avoids situations with guests at the
motel where any type of conflict could arise, deferring to his wife to handle
such matters. Dr. Smith says he will remain permanently impaired by symptoms of
anxiety.

[76]        
Mr. Weber’s injuries and the residual effects of those injuries are
significant, however, in my view, each of the cases cited by counsel for Mr.
Weber involve circumstances where the injuries and residual effects to the
plaintiffs were more significant. After a consideration of the factors outlined
above in Stapley, I conclude $150,000 is an appropriate and fair amount
to award for non-pecuniary damages.

Past and Future Wage Loss/ Loss of future Earning
Capacity

Past Wage Loss

[77]        
Mr. Weber resigned from his position as Superintendent of Public Works
in Harrison on May 22, 2007, prior to the assault. He noted in a letter to
Harrison at the time he resigned that he had been off work on stress leave on
three occasions during the preceding two years as a result of dealing with
performance issues of “a few individuals” in the public works crew.

[78]        
Mr. Weber had been earning a monthly salary of $6,302.08 or $75,625
annually when he resigned.

[79]        
Mr. Weber had thought about starting his own home repair/renovation
business in Harrison, however, subsequent to the assault he and his wife decided
to move because of his fear of the defendant.

[80]        
As stated earlier, in or about July 2007, Mr. Weber commenced applying
to various municipalities for the position of a public works foreman or
superintendent.

[81]        
Sunshine Coast Regional District offered him a position which he
declined as he was still recovering from his injuries. He was offered positions
with the Village of Montrose and the District of Logan Lake. He accepted the
former position and commenced working as public works foremen on a three month
probation period on October 17, 2007. The Village terminated him at the end of
his probation period because of difficulties Mr. Weber had in communicating
with employees and the Village Council.

[82]        
Mr. Weber then continued sending out applications for employment. He
sent out some 17 applications between January 11 and April 1, 2008.

[83]        
Mr. Weber accepted the advice of his psychologist, Dr. Martzke, that he
should consider self-employment. Mr. Weber and his wife then purchased a small
motel which is open three seasons of the year. According to calculations done
by Mr. Douglas Hildebrand, a qualified economist, Mr. Weber’s adjusted net
income from the motel was $8,748 in 2008, $12,078 in 2009 and $7,487 in 2010. Mr.
Hildebrand opined Mr. Weber’s adjusted net income would likely remain at
$10,256 thereafter if he continued to operate the motel.

[84]        
In calculating Mr. Weber’s past wage loss at $198,439 (the difference
between earnings from his position as public works foreman with Montrose and
one-half the earnings of the motel – the other one-half being attributed to his
wife) Mr. Hildebrand assumed Mr. Weber would have successfully passed his
probation period and continued to work as public works foreman with Montrose.

[85]        
Given that prior to the assault Mr. Weber found it difficult fulfilling his
supervisory position with Harrison, I must consider whether Mr. Hildebrand’s
assumption is a proper one.

[86]        
Mr. Weber had, as mentioned, taken several periods of stress leave as a
result of his interaction with Harrison’s public works crew. The evidence did
not establish Mr. Weber’s difficulty dealing with the crew was attributed to
the defendant alone, although almost certainly the defendant contributed to Mr.
Weber’s stress. Furthermore, Mr. Weber did not leave his position because of
the assault. He left his position because of the stress in supervising
difficult people.

[87]        
At the time of the assault, Mr. Weber was unemployed and receiving
employment insurance benefits. I find it is likely Mr. Weber would have
returned to some gainful employment either by working in his own business or by
finding other employment in public works in another municipality, within a year
of his resignation from Harrison absent the assault.

[88]        
Mr. Weber must have considered himself fit to work after the assault when
he applied for the supervisory public works positions with Montrose and Logan
Lake. Mr. Weber puts his termination from Montrose down to problems in relating
to the employees, which, in turn, “stem[s] from the trauma of the assault.” He
told Dr. Martzke he “felt panic” when he had to encounter another
“undisciplined worker” and that is what precipitated his termination.

