IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130125

Docket: M096253

Registry:
Vancouver

Between:

Randall Matthew
Hubbs

Plaintiff

And

Basilio Ramos
Escueta

Defendant

Docket: M122275

Registry: Vancouver

Between:

Randall Matthew
Hubbs

Plaintiff

And

Derek Martin

Defendant

Before:
The Honourable Madam Justice Ross

Reasons for Judgment

Introduction

[1]            
The plaintiff, Randall Hubbs, was injured in two motor vehicle
accidents. The first occurred on July 3, 2009 when the motorcycle Mr. Hubbs
was riding was involved in a collision with the vehicle driven by the defendant
Basilio Escueta (the “Escueta Accident”). The second accident occurred on
November 30, 2011 when Mr. Hubbs was struck by the vehicle driven by the
defendant Derek Martin (the “Martin Accident”) while in a crosswalk. The two
actions arising out of the accidents have been heard together.

[2]            
Liability is at issue with respect to the Escueta Accident. Liability
has been admitted with respect to the Martin Accident.

Facts

Pre Escueta Accident

[3]            
Mr. Hubbs was born in 1969. He is now 43 years old and married to
Barbara Hubbs who is a self-employed kinesiologist. They have been together for
19 years and have two children, a four year old son, Cooper and a two year old
daughter, Bailey.

[4]            
Mr. Hubbs attended Grade 11 at Sutherland Secondary School in North
Vancouver and then left school to find employment. He worked at a number of
different jobs until he decided to train to become an electrician in 1992. He
then obtained his GED and took a one year course at BCIT, followed by a four
year apprenticeship with Advanco Electric. He received his Red Seal certification
as a journeyman electrician in 1999.

[5]            
In 2000, he and a partner operated a company called W.J. Windebank Ltd.
Windebank’s primary business was heavy industrial electrical work. The company
had a number of contracts to provide maintenance service to lumber mills in the
Mission area. This work was very physically challenging. Mr. Hubbs
described it as dangerous because the servicing had to be undertaken while the
mills were operating. He and his partner made efforts to expand the business
into other areas, such as residential construction, but met with limited
success.

[6]            
In 2005, Mr. Hubbs decided to look for different employment. He was
not entrepreneurial and wanted to find work that was less dangerous. He was
looking for a good union position with long-term benefits and stability. He
felt that this would be more compatible with raising a family.

[7]            
After leaving Windebank, Mr. Hubbs returned to work for Advanco for
a period of time. During that time, he did some electrical installation for a
condominium development. It was his evidence that, because of the injuries
suffered in the Escueta Accident, he would not be able to perform that job
today as it required work without breaks and working on steel beams in a crouched
over position.

[8]            
At about this time Mr. Hubbs incorporated Contact Electric Ltd. He has
operated Contact as a home based electrical contractor, undertaking relatively
small jobs, primarily residential, from the time of incorporation to the
present. The work Mr. Hubbs undertakes through Contact is mostly
residential renovation. He stated that the physical demands of this type of
work are relatively modest. There is limited walking and the work is easier. He
is able to control the pace of the work. Work done through Contact has never
been a significant source of revenue for Mr. Hubbs, nor is it likely to be
in the future.

[9]            
In July 2006, Mr. Hubbs secured a position as a journeyman
electrician with VIA Rail. He has been employed there on a full-time basis ever
since. The position at VIA Rail was everything Mr. Hubbs had been looking
for. He enjoyed the work and was good at it. It was a well paying, secure
position with good benefits and good job security.

[10]        
The position involves servicing the West Coast Express commuter trains.
It is very physically demanding work. The job requires a great deal of walking,
several miles each shift, often on uneven surfaces. Every shift involves
repeated climbing ladders and stairs to access the railway cars and working in
cramped and awkward positions. The electricians must lift and carry heavy
components such as motors and blowers. Sometimes they must carry the heavy
equipment up ladders. One very demanding task which is performed each shift is connecting
and disconnecting the power cables that connect the trains to the power
station. The cables are large, about 5 inches in diameter and 15 to 20 feet
long, made of solid copper. Each shift two of the cables must be either plugged
or unplugged for each of the five trains. The task requires full exertion, with
the legs used to push and the whole body strength required to make the connection.

[11]        
At the time of the Escueta Accident, Mr. Hubbs was working full-time
at VIA Rail and operating Contact as a part-time business. He was undertaking
substantial renovations to the family home. At VIA Rail he had a lead hand
designation. He worked a split shift which he liked.

[12]        
Mr. Hubbs describes a full and happy life before the Escueta
Accident. He and his wife enjoyed active outdoor recreation – hiking, mountain
biking, skiing, riding motorcycles. Their marriage was very happy. They had a
large dog who required regular long walks and Mr. Hubbs enjoyed taking
him. Mr. Hubbs was a very engaged father. He was looking forward to
introducing his son to all of the physical activities and sports that he loved.
He loved to play with children, both his son and their friends’ children, getting
down on the floor with them, carrying them around.

[13]        
Mr. Hubbs described himself as a happy man with a wonderful life
and a bright future before the Escueta Accident. The evidence of his wife and
family friend Elinor Matheson confirms his energy, productivity, positive
outlook and sense of humour.

Escueta Accident

[14]        
The Escueta Accident occurred on July 3, 2009 when the motorcycle Mr. Hubbs
was riding collided with the van driven by Mr. Escueta in circumstances
that are detailed below in the section dealing with liability.

[15]        
Mr. Hubbs injured his head, neck, right arm and right shoulder, his
right leg and right knee, his back, left wrist and his left ankle as a result
of the collision. All of his injuries except for the scar on his left wrist and
the injury to his left ankle resolved within several months. His left wrist
bears a small circular scar that continues to be painful with strenuous use.
The significant injury is to his left ankle which was fractured both on the
outside and the inside.

Recovery from the First Surgery

[16]        
The day following the Escueta Accident Mr. Hubbs had surgery to
repair his ankle with the insertion of plates and screws. He remained off work
until November 3, 2009. During his recovery he progressed from a wheelchair to
crutches and then to a cane. He was in a great deal of pain and required
oxycodone for pain relief.

[17]        
He attended physiotherapy and had weaned himself off the oxycodone by
the time of his return to work. He was not fully recovered at that point but
hoped that further recovery would occur in time, a view shared by Dr. Chow,
his family physician who was following his recovery.

[18]        
During the recovery period Dr. Chow’s clinical records refer to
complaints of pain, abnormalities in Mr. Hubbs’ gait and limitations in
function; for example Mr. Hubbs could not walk on his toes and had a
reduced ability to do toe raises. Dr. Chow explained that this function is
important for activities such as running, climbing stairs, jumping, leaning
forward to pick things up.

[19]        
After his return to work Mr. Hubbs experienced increased pain. Dr. Chow
prescribed more oxycodone on November 13, 2009. Her clinical records note that Mr. Hubbs
was limping by the end of his shift. He told her that he could do the work, but
in considerable pain.

[20]        
Mr. Hubbs stated that he was experiencing considerable pain on the
job as well as problems with his balance. He had difficulty climbing and
working in the crouched positions the job required. He stated that he did the
work as best he could, that he did not want to bring attention to his condition
because he was afraid he would lose his job.

[21]        
Dr. Chow followed up with Mr. Hubbs a month later. She noted
that Mr. Hubbs had good range of motion, but was continuing to experience
pain, showed decreased power and had balance issues. Mr. Hubbs reported that
the balance issues were interfering with his performance at work. He also
reported that he had gone over on his ankle several times at work.

[22]        
In March 2010, Dr. Chow followed up with Mr. Hubbs again. His
ankle continued to be unsteady and showed a decreased range of motion. He was
experiencing sharp pain. Mr. Hubbs was referred to the surgeon for a
consultation.

[23]        
Mr. Hubbs remained working full-time until the birth of his
daughter on May 5, 2010. He was then off work on parental leave from May 6, 2010
until February 3, 2011.

[24]        
Mr. Hubbs stated that while he was on parental leave he explored
the possibility of securing a different job. He testified that he secured a
position as a longshoreman electrician. It was his evidence that the work was very
physically demanding. He stated he was not able to perform well at the job
because of the problems with his ankle. He stated that he was not kept on at
the end of his trial period and that he did not have the choice to stay. It was
his evidence that his position at VIA Rail, while physically very demanding, is
at the easy end of physical demands in the field of industrial electrical work.

