IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Wangert v. Saur, |
| 2013 BCSC 99 |
Date: 20130125
Docket: M091908
Registry:
Vancouver
Between:
Michael C. Wangert
Plaintiff
And
Michael Patrick
Saur, Deceased
Defendant
Before:
The Honourable Mr Justice Abrioux
Reasons for Judgment
Counsel for Plaintiff: | N. Bower |
Counsel for Defendant: | T.M. Jones |
Place and Date of Trial: | Vancouver, B.C. |
Place and Date of Judgment: | Vancouver, B.C. January 25, 2013 |
I INTRODUCTION
[1]
Michael Wangert seeks damages for the injuries he sustained in a motor
vehicle accident which occurred on May 1, 2007 (the Accident), which resulted
in the death of the defendant.
[2]
The principal issues relate to general damages for pain and suffering
and the effect the psychological injuries sustained in the Accident had on the
plaintiffs income and pension.
II AGREED STATEMENT OF FACTS
[3]
An agreed statement of facts was entered as an exhibit at the trial:
AGREED STATEMENT OF FACTS
1. At
approximately 7:15 a.m. on May 1, 2007, the Plaintiff MICHAEL C. WANGERT and
the Defendant MICHAEL PATRICK SAUR ("the Parties") were involved in a
collision on Harris Road in the City of Pitt Meadows, Province of British
Columbia ("the Accident").
2. At
the time of the Accident the Plaintiff was operating a freight train for
Canadian Pacific Railway as an engineer ("the Plaintiffs Train"). At
the time of the Accident the Plaintiff was in the course of his employment with
Canadian Pacific Railway.
3. At
the time of the Accident the Plaintiff was employed by Canadian Pacific Railway
as a locomotive engineer.
4. At
the time of the Accident the Defendant was operating a black 1980 Chevrolet van
bearing British Columbia licence plate 7766JB, owned by the Defendant
("the Defendant’s Van").
5. The
collision between the Defendant’s Van and the Plaintiffs Train occurred solely
as a result of the Defendant’s negligence.
6. As a result of the Accident, the
Plaintiff suffered psychological injury.
7. Following
the Accident the Plaintiff received a debriefing through Canadian Pacific
Railway’s Critical Incident Response Program. The Plaintiff received this
debriefing for two hours each on May 2nd, May 3rd, and
May 5th, 2007, together with the conductor of the Plaintiffs Train.
8. Following
the Accident the Plaintiff was off work from the date of the Accident until May
15, 2007, when he returned to work full time at full duties.
9. On
January 28, 2011, Dr. Larry Krywaniuk, Ph.D., a registered psychologist,
prepared a Medical-Legal Report regarding the Plaintiff. Dr. Krywaniuk
diagnosed the Plaintiff as suffering from Post-Traumatic Stress Disorder (PTSD)
in partial remission, and with a Mood Disorder characterized by symptoms of
anxiety and depression. In Dr. Krywaniuk’s opinion, these conditions were
caused by the Accident.
10. On
March 11, 2011, Dr. Paul Steinberg, a psychiatrist, conducted an independent
psychiatric evaluation of the Plaintiff, and diagnosed the Plaintiff as
suffering from Post-Traumatic Stress Disorder, then in partial remission,
caused by the Accident. Dr. Steinberg did not diagnose any other mood disorder
or cognitive disturbance.
11. Following
his independent psychiatric evaluation of the Plaintiff, Dr. Steinberg felt
bound to report his findings to the Plaintiff’s employer, Canadian Pacific
Railway, as the Plaintiff was working in a safety-sensitive position.
12. Following
the receipt of Dr. Steinberg’s report, Canadian Pacific Railway removed the
Plaintiff from his position on March 24, 2011.
13. Following
a graduated return to work beginning January 22, 2012, the Plaintiff made a
full return to work on May 31, 2012.
14. The
Plaintiff’s graduated return to work began with four hours a day of work in the
train yard, switching trains. He then worked on trains outside the yard under
supervision. When the Plaintiff made his full return to work he was able to
work on trains outside the yard without supervision at full hours.
15. The
Plaintiff retired from his employment with Canadian Pacific Railway effective
June 1, 2012.
16. As
of the date of his full return to work on May 31, 2012, the Plaintiff was
capable of performing his full work duties without any difficulty resulting
from the Accident.
17. The Plaintiff claims special
damages of $18,271.19.
18. The
documents contained in the Joint Book of Documents are true and accurate:
a)
At Tab B, the Health Care Payment Detail and MSP Payment Detail printouts for
the Plaintiffs compensation claim with the Workers’ Compensation Board;
b) At Tab C, the Plaintiffs
employment file with Canadian Pacific;
c) At Tab D, the Plaintiffs
tax returns and T4 forms;
d)
At Tab E, the Canadian Pacific pension guide and amendments; and
e)
At Tab F, the email from Ellen Williamson, Manager Pension Member Services,
Canadian Pacific, setting out the Plaintiffs pensionable earnings,
contributions, and other details from 2006 to 2012.
