IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120831

Docket: M093751

Registry:
Vancouver

Between:

Eric
Jordan

Plaintiff

And

Mark
John Lowe

Defendant

Before:
The Honourable Mr. Justice Willcock

Oral Reasons for Judgment

[1]            
THE COURT:

Introduction

[2]            
Constable Eric Jordan was injured while working on duty with the
Vancouver Police Department on August 13, 2007, when Mark Lowe drove a
vehicle at high speed into his police cruiser on Bayshore Drive.  Mr. Lowe was
being pursued by police and had previously collided with other vehicles.

[3]            
Cst. Jordan’s claim is now framed as an action in battery or, in the
alternative, negligence.  Mr. Lowe admits his liability to Cst. Jordan.  The
plaintiff says it is not material to his claim whether it is founded on
negligence or upon an intentional tort. There is no claim for aggravated or
punitive damages. Liability is admitted, it is therefore unnecessary to address
Mr. Lowe’s intentions.  The defendant has abandoned any allegation of
contributory negligence on the part of Cst. Jordan.  This is an assessment of
damages only.

[4]            
Counsel for Mr. Lowe has raised the question of the liability of the
Insurance Corporation of British Columbia (“ICBC”) to indemnify the plaintiff
for the award of damages in this case.  Until and unless ICBC is joined as a
party to this litigation, the issue of indemnity is not before me.  That issue
is therefore not addressed in these reasons.  The parties have indicated they
consent to an application being brought by ICBC, after judgment in these
proceedings, for adjudication upon its obligation to indemnify the plaintiff.  I
have advised counsel that if the parties consent to such an application being
brought by ICBC, I will hear that application, because I have heard evidence
with respect to the nature of the benefits paid to the plaintiff during his
absence from work, which may be material to ICBC’s liability to pay this
judgment.

Evidence

[5]            
Eric Jordan is 45 years old.  After completing high school he worked in health
care and corrections and as a police custodial guard for a number of years
before joining the Vancouver Police Department on September 6, 1995.  He
was then 28 years of age.  In the years since, he has worked as a uniformed
officer in various capacities.  At the time of the accident in question, he was
working as a patrol officer on the early day-shift.  He was in fit condition
and had a very active personal exercise regime and work schedule.  From January
to early August 2007, almost 40% of his income was overtime pay.  In the
last pay period before his injury, he worked 80 hours on his regular shift and
40 hours of overtime.  In addition to working as a patrol officer, he was a
member of the Crowd Control Unit and the Tactical Unit.  Despite a significant medical
and surgical history, he claims to have had no difficulty with his work and no
ongoing physical problems that affected his ability to sleep or his daily
activities.

[6]            
In 1997 Cst. Jordan was involved in a motor vehicle accident and
suffered a herniated disc in his neck that required a three level fusion of his
cervical vertebrae. That operation, performed in 2000, was very successful.  He
returned to work 3½ months after the operation and says he felt no ill effects
of the surgery and he did not have any restrictions in his activity following
his return to active duty.  The history obtained from him by Dr. Helper, a
physiatrist who saw him for independent examination in July 2011, was as
follows:

Mr. Jordan’s previous
musculoskeletal [history] is most remarkable for his history of degenerative
disc changes in the cervical spine.  He had known degenerative disc disease in
his cervical spine with resultant nerve root compression on the left side.  This
led to surgery in the year 2000 at Eagle Ridge Hospital.  This was performed by
Dr. Winston Gittens.  I am not sure what nerve was involved, but it
travelled up to his left upper extremity into the hand.  This would suggest
that the symptoms were either from C6 or C7.  He had an anterior decompression
infusion of C5-6 through C6-7.  He had bone grafting from his right hip to
support the fusion.  This led to a considerable improvement in his symptoms.  It
took 4 to 5 years for his symptoms to resolve completely.  He eventually
experienced a symptom free state and the return of strength to his left upper
extremity.  He denies deterioration in his neck condition in the time leading
up to the motor vehicle collision in question.  He would have some mild aching
and stiffness intermittent, on occasion.  This was not functionally limiting
from a time period of 2005 through 2007, by the patient’s history.

[7]            
Cst. Jordan was seen on an ongoing basis by his family physician, Dr. Peter
Marr from August 2004 to mid 2009.  Dr. Marr testified at trial and
produced his clinical record.  There is no record in Dr. Marr’s chart of
complaints of pain or of limitation in function associated with neck or back
pain before the August 2007 motor vehicle accident.