[25]        
Dr. Chow examined Mr. Hubbs in May 2010. The ankle continued
to be unstable and painful. In July these symptoms continued. Mr. Hubbs
reported that he was very tentative at work, experienced a sharp pain if he stepped
on his left side the wrong way and that he could not run because of
excruciating pain.

[26]        
Dr. Chow examined Mr. Hubbs again in October 2010. He was
waiting for surgery to remove the hardware. He reported that the ankle was
giving him fewer problems now that his activities were putting less strain on
it.

[27]        
In January 2011, Dr. Chow noted that his gait was normal, but with
pain walking on tip toes. There was good range of motion, but reduced balance
on the left side. Mr. Hubbs reported that the ankle became swollen after
activity.

[28]        
Mr. Hubbs returned to work from parental leave on February 3, 2011 and
continued to May 16, 2011. He was continuing to experience significant problems
with his ankle. Dr. Chow examined him on February 25, 2011. He reported
that the foot and ankle were sore, that he was very tentative on ladders, his
balance was slightly off. He was very sore at the end of the day and
experiencing sharp pains in the ankle.

[29]        
Dr. Chow examined Mr. Hubbs in April 2011. She noted that Mr. Hubbs
had returned to full duties at work, but the ankle was very painful. He had
again rolled over on it. He experienced pain in walking on his toes and with a
half squat. He was cautious climbing ladders and experienced pain. Eversion of
the ankle produced a sharp pain.

[30]        
Mr. Hubbs testified that during the period from February 2011 to
the second surgery he felt that his life was going down the tubes. Work was
extremely difficult. Each day was worse than the day before. It was all he
could do to manage the day’s work and then go home to rest up for the next day.

[31]        
Mr. Hubbs was awarded a permanent Electrician Lead Hand position on
April 29, 2011. However, he was displaced from this position by a more senior
employee while he was on leave for the second surgery. He was not able to bid
on any new positions while on leave.

Recovery from the Second Surgery

[32]        
Mr. Hubbs had a second surgery to remove the plates and screws on
May 6, 2011. It was hoped that the surgery would reduce his pain and restore
his previous level of function in the ankle.

[33]        
VIA Rail had informed Mr. Hubbs that he was not to return to work
following the surgery until he was capable of performing 100% of his duties.
There was no graduated return to work program. Initially, it was hoped that he
would be ready to return to work by mid-July, however his recovery was slower
than anticipated.

[34]        
In June 2011, Dr. Chow noted that there was still swelling at the
surgical site, especially at the end of the day. Mr. Hubbs’ gait was
normal, but he reported that he was limping by the end of the day. She observed
decreased strength and balance with toe raise and balance problems on the left
side.

[35]        
Dr. Chow examined Mr. Hubbs twice in July. On July 11, 2011,
she observed that the ankle was weak; he was unable to do a complete toe raise
and had difficulty walking on his toes. Mr. Hubbs reported pain with hopping
and lost his balance with a hop and half turn. On July 29, 2011, Dr. Chow
noted that the physiotherapy was helping with strength. However, Mr. Hubbs’
pain level was still high. He had limited ability to do the exercises, weakness
and problems with balance and coordination on the left side. He was still
limping.

[36]        
Dr. Chow examined Mr. Hubbs twice during the month of August.
On August 9, 2011, she noted that he was still having problems with strength,
balance and pain, and had not recovered sufficiently to return to work. On
August 30, 2011, she noted some improvement in strength, but found motor
control for balance was still weak. Mr. Hubbs’ strength in toe raises had
improved, but was still deficient on the left side.

[37]        
Mr. Hubbs went to physiotherapy until the end of September 2011. He
continued to see Dr. Chow every three weeks so that she could monitor his
progress and determine when she could certify him fit to carry out his duties
as required by VIA Rail.

[38]        
At the conclusion of the physiotherapy, Mr. Hubbs undertook an
active rehabilitation work hardening program, working one on one with a
kinesiologist in order to make further progress with his ongoing weakness, and
issues with strength and balance. The program lasted 12 weeks with one session
per week.

[39]        
In October 2011, Dr. Chow noted further improvement, but continued
deficits on the left side, difficulty balancing and pain. She noted that he had
clearly improved, but that he was not ready or safe to return to work.

The Martin Accident

[40]        
During the course of the active rehabilitation program, on November 30,
2011 Mr. Hubbs was struck by a motor vehicle driven by Mr. Martin. Mr. Hubbs
was a pedestrian, crossing West Broadway on Heather Street in the crosswalk. Mr. Martin’s
vehicle was on Heather Street, stopped in the intersection waiting to turn
left. He then commenced his turn and struck Mr. Hubbs in the crosswalk.

[41]        
Mr. Hubbs saw the vehicle approach and jumped onto the hood of the
vehicle, rolled off and landed on his feet. Mr. Hubbs suffered soft tissue
injury to his neck and upper back. He had contusions on both elbows, knees,
thumbs and wrists, and thumb pain with gripping.

[42]        
Mr. Hubbs testified that he did not reinjure his ankle in this
accident. He stated that most of the after effects of the Martin Accident had
resolved in four to six weeks. There are lingering problems with his neck which
is stiff and painful when he turns his head for extended periods and with his
thumbs, which are painful at work.

[43]        
Following the second surgery, and while he was engaged in the
rehabilitation program, Mr. Hubbs continued to do some work through
Contact. It was his evidence that he had discussed this with his
physiotherapist who advised him to be as active as possible. He stated that he
was told that the worst thing he could do was to be stationary. It was his
evidence that the Contact work was easier for him than yard work or playing
with the children. He was able to control the pace. It was painful, but he was
able to do the work. At the time Mr. Hubbs performed the work for Contact,
Dr. Chow had issued a medical certificate stating that she had examined Mr. Hubbs
and that he continued to be unable to attend work at VIA Rail.

[44]        
The work Mr. Hubbs undertook with Contact was the subject of an
investigation by Great West Life, the provider of his disability benefits
through his employment. He was observed doing a project for Contact. This
resulted in an allegation that Mr. Hubbs was fraudulent in that he was in
receipt of benefits while capable of working.

[45]        
There was a discipline hearing with respect to this matter. Mr. Hubbs
was exonerated of the allegation that he had been fraudulent. The employer did
impose a modest number of demerits citing a failure to provide complete
information with respect to his medical status.

Return to Work to Present

[46]        
Although Mr. Hubbs’ progress in the active rehabilitation program
was set back by the injury, the program was not extended and he returned to
work at VIA Rail on schedule on February 22, 2012. Dr. Chow examined him
on February 17 and 20, 2012, just prior to his return to work. She noted that
his balance was improved, but that he was still experiencing pain.

[47]        
Mr. Hubbs stated that he approached his return to work with a
positive attitude, resolved to give it his best effort. However, he had not
recovered his strength and stability. He hoped for more improvement following
his return to work. However, that is not what occurred. Instead, he experienced
pain increasing through the week, continuing problems with balance and
stability. He stated that after a few weeks he was in despair.

[48]        
He returned to work as a reliever. This is a permanent position with the
same base pay as he received in his earlier position. He does not get the lead
hand salary differential unless he is relieving someone who has that
designation.

[49]        
Mr. Hubbs reported that he was experiencing pain, increasing by the
end of the day and when he undertook certain activities on the job. He was more
cautious climbing ladders and was working more slowly.

[50]        
On March 27, 2012, Dr. Chow examined Mr. Hubbs in relation to
the Martin Accident. She noted that the elbow pain had resolved and abrasions
had healed. There was still discomfort in the cervical spine and thumbs.

[51]        
In June 2012, Dr. Chow examined Mr. Hubbs and noted that he
had not missed work because of his ankle, but was limping in pain by the end of
the day. He suffered a mild eversion injury on June 5, 2012. She noted pain and
decreased strength with heel raises on the left side. Dr. Chow’s records
make reference to anxiety in relation to the motor vehicle accidents in her
entries for July 2012.

[52]        
In August 2012, Dr. Chow recorded that Mr. Hubbs was
continuing to experience pain and stiffness in the ankle. He reported that the
discomfort increased as the work week progressed. She noted pain in the thumbs
and upper back and neck stiffness when turning to look back. The latter two
observations related to the Martin Accident.