For the
purposes of trial, the Parties agree that the above stated facts are true and
correct.
III BACKGROUND
[4]
In addition to the above, the following background information is
germane to the plaintiffs claims.
[5]
The plaintiff was born on February 28, 1957. He was 55 years old at the
time of trial.
[6]
Mr. Wangert has a son who lives in Montreal and a 17-year-old daughter
who lives in Cranbrook with her mother, Cindy Wangert. The plaintiff and Ms.
Wangert were married in 1983.
[7]
When the plaintiff and Ms. Wangert divorced, she moved with the children
from the Lower Mainland to Cranbrook, B.C. The plaintiff then moved to
Cranbrook to be near his family but returned to the Lower Mainland in 1999. He
did so because he preferred to live in the Vancouver area. He believed that he
was not working sufficient hours due to his family responsibilities. He thought
it would be good for the children to be able to spend some time in the Lower
Mainland. He bought a house in Maple Ridge in 2000. He arranged for his
children to come visit him over school holidays and long weekends.
Notwithstanding this, by 2006 while he still saw his children from time to time,
it was not as frequent as before.
[8]
The plaintiff has suffered from gout since his early 20s. Prior to the Accident,
he was off work for two or three days per year due to this condition.
[9]
In the years prior to the Accident, the plaintiff was on-call hauling
freight. He would usually operate a freight train to and from Boston Bar. He
preferred working freight since it was more remunerative than working in the freight
yard. He was allowed to work a maximum of 3800 miles per month.
[10]
The plaintiff was expected to be available seven days a week, unless he
was on mandatory time off after having worked a certain number of consecutive
hours. He could also decline work by booking unfit status or if he was sick. Unfit
could occur if he did not consider himself physically fit for duty. This included
being tired or under stress.
[11]
From 2003 to 2012 the plaintiff had the following T4 earnings:
·
2003: $70,247
·
2004: $65,404
·
2005: $69,594
·
2006: $68,024
·
2007: $68,315
·
2008: $82,759
·
2009: $82,784
·
2010: $93,818
·
2011: $32,159
[12]
Prior to his retirement effective June 1, 2012, the plaintiffs T4 earnings
for 2012 were $50,442.
[13]
The plaintiff was reprimanded a number of times for absenteeism both
before and after the Accident. Prior to the Accident, this included time he
took off to be with his children. It was the plaintiffs evidence that
immediately prior to the Accident, he intended to work as many hours as
possible for five years in order to maximize his pensionable earnings. It was
his intention to retire as of June 1, 2012.
[14]
The plaintiff testified that although his income did increase following
the Accident, what he did earn was a far cry from what he should have earned
had he not been injured. It was his evidence that in the year prior to the Accident,
being 2006, he could have earned more income if he had not been doing the long-distance
dad thing.
[15]
According to the plaintiff, a significant portion of his absenteeism
following May 1, 2007, was due to the psychological effects of the Accident. He
acknowledged that he did miss some time from work after the Accident for
personal reasons and separate knee and elbow injuries unrelated to the
Accident. He testified he could not estimate how much time he missed from work
due to the Accident.
[16]
It was the plaintiffs evidence that his lifestyle did not change so
much following the Accident. He still continued to work freight trains. His
moods did change, however, and he felt as though his personal relationships
suffered as a result. He knew he had to work as hard as he could in order to
make the best five years of income in order to maximize his pension.
[17]
The plaintiff was not familiar with the concept of constructed
earnings being a component of the calculation of his pension. He was also
under the impression that his pension would be based on his five years of
earnings leading up to his retirement as opposed to his best five consecutive years
of income.
[18]
The plaintiff acknowledged that with the exception of some counselling
he received in the immediate aftermath of the Accident, it was not until he was
involved in the litigation process that he obtained professional assistance. He
believed his employer would penalize him if he booked unfit days due to the
anxiety he was suffering due to the Accident. Although CP Rail was
compassionate for three months or so after the Accident, his perception was
that his employer was harassing him regarding his absenteeism.
[19]
The plaintiff believed that he would deal with the effects of the Accident
as best as he could by working. He stated, I had to work as much as I could. I
dealt with it on my own as I dealt with the stresses in my life. It was only
when he was examined by Dr. Krywaniuk in January 2011 and then Dr.
Steinberg on behalf of the defendant in early 2012, that the diagnosis of post traumatic
stress disorder was made. Dr. Steinberg reported his findings to Canadian
Pacific. It was recommended that the plaintiff stop working for a period of
time. He was then treated by a psychiatrist and a psychologist. This greatly
assisted him and resulted in his returning to work on a gradual basis in
January 2012. He was cleared to return to work full time in late May 2012.
A few days later, being June 1, 2012, he retired.
[20]
Wayne Weatherbee is a locomotive engineer who works for CP Rail. He has been
employed with CP Rail for over 30 years and is planning to retire in March
2014.
