IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121219

Docket: 44547

Registry:
Vernon

Between:

Kelvin Beagle

Plaintiff

And

Henry Frank
Cornelson, Deceased,
and the Estate of Henry Frank Cornelson,
by its litigation representative, Wayne Moser,
Chrysler Financial Services Canada Inc./Services Financers
Chrysler Canada Inc.

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice Barrow

Reasons for Judgment

[1]            
Kelvin Beagle was injured in a car accident on July 8, 2007. The
defendants have admitted liability; at issue is the assessment of damages.

Background

[2]            
The plaintiff is 48 years old. He was 42 when the accident happened. He
is married to Jodi Beagle. They have three children: a 17-year-old son, and 15
and 16‑year-old daughters. Mr. Beagle grew up in Lumby. He graduated
from high school in 1982. After graduation, he worked in a veneer plant in
Lumby for five years. In 1987, he decided to return to school. His father was a
pastor and Mr. Beagle admired and respected the work he did. He decided
that he would pursue a similar course. To that end, he enrolled in the pastoral
theology program at the Western Bible College in the Fraser Valley. Although Mr. Beagle
had been an average student in high school, he did very well at college. He
obtained his diploma in 1990 and was offered a position as an assistant pastor
for a congregation in Nelson. Mr. Beagle had worked as a pastor during the
summers while he was attending college, including at the Nelson church at which
he was offered employment. He had begun to question whether pastoral work was
something he wished to pursue, so he turned down the position and worked
briefly in the logging industry. In late 1990, he got a job with a small
company that manufactured wooden propellers for small aircraft. In1991, when
his father died unexpectedly, he moved back home to help his mother cope with
her loss. He remained with the propeller manufacturing company for seven years,
during which he decided that being a pastor was not something he wished to
pursue.

[3]            
Mr. Beagle met his wife while he was in college. They lost contact
with one another until the early 1990s. They married in October 1993. Their
first child was born in December 1994. Their second and third children were
born in the next two years. Mrs. Beagle works in an administrative capacity
with a cable company. She has been with that company for 19 years. She took
about a month off after the birth of each of her children but otherwise has
worked fulltime throughout her adult life.

[4]            
By 1998, the propeller manufacturing company was in decline. During the seven
years Mr. Beagle had worked there, the number of employees had gone from eight
down to two. Mrs. Beagle’s brother was working for Bruce Coach, a company that
designed and built interiors for luxury motor homes. He encouraged Mr. Beagle
to apply for a job. Mr. Beagle thought it would be a good fit. He enjoyed
working with his hands, enjoyed aspects of design work, and thought the company
offered the prospect of both advancement and long-term employment. The Beagles
were living in Armstrong at the time and Bruce Coach was located in Salmon Arm.
Mrs. Beagle grew up in Salmon Arm and she has family living in the community. Mr.
Beagle applied and was offered a job at Bruce Coach.

[5]            
In 2001, the Beagles moved to Salmon Arm where they purchased a home. They
live in that house today. Mr. Beagle enjoyed the work at Bruce Coach, but
like his previous employer, by 2003 it was apparent that demand for its
products was declining. From time to time, paycheques were late and supplies
needed to complete jobs did not arrive. His brother-in-law had left Bruce Coach
and started his own company, Renaissance Joinery and Millwork Inc. Renaissance
is in the business of designing and installing cabinetry in homes. In 2004, he
asked Mr. Beagle to work for him and Mr. Beagle agreed. His job is to
install cabinetry, usually in kitchens but sometimes in closets, and usually in
residences but sometimes in businesses, such as restaurants and bars.

[6]            
When Mr. Beagle began with Renaissance he was on salary. There was
some prospect that he might be able to advance within the company and perhaps
even secure an ownership interest. He thought that if he worked long hours, his
effort might be rewarded in the future. By 2006, when the prospect of
advancement or acquiring an ownership interest appeared remote, he asked to be
put on an hourly wage and the company accommodated that request. He remained an
hourly employee until 2008 when he asked to be treated as a contractor. He expected
to do the same work but thought that he would be able to take on additional
jobs while securing some income tax benefits. The company accommodated his
request.

[7]            
In mid-2011, Mr. Beagle left Renaissance to work on a big project
in Revelstoke installing cabinetry in a high school. He did that job and one
other project, and then he took some time off in early 2012. He was hired back
by Renaissance in 2012 and remains working there today.

The Accident

[8]            
The accident happened on Highway 97 when the Beagles were on route to
Kelowna to shop. Mr. and Mrs. Beagle were in the front seat of their
2006 Pontiac SUV. Their daughters, who were then aged 12 and 11, were in the
backseat. Just north of Lake Country, on a four lane section of the highway,
traffic came to a stop as a result of another motor vehicle accident. The
defendant, an elderly man, did not realize traffic had stopped and ran into the
back of the Beagle vehicle. The collision was significant, causing about $13,000
damage to the Beagles’ car.