[8]            
Although that accident was clearly a high speed collision and the damage
to Cst. Jordan’s vehicle was significant, his injuries, fortunately, were
moderate and did not keep him away from work for long.  The impact of the
accident threw Cst. Jordan up into the roof of his vehicle (his seatbelt was
undone because he contemplated the possibility of having to chase Mr. Lowe
from the scene of the accident).  The airbag was discharged and struck Cst.
Jordan’s lower torso forcefully.  He did not lose consciousness, but felt that
he has suffered a significant blow and injured his forehead, back and neck.  He
was taken to the Vancouver General Hospital for assessment.  X-rays taken there
demonstrated no acute injury to his spine, but evidence of significant
degeneration of the cervical spine, including the fusion from C5 through to C7
and what were described by Dr. Helper as degenerative disc changes at
C3-4, C4-5, moderate degenerative disc changes at C7-T1, severe foraminal
stenosis on the left at C3-4 and C4-5 and moderate foraminal stenosis
bilaterally at C7-T1.

[9]            
He was discharged from hospital and saw Dr. Marr on August 17.
At that time he was complaining of increasing neck pain which he thought was a
result of hitting his head on the top of the inside of the car.  He was tender
at C6-C7 and he displayed pain when his neck was flexed.  He was prescribed Tylenol
3.

[10]        
On August 29 he was again assessed by Dr. Marr.  At that time
he had some tingling in the left upper arm and his low neck pain had radiated
into both shoulders.  He complained of pain into his thoracic spine and on the
left side of his head.  There was some spasm of his neck and shoulder muscles.  He
was told to apply local heat and ice, stretch, and correct his posture.  He was
prescribed an anti-inflammatory and more Tylenol 3.

[11]        
He first returned to work for an overtime shift in late
September 2007 and did not return to his regular patrol shifts until the
shift following October 15, 2007, according to the records.  Before
returning to work he was assessed by Dr. Timothy Lepard, a physician with
a practice in occupational medicine on contract to the Vancouver Police
Department for the purposes of assessing the fitness to work of its officers.

[12]        
Cst. Jordan was first seen by Dr. Lepard on August 29, 2007.  At
that time he reported he had developed pain at the base of his neck and in both
shoulders after the accident.  He reported that he was taking two Tylenol 3
tablets, four times a day.  He had limited flexibility of his neck.  Given that
fact, coupled with the fact that Cst. Jordan was taking so much analgesic,
Dr. Lepard concluded that Cst. Jordan was unfit to return to work.  He
returned for further assessment on September 19. By that time he had
stopped taking Tylenol 3.  He had been to the gym and was doing some bike work.
He reported that although he was improved, he had not recovered his
pre-accident condition.  Pain could be produced on extension of the neck.
However he had strong grip strength and was very fit.  Dr. Lepard concluded
there was no impediment to Cst. Jordan returning to duties and he did not
think regular police duties would increase his symptoms.  He reported that Cst.
Jordan was fit to return to full-time operational duties.

[13]        
After returning to work he continued to see Dr. Marr from time to
time.  On October 26, Cst. Jordan reported to Dr. Marr that he had
neck pain, with pain referred to the left upper arm and occasional headaches.  On
December 19, he complained to Dr. Marr of occipital frontal headaches.
Six months later, on June 2008, he reported neck pain radiating to his
shoulder and some continuing headaches.  In August 2008 he again complained of
occipital frontal headaches.  In September 2008 he complained to Dr. Marr
of headaches and neck pain.  He reported his headaches were improving.  In
October 2008, he again saw Dr. Marr with respect to neck pain radiating to
his shoulders and his thoracic spine and again reported that his headaches were
improving.  In November 2008 he complained of neck pain radiating into his
shoulder on the left and his thoracic spine.

[14]        
He occasionally saw Dr. Marr for other problems such as earaches
and knee pain but did not see Dr. Marr again for neck pain until
November 4, 2009, a year later, two years post-accident.  At that time he
was still complaining of lower neck pain.  Neck compression produced pain
radiating to the right upper arm.  He was referred to physiotherapy.  Dr. Marr
suggested that he use a soft collar as required, apply local heat and ice, and
stretch.  When Dr. Marr last saw Cst. Jordan he was of the view that he
had suffered a head injury and hyperextension injury to his cervical spine.  He
had had a prolonged recovery despite being in excellent shape and working as a
police officer.  Dr. Marr expected Cst. Jordan to make a full recovery but
did not see him again.