[53]        
On September 17, 2012, Dr. Chow examined Mr. Hubbs and
recorded the following observations:

Objective:

no limp with walking with bare feet, right foot is slightly
externally rotated and slightly pronated

unable to walk the distance of the hallway on his toes and
unable to rise as fully on the left side, signs of collapsing from a full toe
rise on the left only walked 6 steps up on his toes and had to stop, steps were
wide based, slow and with short stride and progressively shorter and slower
stride with successive steps

has pain shooting up the medial and lateral sides of the
ankle when toe walking

heal walking pulls on the medial side of the ankle and has
shooting pains medially as well

heel walking is also wide based, slow and with a short stride
but was able to walk 30 steps

tender to palpation over the malleoll, swelling around the
entire ankle, sore over the extensor tendons and does not wear a boot with
lacings (wearing Blundstone boots) on the front as this causes more pain,
clicking of the joint with passive eversion of the foot, range of motion of the
ankle passively was only mildly uncomfortable at the extremes of range

patient stated that there was more pain with active eversion
and inversion of the foot

active range of the ankle is
equal except for in dorsiflexion in which there is a 10 degree deficit on the
left side

[54]        
Mr. Hubbs stated that since his return to work he has never told
his employer that he is having difficulty performing his duties. His
explanation was that he was afraid that to do so would put his job in jeopardy.
The company is scaling down the workforce. Moreover, he is not aware of any
electrician positions in the company that have lighter physical demands.

[55]        
Mr. Hubbs stated that the continued pain and problems with strength
and balance make it very difficult for him to perform his tasks at work. He is
barely holding on from day to day.

[56]        
Mr. Hubbs stated that these days his home is not a happy place. The
pain makes him irritable. There is more arguing and yelling. He finds himself pushing
his children away. He feels that he does not have the bond he once had with his
wife. He feels that he has turned into a miserable person and feels that his
marriage is failing as a consequence. By the end of the workday he has no
energy left for his family or for any activities. He just rests with his leg
elevated to alleviate the swelling and tries to collect himself for the next
day.

[57]        
He stated that he is not able to take part in the activities he hoped to
do with his children. He tried to ski with Cooper, but found the boot too
painful after a short time. He tried to skate, but found that he was not able
to tolerate the pressure of the boot. It was his evidence that the present
situation is not sustainable. He believes that he will need to change how he
earns his living so that he can limit his pain and improve the quality of his
life with his family.

Lay Witnesses

Barbara Hubbs

[58]        
Ms. Hubbs has been Mr. Hubbs’ partner for over 19 years, married
for 7½ years. Ms. Hubbs described Mr. Hubbs before the injury as a
happy, energetic man. He was very active and adventurous, a supportive partner
and great father. She stated that they enjoyed many activities together including
hiking, mountain biking, skiing, skating. Mr. Hubbs did much of the heavy
work when the couple undertook a major renovation of their home. She stated
that before the Escueta Accident, Mr. Hubbs had lots of energy when he came
home from work. He would play with the children, do projects around the home,
walk the dog. She said he never really sat still.

[59]        
She testified that Mr. Hubbs has been a profoundly changed man
since the Escueta Accident. He is irritable and moody, more easily set off. Mr. Hubbs
is less patient with the children. He no longer plays with them to anything
like the extent he did before. The children, in particular Cooper, have
responded with anxiety at the rejection.

[60]        
Ms. Hubbs stated that Mr. Hubbs does not communicate with her
as he used to. By the end of the workday he is exhausted and just rests for the
next day. She feels that he has nothing left for her and the children. Their
social life has all but ceased. Ms. Hubbs is very concerned about the
future of their relationship.

[61]        
She stated that Mr. Hubbs moves very differently. He limps if he
tries to move quickly and gets up and down in an unnatural way. He cannot carry
the children for any length of time. She stated that Mr. Hubbs’ ankle is
swollen and he is in pain by the end of a workday. She stated that although he
works through the pain, it appears to her to be getting worse.

Elinor Matheson

[62]        
Ms. Matheson is a family friend of the Hubbs’. She met Ms. Hubbs
in a prenatal class in 2007. A relationship developed. They shared childcare
and began to socialize together with their spouses.

[63]        
She described the Hubbs prior to the Escueta Accident as a happy couple.
Mr. Hubbs was an energetic, happy man, very involved with the children,
always busy around the house. He was very athletic.

[64]        
She recalled that following the Escueta Accident Mr. Hubbs was
initially very positive about his prospects for recovery. His mood was good.
However, as time passed she observed a change following September 2011. Mr. Hubbs
was increasingly no longer patient with the children as he had been before. He did
not seem to be happy. He spoke about frustration and his mood seemed to be low.
He did not play with the children as he had in the past. She noted that Mr. Hubbs
does not move with ease. He moves slowly, positioning himself carefully.

[65]        
She observed that the Hubbs did not seem to be as happy as a couple.
They no longer shared the childcare as they had. They did not speak in a positive
way about the future. They did not joke and laugh together. They seem to be
careworn.

Wesley Young

[66]        
Wesley Young has been employed as an electrician at VIA Rail since 1989.
He was Mr. Hubbs’ supervisor for four years and has now resumed doing the
same job as Mr. Hubbs. He noted that he and Mr. Hubbs are not
friends; they have not socialized.

[67]        
Mr. Young’s description of the very physically demanding
requirements of the electrician’s job at VIA Rail was consistent with the
description provided by Mr. Hubbs.

[68]        
Mr. Young stated that prior to the Escueta Accident, Mr. Hubbs
was a good worker; a big strong, competent guy. He had no difficulty with his
work. He noted that Mr. Hubbs never refused a job.

[69]        
He stated that since the injury they had worked together. He observed Mr. Hubbs
was in pain during a job that required him to carry a heavy blower motor up a
ladder. He stated that Mr. Hubbs walks slowly and with an abnormal gait –
feet wide apart taking short steps. He said that Mr. Hubbs works more
slowly now. He appears to be struggling to complete his tasks.

Diego Mendez

[70]        
Mr. Mendez is a senior manager of equipment maintenance in
Vancouver with VIA Rail. Mr. Hubbs works in his department.

[71]        
Mr. Mendez stated that the split shift that Mr. Hubbs had
worked prior to the accident was eliminated in November 2009 at the request of
the union. However, while the union was in general unhappy with split shifts,
he cannot say that they would have sought to have the position eliminated as
long as Mr. Hubbs had been in the position and happy with it.

[72]        
Mr. Hubbs was displaced in May 2011 while off work by a more senior
employee. This could have occurred even if he had been on the job. However, Mr. Hubbs
was not able to bid on another position due to his absence.

[73]        
Mr. Mendez stated that if an employee is unable to do his job
because of injury or illness the employee could request an accommodation. The
request would be submitted to head office in Montreal. The company would consult
with the chief medical officer and the union would be consulted. Mr. Mendez
stated that there have been situations where no accommodation was provided. Two
important issues, from the company’s perspective, are the nature of the employee’s
restrictions and the duration of the accommodation requested. He stated that
the company would not create a job specifically to accommodate a worker.

[74]        
Mr. Mendez confirmed that Mr. Hubbs was told when he was
injured that the company did not have a graduated return to work program in place
and that he was not to return to work until his doctor certified that he was
able to perform 100% of his job functions.

[75]        
The company created a graduated return to work program in 2011 in
conjunction with WorkSafe BC to provide for modified duties for workers with
WCB claims. However, there was and is no similar program for workers such as Mr. Hubbs
who do not have a WCB injury. Mr. Mendez confirmed that all the VIA Rail
electrician jobs have equal physical demands.

David Honsberger

[76]        
Mr. Honsberger is the director of human resources at Westshore
Terminals. His records show that in June 2010 Mr. Hubbs was briefly
employed at Westshore. He was hired as a temporary electrician and employed from
June 3 to 12, 2010. The site is a union shop organized by the International
Longshoreman Union. The union recruits members who are dispatched to the
employer. He stated that normally the employer will schedule three sets of six
shifts as a probation period for new hires. Mr. Hubbs did not appear to
have completed this length of service.

[77]        
Mr. Honsberger described the work that Mr. Hubbs would have
done on the basis of the codes on the time records. He stated that this work
was not heavy, but required climbing and some walking. Mr. Honsberger
stated that the records do not indicate why Mr. Hubbs did not complete his
term.

Expert Opinions

Dr. Susan Chow

[78]        
Dr. Chow has been Mr. Hubbs’ family physician since December
2005. She has assessed Mr. Hubbs on 35 occasions in relation to the
injuries at issue in this litigation. She has also had the opportunity to
observe Mr. Hubbs at appointments for his children.