[21]
Mr. Weatherbee testified that he has known the plaintiff for 20 years.
They became good friends approximately 10 years ago. He lives nearby and they
socialize. He confirmed that in the years following 2002, the plaintiff took time
off from work to be with his children. His impression was that they were less
interested in visiting their father when they reached their teenage years.
[22]
In his interaction with the plaintiff following the Accident, he noticed
that the plaintiff appeared to be more withdrawn. It was also his impression
that as of early 2007, the plaintiff had been working more than he had in the
past. His attendance at work was reduced after the Accident. He observed that
the plaintiff seemed nervous.
[23]
Mr. Weatherbee earned approximately $116,000 or $117,000 in 2011. He was
not maximizing the monthly miles available to him that year. He indicated that
other engineers work more than he did but they would have to be married to the
railroad.
[24]
Mr. Weatherbee stated that he has booked off sick and unfit over the
past number of years. He has also been cautioned for absenteeism. He was aware
of instances where the plaintiff attempted to get approved leaves of absences.
His position was similar to the plaintiffs in that he also had difficulties
getting time off from work. If his request was refused, he would take the time
off by booking unfit.
[25]
Mr. Weatherbee took nine or 10 days off work in 2011. He said that
although he had no more than three or four missed calls in the last two years,
he was verbally warned for having rejected shifts when asked to work. He
indicated he was aware that the plaintiff had been reprimanded for absenteeism
in the first part of 2007.
[26]
Craig Brown, another locomotive engineer at CP Rail, also testified. He
qualified as an engineer in 1982. He is vice president of the Teamsters union which
represents workers from Vancouver to Kamloops. Mr. Browns employment income in
2010 and 2011 was approximately $130,000. He received credit for the time he
spent conducting union affairs.
[27]
Mr. Brown stated that most locomotive engineers would take a total of 30
to 35 days off from work a year on the basis that they were sick, unfit for
work or had reached the maximum number of miles per month. It was also his
evidence that other CP locomotive engineers attempted to maximize their
earnings in their last five years prior to retirement in order to earn a higher
pension. Engineers who had chosen lower paying positions for most of their
careers would often decide to spend their last five years working on the
freight trains, since it was more remunerative.
IV FINDINGS OF FACT
[28]
I make the following findings of fact:
·
the Accident occurred at a most unfortunate time for the
plaintiff. He had reached the point in his life where he was able to work
increased hours with CP Rail in anticipation of attempting to maximize his
income for pension purposes;
·
although medical treatment for his post traumatic stress disorder
did not formally commence until the spring of 2011, his self-help treatment
from the Accident until that point in time did result in a decrease of
symptoms. This is demonstrated by both Dr. Krywaniuk and Dr. Steinberg concluding
that the plaintiffs condition was in partial remission when they assessed him;
·
the plaintiffs T4 income stream in the years prior to the
Accident, particularly 2005 and 2006, of approximately $68,000, is not
indicative of what he would likely have earned had the Accident not occurred;
·
although the plaintiffs income did increase after the Accident
to approximately $94,000 in 2010, it would have been even higher had the
Accident not occurred;
·
I do not accept, however, that the plaintiffs gross income would
have been in the range of that earned by Mr. Weatherbee or Mr. Brown, that is
$117,000 to $130,000 per year. That is because although Mr. Wangert says he
intended to work more hours, I must take his employment history into account.
This included instances when he took time off from work for personal reasons,
and when he refused calls in situations where he believed CP Rail could not
require him to work. He also continued to take time off from work to be with
his children, although this was less than had been the case prior to 2007.
V MITIGATION
[29]
Prior to assessing the plaintiffs damages, I will deal with the defendants
submissions that the plaintiff has failed to mitigate his damages.
[30]
There are essentially two components to those submissions. The first is
that the plaintiff failed to seek appropriate treatment in a timely fashion.
The second is that the plaintiff had the option of working past age 55. Since
the plaintiff had recovered from his post traumatic stress disorder by May 2012,
the defendant submits he should have continued working past his planned
retirement date to maximize his average earnings over the last 60 months of
employment. This would have increased his retirement pension benefits thereby
mitigating, if not eliminating, his claim for loss of retirement pension
benefits arising from the injuries sustained in the Accident.
[31]
The plaintiff has an obligation to take all reasonable measures to
reduce his loss. The defendant bears the burden of establishing that he has
failed to act reasonably to do so.
[32]
Frers v. De Moulin, 2002 BCSC 408, sets out the elements which
must be proven by the defendant:
[217] The defendants referred to Janiak
v. Ippolito, [1985] 1 S.C.R. 146; Maslen v. Rubenstein (1993), 83
B.C.L.R. (2d) 131 (C.A.) and Zahynacz v. Kozak, [1998] B.C.J. No.
1947 (Q.L.) (S.C.) and conceded that they have the onus to establish three
elements:
(a) there were
steps that the plaintiff could have taken that might have avoided or reduced the
loss;
(b) those steps were reasonable; and
(c) the amount by
which those steps would have avoided or reduced the loss.