[9]            
Mrs. Beagle was injured but fortunately neither of their daughters was
hurt. The defendant was taken from the scene by ambulance, and the Beagles
called Mrs. Beagle’s parents who picked them up and drove them home.

The Issues

[10]        
There are several issues arising from these circumstances. The first is
the appropriate amount of non-pecuniary damages. The plaintiff argues that an
award of $120,000 is warranted. The defendant takes the position that $50,000
is more in keeping with the loss Mr. Beagle has and will suffer.

[11]        
The plaintiff claims for both past loss of income and future loss of
income earning capacity. As to the former, he argues that an award of $75,000
is in order. That amount is based on contract work the plaintiff was not able
to pursue, as opposed to any time lost from his employment with Renaissance. The
plaintiff takes the position that he is, or soon will be, physically unable to
do the work he is now doing because of his injuries. He argues that he will
have to retrain and that he will have to forego income while he does that. He
is seeking an award of between $350,000 and $450,000 under this head of damages.

[12]        
The defendant argues that there is no evidence to support any claim for
past loss of income. He points out that Mr. Beagle has not missed a single
day of work due to the injuries he sustained in this accident. As to the future,
the defendant argues that it is now just over five years since the accident,
and given that the plaintiff has not missed any work to this point, there is no
basis to conclude he will not continue to work installing cabinets indefinitely.
He argues that there should be no award for loss of future income earning
capacity.

[13]        
The plaintiff seeks an award of $78,854 for the cost of future care
and retraining. Of this amount $75,000 is for retraining. The balance is
for over‑the‑counter pain relief, psychological counselling, and
the purchase of a lawn mower and a snow blower. The defendant says that no
award is justified for retraining; that the counselling is not something the
plaintiff is going to take; and that there is no evidence as to the cost of the
medications.

[14]        
The parties agree that special damages of $961.38 are recoverable.

Discussion

[15]        
Both Mr. and Mrs. Beagle impressed me as honest straightforward
witnesses. Mr. Beagle is not a person to complain. He said that he does
not go to the doctor unless “something is broken”. He thought he would recover
from his injuries, especially if he worked hard to do so. He did work hard and
yet he has not recovered. He is, I am satisfied, genuinely surprised by this
and has been reluctant to accept it.

[16]        
Mr. Beagle was active, fit and healthy at the time of the accident.
According to Mrs. Beagle, he may have missed work due to health reasons once or
twice in their 19 years of marriage. One occasion was due to surgery he
required on his knee. He returned to work after that operation within a few
days.

[17]        
Mr. Beagle’s dominant thought following the accident was relief
that his children and spouse were not more seriously hurt. He did not think that
he was seriously injured either. He and his wife went home and the next day
went to their family doctor. His chief complaints were of a sore neck and pain
in his low back. For the first month following the accident his entire body
ached. He had about 10 massage treatments beginning in August 2007, and he saw
a chiropractor on several occasions. He did the bare minimum at work, but even that
left him tired at the end of the day. His neck took longer to recover than he
expected, but by April 2008, it had more or less resolved. His low back pain
did not improve. In fact, it remains significantly painful today, some five
years after the accident.

[18]        
Mr. Beagle’s situation has remained more or less static since early
2008. When he gets out of bed in the morning, the pain in his back is such that
he has difficultly putting on his socks. It generally takes about an hour for
his back to loosen up enough that he is reasonably mobile. He often has to load
tools and supplies into his pickup truck before he leaves for work. Mrs. Beagle
says that she cringes when she watches him do that because it is so obvious
that he is in significant discomfort. Mr. Beagle told Dr. Travlos
that he is in pain between 30 and 40 percent of the time. He has some pain-free
days but they are relatively infrequent.

[19]        
Until recently, Mr. Beagle had not taken any prescription
medication for his pain, choosing instead to cope using over-the-counter pain
medications. He takes about six Tylenol and perhaps five Advil per week. Not
long before the trial his doctor prescribed the muscle relaxant cyclobenzaprine.

[20]        
Mr. Beagle was seen twice by Dr. Andrew Travlos, a physical
medicine and rehabilitation specialist. His first assessment was in April 2008.
Dr. Travlos diagnosed Mr. Beagle’s low back pain as mechanical in
nature. He noted that as of April 2008, Mr. Beagle had not had any
significant treatment aside from the massage and chiropractic treatments noted
above. He recommended a structured conditioning program focused on increasing
the strength in his back. Dr. Travlos next saw Mr. Beagle three years
later. In his report of March 23, 2011, he noted that Mr. Beagle had
followed his recommendations and pursued a strengthening and conditioning
program. He also noted that Mr. Beagle had received several injections,
including injections of steroids and local anaesthetics, in his facet joints. Notwithstanding
these interventions, Mr. Beagle’s condition remained largely unchanged, and
in fact in at least one respect, it had deteriorated. In April 2008, his pain
was not such that it woke him during the night; by March 2011, he was having
trouble sleeping and this was further sapping his energy.

[21]        
By way of prognosis, Dr. Travlos wrote:

It is now coming up to four years
since Mr. Beagle’s accident and he continues to have the same ongoing
symptoms as he has had over time. There is every expectation that his current
symptoms will persist for the longer term.