[15]        
Dr. Samborski assumed Cst. Jordan’s care in July 2010.  He
was seen for unrelated problems and first mentioned neck complaints on
January 17, 2011.  Dr. Samborski addressed injuries thought to be
related to the motor vehicle accident on three occasions, on January 17,
January 24 and March 9, 2011.  Cst. Jordan complained of ongoing neck pain
and occasional stiffness, and mid-back pain that “comes and goes”.  He
indicated that he felt some neck stiffness, pain when sleeping, and some
tingling in his hand.  He noted tenderness in the left thoracic spine.  Dr. Samborski
concluded that Cst. Jordan had suffered a soft tissue injury of his neck which
he described as a “Grade 2” injury meaning that some abnormality was detected
on examination.  That abnormality was some slight reduction in range of motion
and tenderness on palpation.  Dr. Samborski acknowledged that Cst.
Jordan’s pre-existing fusion would to some extent limit the flexion and extension
of his neck and explain a reduction in the range of motion.

[16]        
Dr. Samborski felt Cst. Jordan had made maximum recovery,
given the time that had passed since his initial injury, and concluded that he
would have chronic and persistent neck discomfort for the rest of his life.  He
did not feel that discomfort compromised Cst. Jordan’s ability to perform all
of the employment tasks that he might be required to do or compromise his
ability to work.  Dr. Samborski says Cst. Jordan might need physiotherapy,
massage therapy, or acupuncture in the future, but, aside from referring him to
Dr. Quirke, a general practitioner with a particular interest in treating
neck injuries, he did not recommend any treatment or prescribe any medication.

[17]        
In July 2011, Cst. Jordan completed a physical abilities
requirement evaluation form, in association with an application for a foreign
police posting.  He denied the presence of any musculoskeletal restrictions
that could interfere with strenuous activities or maximal testing.

[18]        
Cst. Jordan was assessed by Dr. Helper, an expert in physical
medicine and rehabilitation, on July 11, 2011.  Dr. Helper prepared a
report following that examination and a supplemental report in
October 2011 after reviewing an MRI of Cst. Jordan’s thoracic spine.  The
MRI caused Dr. Helper to revise his diagnosis. Dr. Helper concluded
that Cst. Jordan was suffering from neck and upper shoulder pain as a result of
acute trauma to the nerve root at the C4 and C5 level or discogenic pain as a
result of injury to the intervertebral disc at the C7-T1 level.  Given his
understanding of the nature of the trauma that occurred on August 13,
2007, Cst. Jordan’s susceptibility to injury as a result of his previous
C-spine fusion, and the history of onset of pain after the August 13, 2007
accident, Dr. Helper concluded Cst. Jordan’s neck and radiating shoulder
pain were caused by the motor vehicle accident.

[19]        
Dr. Helper was also of the view that Cst. Jordan has suffered some
injury to his thoracic spine.  He initially thought that this must be
mechanical in nature, but following the MRI he concluded that it was more
likely that Cst. Jordan’s symptoms were the result of a ligamentous or a soft
tissue injury.  Dr. Helper concludes that trauma to the spine brought on
this complaint of pain, because pain in the thoracic spine is an unusual
complaint and, when it occurs, it is not usually associated with degenerative
arthritis.

[20]        
Dr. Helper says Cst. Jordan would probably have had some cervical
spine symptoms during his employable years as a police officer before
retirement, based on his natural history, regardless of the injuries sustained
in 2007.  He could not be more specific than to say that is a “moderate
likelihood”.

[21]        
Cst. Jordan reported daily mild to moderate pain to Dr. Helper.  Dr. Helper
expected all current symptoms to continue, because they had not yet resolved
many years after the accident.  The prognosis for the lower thoracic complaints
is said to be “guarded”.

[22]        
Dr. Helper did not recommend any specific treatment at present
other than continued core strengthening and exercise.  A nerve block may be
considered but it is not apparently recommended by Dr. Helper.

[23]        
Dr. Helper’s report of July 26, 2011 includes a detailed assessment
of Cst. Jordan’s aptitudes and his activity level at that time.  It
describes few functional limitations.  Dr. Helper makes the following
notes with respect to vocational issues following the motor vehicle accident:

Mr. Jordan missed 4-6 weeks
of work following the motor vehicle collision in question.  He very slowly titrated
his activity level upward.  He began to increase his functional level
significantly following a transfer to the Marine Unit in May 2009.  He was
motivated by the physical demands of this transfer.  He slowly returned to
fitness training.  He has achieved a partial return to his previous function.  The
maintained strength and fitness that he has achieved from head to toe has been particularly
successful in controlling his symptoms.  He continues to have increased neck
and back pain towards to the end of each workday.  He continues to have
increased neck and back pain with difficult activities such as body recovery,
rescues, and the daily rigors of Marine Unit life.  He feels competent in his
vocational capabilities, despite his symptoms.  He is typically able to fight
through his pain experience to complete the task at hand without feeling
vulnerable with his own safety or the safety of others.