[33]
It is clear that the goal of damages in an action for tort is to
compensate the injured party as completely as possible for the loss suffered as
a result of the negligent action or inaction of the defendant: Cunningham
v. Wheeler, [1994] 1 S.C.R. 359.
[34]
In this case, I accept the plaintiffs evidence that he had always
planned to retire at the age of 55. He had spent many years working for CP
Rail.
[35]
The defendant did not cite any legal authority supporting his position
that a plaintiff could have mitigated losses by working past his or her planned
retirement age. I was also unable to find any.
[36]
In my view, planning for retirement is a very important stage in a
persons life. When one has the opportunity to retire at a certain age, even
though continuing to work remains available, the decision to retire is not
entered into lightly. It is not for the tortfeasor to take the position that
the plaintiffs failure to change his life plan due to an accident which
occurred through no fault of his own, amounts to unreasonable conduct.
[37]
I have also concluded that the plaintiff was not required to seek
psychiatric or psychological assistance prior to 2011. This is not a case of
specific treatment recommendations being made at an early stage which the
plaintiff declined to follow.
[38]
It was the plaintiffs belief CP Rail would not react positively if he
turned down work opportunities because he was troubled by the Accident. His
self-help remedy, which was essentially to persevere as best he could was
successful to a point. His income continued to increase in the years following
the Accident and by late 2010 and early 2011, his post traumatic stress
disorder was in partial remission.
[39]
In his report, Dr. Krywaniuk noted that it is common for individuals in
the plaintiffs situation to not actively seek treatment.
[40]
In fact, the plaintiffs gross employment earnings for the first three
months of 2011 were $32,159, which would have equated to a gross annual income
of approximately $128,000 on the assumption he would continue to work at that
rate for the rest of the year. While that assumption may be flawed, the
plaintiff was clearly on track to earn more that year than in any other previous
year.
[41]
Once Dr. Steinberg contacted CP Rail, the plaintiffs employer did agree
he should be provided with a leave of absence. The plaintiff concurred and,
within approximately a year which included treatment, the post traumatic stress
disorder was in complete remission.
[42]
Under these circumstances, the defendant has not established the three
elements pertaining to failure to mitigate. The plaintiffs alleged failure to
actively seek psychological treatment in the aftermath of the Accident was not
unreasonable in the circumstances. Even if it had been, the defendant has not
established to what extent that treatment would have been successful in that
particular timeframe and to what extent the plaintiffs damages would have been
reduced.
VI NON PECUNIARY DAMAGES
[43]
The plaintiff submits the award of general damages should be in the
range of $70,000 – $80,000. It is the defendants position that a reasonable
range is $20,000 -$40,000 with a further reduction to reflect the
plaintiffs failure to mitigate. I have reviewed the various authorities to
which I was referred. The circumstances of this case, in my view, are much less
significant than those in Bonham v. Weir, 2009 BCSC 1080, Smith
v. Williams, 2011 BCSC 1806, and Vagramov v. Zipursky, 2010 BCSC
414.
[44]
The plaintiff was the operator of a train which struck the defendants
vehicle at a railway crossing. From the plaintiffs vantage point, he had a
clear view of the immediate events leading up to the collision which resulted
in the death of the defendant.
[45]
This was a horrific event which resulted in a diagnosis of post traumatic
stress disorder. The Accident affected the plaintiffs moods and his ability to
work. His symptoms continued for a significant period of time. They were only
in partial remission more than 3 l/2 years after the Accident. It was not until
the spring of 2012, almost five years after the Accident, that they were in
full remission.
[46]
I have also considered Matkin v. Gaurian, 2003 BCSC 763 and Weafer
(Guardian of) v. Vancouver Coastal Health Authority, 2007 BCSC 481 where
the non pecuniary damage awards were $40,000 and $55,000 respectively. I have
adjusted these for inflation.
[47]
Taking into account the factors set out in Stapley v. Hejslet,
2006 BCCA 34, I award non pecuniary damages of $50,000.
VII PECUNIARY DAMAGES
A: Introduction
[48]
Two economists gave evidence on behalf of the parties: Howard Teasley
for the plaintiff and Mark Szekely for the defendant.
[49]
Both experts were provided with certain assumptions as to the
plaintiffs income after the Accident and/or made certain assumptions based on
documents provided to them. Their opinions related to the plaintiffs wage loss
up to trial and his potential loss of pension income.
[50]
I was not assisted by Mr. Teasley. During his evidence he made numerous
corrections to his report of August 30, 2012. In fact, during the course of his
evidence, Mr. Teasley provided a report updated to 10 September 2012.
Unfortunately, when testifying with respect to this report he identified
additional errors. On the whole his evidence fell short of the requisite
clarity required to assist the trier of fact.