Dr. Travlos recommended continued exercise and
suggested that consideration be given to a prescription strength
anti-inflammatory. He noted, however, that while these therapies might assist Mr. Beagle
in managing his pain, they would not lead to a resolution of it.

[22]        
Mr. Beagle was assessed by Dr. David Boyce at the request of
the defendant. Dr. Boyce is an orthopaedic surgeon. He saw Mr. Beagle in
December 2011. Dr. Boyce reviewed various records, including Dr. Travlos’
reports. He, too, concluded that Mr. Beagle’s low back pain was mechanical
in origin. Dr. Boyce wrote that:

…[t]he probable convalescence
would be in the vicinity of 12 to 18 months post MVA. They [sic] should be no expectation
of long term sequelae or permanent limitation of function…

This might well be the expected result in most cases, but it
was not the result in Mr. Beagle’s case. He was seen by Dr. Boyce
some four and a half years after the accident, and his symptoms persisted.

[23]        
With one exception, Mr. Beagle has done all that he has been asked
to do to assist in his own recovery. The exception relates to his job, which I
will address later in these reasons. His response to Dr. Boyce’s report is
typical of his overall approach to his own recovery. Dr. Boyce recommended
a structured exercise program at a gym. Although Mr. Beagle had been
exercising in a focused and diligent way, he thought Dr. Boyce was
skeptical. In response, Mr. Beagle redoubled his efforts. He returned to
the gym for supervised instruction and followed those instructions. He walks
regularly (an activity that seems to provide him with the most relief),
stretches daily, and does the exercises he has been shown.

[24]        
Based on the forgoing, I am satisfied that Mr. Beagle suffered a
mechanical injury to his low back. It has caused him significant pain
notwithstanding his efforts to minimize the consequences of the injury. I think
it more likely than not that it will continue to cause him pain and continue to
limit his function indefinitely.

a) Non-pecuniary Damages

[25]        
At the time of the accident, the plaintiff was a fit, healthy and active
42‑year‑old father of three. His enjoyed playing golf, baseball and
hockey. He took up hockey as an adult. He has played baseball since he was a
youth. He played organized hockey and baseball prior to the accident. His
co-worker and friend, Kirk Starkell, played on the same teams as Mr. Beagle
for about five years prior to the motor vehicle accident. Mr. Starkell
described Mr. Beagle as a committed player with some skills. He said that he
was a fun person to have on the team.

[26]        
Mr. Beagle took up golf when he was in college. He has never had a
membership at a golf course, but he was able to get in about 20 rounds per year
prior to the accident. He enjoyed the game and thought he would play it well
into old age.

[27]        
Since the accident, Mr. Beagle has golfed once and that was shortly
before the trial. He played baseball for a season or two after the accident but
found that he could not hit. He has not played at all in the past two years. He
has played hockey twice since the accident. The forward leaning posture that
the game involves is something that his back will not tolerate.

[28]        
Mr. Beagle was active in his children’s lives, coaching them in
hockey and baseball, as well as doing unorganized things with them such as bike
riding and engaging in horse play. His ability to rough house with his children
has markedly declined. That may be due, in part, to the fact that they are outgrowing
some of that sort of thing but it is also due, in part, to Mr. Beagle’s
injuries.

[29]        
The Beagles downhill ski as a family. Mr. Beagle skied as a younger
person, but my sense was that he abandoned the activity when his children were
involved in other winter sports such as hockey. They have taken it up as a
family since the accident. He said that he skies but does so in a very guarded
way and with some anxiety that, if he falls, he might seriously injure himself.
He does it, however, because it is an activity that he can enjoy in the few
years that remain until his children leave home. He does it, as he put it, for those
spontaneous moments on the chair lift during which parents and children can relate
in a positive and open way.

[30]        
In addition to the foregoing, Mrs. Beagle noted that her husband is
much more irritable than he was prior to the accident. She notes that he has
very little energy when he gets home from work, and if he has had a pain-filled
day, he simply lies down on the couch until he goes to bed. She said that he
never did that before. Prior to the accident, he coached their children in
their activities, renovated their 30‑year‑old home, and played an
active role in projects at their church. Mrs. Beagle described the strain
this has put on their relationship. She is still dealing with the injuries she
sustained in the accident. She said that while she tries to be supportive and
understanding, she finds her husband’s constant irritability difficult to cope
with. Both Mrs. Beagle and the plaintiff wonder and worry about the future
and, in particular, whether Mr. Beagle will be able to continue doing the
work that he does. This, too, adds to their burden.

[31]        
In summary, Mr. Beagle’s injuries have restricted his recreational
activities to a considerable degree. He has lived in reasonably constant pain
since the accident. He has attempted to work through his injury. He is a stoic
individual, who has resisted the temptation to give into his injuries; to the
contrary, he has worked hard at overcoming his low back problem, but in spite
of his best efforts, he has been unsuccessful. His marriage has suffered, as
has his relationship with his children inasmuch as he has been unable to engage
with them physically as he did before the accident.