[24]        
Cst. Jordan’s recreational activities are described in detail by Dr. Helper.
Cst. Jordan has returned to a very active and demanding exercise program.  He
himself describes his fitness as 70% of his pre-accident function.

[25]        
Dr. Helper expresses the view that the limitations described by Cst.
Jordan are consistent with the documentation and history.

[26]        
On numerous occasions between 2007 and 2009, Cst. Jordan sought
physiotherapy from Gordan Stokes, who was the father of Cst. Jordan’s then fiancée.
Mr. Stokes testified with respect to the treatment of upper back and neck
pain.  He reported that Cst. Jordan had suffered from neck spasms and
complained of occipital headaches.  His recollection was that there was
considerable improvement of Cst. Jordan’s condition through to 2009.  He was
unable to offer insight into the progress after that date.

[27]        
In short, the medical evidence confirms Cst. Jordan’s testimony that he
recovered quickly from his most significant injury to a point where he was fit
to return to work by October 2007, and that he suffered thereafter from
occipital headaches which resolved to the point where they were no longer a
problem after October 2010.  He has had persistent, occasional mild to
moderate pain in his neck and shoulders.  This has been accompanied occasionally
by spasm according to Mr. Stokes and by tenderness on palpation according
to all physicians.  His thoracic spine has become a more significant concern.
It was not the focus of any treatment or assessment in 2007 or 2008 and was not
mentioned on his examination for discovery on March 2011, but thoracic
spine pain is occasionally referred to in the records from 2007 onwards.

[28]        
The records document Cst. Jordan’s desire to return to work and his
denial of the existence of problems that preclude him from performing the
essential functions of his work.  They record a strenuous fitness regime and consistent
denial that he is restricted in the activities of daily living.

[29]        
The difficult issue in this case is the extent to which Cst. Jordan’s
continuing problem since October 2007 have restricted his ability to
accept overtime employment and the extent to which the continuing problems have
adversely affected his earning capacity on an ongoing basis. The evidence with
respect to this claim is limited and difficult to assess.

[30]        
Cst. Jordan’s income decreased marginally following the motor vehicle
accident. His total annual earnings, set out on line 101 of his income tax
returns during the relevant period were:

[31]        
The rate of growth of his income stabilized.  His overtime earnings
appeared to have declined substantially from early 2007 levels.  In the seven
month period preceding the motor vehicle accident, Cst. Jordan earned
$42,931 in regular pay and $30,957 in overtime.  That amounts to approximately
$4,400 per month in overtime income.  After the accident, he worked overtime
shifts on thirteen occasions and earned an additional $9,000 in overtime pay in
2007.  In the period from September 30 to December 31, he earned approximately
$3,000 a month in overtime pay.

[32]        
The following table sets out the relationship between Cst. Jordan’s regular
and overtime earnings over the years:

[33]        
Cst. Jordan says there had been many retirements from the Vancouver
Police Department starting in 2004, making significant overtime work available.
The overtime is still available to this day.  Cst. Jordan says the injuries he
suffered in the accident had a negative effect on his ability to work overtime
and he has not been doing as much as he would like to do.  After the accident,
he felt fatigued after four days of work.  The intensity of the symptoms he experiences
as a result of the accident have lessened over time, but to this day still
cause him to feel the effects of extra work.  He says for some years after the
accident he preferred doing shorter callouts and he reduced the number of his longer
overtime shifts.  He says he modified his activity to the point where he was
doing about half of the overtime work he did before his accident in 2007 and he
maintains that pace today.

[34]        
He says that his overtime work has been limited by his “recuperation”
and his “reliability”.  The latter he says has been compromised because he was not
available to do shifts for some time, and the overtime or callout work that is assigned
at the last minute by divisions at their discretion is going to new members.  He
says there is a large pool of officers willing to do overtime work and by being
out of the pool for some time he has become someone who is no longer a first
resort.  This, in my view, is recognition that he is physically capable of
doing more overtime than he is in fact doing.

[35]        
There is only Cst. Jordan’s evidence before the court in relation to the
effect of his time off on his reputation, and that appears to be speculation on
his part.

[36]        
Cst. Jordan says his work has also been impacted by his injuries because
he no longer feels capable of seeking a position with the Emergency Response
Team or the Motorcycle Squad; both squads require a level of physical exertion
and fitness that Cst. Jordan feels may be too demanding for him.

[37]        
In support of the claim that he might have found a position with the ERT,
he called Cst. Cooper of the City Police.  Cst. Cooper is on the ERT reserve.  He
testified to the very taxing fitness tests that must be undertaken by those who
seek to be taken on by the ERT.  Of the 21 recruits recently applying for an
open position, six became reserves, among them Cst. Cooper.  There is no
guarantee that even Cst. Cooper will make the ERT.  He described work on that
unit as demanding involving heavy carrying and wearing heavy equipment.