[51]
I was, on the other hand, assisted to some extent by Mr. Szekelys
evidence, which consisted of his report of September 6, 2012, and his testimony
during the trial.
B: Past Loss of Income/Loss of Earning Capacity
[52]
The plaintiffs position is that he is entitled to compensation for the
two weeks he was absent from work in the aftermath of the Accident and,
furthermore, the time he was undergoing treatment from the end of March 2011 to
February 2012, and the four months thereafter when he was on a graduated
return-to-work.
[53]
In addition, he should be compensated for the fact that he earned less
income from 2007-2012 than he otherwise would have had the Accident not
occurred, due to his post traumatic stress disorder.
[54]
The defendant accepts a net past wage loss of approximately $2,200 for
the time missed from work immediately after the Accident. This is slightly
higher than the plaintiffs calculation of that loss. The defendants calculation
was based on an approximate 20% deduction from gross income. I award the
plaintiff the amount he sought, being a net loss of $1,920.92.
[55]
The defendant also accepts that the Accident caused the plaintiffs time
off from work in 2011 and 2012, with the exception of a weeks absence in
January 2011, which resulted from a sore back. In his written submissions, he
submits the total past wage loss is approximately $50,000 – $58,000 in round
numbers.
[56]
During oral submissions, defence counsel stated compensation for this
head of damages should not be as low as the range set out in his written
submission.
[57]
The plaintiff points to the fact that his net income for the three
months he worked in 2011 was approximately $28,700. Accordingly, his net income
loss for 10 months commencing late March 2011 should alone amount to
approximately $95,700.
[58]
The plaintiff says that if his actual earnings equaled those of Mr. Brown,
then his past loss of net income could be as high as $131,400. However, he
acknowledges a difference between them, since Mr. Browns evidence was that he
had sought out opportunities to work and had no family obligations. The
plaintiff, on the other hand, continued to spend some time with his children
after the Accident, although not as much as in the past.
[59]
The plaintiff submits that but for the Accident, he would likely have
earned more than he did. The midpoint between his lost net income based on
actual earned income, and lost net income based on assumed earnings equal to
Mr. Brown, was approximately $113,000. He submits this amount represents
an appropriate award for past loss of income.
[60]
In Rowe v. Bobell Express Ltd., 2005 BCCA 141, it was stated at
paras. 30 and 31:
. . . a claim for what is often described as "past loss
of income" is actually a claim for loss of earning capacity; that is, a
claim for the loss of the value of the work that the injured plaintiff would
have performed but was unable to perform because of the injury.
Evidence of this value may take many forms. As was said by
Kenneth D. Cooper-Stephenson in Personal Injury Damages in Canada, 2nd
ed. (Scarborough, Ont.: Carswell, 1996) at 205-06,
… The essence of the task under this
head of damages is to award compensation for any pecuniary loss which will
result from an inability to work. "Loss of the value of work" is the
substance of the claim – loss of the value of any work the plaintiff would have
done but for the accident but now will be unable to do. The loss framed in
this way may be measured in different ways. Sometimes it will be measured
by reference to the actual earnings the plaintiff would have received;
sometimes by a replacement cost evaluation of tasks which the plaintiff
will now be unable to perform; sometimes by an assessment of reduced company
profits; and sometimes by the amount of secondary income lost, such as shared
family income.
[Underlining added in Rowe;
italics in original.]
[61]
One factor which supports the plaintiffs position is his gross
employment income for the first three months of 2011. It amounted to
approximately $10,700 per month or $128,000 for that calendar year. This
suggests that the plaintiffs income increased as his symptoms decreased.
[62]
On the other hand, it was the plaintiffs evidence that he could not
specifically point to any particular occasions when he booked sick or unfit
or did not return calls for work as a result of the psychological effects of
the Accident. There is also the fact that in 2009, when the effects of the
Accident were presumably more significant than when he was assessed by Dr. Krywaniuk
and Dr. Steinberg in late 2010 and early 2011, the plaintiff claimed only 12
sick/unfit days. This was well within the norm of other locomotive engineers.
[63]
Table B of Mr. Szekelys report provides a calculation of after-tax loss
of employment income based on the assumption of 100% of pensionable earnings as
opposed to what was the case prior to the Accident, being 89.8%. This results
in an after-tax loss of approximately $73,400. This scenario, for the reasons I
have outlined, assumes lower absent accident earnings than I consider would
have been the case had the Accident not occurred.
[64]
Taking these various factors into account, I have concluded an
appropriate award for this head of damages is the approximate midpoint between
the $60,000 initially submitted by the defendant as reasonable and the $113,000
submitted by the plaintiff, being $85,000.
C: Loss of Pension Income
(1) Introduction
[65]
A locomotive engineer employed by CP Rail is entitled to a pension based
on pensionable earnings. Pensionable earnings include regular salary,
overtime pay and constructed earnings. Constructed earnings refer to the
earnings an employee would have received if he had worked and contributed
during any period of pensionable leave. Pensionable leave includes sick
leave. Sick time counts towards constructed earnings as does taking time off
work for being unfit. Time taken off for personal reasons does not count
towards constructed earnings. A pension is based on both actual and constructed
earnings.