[79]        
Dr. Chow provided a medical legal report dated March 11, 2012, which
states in part:

In summary, Randall Hubbs is an
electrician who works in maintenance at the West Coast Express Railway. He
sustained a left bimalleolar ankle fracture which was treated with an initial
surgery of open reduction and internal fixation followed by a second surgery to
remove hardware. He has successfully returned to work with an estimated 70-75%
recovery in function and efficiency. The discomfort and limitations he now
experiences are expected to be lifelong. He will likely be at risk for
accelerated degenerative changes and early onset arthritis as a result of the
fracture, which may decrease his future work capacity and duration of time that
he can work on a physical job. He may require regularly dosed prescription
ant-inflammatory or analgesic medication in the future or even repeat surgical
intervention. If he should sustain a future left ankle injury, the treatment
would be more complicated, the recovery would be prolonged and, depending up on
the injury, he would likely lose more functional ability.

[80]        
Dr. Chow’s clinical records include repeated references to
restrictions in Mr. Hubbs’ power and balance. She noted objective evidence
of continuing injury, notably his weakness in the left leg, resulting in limited
ability to rise up on his toes on his left foot and to balance on his left leg.

[81]        
Dr. Chow testified that Mr. Hubbs consistently was unable to
walk raised up on his toes on his left leg for more than six steps before
fatiguing and failing to rise fully. She noted this finding on several
occasions, including as recently as September 17, 2012 and noted his ability
had not changed in over a year, despite extensive rehabilitative therapy. Dr. Chow
explained that this weakness resulted in a restricted ability to push off with
his left foot, which she testified was necessary for leaning forward to pick up
an object, walking, climbing or descending stairs, climbing ladders and
balancing on his left foot.

[82]        
Dr. Chow stated that Mr. Hubbs’ condition was likely to continue
to deteriorate at an accelerating pace in direct proportion to how much he used
the affected joint. She described how damage to the surface of the ligamentous tissue
in Mr. Hubbs’ ankle was like “sandpaper” as it moved against adjacent
tissue, sanding it down over time.

[83]        
Dr. Chow provided a detailed description of the manner in which Mr. Hubbs
currently walks with a wider stance and a short stride which shortens as he
fatigues. She explained how this stride results from the injuries sustained to
the ankle. Wes Young described Mr. Hubbs’ walking in this manner at work.

[84]        
It was Dr. Chow’s evidence that the chronic pain experienced by Mr. Hubbs,
his anxiety about his declining physical abilities and his concerns regarding
his future ability to support his family have resulted in Mr. Hubbs
suffering from a generalized form of low mood, depression that she diagnosed as
dysthymia. Dr. Chow noted that low mood falling short of clinical
depression is a common feature in patients who are experiencing chronic pain.
She stated that Mr. Hubbs’ subjective complaints were consistent with the
reports from Dr. Brooks and the physiotherapists and with her own
observations.

[85]        
Dr. Chow also noted that Mr. Hubbs has shown signs of anxiety
and hypervigilance.

Louise Craig

[86]        
Ms. Craig is a physiotherapist and functional capacity evaluator.
She assessed Mr. Hubbs on March 30, 2012 for the purpose of a functional
capacity evaluation. She provided a report dated April 11, 2012 which states in
part:

In summary, during this Functional Capacity Evaluation Mr. Hubbs
does not meet the full (physical demands of his job as an Electrician (NOC
#7241) and experiences symptom aggravation with task similar to those
encountered at work. Mr. Hubbs would most likely be further restricted for
a typical Electrician’s job in the construction field as this is likely to be
more physically demanding than his current position, thus his competitive
employability is reduced both with his current position and in the more broader
marketplace (construction). Mr. Hubbs’ left ankle injury (and resultant
limitations) is the primary factor restricting his capacity for performing his
current occupation and other potential jobs within his field.

Mr. Hubbs’ limitations are as follows: Mr. Hubbs is
limited for prolonged periods of walking. He has slight limitation to attaining
a kneeling position – he is slow to do so. He is limited for crouching and
sustaining this position. He shows ankle joint and calf tightness on the left. Mr. Hubbs’
advanced balance is reduced on the left side and bilaterally which will affect
his ability to walk on uneven ground and climb tall ladders in wet conditions.
In wet conditions or uneven ground or on a ladder, he is at increased risk for
falls or injury due to his left ankle. He is limited to the mid to full range
for lifting and carrying (carrying up to 40lbs for shorter distances and
Iifting up to 50 lbs infrequently). He reports symptom increase in his thumbs
with repetitive gripping and handling however this does not restrict his
ability to perform these tasks.

Mr. Hubbs does not appear to have reached maximum
physical rehabilitation. He has not been able to keep up his exercise program
as he states that he is ‘wiped out’ after work and that he has a young family
to look after outside of work hours. He would benefit from further
rehabilitation focused on joint mobility of the ankle, stretching and
strengthening of the ankle, plyometric work on the lower extremities and
balance/proprioceptive exercises. A program guided by a physiotherapist, in
accordance with the following outline, is recommended.

·       
Twelve-week individualized program;

·       
one day per week;

·       
continue independently with home program including a low impact
cardiovascular component (swimming or stationary bike) for general fitness.

Review of Consistency, Reliability and Validity protocols
indicates that Mr. Hubbs provided a consistent and good physical effort
during this evaluation.

Mr. Hubbs will require
assistance for heavier or repetitive garden and yard care if the need arises.

[87]        
It was her opinion that Mr. Hubbs is working beyond his safe
capacity and that he should not continue. If he does so she expects that he
will experience further deterioration that will further limit the scope of work
he is able to do.

[88]        
Ms. Craig clarified that she did not expect that the individualized
rehabilitation program that she recommended would lead to further progress, but
she hoped that it would assist in slowing the rate of deterioration. She noted
that Mr. Hubbs had already completed a good focused rehabilitation
program.

Dr. David Brooks

[89]        
Dr. Brooks is a medical specialist in occupational medicine. He
assessed Mr. Hubbs on March 29, 2012 and provided a report dated April 11,
2012.

[90]        
His report states in part:

It is my opinion that Mr. Hubbs’ current complaints and
limitations related to his left ankle are solely the consequence of the motor vehicle
accident that occurred on July 3, 2009. As a result of his ongoing pain and
functional impairment he has also lost the ability to participate in as fully
in personal, social and recreational activities as pre-accident and his
injuries have impacted his quality of life.

He now appears to have chronic ankle pain that has failed to
adequately resolve despite various therapies, including surgical removal of
hardware placed to stabilize the fractures in July 2009.

He also likely sustained some degree of psychological trauma.
He remains somewhat fearful of returning to regularly riding his motorcycle,
which he very much enjoyed prior to the accident. He had been a regular rider
for a number of years but now appears reluctant to take his (repaired) motorcycle
for anything more than short neighbourhood rides and has anxiety when riding,
particularly noticeable at intersections.

His mood appears chronically affected by his pain and
perceived physical limitations.

He appears to have some neck and
upper back pain that are a result of the injuries from MVA #2. Also in this
later accident he has suffered from chronic hand and particularly right thumb
pain, presumably related to soft tissue trauma.

[91]        
Dr. Brooks stated that Mr. Hubbs has plateaued. No amount of
rehabilitation will restore his function. He is likely to experience further
deterioration and he is more vulnerable to further injury.

Derek Nordin

[92]        
Mr. Nordin is a vocational specialist who prepared a report dated
June 26, 2012 concerning Mr. Hubbs. Mr. Nordin’s report states in
part:

·       
From a vocational rehabilitation perspective it would be my
recommendation that he give consideration to changing his career.

·       
From my point of view, it is not realistic to expect an
individual to continue working in an occupation that causes him constant pain
and loss of enjoyment of life.

·       
He would be far better served, in my opinion, to seek alternate
employment which does not place the same physical demands on his left lower
extremity.

·       
From my perspective, Mr. Hubbs essentially has two basic
options.

·       
The first is to continue in his current employment for as long as
he can and try to cope with his pain.

·       
Eventually, however, it is likely (as I understand it from the
medical reports) his condition will continue to worsen to the point where he
can no longer continue in his present employment.

·       
At that point in time, he will have to change careers.

·       
The alternative for him is to consider changing his career now,
when he is younger and somewhat less disabled than is anticipated will be the case
in five to ten years from now.

·       
If he continues to work in his present employment until he can no
longer continue, he will at that point in time be anywhere from five to ten
years older than he is now and even more disabled.

·       
In my opinion, that will place him in a very difficult position
in terms of finding alternate employment.

·       
In the alternative, if he looks to change careers now, he is
still relatively young and not as limited as he will be down the road.