[38]        
Cst. Cooper was familiar with Cst. Jordan.  He knew him to be a person
with a good work ethic and a person who sought overtime frequently.  Cst.
Cooper described $20,000-$30,000 as the median range of overtime earning and
amounts in the range of $40,000-$50,000 at the top end of overtime earnings in
the VPD.  He says that he was aware that Cst. Jordan took overtime after his
accident but also aware that he took less than he had previously.  He was not
very familiar with Cst. Jordan’s work schedule and appears to have mistakenly
believed that Cst. Jordan worked a lot of overtime in 2005.

[39]        
The plaintiff called Sergeant Paul Ballard of the Vancouver City Police with
respect to employment in the Motorcycle Unit.  Sgt. Ballard described the
availability of generous overtime work in that unit.  He describes Cst. Jordan
as a person he knew as a recruit who stood out as a person of superior
competence.  He also described the heavy physical demands of work as a
motorcycle police officer.

[40]        
Cst. Jordan had not applied to join the ERT or the Motorcycle Squad
before his motor vehicle accident in 2007.  He did not have a motorcycle
drivers license. It appears that he would have had some obstacles in applying
to enter either squad.  In any event, the pay scale in those squads is the same
as that afforded to patrol officers and the loss of opportunity to enter those
squads only has a monetary value if they would have had afforded Cst. Jordan
a greater opportunity to engage in overtime work.  Because he says overtime
work is plentiful and available to patrol officers, the evidence does not
support that argument.

[41]        
In assessing general damages in this case, however, I do bear in mind
the fact that an individual may suffer a loss as a result of an inability to do
more enjoyable although less remunerative work.

[42]        
The claim for damages arising out of the loss of the opportunity in the
past or in the future to engage in additional overtime work hinges, primarily,
in my view, upon my assessment of the strength of Cst. Jordan’s evidence that
he has voluntarily limited his overtime work as a result of ongoing symptoms of
his injury and his evidence that such work would have been readily available to
him had he chosen to take it.  As noted above, the medical evidence supports Cst.
Jordan’s evidence that he has occasional symptoms of neck, shoulder and thoracic
back pain that appear to be a result of the motor vehicle accident.

[43]        
In cross-examination, it was suggested to Cst. Jordan that he did not
mention to Dr. Marr that he had a problem with his duty vest.  He did not
mention that he had fatigue at the end of a shift or four days of duty.  He did
not mention that he had daily pain.  He agreed that he reported to his
physicians that his occipital headaches initially bothered him for two weeks
and then they gradually lessened in frequency and intensity until mid-2008 by
which time he had a headache about once a month and that his headaches were
resolved entirely by October 2010.  He agreed he took Tylenol 3 only
briefly.  He acknowledged at his examination for discovery in March 2011
he did not mention mid-back problems.  He said that he explained to Dr. Marr
that he had continuing aches and pains on occasion, but he did not specifically
relate those pains to wearing the police equipment.  He acknowledged that when
he went back to work with the VPD, he advised Dr. Lepard that he was going
to the gym and was riding a bike regularly.  He acknowledged that he described
no limitation to his ability to do the job. He described his active exercise
program, including weights, running, biking and hiking.

[44]        
In cross-examination he acknowledged that he could not produce a record
of the overtime shifts offered to him and those which he had worked on or
declined.  He had made no effort to identify specific shifts that he had been
unable to take because of his symptoms.  When specific records were put to him,
he acknowledged that he appeared to have earned $3,000 a month in overtime for
a period after the accident and that after the accident he was doing about two
shifts less per month than he had taken before the accident.

[45]        
In summary, the evidence is that Cst. Jordan has worked significant
overtime since his injury, but that his overtime income has been less than it
was in the relatively short seven month period before his injury.  There was a
short record of heavy overtime work to use as a comparison to Cst. Jordan’s
post-accident earnings.  He attributes his loss to his preference now to take
shorter overtime shifts to moderate the physical demands that his employment
places upon him.

Applicable Law

(a)      General Damages

[46]        
The plaintiff refers to three cases in which British Columbia courts
have assessed damages suffered by plaintiff’s who have suffered soft tissue
injuries that are generally described a moderate but persistent.  The cases all
involve chronic injuries with a guarded prognosis:

(i) Andres v. Leslie & Swackhamer,
2005 BCSC 1096, where general damages were assessed at $65,000;

(ii) Love v. Lowden, 2007 BCSC 1007, where general
damages were assessed at $60,000; and

(iii) Heller v.
Bradford (2 March 2010), Vancouver M081470 (B.C.S.C.), where general
damages were assessed at $50,000.