[66]
Constructed earnings are calculated by increasing the pensionable
earnings from the previous year by the applicable negotiated salary increase
and then dividing that amount by 365 in order to get a daily rate.
[67]
In addition, the higher of the average earnings of either the last 60
months before retirement or the best five consecutive calendar years is used to
calculate the amount of pension.
[68]
In May 2012 the plaintiff was advised by CP Rails Pension Services that
he had a shortage of $9,147.43 in pension contributions. In order to be
credited with the service and corresponding pension benefit, he was required to
pay this amount in full prior to his retirement date.
[69]
Upon his retirement, the plaintiff received a monthly pension of $5,166.
There was evidence to the effect that the average wage for two locomotive
engineers just senior to the plaintiff and two immediately junior engineers was
$121,547.19. Using this income, a locomotive engineer with 34 years and 11
months service who had reached the age of 55 years would receive an estimated
monthly pension of $6,513 for life.
[70]
Mr. Szekelys lifetime pension multiplier per $1,000 loss per year was
$12,449. Mr. Teasleys was approximately $12,900.
(2) The Plaintiffs Position
[71]
The plaintiffs position is that his pensionable earnings would have
been higher but for the effects of the Accident. That is because the actual
income component would have been higher and the constructive earnings portion
lower.
[72]
The plaintiff also submits that he had to contribute $9,147.43 in order
to maximize the contributed income portion of his pension. Without that
contribution, he would not have benefited from certain constructed earnings and
the amount of his monthly pension would have been $4,345 as opposed to $5,155. Since
he had to contribute for pensionable leave to be included in pensionable
earnings, the insurance exception to the rule against double recovery applies
to the amount of the plaintiffs pension based on his pensionable earnings
above his pension amount based on his actual earnings. He relies, amongst
other authorities, on Druet v. Sandman Hotels, Inns & Suites Limited,
2011 BCSC 232, which applies the collateral benefits principles set out in Cunningham
v. Wheeler.
[73]
The plaintiffs position is to the effect that if his actual pension is
used as a basis of the calculation for his loss then, since it includes pensionable
earnings based on both actual and constructive earnings, then he is forced to
share the benefits of his contributions
with the tortfeasor: see Kean v.
Porter, 2008 BCSC 1594 at paras. 108 to 111.
[74]
The plaintiff submits that if his earnings had been $20,000 higher per
year after the Accident, then the current value of the loss to his pension
compared to the pension amount he actually receives is approximately $170,000.
If his pension based on past wage loss of approximately $114,700 is compared to
his pension based on actual earnings, without including pensionable earnings
above actual earnings (that is constructed earnings), then the current value of
the lost pension would be approximately $247,000. This amount is calculated by
using a notional monthly pension of $4,345, as opposed to the actual pension of
$5,155.
(3) The Defendants Position
[75]
The defendants position is that the plaintiffs approach reflects a
misapplication of Cunningham v. Wheeler, which considered the private
insurance exception and extended it to apply to disability payments made under
the terms of a collective agreement. Payment by the plaintiff of the sum of $9,147.43
in order to benefit from constructive earnings did not render that portion of
his pensionable amount a collateral benefit which should not accrue to the
tortfeasors benefit. Any loss of pension should be based on the amount
actually received as opposed to the notional amount of $4,345, which does not
include constructed earnings.
[76]
The defendant also submits that the value of the plaintiffs pension was
not affected by the Accident. That is because, to the extent the plaintiff did
not work due to his being unfit or sick, the amount of the lost shifts was
included in his constructed earnings and thus in his pensionable earnings.
Accordingly, the plaintiff has not established any loss of pension income.
(4) Discussion
[77]
In Khairati v. Prasad, 2002 BCSC 360, Coultas J. provided the
following summary of the principles which apply with respect to the non-deductibility
of collateral benefits:
[307] The issue was revisited by the
Supreme Court of Canada four years later in Cunningham v. Wheeler,
[1994] 1 S.C.R. 359. Before the Supreme Court of Canada were three appeals from
the British Columbia Court of Appeal in which that Court had followed Ratych
and deducted certain disability benefits paid under a collective
bargaining agreement from the plaintiff’s damage awards. Cory J. writing for
the majority, limited Ratych to placing an evidentiary burden
upon the plaintiffs to establish they had paid for the provision of disability
benefits. In all three appeals, Cory J. found evidence of payment which moved
them out of the realm of Ratych and placed them within an exception from
deduction for private policies of insurance first recognized in Bradburn v.
Great Western Railway Co. (1874), [1874-80] All E.R. Rep. 195 (Ex. Div.).