[89]        
I accept it is likely, based on the medical evidence before the court,
that the injuries resulting from the assault, in particular the post traumatic
stress disorder, were the proximate cause of Mr. Weber’s termination from
Montrose. Dr. Cameron noted in his January 4, 2011, report “it is probable that
the psychological problems [which resulted from the injuries incurred from the
assault] were the main reason why he could not remain at this job.”

[90]        
I accept on the balance of probabilities that Mr. Weber would have
remained employed by Montrose from October 17, 2007, to the date of trial and
that his earnings in that position represent a fair measure of his claim for past
lost earnings.

[91]        
Mr. Weber earned $68,270 per annum while employed with Montrose. It is
now in excess of four years since Mr. Weber lost his position. Mr. Hildebrand
has calculated Mr. Weber’s earnings would have been $74,917 per annum in 2011
dollar terms. Mr. Weber would also have earned income prior to his employment
with Montrose.

[92]        
In determining an amount of loss of earnings to date of trial I have
also taken into account the employment insurance Mr. Weber received after his
employment with Montrose was terminated and the revenue from the motel in 2008,
2009, and 2010. In doing so, I have somewhat reduced the amount of expenses
claimed by Mr. and Ms. Weber in the motel’s financial statements for “depreciation”.
This does not represent an actual expense item.

[93]        
I have also added a contingency factor that Mr. Weber may not have
continued in the position with Montrose given his difficulty dealing with
stressful employee situations prior to the assault.

[94]        
Given all these considerations I award Mr. Weber $150,000 damages for
his loss of earnings to the date of trial.

Loss of Future Earning Capacity

[95]        
I summarized the law concerning loss of future earning capacity in Simmavong
v. Haddock, 2012 BCSC 473 at paras. 95-101:

[95] A claim for loss of future earning capacity raises two
key questions:

(1) has the plaintiff’s earning
capacity been impaired by his or her injuries; and, if so,

(2) what compensation should be
awarded for the resulting financial harm that will accrue over time?

[96] The assessment of loss must be based on the evidence and
is a matter of judgment. It is not an application of a purely mathematical
calculation. The appropriate means of assessment will vary from case to
case:  Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); Pallos
v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260
(C.A.); Pett v. Pett, 2009 BCCA 232; Rosvold v. Dunlop, 2001 BCCA
1.

[97] The essential task of the court is to compare the
“likely future of the plaintiff if the accident had not happened and the
plaintiff’s likely future after the accident has happened”:  Gregory v.
Insurance Corporation of British Columbia, 2011 BCCA 144 at
para. 32. I also note that “insofar as is possible, the plaintiff should
be put in the position he or she would have been in if not for the injuries
caused by the defendant’s negligence”:  Lines v. W & D Logging Co.
Ltd., 2009 BCCA 106 at para. 185.

[98] The principles that apply in assessing loss of future
earning capacity were summarized by Low J.A. in Reilly v. Lynn, 2003
BCCA 49 at para. 101:

The relevant principles may be
briefly summarized. The standard of proof in relation to future events is
simple probability, not the balance of probabilities, and hypothetical events
are to be given weight according to their relative likelihood: Athey v. Leonati,
[1996] 3 S.C.R. 458 at para. 27. A plaintiff is entitled to compensation
for real and substantial possibilities of loss, which are to be quantified by
estimating the chance of the loss occurring: Athey v. Leonati, supra, at
para. 27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135
(C.A.). The valuation of the loss of earning capacity may involve a comparison
of what the plaintiff would probably have earned but for the accident with what
he will probably earn in his injured condition: Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the end of the
inquiry; the overall fairness and reasonableness of the award must be
considered: Rosvold v. Dunlop, … 2001 BCCA 1 at para. 11; Ryder
v. Paquette, [1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task
of the Court is to assess the losses, not to calculate them mathematically: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.).
Finally, since the course of future events is unknown, allowance must be made
for the contingency that the assumptions upon which the award is based may
prove to be wrong: Milina v. Bartsch, supra, at 79. …

[99] The test is set out in Perren v. Lalari, 2010
BCCA 140 at para. 32:

A plaintiff must always prove,
as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, that there is a real and
substantial possibility of a future event leading to an income loss. If
the plaintiff discharges that burden of proof, then depending upon the facts of
the case, the plaintiff may prove the quantification of that loss of earning
capacity, either on an earnings approach, as in Steenblok, or
a capital asset approach, as in Brown. The former approach will be
more useful when the loss is more easily measurable, as it was in Steenblok.
The latter approach will be more useful when the loss is not as easily
measurable, as in Pallos and Romanchych. 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. But,
as Donald J.A. said in Steward, an inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss. [Emphasis in original.]