[47]        
The defendant cites cases involving plaintiffs who have suffered
injuries that have substantially resolved within three to six months leaving
only some flare-ups or intermittent continuing symptoms:

(i) Lehtonen v. Marasco, 2008 BCSC 1734,
where general damages were assessed at $21,000;

(ii) Woods v. Chahal, 2008 BCSC 1555, where
general damages were assessed at $20,000;

(iii) Quartey-Harrison v. Klusiewich, 2011
BCSC 1054, where general damages were assessed at $18,000; and

(iv) Olianka v. Spagnol,
2011 BCSC 1013, where general damages were assessed at $30,000.

(b)      Loss of Earning Capacity

[48]        
The parties have both referred to leading cases on the assessment of
hypothetical and future losses: Smith v. Knudsen, 2004 BCCA 613; Romanchych
v. Vallianatos, 2009 BCSC 669; Perren v. Lalari, 2010 BCCA 140; Bradshaw
v. Matwick, 2011 BCCA 111; Miller v. Lawlor, 2012 BCSC 387; Steward
v. Berezan, 2007 BCCA 150; and Smith v. Wirachowsky, 2009 BCSC 1434.

[49]        
The cases are cited in support of the proposition that hypothetical and
future losses must be valued as possibilities so long as there was or remains a
real prospect of their occurrence.  The measurement of such losses is an
exercise in judgment and assessment and not a mathematically precise
calculation.  An award may be made where the plaintiff has been rendered less
capable overall from earning income from all types of employment, is less
marketable or attractive or has lost the ability to take advantage of all job
opportunities which might otherwise have been open to him had he not been
injured.

[50]        
The submissions of the parties do not describe a significant question of
law separating the parties.

Analysis

(a)      Findings with Respect to the Nature of the Injury

[51]        
It is acknowledged Cst. Jordan suffered a flexion extension injury
of his neck that cause pain radiating into his shoulder when Mr. Lowe’s
vehicle collided with his police cruiser.  It is acknowledged that injury and
associated occipital headaches kept him away from work from early August until
the end of September, 2007, and away from full time work to mid-October.  I
accept Cst. Jordan’s evidence that he has continued to be occasionally troubled
since by some pain and fatigue, particularly  at the end of long days of work. 
I find that he has substantially recovered from his injuries but that he
continues to suffer occasional neck, shoulder, and thoracic back pain, and that
he experiences some symptoms, albeit mild symptoms, of his 2007 injury.  I find
that those symptoms minimally impair him in his day-to-day activity, but that
because he has some continuing symptoms he has reduced his overtime work.

[52]        
In my view, Cst. Jordan is a credible witness.  He has not overstated
his injuries.  To the contrary, he went back to work at the earliest
opportunity by discontinuing his use of medication and acknowledging his
capability to return to work as soon as possible.  Not only did he return to
work, but he volunteered for and accepted considerable overtime work almost as
soon as he returned to his job as a police officer.  He continues to work in
operational duties that are demanding, as an officer in the marine unit and has
worked an amount of overtime that is at the upper end of the average range for
VPD officers, as described by Cst. Cooper.  He has apparently co-operated with
his physicians on physical examinations and demonstrated full range of motion,
subject only to limitation on extremes, and strong grip strength.  There is no real
suggestion of exaggeration in his description of his problems and no suggestion
that he has minimized his capacity in his discussions with his physicians.

[53]        
While the defendant calls into question Cst. Jordan’s evidence that he
has restricted his overtime work because of his symptoms, and questions his
report of daily pain, the defendant does not question the veracity of all the
statements made by Cst. Jordan to his treating physicians describing the
speed of his recovery and the return of almost all of his regular functions. 
There are some inconsistencies in Cst. Jordan’s evidence over time.  He has
regularly reported no musculo-skeletal problems to physicians and described recovery
from most of his symptoms at his examination for discovery.  Defence counsel
says that evidence is inconsistent with his more detailed description of his
remaining symptoms at trial.  Those remaining symptoms, however, were
throughout described as problems that are occasional and have had minimal
functional impact.  Even now, Cst. Jordan does not claim that his injuries
prevent him from working at a demanding job and adding significant overtime
work to his responsibilities.  In light of the plaintiff’s apparent efforts to
maintain his employment and his income, and to advance in his position as a
police constable.  It is not surprising that he has occasionally and regularly
minimized the extent of his ongoing symptoms.