[308] Since Ratych and Cunningham,
I find the law in terms of deductibility of collateral benefits can be
summarized:
1) McLachlin J.’s rule in Ratych
states that when a plaintiff receives a wage benefit under an agreement
from which no direct cost to the plaintiff can be traced the benefit should be
deducted, unless the court is satisfied that the employer or fund which paid
the wage benefit is entitled to be reimbursed for it on the principle of
subrogation.
2) When a plaintiff receives a wage
benefit at an actual cost then the benefit should be deducted minus the actual
cost (see Ratych p. 972). For example, if a plaintiff had to give up
sick days in order to receive a benefit then the plaintiff would be compensated
for the lost sick days.
3) When a plaintiff receives
collateral benefits from an insurance policy in which direct costs can be
traced to that plaintiff then such benefits are not deductible. This is the
"insurance exception".
4) When a plaintiff receives
collateral benefits from a charitable source this is not deductible. This is
the "charity exception".
[78]
Burgess v. Lau, 1996 Carswell BC 227 (S.C.), involved a police
officer who was injured in a motor vehicle accident. Leggatt J. considered a
submission which has similarities to the one being advanced by the plaintiff in
this case:
[18] In that case the Supreme Court of Canada also
agreed that the private insurance exception to the rule against double recovery
was an understood and accepted rule in Canadian law. However, this exception
seems to have been restricted to private insurance policies only. In the case
of private insurance the insured has the forethought to take out and pay for a
policy which will provide him with income on the happening of an unforeseeable
event i.e., an accident. The purpose of taking out such an insurance policy may
well be that the insured will be better off in the event of an accident. This
expectation is that at the very least he will receive the insurance money when
an accident occurs. It would be unfair to allow the tortfeasor to benefit from
the insured’s foresight by deducting the amount of the insurance policy from
the wage loss claim and it would also be unjust not to compensate a plaintiff
for taking precautions to minimize the loss flowing from a negligent act. In Cunningham
(supra) Cory J. reviewed the rationale for allowing the exception to the rule
for allowing recovery, pp. 400-401:
I think the exemption for the
private policy of insurance should be maintained. It has a long history. It is
understood and accepted. There has never been any confusion as to when it
should be applied. More importantly it is based on fairness. All who insure
themselves for disability benefits are displaying wisdom and forethought in
making provision for the continuation of some income in case of disabling
injury or illness. The acquisition of the policy has social benefits for those
insured, their dependants and indeed their community. It represents forbearance
and self-denial on the on the part of the purchaser of the policy to provide
for contingencies. The individual may never make a claim on the policy and the
premiums paid may be a total loss. Yet the policy provides security.
Recovery in tort is dependent on
the plaintiff establishing injury and loss resulting from an act of misfeasance
or nonfeasance on the part of the defendant, the tortfeasor. I can see no
reason why a tortfeasor should benefit from the sacrifices made by a plaintiff
in obtaining an insurance policy to provide for lost wages. Tort recovery is
based on some wrongdoing. It makes little sense for a wrongdoer to benefit from
the private act of forethought and sacrifice to a plaintiff.
[19] In the case of a pension, the pension holder
invests money to be paid to him upon the happening of a certain event, namely,
when he reaches a certain age and retires from his job. The purpose in
contributing to a pension then is so the pension holder will be receiving
income when he is no longer receiving wages from work. The expectation is not
to be better off in the case of an accident but to have income when he retires
or at a certain age and is no longer earning a wage from his employer. The
plaintiff should be put in the position he would have been if he were able to
work and be retired at the same time. Accordingly, the plaintiff does not have
the same type of wisdom which Cory J. refers to in his judgement, that is, in
paying into his pension he was not "making provision for the continuation
of some income in the case of a disabling injury or illness", he was
planning his retirement from employment. The plaintiff then should not receive
an extra unplanned benefit from the pension. This is not a case where the
defendant will benefit from the forethought of the plaintiff to prepare against
an accident.
[20] I have accordingly
come to the conclusion that in assessing the future loss to the plaintiff
consideration must be given to potential loss of pension benefits due to early
retirement and the potential of loss of opportunity for employment as a result
of the injury, but only the loss which would accrue to earnings over and above
the amount which might have been earned from his pension.
[79]
The issue in Burgess was whether pension benefits could be
deducted by the defendant tortfeasor from the plaintiffs claim for damages for
what was termed future wage loss. In this case the plaintiffs submission
pertains to the method whereby pension benefits are calculated.
[80]
In my view, Cunningham v. Wheeler does not apply. That is because
this case does not involve the type of wage loss or disability benefits paid to
a plaintiff under a plan of insurance. Rather, it involves the operation of CP
Rails pension plan and the calculation of benefits thereunder. In calculating
the benefits, the retiree receives credit for monies actually earned together
with notional credits for certain types of leave including being sick or unfit
to work. There is no element of insurance. There is also no link or nexus
between the pension amount paid and the alleged losses flowing from the
injuries sustained in the Accident. The plaintiffs pension is not a benefit
in the sense that term is used in Cunningham v. Wheeler and its
companion authorities.