[32]        
The plaintiff argues that an award of $125,000 in general damages is
warranted in these circumstances. In support, Mr. Yawney points to Stapley
v. Hejslet, 2006 BCCA 34; Neumann v. Eskoy, 2010 BCSC1275; MacKenzie
v. Rogalasky, 2011 BCSC 54; Szymanski v. Morin, 2010 BCSC 1; and Garcha
v. Duenas, 2011 BCSC 365.

[33]        
Kirkpatrick J.A. set out a non-exhaustive list of factors that influence
an award of non-pecuniary damages at paragraph 46 of Stapley v. Hejslet.
They include: the age of the plaintiff; the nature of the injury; the severity
and duration of the pain; the resulting disability; the emotional suffering
flowing from it; the extent to which it has impaired the plaintiff’s enjoyment
of life; the extent to which it has impaired family and marital relationships;
the degree of impairment of physical and mental abilities; and the extent to
which the injuries have impaired the plaintiff’s lifestyle. She added that in
assessing these factors, one should not be penalized because of a stoic
disposition.

[34]        
The plaintiff in Neumann v. Eskoy was 47 at the time of trial and
44 at the time of the accident. He was married and the father of children. He
was injured in a rear end collision and developed chronic pain in his neck. He
had headaches, sleep difficulties, and fatigue. His condition was likely
permanent. He had been an active individual notwithstanding his obesity. After
the accident, he did not have the energy to maintain his yard or pursue his
recreational interests; rather, he often simply slept in the evenings. Like Mr. Beagle,
Mr. Neumann was worried about his future, in part because he had a
physically demanding job that he may not be able to continue to do. Brooke J.
awarded $90,000 in non-pecuniary damages. In Szymanski v. Morin, the
55-year-old plaintiff was self-employed as a hardwood floor installer. He
suffered a mild to moderate soft tissue injury to his cervical spine. His
symptoms continued beyond what would ordinarily be expected, in part because of
the physically demanding nature of his job. He was a stoic and determined
person, who led an active life prior to the accident. His injuries limited his
recreational activities, limited his ability to do household chores and
projects, and cast his retirement plans into doubt. Kerr J. awarded him $75,000
in non-pecuniary damages. In MacKenzie v. Rogalasky, Kerr J. awarded the
41-year-old plaintiff $100,000 in non-pecuniary damages. He, too, was described
as stoic and determined. He suffered a soft tissue injury to his neck, which
evolved into chronic myofascial pain syndrome. His injuries affected virtually
every aspect of his life and prevented him from continuing his career as a chef.
Finally in Garcha v. Duenas, the 48-year-old plaintiff suffered soft
tissue injuries in a motor vehicle accident. He was a machinist and the father
of two children of university age. He was off work entirely for four months
following the accident and then returned part-time and on modified duties. As
of the trial (some five years after the accident), he continued to experience
neck pain one or two days per week. His neck pain was usually accompanied by
headaches. His recreational activities were substantially impaired, as were his
family relationships. Boyd J. awarded him $70,000 in non-pecuniary damages.

[35]        
The defendant argues that an award of $50,000 is more appropriate
pointing out that Mr. Beagle has not missed any time from his physically
demanding job, and while some of his recreational activities have been
affected, he has participated in downhill skiing more since the accident than he
did before.

[36]        
Taking into account what I find to be the permanent nature of Mr. Beagle’s
injuries, the effect it has had on his recreational pursuits, the worry he now
lives with about his future, and the toll the pain he experiences has taken on
his marriage, I consider that an award of $90,000 in non-pecuniary damages
is reasonable.

b) Past Loss of Income

[37]        
The plaintiff argues that he has suffered a past loss of income earning
capacity. His gross earnings have remained about the same since the accident as
they were prior, but his hourly wage has increased. An increase in hourly wage
that is not reflected in an increase in gross income is said to evidence a loss
of capacity. In addition, the plaintiff argues that he petitioned his employer
to permit him to become a subcontractor in order that he might take advantage
of his ability to work faster and smarter, which would then allow him to pursue
additional work from other builders or contractors. He was unable to do that
because he did not have the time or energy. As to the former matter, he took
longer to do jobs than he would have taken before he was injured. The plaintiff
argues that his loss is about $15,000 per year for each of the five years since
the accident for a total loss of $75,000. The defendant argues that Mr. Beagle
has made about the same gross income since the accident as he did prior to it. As
to the suggestion that Mr. Beagle lost potential contracts, the defendant
says there is no evidence of that.

[38]        
Mr. Beagle’s total income in 2005 was $45,899. In 2006, it was
$54,671. During 2006, he changed from a salaried employee to an hourly wage
earner. In 2007, the year of the accident, his total income was $56,778. He was
then earning $25 per hour. All of that income was from his employment with
Renaissance. In 2008, Mr. Beagle became a subcontractor. He had T4
earnings that year of $16,281 and gross business income of $56,384. His net
business income was $33,551. Almost all of this income was from Renaissance. In
2009, his gross business income was $55,632. His net income was $31,364. While
it is not entirely clear, I assume this was all from Renaissance. In 2010, his
net income was $28,153; it is not clear what his gross receipts were that year.
In 2011, his net income was $32,976 on gross receipts of $59,495.