[54]        
His testimony is consistent with medical records that suggest he was not
affected by shoulder, neck or thoracic back pain before the motor vehicle
accident in question, despite his extensive pre-existing degenerative changes. 
Given his susceptibility to injury and the severity of the impact, it is not
surprising that this accident caused him to suffer the symptoms of which he has
complained.

[55]        
Cst. Jordan referred early in the course of his medical treatment to
some thoracic pain.  That appears clearly to have been minimal and not to have
been an issue for a long period after the motor vehicle accident, but it is now
emerging as a more significant complaint.  I accept the evidence of Dr. Helper
that the onset of symptoms described by Mr. Jordan is consistent with a
musculo-ligamentous injury to the thoracic spine as a result of the impact of
the 2007 accident.

[56]        
In weighing the quantum of damages, I must bear in mind the fact that
Cst. Jordan suffered from extensive osteoarthritic changes before the accident,
and the opinion expressed by Dr. Helper that there is a moderate
probability that he would have developed symptoms as a result of those arthritic
changes had he not been injured. While there is evidence there has been no
progression in the changes seen on x-rays and MRIs since 2007 and therefore
little objective evidence of progress of the underlying condition, there is
expert opinion evidence the x-rays cannot be used as a measure of the extent to
which a mechanical condition is causing symptoms. Given Dr. Helper’s
opinion of the pre-accident prognosis, however, I find that the gap between the
plaintiff’s condition and the position that he would have occupied had he not
been injured is likely to narrow over time.

(b)      Loss of Past Income

[57]        
The defendant has admitted the plaintiff suffered a loss of income from
regularly scheduled work, compensated by the employee’s sick bank, of
$9,087.77.

[58]        
The plaintiff claims loss of overtime from August 1, 2007 to trial of
approximately $135,000.  That is calculated at the rate of $2,211 per month
over a period of 58 months.  The defendant says the plaintiff has not proven
the loss of overtime earning prior to trial.  The defendant says Cst. Jordan’s
call-out earnings in the last three months of 2007 were almost equivalent to
earnings in the 7½ months before the accident.  The plaintiff has not produced
records of call-outs requested and refused, or specifically detailed his
losses.  The plaintiff has not proven what work would have been available to
him.  There is inadequate evidence of a medical reason why Cst. Jordan could
not have done additional call-out work.  There is further no evidence to
support the periodic or significant reduction in his overtime work subsequent
to December 31, 2007 from average monthly earnings of approximately $3,000 in
the last three months of 2007 to earnings below $2,000 per month thereafter. 
Further, the defendants say that the plaintiff’s overtime earnings in 2007
prior to his accident were anomalous.

[59]        
Both the assessment of what Cst. Jordan would have earned for overtime
work had he not been injured, and the attribution of any shortfall between that
number and his actual earnings to his injuries are problematic exercises. 
There is evidence before me of the socio-economic factors that cause a police
officer to offer to work overtime, and factors that lead discretionary overtime
to be allocated to an officer.  There is little evidence before me to explain
the very dramatic increase in Cst. Jordan’s overtime work in 2007 before the
accident or the liklihood those numbers could be maintained over time. There
were some changes in his personal circumstances, but those preceded 2007.  It
was Cst. Jordan’s evidence that the availability of overtime opportunities to
officers increased dramatically after 2004, but he did not take advantage of
that in 2005 or 2006, in part due to his personal circumstances.  It seems to
me to be unrealistic to assume that Cst. Jordan would continue work overtime at
the very high 2007 rate on a consistent and long-term basis thereafter.  There
appears to me to be no adequate explanation for the reduction in Cst. Jordan’s
overtime work after 2007.  As his symptoms diminished and his recovery
proceeded, he appears to have worked less rather than more overtime. His
average monthly earnings fell from $3,000 per month to about $2,000 per month.
I cannot accept that the entire decrease in his overtime earnings is proven to
be related in whole or in part to the injuries which affected him after 2007.  He
appears to acknowledge this by attributing some of his reduced work to his
diminished reputation and the competition of other new officers.

[60]        
Cst. Jordan clearly lost all opportunity to do overtime work from August
13, 2007 until the end of September 2007.  Given his previous earning in 2007,
I am satisfied that his loss of opportunity to engage in overtime work during
that period should be estimated at $6,000.  That estimate is based upon the
conclusion that it is likely that he would have continued to work at the pace
recorded between January 1 and August 2007 for a least a period of time.