·       
In my opinion, now is the time for him to consider changing
careers.

·       
From a vocational rehabilitation perspective, the most realistic
option for Mr. Hubbs will be to try to find a career which draws upon his
training and experience as an electrician.

·       
As an alternative, I considered the occupational group electrical
mechanics, which includes such occupations as electrical transformer repairer;
industrial motor winder/repairer; power transformer repairer; and electrical
motor systems technician.

·       
Unfortunately, the National Occupational Classification categorizes
this work as requiring heavy strength as well as other body positions.

·       
This is a heavier strength category than his present employment
as an industrial electrician and thus these occupations do not appear to
represent viable alternatives for him.

·       
A better alternative, from a physical perspective, would be to
consider some short training as a small appliance servicer/repairer and/or a
major appliance repairer/technician.

·       
While Mr. Hubbs is a qualified industrial electrician, he is
not qualified as an appliance repair technician. However, he could consider a
training program which is offered at Kwantlen Polytechnic University.

·       
Specifically, the university offers an appliance servicing
technician program. This program is offered at the Cloverdale campus and is
of nine months duration with start dates of September or March of each year.
Tuition costs for this program are approximately $5,200 and an additional
$1,000 for books and supplies.

·       
In terms of Mr. Hubbs’ pre and post-accident earning
potential, a review of census data show for those males who worked full-year/full-time
as industrial electricians (this would include Mr. Hubbs’ present
employment) earned, on average, $78,338 per year (expressed in 2010 $).

·       
Furthermore, census data shows for those males who worked
full-year/full-time as major appliance repairers earned, on average, $43,333
per year (again in 2010 $).

·       
It can be seen, therefore, Mr. Hubbs’ residual earning
capacity may well be negatively impacted by the July 2009 motor vehicle
accident and its sequelae.

·       
Unfortunately, given Mr. Hubbs’ educational background (and
vocational test battery results) I do not view him as an individual who is able
to take more advanced education/training.

[93]        
In cross-examination, Mr. Nordin agreed that Mr. Hubbs has a
number of transferrable skills as an electrician. However, he noted that these
skills are concentrated in the heavier work, which in his opinion, is no longer
a suitable option. He stated that while he was not suggesting that appliance
repair was Mr. Hubbs’ only option, his alternatives were limited given his
physical limitations and lack of academic inclination.

Curtis Peever

[94]        
Mr. Peever is a labour economist who prepared a report dated June
28, 2012 which provided calculations based upon certain stated assumptions concerning
Mr. Hubbs’ past and future wage loss.

[95]        
Mr. Peever calculated Mr. Hubbs’ past wage loss based on
“without accident” earnings as a lead hand electrician with VIA Rail from January
1, 2009 to the date of trial (September 24, 2012) including estimates of his
“with accident” earnings as lead hand electrician with VIA Rail from January 1,
2009 to May 12, 2011, and as an electrician with VIA Rail from May 13, 2011 to
the date of trial to total $92,137. He then provided a calculation of the net
wage loss after tax totalling $65,883.

[96]        
Mr. Peever provided a calculation of the present value of future
loss of wages based upon certain stated assumptions as follows:

Assume…

i)          that absent the accident, Mr. Hubbs could
have worked full-time plus 200 hours of overtime per year as a lead hand
electrician with Via Rail from the date of the trial to his retirement by age
65. Further assume that he could have faced “risk-only” labour market contingencies.
The present value of Mr. Hubbs’ future “without accident” earnings is
estimated at about $1,068,500 (rounded), as shown in column (6) of Table 10
across from Table 3.

ii)         that given the effects of the accident, Mr. Hubbs
could work full-time plus 200 hours of overtime per year as an electrician (not
lead hand) with Via Rail from the trial date to June 30, 2013. In addition,
assume that he may encounter “risk-only” labour market contingencies. The
present value of Mr. Hubbs’ future “with accident” earnings is estimated
at about $48,400 (rounded), as shown in column (6) of Table 10 across from
Table 5.

iii)        that due to the effects of the accident, Mr. Hubbs
may work full-time as an appliance service technician from July 1, 2014 to his
retirement by age 65. Further assume that his earnings could be lagged by 15
years relative to his age peers, and that he may face “risk-only” labour market
contingencies. The present value of Mr. Hubbs’ future “with accident”
earnings is estimated at about $548,000 (rounded), as shown in column (6.) of
Table 10 across from Table 6.

iv)        that Mr. Hubbs’ future “net” VRPP benefits
should take into consideration the impacts of “risk-only” labour market
contingencies. As shown in column (4) of Table 11, his “without accident” VRPP
benefits are then estimated to have a present value of about $95,100, while his
“with accident” VRPP benefits are estimated to have a present value of about
$6,700.

v)         that Mr. Hubbs’ mandatory and voluntary
non-wage benefits with Via Rail (excluding his VRPP benefits) could be valued
at 12% of his “without accident” and “with accident” earnings. Further assume
that his mandatory and voluntary benefits as an appliance service technician
could be valued at about 13% of his “with accident” earnings.

The present value of “without accident” earnings and benefits
is about:

(1.12 x $1,068,500) +
$95,100 = $1,291,820.

“With accident” earnings and benefits have a present value of
about:

(1.12 x $48,400) +
$6,700 + (1.13 x $548,000) = $680,148.

The present value of Mr. Hubbs’ future loss of earnings
and benefits is about:

$1,291,820
– $680,148 = $611,672, or $611,700 after rounding.

Credibility

[97]        
The defendants submitted that Mr. Hubbs was not a credible witness.
However, while the credibility of any plaintiff is a very important
consideration, in this case it is of somewhat less significance because of the
extent to which Mr. Hubbs’ evidence with respect to the accident and his injury
is corroborated by the evidence of other witnesses.

[98]        
His account of the Escueta Accident is consistent with that of the
independent witness Mr. Meghji, whose evidence I found to be credible and
reliable.

[99]        
With respect to evidence concerning his employment, Mr. Young, Mr. Hubbs’
former supervisor at VIA Rail, described changes he observed in Mr. Hubbs’
ability to do his work at VIA Rail that were consistent with the difficulties Mr. Hubbs
described in his testimony. Mr. Mendez confirmed that VIA Rail did not
offer Mr. Hubbs a graduated return to work program and that he was
instructed not to return to work until he was able to perform 100% of his
duties. He also confirmed that there are no electrician positions at VIA Rail
that are less physically demanding.

[100]     The
changes in Mr. Hubbs’ activities, in his mental and emotional outlook, and
in his family life that Mr. Hubbs described, were confirmed in the
evidence of Barbara Hubbs and Elinor Matheson.

[101]     Moreover,
the expert evidence is consistent with Mr. Hubbs’ testimony concerning his
injuries and uncontradicted. There is a body of medical evidence that does not
depend upon Mr. Hubbs’ subjective accounts of pain and disability. The objective
observations are consistent with the deficits Mr. Hubbs has described.

[102]     I found Mr. Hubbs
to be a credible witness who gave his evidence in a straightforward manner
without exaggeration. I found him to be generally a good historian although
there were some relatively minor examples of inconsistency in his recollection.
Considerable attention was directed in cross-examination to Mr. Hubbs’
applications for employment insurance and disability claims. I found the
explanation he offered of his understanding at the time to be credible.

[103]     One area
of potentially more significant inconsistency concerns Mr. Hubbs’ evidence
with respect to the work he performed at Westshore Terminals. Mr. Hubbs
characterized the work as very physically demanding. He stated that he was not
kept on at the conclusion of his probation period. Mr. Honsberger stated
that according to the employment records Mr. Hubbs’ duties were relatively
light, although they did require considerable climbing. He stated that it did
not appear that Mr. Hubbs completed his probationary period.

[104]     It is
somewhat difficult to assess the significance, if any, of these apparent
contradictions because Mr. Honsberger’s evidence was never put to Mr. Hubbs
in cross-examination. I have concluded that they both agreed that the job
entailed considerable climbing, one area in which Mr. Hubbs’ abilities are
compromised. Accordingly, I did not conclude that Mr. Honsberger‘s
evidence undermined Mr. Hubbs’ contention that he was not able to do the
work.

Liability

[105]     Mr. Hubbs
testified that he was driving his motorcycle westbound on Powell Street on his
way to work at about 6:50 a.m. on July 3, 2009. He stated that he was
travelling at approximately 50 km per hour as he approached the intersection at
Victoria Drive and that the green light was in his favour.