[100] There are two possible approaches to assessment of loss
of future earning capacity:  the “earnings approach” discussed in Steenblok
v. Funk (1990), 46 B.C.L.R. (2d) 133 (C.A.); and the “capital asset
approach” discussed in Brown. As noted in the above quote from Perren,
both approaches are correct and will be more or less appropriate depending on
whether the loss in question can be quantified in a measureable way:  at
para. 32.

[101] The earnings approach and the capital asset approach
were described in Gilbert v. Bottle, 2011 BCSC 1389, by Madam Justice
Dickson, at para. 233:

In Perren v. Lalari, 2010 BCCA 140, Garson J.A.
identified the two approaches to assessment of loss of future earning capacity
commonly adopted by courts in British Columbia. One is the “earnings approach”
described in Pallos; the other is the “capital asset approach” described
in Brown. The earnings approach involves a form of math-oriented
methodology such as i) postulating a minimum annual income loss for the
plaintiff’s remaining years of work, multiplying the annual projected loss by
the number of remaining years and calculating a present value or ii) awarding
the plaintiff’s entire annual income for a year or two. The capital asset
approach involves considering factors such as i) whether the plaintiff has been
rendered less capable overall of earning income from all types of employment;
ii) is less marketable or attractive as a potential employee; iii) has lost the
ability to take advantage of all job opportunities that might otherwise have
been open; and iv) is less valuable to herself as a person capable of earning
income in a competitive labour market.

[96]        
In my view, the facts establish a real and substantial possibility Mr.
Weber has and will continue to suffer a loss of income as a result of the
injuries sustained in the assault. As stated, he suffers the residual effects
of post traumatic stress disorder which will have a lasting effect on his
ability to function in the future.

[97]        
Mr. Weber had a long work history in public works prior to his decision
to resign from Harrison. Following his physical recovery from the injuries
sustained in the assault, he quickly sought re-employment in that area. Due to
his ongoing psychological symptoms his employability will be restricted in the
future because of his inability to deal with confrontations and his anxiety in
dealing with “any interpersonal confrontations.”

[98]        
In my view, Mr. Weber meets the four criteria set out in Brown v.
Golaiy (1985), 26 B.C.L.R. (3d) 353 at para. 8 (SC).

[99]        
Quantifying the amount of his loss is difficult. Mr. Weber is presently
54 years of age. He has 11 years of working life before he would, in the ordinary
course, retire. Mr. Weber says he intended to complete “his working life” at
Harrison and enjoy his pension. However, as discussed, he resigned from his
position before the assault. His search for re-employment and his accepting the
position with Montrose, however, is a clear indication he would likely have
worked to age 65. There is no evidence to the contrary.

[100]     Mr. Hildebrand
prepared an analysis of loss of future income assuming no accident and assuming
the plaintiff had worked in the position of either a public works foreman or a public
works operator until age 65. He then prepared an analysis assuming the
plaintiff would continue earning income as owner of the motel until age 65. He
calculated the plaintiff’s loss at $620,000.

[101]     There are
a number of contingencies Mr. Hildebrand did not take into account. Mr. Weber
may have retired early had he continued to work in public works. His health may
have deteriorated. Particularly, he may not have tolerated the stress of working
with others. Once the stress of this litigation is over, Mr. Weber may return
to the workforce in some capacity other than his current occupation. Mr. and Mrs.
Weber may also decide the motel is not an economically viable venture and Mr.
Weber may move on to more lucrative employment. Given his limitations, however,
his options for employment will remain limited.

[102]     Taking
these various factors into consideration, I award Mr. Weber damages of $200,000
for loss of future earning capacity.