[39]        
In 2011, Mr. Beagle stopped working for Renaissance and took a
contract in Revelstoke. He did that for at least two reasons. First, it paid
well, and second because it was single large contract as opposed to a many
smaller contracts, Mr. Beagle thought it would involve less heavy lifting
and thus be easier on his back. The job ended in October. It paid a higher
hourly wage and Mr. Beagle was able to work longer hours. Following the
Revelstoke job, Mr. Beagle took a number of smaller contracts. He then approached
his brother-in-law at Renaissance and asked about getting back on with them.
Although his position had been filled, there was a prospect of work later in
the spring. Mr. Beagle decided to take three months off and rest his back
and see if he would recover. He also used the time to explore other employment
options. In the late spring, Renaissance rehired him as a subcontractor, and he
has continued to do contract work for them since.

[40]        
The fact that a plaintiff has earned about the same income after an
accident as he or she did before an accident is not necessarily dispositive of
a claim for past loss of income. That is so for the reasons set out in Ibbitson
v. Cooper, 2012 BCCA 249. The plaintiff in that case was a faller. He could
not do that work as result of injuries he sustained in a car accident. He was,
however, able to operate heavy equipment and did that in the years following
the accident and up until trial. His hourly wage as an equipment operator was
less than his wage had been as a faller, but by working longer hours, he was
able to earn just as much as he had been earning as a faller. In Ibbitson v.
Cooper, Garson J.A. confirmed that, as with a claim for future loss of
income earning capacity, a claim for past loss is a claim for a loss of
capacity, that is, a claim to be assessed on the basis of the loss or
diminution of a capital asset. Past loss of income earning capacity is usually
valued on the basis of past loss of income because that will often be the most
reliable measure of the loss. There are, however, different methods of valuing
a claim for past loss of income earning capacity, just as there are different
methods of valuing a similar future loss. Which method is appropriate will
depend on the circumstances.

[41]        
I am not persuaded that the plaintiff has established a claim for past
loss of income earning capacity prior to 2012. It is not clear, on the
evidence, that his income has remained the same in spite of an increase in his
hourly rate of pay, thus evidencing a loss of capacity. His hourly rate changed
when he took the job in Revelstoke. It was primarily because of that and
because the job afforded the opportunity to work longer hours, that he took it.
The job ended in late October 2011. He then asked if Renaissance had work for
him. They did not because they had hired an installer to replace him. I infer
that as a result, he was out of work for at least part of the remainder of 2011.
That hiatus is not attributable to his injuries but rather was the
manifestation of one of the risks of being a self-employed contractor – sometimes
there are no contracts. In spite of that hiatus in 2011, his gross income was
just under $60,000, which is about $5,000 more than his receipts in 2009. It
seems to me that his income reflected his increased hourly rate. Thus, it
cannot be said that, in 2011, he did not earn what he would have earned had he
not been injured.

[42]        
From 2007 to 2011, his income was based on working more or less fulltime
for Renaissance, first as an hourly employee and later as a contractor. There
is no evidence that he was unable to do all the work that was available to be
done. I accept that one reason he changed from being an employee to being
a contractor was to take advantage of other possible work. I accept that had
such work been available, he would not have been able to do it because he was
completely spent after a day doing work for Renaissance. He may have taken
other additional work had he not been injured, and not been so exhausted as a
result of his injuries. There is, however, no evidence that there were other
contracts available. In 2009 and 2010, Mr. Beagle acknowledged that the
construction industry had significantly slowed. He attributed his lower taxable
income to that circumstance. Whether his income declined in those years or not
(they were the first years he earned all his income as a contractor), it is
reasonable to infer that there were no additional contracts that he could have
pursued.

[43]        
I am satisfied that Mr. Beagle has a proven loss for 2012. His loss
is based on two things. First, in July he was installing cabinets in a house. The
job involved moving appliances and other heavy lifting. His back flared when he
was moving a dishwasher. He could not do the other heavy lifting and thus
called a friend that he paid to help him. There is no evidence as to how much
he paid his friend, but I accept that he paid him and paid him fairly. Second,
Mr. Beagle took time off in the early spring to see if his back would heal.
I recognize that this hiatus corresponded with waiting for an opening at
Renaissance. I am satisfied however that Mr. Beagle could and would have
worked during that time but for his injuries. On the evidence, it is clear that
he is a hard worker and someone who takes his responsibility to provide financially
for his family very seriously.