[106]     He
testified that he first noticed the van driven by Mr. Escueta as it entered
his lane from the right. He stated he attempted an evasive manoeuvre, moving to
the left toward the centre line. However, the van turned left in front of him,
cutting him off leaving him no alternative but to lock up his brakes.

[107]     He
described skidding for approximately six feet into the left side of the van,
striking it with the right side of his body. He stated that his motorcycle fell
over, pinning his left ankle underneath.

[108]      Mr. Hubbs’
account is supported by the evidence of Mr. Fidali Meghji who witnessed
the accident. Mr. Meghji testified that he was travelling behind Mr. Hubbs
when the collision occurred, also on his way to work. He stated that he was
following fairly closely behind Mr. Hubbs. He observed that there were
other vehicles some distance further in front of Mr. Hubbs down the block,
but no vehicles immediately in front of Mr. Hubbs.

[109]     He stated
that both he and Mr. Hubbs were travelling at approximately 50 km per hour.
It was his evidence that the green light was in their favour. Mr. Meghji
stated that he first noticed Mr. Escueta’s van when it entered Mr. Hubbs’
lane of travel right beside his motorcycle. He stated the van was in Mr. Hubbs’
lane, beside and to the right of the motorcycle.

[110]     He stated
that Mr. Hubbs tried to avoid being struck by moving to the left, but
before anything else could occur, the van accelerated and turned left in front
of Mr. Hubbs, cutting him off and causing the collision. He described Mr. Hubbs’
motorcycle striking the left side of the van, with the collision taking place
in the intersection just south of the centre line. He stated that the van did
not have its turn signals on.

[111]     Mr. Meghji
stated that he proceeded through the intersection, parked his car and went back
to the intersection. He observed that Mr. Hubbs was lying on the ground,
and gave him his card, telling Mr. Hubbs that he would be a witness.

[112]     Mr. Escueta
admits that he was driving the white Chevrolet Astro van that was involved in the
collision. Mr. Escueta worked as a cleaner at the Princeton Hotel. On the
morning of the accident he was parked in front of the Princeton Pub,
approximately 30 to 35 feet from the intersection at Victoria Drive. Mr. Escueta
stated that he moved from that location to make a left hand turn at the Victoria
intersection.

[113]     It was his
evidence that he got into his car, put on his seatbelt and started the car. He
turned on the left turn signal, drove into the centre lane where he stopped at
a red light. He stated that he was stopped at the red light for a few seconds. He
stated that when the light turned green he commenced his left turn and then the
motorcycle collided with his van.

[114]      It was
his evidence that he did not see the motorcycle before the collision. He stated
that he only saw the motorcycle when it drove into his van.

[115]     At the
time of the accident, Mr. Escueta was living with his wife, who also
worked as a cleaner at the Princeton Hotel. His wife was working at the hotel
on the morning of the accident, however, she was not in the car with Mr. Escueta.
Mr. Escueta is not able to communicate in English. He acknowledged that
his wife acted as a translator for him when he spoke with police at the scene.
He and his wife have since separated.

[116]     ICBC
produced a document headed “Statement from Basilio Escueta” taken on July 3,
2009. The document states that it was taken over the telephone with Mr. Escueta’s
wife acting as a translator. The document contains that statement that the
light was green as Mr. Escueta approached the intersection.

[117]     Mr. Escueta
was cross-examined about this statement both at trial and on discovery. His evidence
contained many significant contradictions. At the discovery when asked if he
recalled giving a statement to ICBC with his wife helping to translate, his
answer was “I don’t recall anything like that.” He said he was asked if he
recalled someone talking over the phone, his wife translating. His answer was
“I don’t know because I don’t have a phone”. He then said “I don’t recall
saying anything because all I recall is that there was nothing that was written”.

[118]     When asked
about this in cross-examination, he answered that he did not know because they
were the ones talking and that he did not know who his wife was talking to. He
stated that he recalled his wife speaking on the phone, but she was outside the
van and he could not hear what she was saying. He denied that he knew she was
speaking with ICBC. Later, however, he agreed that she was speaking with ICBC.
However, he said that he did not tell her what he wanted her to say. He said he
never told her anything except that he was hit. When pressed, he returned to
the evidence that he knew she was on the phone, but did not know who she was
talking to and that he does not remember because it was so long ago.

[119]     I
concluded that Mr. Escueta’s evidence was not credible. He gave evidence
that was evasive and contradictory in cross-examination, leaving me with the
impression that his responses were self-serving attempts to distance himself
from what he believed to be an unhelpful statement recorded in the ICBC
document. Moreover, in my view, his account of the accident is not plausible.

[120]     I have
concluded that Mr. Hubbs has provided an accurate and honest account of
the accident. In that regard, I note that his evidence is corroborated by that
of Mr. Meghji who is an independent witness. I was very impressed with Mr. Meghji’s
testimony. He was a careful witness, well situated to observe what transpired.

[121]     I find
that Mr. Hubbs was proceeding along Powell Street. The light was green in
his favour. I find that Mr. Escueta failed to exercise due care when he
entered the roadway from a parked position. He entered Mr. Hubbs’ lane of
travel when it was not safe to do so and he cut Mr. Hubbs off, causing the
collision.

[122]     Counsel
for Mr. Escueta submits that in the event the court concludes that Mr. Escueta
was negligent, there should be a finding of contributory negligence on the part
of Mr. Hubbs. Counsel submits that Mr. Hubbs failed to see the van
driven by Mr. Escueta when it was “there to be seen” in the middle of the
intersection.

[123]     Pursuant
to s. 4 of the Negligence Act, R.S.B.C. 1996, c. 333, when a
plaintiff contributes negligently to causing his or her own injury, the court must
determine relative degrees of fault. The correct inquiry is whether the
plaintiff failed to take reasonable care for his or her own safety and whether
that failure was one of the causes of the accident: Bradley v. Bath,
2010 BCCA 10, at para. 27.

[124]     The
court’s task is to assess the respective blameworthiness of the parties, rather
than the extent to which the loss may be said to have been caused by the
conduct of each. Fault or blameworthiness evaluates the parties’ conduct in the
circumstances, and the extent or degree to which it may be said to depart from
the standard of reasonable care, see Alberta Wheat Pool v. Northwest Pile
Driving Ltd., 2000 BCCA 505, at paras. 45-46.

[125]     I find
that Mr. Hubbs did not see the van driven by Mr. Escueta until it was
in his lane of travel. The van was not, in my view, “there to be seen”. Rather,
it pulled into Mr. Hubbs’ line of travel at a sharp angle. I find that it
was not reasonable to expect that he would have seen the van before he did. Once
he saw the van, Mr. Hubbs attempted to avoid the collision, but was not
able to do so. I have concluded that Mr. Hubbs was not at fault. Mr. Escueta’s
negligence was the sole cause of the accident which Mr. Hubbs had no
opportunity to avoid.

Damages

[126]    
Counsel for Mr. Escueta seeks to have the court make a global award
for non-pecuniary loss, encompassing loss under this arising from both the
Escueta and Martin matters. The approach to be taken was summarized by Mr. Justice
Savage in Perry v. Vargas, 2012 BCSC 1925, as follows:

Similarly, if separate injuries
are caused by two or more defendants, and it is possible to determine which
defendant caused which injury, the injuries must be divided and each defendant
is only liable for those injuries that he or she caused. The example given in Athey
is of two tortfeasors: one of whom injures the plaintiff’s foot and the other
of whom injures the plaintiff’s arm. This recognizes the principles that a
defendant should only be liable for those injuries that he or she causes: Athey
at para. 24.

[127]     The issue
is, therefore, whether Mr. Hubbs suffered separate injuries and whether it
is possible to determine which defendant caused which injury. I am satisfied
that Mr. Hubbs did suffer separate injuries and that it is possible to
determine which defendant caused which injury. First, the two accidents were
separated in time. I agree with the submission of Mr. Martin’s counsel
that the injuries did not overlap. The neck and thumb complaints arose from the
Martin Accident. That accident did not aggravate Mr. Hubbs’ ankle
symptoms. It is, therefore, not appropriate to make a global award for non-pecuniary
loss.

Martin Accident

[128]     The only
head of damage claimed in relation to the Martin Accident is non-pecuniary
loss. Counsel for Mr. Hubbs submitted that the appropriate range of damages
in relation to the Martin Accident is $30,000 to $35,000. Counsel notes that
there is an injury to the thumbs that has not fully resolved. While the neck
and shoulder injury has mostly resolved, there is some persistence when Mr. Hubbs
turns his head for prolonged periods of time or holds his head in an awkward
position. Counsel cited Sidhu v. Kiraly, 2009 BCSC 1202.