Loss of Pension Benefits

[103]     Mr.
Hildebrant calculated Mr. Weber’s pension loss as $86,223. Mr. Weber had 22.85
years of pensionable service at the time of the assault. According to Mr. Hildebrandt’s
report he would have accumulated 35 years of service by age 62.5. In my view,
Mr. Weber did sustain a pension loss. I find that absent the assault he would
have found employment in the public works field which would have added to the
pensionable service he had accumulated prior to the assault.

[104]     Taking the
contingencies I have discussed earlier into account, I award Mr. Weber $50,000
for loss of pension benefits.

Special Damages

[105]      Mr. Weber
has personally incurred $5,294.06 in special damages. The reimbursable payments
made by the Victim Crime Assistance Program amount to $2,476.20. He has also
incurred health care expenses in the amount of $3,917.82 that are subject to
the Health Care Costs Recovery Act, SBC 2008, c. 27. His total special
damages amount to $11,688.08.

Aggravated and Punitive Damages

[106]     I make no
award for either punitive damages or aggravated damages. The defendant in this
case was charged, convicted, and sentenced for assault causing bodily harm. There
is no need to pass a message to deter others who, like Mr. deBrouwer, are not
able to control their temper: see the decision of Mr. Justice Burnyeat in Reddemann
v. McEachnie et al, 2005 BCSC 915 at para 42.

[107]     Additionally,
the award against Mr. deBrouwer is a substantial one that encompasses the
compensary intangible elements intended to be covered by an award of aggravated
damages: see Huff v. Price (1990), 51 B.C.L.R. (2d) 282 (CA)

Mitigation

[108]     The law
requires that a plaintiff is required to take reasonable steps to mitigate or
reduce the loss he/she suffers as a result of a wrongful act by another. No
damages are recoverable if the loss or a portion of the loss is avoidable
through reasonable action. The question is whether a plaintiff has taken the
steps a reasonable person would take in the circumstances to reduce his loss.

[109]     Mitigation
is usually an issue raised by the defendant to mitigate the amount of damages
he/she is required to pay. In this case the defendant is a law person and did
not raise the issue. It is my view the court, having a responsibility to award
an amount of damages that is fair to both parties, has an obligation to
consider the issue of mitigation when that issue is squarely raised on the
evidence before the court.

[110]     In this
case the plaintiff’s physicians have made a number of recommendations which he
has not followed. Dr. Smith thought it “critically important” Mr. Weber be
treated by a treating psychologist “sooner rather than later.” Mr. Weber had
not had such treatment and there is no evidence before me why he has not. Dr.
Smith thought Mr. Weber would benefit from 12 to 20 additional sessions of psychological
treatment. In addition, Dr. Smith thought Mr. Weber would benefit from taking
medications for the treatment of his PTSD and cognitive impairments. Mr. Weber
is not taking such medication. Dr. Berry recommended to Mr. Weber that he
should reduce or discontinue consumption of alcohol in order to maximize his
cognitive abilities. Dr. Cameron agreed and described Mr. Weber’s consumption
of alcohol as “as excessive” and “probably a significant ongoing contributing
factor” to his mild cognitive complaints. As stated, Mr. Weber must take such
steps to reduce or lessen his losses by taking the steps a reasonable person
would take. There is no evidence before me to suggest there was anything which
would prevent Mr. Weber from taking the steps suggested by his medical
advisors.

[111]     Accordingly,
in my view Mr. Weber has not taken reasonable steps to mitigate his losses. I therefore
reduce the award for damages by 30 %.

Summary

[112]     In
summary, I award the plaintiff the following damages:

 Non-pecuniary damages                        $150,000

 Loss of earnings to the date of trial        $150,000

 Loss of future earning capacity              $200,000

 Loss of pension benefits                        $ 50,000

 Special damages                                   $
11,688.08

 Total:                                                    $561,688.08

[113]     A
reduction in the above heads of damage by 30% for failure to mitigate results
in a reduction of the award of damages to $393,181.65

[114]    
The plaintiff is also awarded costs of the application.

“Greyell, J.”