[61]        
Thereafter, as that overtime is likely to have moderated, the monthly
rate at which the loss of opportunity should be measured ought properly, in my
view, to be reduced.  Doing my best on the evidence to assess positive and
negative contingencies, including factors that might limit Cst. Jordan’s
availability to volunteer for overtime work and factors that might limit the
offers made to him, including the competition of new officers to which he
referred in his testimony.  I am of the view that the loss of overtime claim
should be assessed on the basis that Cst. Jordan has lost the opportunity to
earn overtime income that would have increased his earnings by approximately
$1,000 per month in the period from October to December 2007, and by a smaller amount
thereafter.  I assess the value of that claim, accumulated over approximately
57 months, at $30,000 ($3,000 of which is attributable to the last 3  months of
2007 and the balance of which represents the loss over the subsequent 54
months).

[62]        
The lost past income is therefore assessed at:

(c)      Loss of Future Earning Capacity

[63]        
The loss of two overtime shifts per month will justify a claim of
approximately $1,000 per month.  While I find that Cst. Jordan’s overtime work
has been diminished, as noted above, I am not satisfied that he has established
the full decrease is attributable in whole or in part to his symptoms.  There
is some loss of income-earning capacity associated with his ongoing complaints
of pain, but I can attribute only some of the ongoing loss of overtime work to
his minimal remaining symptoms.  Further, the degree to which his
osterarthritic changes would, in any event, have restricted his overtime work
must be weighted in assessing the loss of capacity.

[64]        
The plaintiff says the net present value of the loss of $1,000 per month
over the remaining 15 years of his potential employment is approximately
$125,000.  Because I find the probability of the onset of symptoms of
pre-existing degenerative arthritic changes would at some point have limited
Cst. Jordan’s over time work, and because I find the current limitation to be
marginal, I find the plaintiff would be appropriately compensated by an award
of approximately one-third of that sum, or $40,000.

[65]        
This award reflects the limited restriction I have found to have been
proven and the limited period over which that limitation is likely to be the
effective cause of reduced availability for overtime work.

(d)      General Damages

[66]        
The authorities referred to by the plaintiff describe injuries that had
a more significant functional impact on those plaintiffs than Cst. Jordan’s injury
had on him.

[67]        
In Andres v. Leslie, 2005 BCSC 1096, the plaintiff suffered from
a chronic condition three years after a motor vehicle accident.  The court
found that her condition would play a more important role in her working
capacity, and eventually, as a result of her chronic neck and back pain, she
might not be competitively marketable, and would have to retire early from her
job.  Her recreational life had been significantly adversely affected.

[68]        
In Love v. Lowden, 2007 BCSC 1007, the plaintiff suffered from
moderate to severe ongoing pain, and what were described as permanent, chronic,
and ongoing injuries to his lower back and sacroiliac.

[69]        
In Heller v. Bradford (2 March 2010), Vancouver M081470
(B.C.S.C.), the plaintiff suffered from neck and back pain with mild, residual,
chronic lower back pain, and occasional flare-ups that would likely continue
indefinitely into the future.  Her recreational and work activities were
notably compromised, and she gained weight.

[70]        
The defendant’s cases on general damages are also at one end of the
appropriate spectrum.

[71]        
In Lehtonen v. Marasco, 2008 BCSC 1734, the plaintiff suffered
injuries that were similar to those suffered by Cst. Jordan, but the trial
court found that full resolution had been obtained approximately 2½ years after
the initial injury.

[72]        
In Woods v. Chahal, 2008 BCSC 1555, the plaintiff suffered
injuries similar to those sustained by Cst. Jordan.  He recovered at a
comparable rate and was left with few residual restrictions described as minor
symptoms and occasional flare-ups.

[73]        
In Quartey-Harrison v. Klusiewich, 2011 BCSC 1054, the plaintiff
lost no time at work.  He experienced pain that eventually lessened into
discomfort.  That resulted in him giving up jogging and recreational soccer for
a time, but he had returned to those pursuits.  Approximately 18 months after
the accident, he had “essentially recovered” from the injuries.

[74]        
Having considered the cases that I have read of the spectrum for
injuries of this sort, I am of the view that Cst. Jordan’s case falls closer to
the end of the spectrum described in the cases provided by defence counsel.  I
assess the quantum of damages for pain and suffering and loss of enjoyment of
life in this case at $35,000.

Conclusion

[75]        
Damages will therefore be assessed as follows:

[76]        
There is no award made for cost of future care, as I am not satisfied on
the evidence that a claim has been made out for damages in respect of that
head.

[77]        
Any other matters that have to be spoken to, counsel?

[SUBMISSIONS RE: COSTS]

[78]        
If the parties, after other matters have been addressed, wish to make
any other submissions, you will have leave to do so.  The order that I will
make now is that costs will be costs to the plaintiff at the ordinary scale,
unless the parties seek to make submissions to me, in which case I’ll consider
further submissions.

“P. Willcock J.”

The
Honourable Mr. Justice P. Willcock