[129]     Counsel
for Mr. Martin submits that Mr. Hubbs sustained a mild soft tissue
injury to the neck and thumbs in the accident, which occurred approximately ten
months before the start of trial. The injuries are resolving and the prognosis
for a full recovery is good. The residual injuries do not interfere with Mr. Hubbs’
functioning or require any treatment.

[130]     Counsel
submitted that the symptoms are mild and intermittent, they have not interfered
with Mr. Hubbs’ function, have not required specific treatment and have
not resulted in any pecuniary loss. Counsel submitted that in such
circumstances the appropriate range for damages for non-pecuniary loss is
$10,000 to $15,000, citing: Dolha v. Heft, 2011 BCSC 738; Mohamadi v.
Tremblay, 2009 BCSC 898; Parmar v. Lahay, 2011 BCSC 1628; Morrison
v. Peng, 2010 BCSC 562; Powar v. Hussain, 2008 BCPC 283; Ward v.
Zhu, 2012 BCSC 782.

[131]     Mr. Hubbs
suffered soft tissue injury to his neck, shoulders and thumbs. The symptoms are
intermittent, and while bothersome, have not interfered with his functioning.
His prognosis for a full recovery is good. I award $13,000 for non-pecuniary
loss in relation to the Martin Accident.

Escueta Accident

Non-Pecuniary Loss

[132]     Counsel
for Mr. Hubbs submitted that the range for non-pecuniary loss for
circumstances similar to those in the present case is $130,000 to $150,000.
Counsel cited the following: Rizzolo v. Brett, 2009 BCSC 732; Kharitonov
v. Coupland, [1997] B.C.J. No. 1430 (S.C.); Hildebrand v. Musseau,
2010 BCSC 1022; Zicari v. Young, 2001 BCSC 1549.

[133]     Counsel
for Mr. Escueta submits that the range for non-pecuniary loss in the
circumstances is $55,000 to $85,000, citing Druet v. Sandman Hotels, Inns
& Suites Ltd., 2011 BCSC 232, and the authorities referred to in that
decision.

[134]    
The approach to be taken by the court in the assessment of damages for
non-pecuniary loss was summarized by Madam Justice Wedge in O’Rourke v. Kenworthy,
2009 BCSC 1277, as follows at paras. 84 and 85:

An award of damages for non-pecuniary loss must
address the specific circumstances of the individual case. It is not possible
to develop or point to a tariff to set the award: Stapley
v. Hejslet, 2006 BCCA 34 at para. 45, 263 D.L.R.
(4th) 19.

Various factors have been
considered by the courts when assessing a claim for non-pecuniary loss. In
Stapley, Kirkpatrick J.A., writing for the majority of the Court of
Appeal, identified the following factors at para. 46: the age of the
plaintiff; the nature of the injury; the severity and duration of pain; ongoing
disability; emotional suffering; loss or impairment of enjoyment of life;
impairment of family, marital and social relationships; impairment of physical
and mental abilities; and loss of lifestyle. The Court also observed that the
plaintiff should not be penalized for his or her stoicism.

[135]     This case
highlights the importance of the individual circumstances. The injury suffered
by Mr. Hubbs is serious. While the consequences for someone of more
sedentary occupation and lifestyle might not have been so significant, for Mr. Hubbs
the injury has proven to be life changing. He is a relatively young man who now
faces a lifetime of limitation and disability. Mr. Hubbs’ livelihood
requires strength, agility and balance, all of which have been impaired by the
injury. The injury has impaired his ability to earn his living. He has worked
through the pain, but at a terrible cost to his family life. He is no longer
able to enjoy the active lifestyle he loved. His mood is depressed and he has
little energy for anything except the struggle to put in a day at work. His
relations with his wife and children have been damaged. It appears that he has
reached a plateau in his recovery and faces a future of increased deterioration
and vulnerability to injury.

[136]     In my view,
the cases cited by plaintiff’s counsel are more representative of the
circumstances in the present case. I award $130,000 for non-pecuniary loss.

Past Wage Loss

[137]     Compensation
for past loss of earning capacity is to be based on what the plaintiff would
have earned but for the injury that was sustained: Rowe v. Bobell Express
Ltd., 2005 BCCA 141; M.B. v. British Columbia, 2003 SCC 53.

[138]     Pursuant
to s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231,
a plaintiff is entitled to recover damages for only his or her past net income
loss. This means that in the ordinary course the court must deduct the amount
of income tax payable from lost gross earnings: Hudniuk v. Warkentin, 2003
BCSC 62.

[139]     Mr. Hubbs
seeks an award of $65,833 for net past wage loss. He relies upon the
calculation provided by Mr. Peever, the labour economist.

[140]     Counsel
for Mr. Escueta submits that $50,000 should be awarded for past wage loss.
Counsel submits that this represents a net “rule of thumb” calculation based on
the premise that Mr. Hubbs should have returned to work in late 2011.

[141]     I find
that the contention that Mr. Hubbs should have returned to work in late
2011 is not supported. VIA Rail instructed Mr. Hubbs not to return to work
until his doctor certified that he was able to perform 100% of his duties. Dr. Chow
was closely monitoring Mr. Hubbs’ progress and did not certify him as able
to return to work until shortly before Mr. Hubbs returned to work, after
he had concluded the active rehabilitation program.

[142]     Counsel
for Mr. Escueta has placed reliance on the work that Mr. Hubbs did as
Contact Electric in the late fall of 2011. However, the Contact work was far
less demanding than the requirements of the position at VIA Rail. The fact that
he was able to perform some residential work does not mean that Mr. Hubbs
was fit to return to the strenuous requirements of his position at VIA Rail. In
fact, he returned to work with significant deficits, as evidenced from the
functional assessment conducted by Ms. Craig. I find that he was not able
to return to his position at VIA Rail prior to the date of his actual return to
work. I find further that Mr. Peever’s calculations appropriately
represent the loss and award Mr. Hubbs $65,833 for past loss of wages.

Future Wage Loss/Loss of Capacity

[143]     Mr. Hubbs
seeks an award of $611,700 for loss of future wages/loss of capacity, in
addition to an award of $66,200 representing the cost of retraining. The
submission was based upon Mr. Hubbs following the recommendation of Mr. Nordin
and completing a course to retrain for certification in appliance repair, then
finding employment in that field. Mr. Peever’s estimates of an annual loss
of wages and benefits of $30,000 did not include any positive contingencies and
did not account for the loss of income during retraining and the cost of retraining.

[144]     Counsel
submitted that Mr. Peever’s calculations were very conservative because
they do not account for the fact that, but for the accident, Mr. Hubbs had
the opportunity to obtain work in the wider field of industrial electrician
work at even higher wages than he earned in his position at VIA Rail. An
example of such an opportunity was the Westshore Terminals position, which was
a union position at a higher rate of pay.

[145]     Counsel
submits that although Mr. Hubbs is presently doing his job, he is only
managing by enduring significant pain, sacrificing the quality of his family
life, hastening the degeneration of his ankle and risking further injury. In
fact, he is not fit to perform his duties, as the medical evidence confirms.
Within a relatively short period of time he will not be able to perform his job
functions even at the level he is currently managing and will be forced to
stop.

[146]     Counsel
submits that Mr. Hubbs faces limited alternatives that suit his
experience, education, aptitude and interests. His injury will prevent him from
continuing in the relatively high paying field of industrial electrician. Accordingly,
he will suffer a future loss of income.

[147]     The
defendant’s position is that there is no evidence of a substantial possibility
that Mr. Hubbs will suffer a future income loss. Counsel notes that Mr. Hubbs
has returned to his employment, has been doing his job and has not sought any
accommodation from his employer.

[148]     It was
counsel’s further submission that the field of appliance repair is obsolete and
that it would not be appropriate for Mr. Hubbs to retrain in this field.
In any event, it was counsel’s submission that Mr. Hubbs does not require
retraining as there are “many many jobs in the electrical field where his
skills can be transferred”.

[149]     In the
alternative, counsel submitted that if the court concludes that there is some
“remote possibility” that Mr. Hubbs will have to leave his position at VIA
Rail, compensation for the damage to his capital asset should fall in the range
of $70,000 to $80,000.