[44]        
I assess his past loss of income earning capacity at $7,500. I arrive at
that amount as follows. Mr. Beagle’s average annual receipts are about
$60,000. Generally, his taxable income is about half of his gross receipts. I
am satisfied that he lost about three months of work in early 2012. Such a loss
is about $15,000 in gross receipts, half of which is $7,500. Given the
necessarily rough approach to valuing this loss and having in mind that it is
an assessment as opposed to an arithmetic calculation, I consider this to be a
fair valuation of his entire past loss of income earning capacity, including
the loss incurred by having to hire someone to assist in the completion of the
installation in July.

c) Future Loss of Income Earning Capacity

[45]        
The plaintiff argues that he cannot continue to do the job he now does
because it is simply too hard on his back. He argues that it is reasonable for
him to retrain and that while he does that, he will be without an income. He is
interested in a three-year program at Thompson Rivers University leading to a
diploma in architectural and engineering technology. Such a course is within
his academic abilities and would allow him to engage his design skills, which
he uses but only to a limited extent in his present job. It would also allow
him to work in the same general industry, namely, construction. Mr. Beagle
met with the Dean of the program in early 2012. He was encouraged by the
meeting both in relation to the substance of the course and the opportunities
for employment following graduation. In addition, the Dean indicated that Mr. Beagle’s
work experience would be valuable should he pursue a career in architectural
technology. Based on a variety of scenarios as to possible future income, the
plaintiff argues that his loss should be assessed at between $350,000 and
$450,000.

[46]        
The defendant argues that the plaintiff is entitled to no award under
this head. He has worked in his previous occupation for over five years since
the accident without missing any time. He is capable of continuing in that job
indefinitely.

[47]        
The threshold issue is whether the injuries the plaintiff suffered are
such that he cannot (or should not) continue in his present job.

[48]        
Renaissance designs, builds and installs kitchen and other cabinets
primarily in residential settings but also in commercial settings. Customers
come to the business where either Mr. Reutlinger (Mr. Beagle’s
brother-in-law) or another of the owners meets with them. Mr. Reutlinger
then designs the cabinets. Others in the business construct them based on the
design. Once built, they are shipped to the site where Mr. Beagle installs
them. Typically a labourer will load the cabinets into the delivery vehicle at
the shop and accompany the load to the site. He will then assist in unloading
the product. Once unloaded Mr. Beagle must move them into place, level
them and install them. In addition to the lifting that is required to do that,
the actual installation involves overhead postures, as well as work at floor
level when the cabinets are being installed and when the hardware is being put
on. It is physically demanding work. According to Mr. Reutlinger, the
company has accommodated Mr. Beagle in that he is not required to deliver heavy
items; that work is all done by a labourer. Prior to the accident, Mr. Beagle
assisted in that aspect of the work.

[49]        
The evidence about whether Mr. Beagle should or can continue in his
job comes from three sources – the medical opinions, a functional capacity evaluation,
and the lay witnesses.

[50]        
Dr. Travlos wrote in his March 23, 2011 report:

I would recommend that Mr. Beagle
start to look for lighter duties such as more supervisory work…It is probable
that with such a career change, that Mr. Beagle will be able to work
through to the end of his working career. If Mr. Beagle continues to work
as a cabinet installer, he is at significant risk of injury in the
workplace…It is my opinion that his ability to work through to the end of his
working career is and will remain restricted if he continues to work in a
physical job…

[51]        
Dr. Boyce on the other hand wrote in his December 13, 2011 report
that:

He should be able to continue
doing his previous work as a cabinet maker and installer. His workplace and
duties may have to be assessed to help update injury prevention techniques to
prevent further aggravation of his back complaints. He may also benefit from
using a lumbosacral corset in the workplace to help minimize the mechanical
stresses.

[52]        
Lydia Phillips completed a functional capacity evaluation on Mr. Beagle
in October 2010. She wrote:

…While [Mr. Beagle] does
continue with his work, his job causes him regular episodes of functionally
limiting pain…[T]he physical demands of his job not only exceed his recommended
tolerance levels…but also exceed his maximum safe lifting tolerances. In
other words, as part of his job, he regularly performs lifts and assumes
postures that increase his pain levels…He sometimes performs lifts that place
him at risk of re-injury…

She noted that over time, Mr. Beagle’s ability to
manage his job will decline. With that decline will come an increase in pain and
an increase in the risk of re‑injury.

[53]        
Mr. Reutlinger is Mr. Beagle’s employer, friend and relative. He
values him as an employee. While he does not work with Mr. Beagle on site
on a daily basis, he does see him on the job site from time to time and sees
him around the shop. In June 2011, if not before, he spoke to Mr. Beagle
and strongly encouraged him to look for work that was less strenuous. My sense
is that Mr. Reutlinger has known for quite some time that Mr. Beagle
will not be able to continue in his present job indefinitely. He has not
pursued the issue more vigorously, in part because Mr. Beagle has not been
willing to entertain the prospect of a change.

[54]        
Perhaps the most telling witness on this issue is Mrs. Beagle. She sees Mr. Beagle
every day. She finds it hard to watch him in the mornings when he has
difficulty standing up straight and struggles to load his tools in his truck.
She sees him at night when he comes home exhausted and sore. In her opinion, he
cannot continue doing what he is doing. My impression is that she has shared
her opinion with her husband with increasing firmness over time but that he
has, until recently, been unwilling to consider a change.