[81]
The issue remains, however, whether the plaintiffs monthly pension of
$5,166 is less than it otherwise would have been but for the Accident.
[82]
The average monthly pension for locomotive engineers who are in a
similar seniority position to the plaintiff at the time of their retirement is
$6,513 for life. This is based on average annual pensionable earnings of
approximately $121,500. The plaintiffs monthly pension is $5,166, a difference
of $1,347 or $16,164 per year. Applying Mr. Szekelys pension loss
multiplier of $12,449 per $1,000 results in a potential loss of $201,000.
[83]
It is for the plaintiff to establish a real and substantial possibility
of a future economic loss. In response to the plaintiffs claim for past loss
of income, the defendant conceded that the effects of the Accident did result
in the plaintiffs income being reduced to some degree. The plaintiffs actual
earnings prior to retirement form one component of the calculation of his
pension amount. Accordingly, I do not accept the defendants submission that
there can be no damages for loss of pension.
[84]
The plaintiff has established, in my view, a real and substantial
possibility that he has suffered a future pecuniary loss as a result of the
injuries sustained in the Accident.
[85]
Damages in relation to future events are to be assessed rather than
calculated. In determining what I consider to be an appropriate award under
this head of damages, I have considered the following:
(a) Mr. Browns earnings were above
those of the average CP Rail locomotive engineer in a position similar to the
plaintiff and who would have received a pension of $6,166 per month;
(b) Mr. Weatherbees income for
2011 would have placed him in the below average category had that been his
average income used to calculate his pension. 2011 was but one year to be
included. There was no evidence indicating his income for either his best 60
months or five consecutive years prior to retirement. There was also no
evidence as to what his anticipated monthly pension would be;
(c) the plaintiff was not, from an
earnings perspective, an average locomotive engineer for the applicable
timeframe prior to his retirement. He was also not an average locomotive
engineer from an earnings perspective prior to the Accident;
(d) the plaintiff may have been an
average or above average locomotive engineer from an earnings perspective in
2011 had he not stopped working in late March that year to undergo treatment
for his post traumatic stress disorder. But to do so he would have had to
continue to work at a similar level for the remaining nine months of the year
as he had in the first three months;
(e) at no point did the plaintiffs
T4 earnings ever approach, even for one year let alone for five years, the
average earnings of $121,000, consecutive or otherwise referred to by Mr.
Brown. In fact, in 2009, he had T4 earnings of $82,784 even though he had only
12 unfit or sick days;
(f) the plaintiff, both before and
after the Accident would not make himself available for work, that is, not
answer the phone if he did not wish to work a particular shift. Potential
earnings for the shift in question would not form a part of contributed
earnings for pension purposes;
(g) a locomotive engineer such as
the plaintiff, who does not work a particular shift due to being unfit or sick,
drops to the bottom of the call board for future shifts. This may also affect
his income;
(h) it had always been the
plaintiffs intention to retire as of June 1, 2012. He was also aware that his
earnings from 2007 onwards would play a significant role in the calculation of
his pension. But he could not point to any particular shifts or time periods
when he declined to work for reasons specifically due to the effects of the
Accident. His evidence was general in nature to the effect he believed that
but for the Accident, he would have worked more. No contemporaneous record was
kept to record the shifts allegedly lost due to the effects of the Accident;
(i) there were several occasions
when the plaintiff chose not to work shifts prior to the Accident for personal
reasons, such as family responsibilities. This was also the case, to some extent,
following the Accident. In addition, he did on at least one occasion miss some time
from work for health issues unrelated to the Accident;
(j) I have awarded the plaintiff
$85,000 for past loss of income attributable to the Accident. This amount should
notionally be added to the plaintiffs actual earnings component used to
calculate what his pension would have been but for the Accident. There would
then have been some reduction in the contributed earnings portion.
[86]
When I take all these factors into account, I conclude that the sum of
$201,000 referred to in paragraph 82 above does not represent an appropriate
assessment of damages for loss of pension benefits attributable to the
Accident. It must be significantly discounted.
[87]
At page 8 of his report, Mr. Szekely provides an example of a net loss
of pension of approximately $85,000 based on a $10,000 reduction in annual
pensionable earnings. I appreciate there is not a strict correlation between
the net past loss of income of $85,000 I have awarded the plaintiff and Mr. Szekelys
example. This amount, however, given what I have stated above is, in my view,
one which is fair to both parties with respect to the claim for loss of pension
income.
D: Special Damages
[88]
These are agreed at $18,271.19.
VII CONCLUSION
[89]
I award the plaintiff the following:
General damages | $ 50,000.00 |
Past loss of income/earning capacity | $ 85,000.00 |
Loss of pension income | $ 85,000.00 |
Special damages | $ 18,271.19 |
TOTAL | $238,271.19 |
The plaintiff shall have his costs at Scale B unless there
are factors that impact the question of costs. If so, either party has liberty
to apply to speak to costs.
Abrioux
J.