[55]        
Mr. Beagle has resisted the idea of a change of career for several
reasons. Initially, he was convinced that he would recover. He persisted in
that belief for several years. On some level, he may still hold that view. Further,
he feels he cannot afford to be off work for the time necessary to retrain. His
daughter hopes to become a dentist, and his oldest son hopes to become an
electrician. The Beagles hope to be able to provide some financial assistance
to all of their children. In addition, the family’s life style is built on the
combined incomes of Mr. and Mrs. Beagle. In addition, he has been
living with the hope that a less physically demanding position will become
available at Renaissance. As to this later matter, Mr. Reutlinger
testified that he thought Mr. Beagle had potential to work in design and
sales in the company. He has spoken to Mr. Beagle about that. The company
is not now in a position to employ Mr. Beagle in that role. It might be in
the future, but that is entirely uncertain and there is no prospect of that
happening anytime soon. This has led to some hard feelings between Mr. and
Mrs. Beagle and Mr. Reutlinger. I suspect what has happened is that,
out of a desire to help, Mr. Reutlinger has expressed that prospect (as
well as other prospects years ago) more optimistically than the circumstances
justified, and Mr. Beagle has interpreted the conversations more
optimistically than they warranted.

[56]        
Mr. Beagle still resists the conclusion that he should not continue
in his present job. He does, however, accept that it is now inevitable.

[57]        
Based on all of the foregoing evidence, I am satisfied that Mr. Beagle
is at significant risk of further injuring his back if he continues in his
present occupation. Further, while he might be able to tolerate the physical
demands of his job for some months yet, before long he will simply be unable to
do the work. In the meantime, he will be exhausted and more limited than he needs
to be in his ability to do other things in life.

[58]        
In Perren v. Lalari, 2010 BCCA 140, Garson J.A. wrote at para.
32:

[32]      A
plaintiff must always prove…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…or a capital asset approach…The former approach will be
more useful when the loss is more easily measurable…The latter approach will be
more useful when the loss is not as easily measurable…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…

[59]        
I am satisfied that the plaintiff has proven a real and substantial
possibility of a future event leading to an income loss. In fact, I think that
future event, namely, the inability to do his present job, is likely. The next
issue is how to assess that loss.

[60]        
If Mr. Beagle were to retrain in the program at Thompson Rivers
University, he would be able to earn approximately what he would have been able
to earn if he continued in his present job. I recognize, based on Mr. Carson’s
report, that the two career paths are not entirely congruent, but they are very
similar in terms of income earning capacity for someone like Mr. Beagle
who will be starting a new career and thus joining that income earning stream
relatively late in life. Thus, if he were to retrain in that field and secure
employment, his asset (that is, his capacity to earn an income) would be
largely but not entirely repaired. His loss might be assessed on the basis of
the income he will lose in order to complete the retraining, plus the loss he
will experience while he attempts to reintegrate into the work force as a 50‑year‑old.

[61]        
There is any number of contingencies that might factor into this
assessment. It may take Mr. Beagle more or less time to secure employment
post retraining; according to the labour market data compiled and analyzed by Mr. Carson,
it is likely that someone employed in the architectural technology field will
eventually earn as much as Mr. Beagle would have earned were he to remain
in his present job. How long it might take to reach and then exceed parity is
nothing more than a guess. Further, there is the possibility that Mr. Beagle
may not be successful at the program or that he may not enjoy the work. If that
or any other circumstance arises, he will be unable to return to his former
occupation or to many physically demanding jobs of the sort he enjoys and, to
this point in his working life, has been good at.

[62]        
The circumstances of this case are not such that it can be said that one
method of valuing the loss is better suited than another. I will use the
earnings approach. I think it more likely than not that Mr. Beagle will
retrain in the Thompson Rivers University program beginning in September 2013. He
will be able to finish that program at the end of April 2016. I think it
reasonable to allow until the end of that year for him to obtain a position. As
noted, it will likely take some time before he is able to earn that which he
would have been earning in his present job. Over time, however, there is reason
to conclude that he will have a marginally better income. His loss, therefore,
includes the income he would have earned while he is retraining and looking for
employment. I assess that at $210,000. I reach that amount on the basis that Mr. Beagle’s
income for those years would have been about $60,000 per year. That is roughly
what his gross receipts would have been had he not been injured. The loss would
extend from September 2013 to the end of 2016. The gross loss is about $206,000
which when discounted for present value comes to $190,000. To that sum, I have
added a small amount to reflect the fact that most of the contingencies that
might affect this scenario are negative.

[63]        
The second component of this aspect of Mr. Beagle’s loss is the cost
of retraining. While this might be regarded as a cost of future care, as the
plaintiff has cast it, I think it is more properly viewed as an aspect of the
loss of income earning capacity. It is a part of the cost of repairing that
asset. Tuition is, according to Mr. Beagle, $6,500 per year. Books are
several hundred more dollars per year. Kamloops is 109 km from Salmon Arm. Mr. Beagle
could commute, although the dean did not recommend he do that because of the
time it takes. The course is reasonably demanding and, at least initially, the
more so for someone who has been out of school for many years. If he were to
commute, his annual distance travelled would be about 30,000 km (based on 28
weeks per academic year). I have no evidence as to what it might cost were he
to rent a small apartment and stay in Kamloops during the week. I have no
reason to conclude that it would be less expensive than commuting. I think a
reasonable amount for commuting or accommodation is $15,000. In total, his
likely annual expenses will be $22,000 ($6,500 in tuition, $500 for books, and
$15,000 for travel or accommodation). Over the course of three years the cost
will be $66,000. Discounted to reflect present values, the amount is
approximately $61,000.

[64]        
I assess Mr. Beagle’s loss of future income earning capacity at
$271,000.

d) Loss of Housekeeping Capacity

[65]        
Mr. Beagle has traditionally been responsible for the maintenance
and upkeep of the outside of the family home, and Mrs. Beagle has attended to
the inside housekeeping. Mr. Beagle told Dr. Travlos that he can
still do most of the exterior household chores, although he takes longer to do
them and may not do them as well or as often. He can still mow the lawn and
shovel the driveway provided he has the equipment to do it. He cannot do any
major renovations or repairs. So, when the roof needs replacing or if their
deck needs a new surface, things Mr. Beagle would have done himself before
the accident, he will have to hire someone now.

[66]        
I am satisfied that the plaintiff has proven a loss of housekeeping
capacity albeit one limited to the less frequent but more involved kinds of
tasks noted above. I think a fair award under this head is $5,000.

e) Cost of Future Care

[67]        
The cost of future care sought by the plaintiff includes the following:
over-the-counter medications (Tylenol and Ibuprofen); psychological
counselling; and a snow blower and a lawn mower.

[68]        
I accept Mr. Beagle’s evidence that he uses over-the-counter
medications to deal with his pain. I accept that he will likely continue to
need those sorts of medications indefinitely. The annual cost of them is $68. The
present value of that expense over the course of Mr. Beagle’s expected
life span is $1,344.

[69]        
I am not satisfied that Mr. Beagle will use or needs psychological
counseling. He was seen by Dr. Gordon Wallace, a psychological and
vocational consultant. In the course of his assessment, Dr. Wallace said
that he thought Mr. Beagle would likely benefit from psychological
counselling primarily to assist him in coming to grips with his physical
limitations, and the implications of those limitations for his future as a
father and breadwinner. As a result of this recommendation, Mr. Beagle saw
Garth Mercer, a clinical counsellor, on two occasions in late 2011. According
to Mr. Beagle, Mr. Mercer explained that which Mr. Beagle was
already coming to realize, namely, that he needed to find other work. He now
accepts that and does not see a need to pursue counselling.

[70]        
As for the lawn mower, Mr. Beagle said that he can still mow his
lawn; although if he does that with a push mower, he experiences back pain.
They have a large lawn. He has purchased a self-propelled lawn mower as a
result. Ms. Phillips, who prepared a cost of future care report in
conjunction with the functional capacity evaluation she undertook, recommended
a self-propelled lawn mower in order to reduce the strain that the forward
posture of pushing a conventional lawn mower involves. I am satisfied that there
is the necessary evidentiary link between Mr. Beagle’s injury and
resulting pain, and the relief that such a lawn mower would provide. There is
no evidence as to what Mr. Beagle paid for his mower, but I accept Ms. Phillips’
evidence as to cost and allow $350 for this component of the claim. As for the
snow blower, it was recommended for the same reason as the lawn mower. Mr. Beagle
can shovel his driveway, but he suffers significantly increased pain if he does.
His neighbour has a snow blower, and now several neighbours do each other’s
driveways. Mr. Beagle takes his turn, and my sense is that he (and the
other neighbours) actually enjoys doing the driveways. He does not need a snow
blower as long as this arrangement is in place, but he will if his neighbour
moves; and even if he does not move, some contribution to the communal effort
will be necessary. I will allow $350 for this aspect of the claim.

[71]        
In total, I award $2,044 for the cost of future care.

f) Special Damages

[72]        
Special damages of $961.38 are agreed on by the parties, and the
plaintiff will have judgment in that amount under this head.

Conclusion

[73]        
In summary the plaintiff is entitled to judgment in the following
amounts:

·       Non-pecuniary
Damages of $90,000;

·      
Past Loss of Income of $7,500;

·      
Future Loss of Income Earning Capacity of $271,000;

·      
Loss of Housekeeping Capacity of $5,000;

·      
Cost of Future Care of $2,044;

·      
Special Damages of $961.38.

[74]        
In addition, the plaintiff is entitled to prejudgment interest at the
prevailing rates. Further, unless the parties wish to speak to the question of
costs, the plaintiff is entitled to costs at Scale B.

“G.M.
Barrow, J.”

The
Honourable Mr. Justice Barrow