[150]    
In Reilly v. Lynn, 2003 BCCA 49, the majority reviewed the principles
to be applied to the assessment of damages for loss of future capacity to earn
income at paras. 99 to 101 as follows:

We cannot alter a damage award simply because, on the
evidence, we would come to a conclusion different from that of the trial judge.
However, we may vary a damage award if we conclude that the trial judge in
assessing the damage award applied a wrong principle of law (as by taking into
account some irrelevant factor or leaving out of account some relevant one); or
if the amount awarded is either so inordinately low or so inordinately high
that it must be a wholly erroneous estimate of the damage. The two cases often
cited in this court in this regard are Woelk v. Halvorson, [1980] 2
S.C.R. 430 and Cory v. Marsh (1993), 77 B.C.L.R. (2d) 248 (C.A.).

An award for loss of earning capacity presents particular
difficulties. As Dickson J. (as he then was) said, in Andrews v. Grand &
Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 251:

We must now gaze more deeply into
the crystal ball. What sort of a career would the accident victim have had?
What were his prospects and potential prior to the accident? It is not loss of
earnings but, rather, loss of earning capacity for which compensation must be
made: The Queen v. Jennings, [[1965] 2 O.R. 285]. A capital asset has
been lost: what was its value?

The relevant principles may be briefly summarized. The
standard of proof in relation to future events is simple probability, not the
balance of probabilities, and hypothetical events are to be given weight
according to their relative likelihood: Athey v. Leonati, [1996] 3
S.C.R. 458 at para. 27. A plaintiff is entitled to compensation for real and
substantial possibilities of loss, which are to be quantified by estimating the
chance of the loss occurring: Athey v. Leonati, supra, at para. 27, Steenblok
v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.). The valuation of the
loss of earning capacity may involve a comparison of what the plaintiff would
probably have earned but for the accident with what he will probably earn in
his injured condition: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at
93 (S.C.). However, that is not the end of the inquiry; the overall fairness
and reasonableness of the award must be considered: Rosvold v. Dunlop (2001),
84 B.C.L.R. (3d) 158, 2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995]
B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task of the Court is to assess the
losses, not to calculate them mathematically: Mulholland (Guardian ad litem
of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Finally, since the
course of future events is unknown, allowance must be made for the contingency
that the assumptions upon which the award is based may prove to be wrong: Milina
v. Bartsch, supra, at 79. In adjusting for contingencies, the remarks of
Dickson J. in Andrews v. Grand & Toy Alberta Ltd., supra, at 253,
are a useful guide:

First, in many respects, these contingencies implicitly are
already contained in an assessment of the projected average level of earnings
of the injured person, for one must assume that this figure is a projection
with respect to the real world of work, vicissitudes and all. Second, not all
contingencies are adverse … Finally, in modern society there are many public
and private schemes which cushion the individual against adverse contingencies.
Clearly, the percentage deduction which is proper will depend on the facts
of the individual case, particularly the nature of the plaintiff’s occupation,
but generally it will be small …(emphasis in original)

[151]    
In Perren v. Lalari, 2010 BCCA 140, Madam Justice Garson stated
the test at para. 32 as follows:

A plaintiff must
always prove, as was noted by Donald J.A. in Steward, by Bauman
J. in Chang, and by Tysoe J.A. in Romanchych, that there
is a real and substantial possibility of a future event leading to an income
loss. If the plaintiff discharges that burden of proof, then depending upon the
facts of the case, the plaintiff may prove the quantification of that loss of
earning capacity, either on an earnings approach, as in Steenblok, or a
capital asset approach, as in Brown.

[152]     The
earnings approach involves a form of math-oriented methodology such as i)
postulating a minimum annual income loss for the plaintiff’s remaining years of
work, multiplying the annual projected loss by the number of remaining years
and calculating a present value or ii) awarding the plaintiff’s entire annual
income for a year or two, see Pallos v. Insurance Corp. of British Columbia
(1995), 100 B.C.L.R. (2d) 260 (C.A.); Gilbert v. Bottle, 2011 BCSC 1389
at para. 233.

[153]     I have no
hesitation in concluding that Mr. Hubbs has established that his ability
to earn income has been significantly impaired, or in the words of Garson J.A.,
that there is a real and substantial possibility of a future event leading to
an income loss. As noted earlier, his livelihood has required considerable
strength, agility and balance all of which are impaired as a result of the
injuries he suffered to his ankle. Although he has returned to his job at VIA
Rail, it has been at a huge cost – constant pain, fatigue and the deterioration
of his family life. There is evidence, which I accept, that he is not truly
capable of discharging his job functions in a safe fashion at present. In any event,
his condition is expected to deteriorate and he will likely be no longer able
to cope in the future. While he has not sought accommodation from his employer,
there is no reason to believe that his limitations could or would be
accommodated by VIA Rail. There are no less physically demanding positions for
electricians at VIA Rail. VIA Rail will not create new positions to accommodate
a worker. The duration of accommodation is an important factor to VIA Rail and Mr. Hubbs’
limitations are permanent with the expectation of further deterioration.

[154]     Mr. Hubbs
is a very skilled electrician, but the industrial work for which he is so well
qualified is physically demanding. Other work, for example of the type he
performs at Contact, for which he has the qualifications and remains able to
perform, pays less. Mr. Nordin has given the opinion that with retraining Mr. Hubbs
is suited by aptitude and ability to work in the field of appliance repair.
However, the evidence provided by Mr. Peever shows that wages for that
field are substantially lower than those in the field of industrial
electrician.

[155]     In my view,
it is not a “remote possibility” that Mr. Hubbs will be forced to leave
his position at VIA Rail. I accept the expert evidence that his injuries will
require him to leave that position in the relatively near future.

[156]     I accept
the evidence that even with retraining Mr. Hubbs is likely to earn
substantially less. Counsel for Mr. Escueta submitted that Mr. Hubbs’
skills are transferrable beyond the suggested field of appliance repair. I
accept that this is so, however, no occupation was identified for which Mr. Hubbs
has interest, aptitude and the ability to undertake that has a higher salary
than the appliance repair identified by Mr. Nordin.

[157]     In the
result, I find that Mr. Hubbs has established a real and substantial
possibility of a future income loss. The earnings approach is appropriate in
the present case. I find that the assumptions used by Mr. Peever are reasonable
and supported by the evidence; however, the award is to be an assessment not a
quantification. I award $600,000 for loss of future income.

[158]     In
addition, I award $66,200 with respect to the costs and income loss associated
with retraining. Mr. Hubbs will require some retraining in order to obtain
employment in the field of appliance repair. He has stated that he will need to
seek out such an alternative in order to salvage his family life.

Cost of Future Care

[159]     Mr. Hubbs
sought an award of $57,000 for the costs of future care. This was based in part
upon the recommendations for future care made by Dr. Brooks and Ms. Craig.

[160]     In their
reports, Dr. Brooks and Ms. Craig suggest that Mr. Hubbs’ future
care requirements include:

• A comprehensive rehabilitation
program

• Access to gymnasium and swimming
pool facilities

• Custom orthotics

• Assistance for seasonal or heavy
yard and garden care

• Psychotherapy

• Vocational assistance

[161]     Dr. Chow
has also opined that Mr. Hubbs will need prescription anti-inflammatory or
analgesic medication, estimated at a cost of $35 per month.

[162]     The one
time expenditures total:

[163]     The
current annual cost of the balance of the recommendations:

[164]    
The present value of incurring an annual cost of $2,460 for the rest of Mr. Hubbs’
life using the appropriate multiplier at the required discount of 3.5% is $51,500.

[165]     In
addition, counsel submitted, citing Rizzolo, at para. 39 that even
though there was no expert evidence on this issue, it was evident from the
evidence of Mr. Hubbs and his wife that the family needed counselling and
sought a further amount for family counselling, bringing the total claimed to
$57,000.

[166]     The
position of the defendant was that neither Mr. Hubbs nor his family
required counselling and in any event counselling was available through his
employment. Counsel stated that the recommendation for orthotics is accepted,
but that the defendant does not accept that there is any need for ongoing care
costs. In the result, counsel submits that there should be an award of $6,960
being a one-time award of $5,000 plus $1,960 for orthotics.

[167]     The
plaintiff is entitled to compensation for the cost of future care based on what
is reasonably necessary to restore him to his pre-accident condition insofar as
that is possible. When full restoration cannot be achieved, the court must
strive to assure full compensation through the provision of adequate future
care. The award is to be based on what is reasonably necessary on the medical
evidence to preserve and promote the plaintiff’s mental and physical health:
Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.); Williams (Guardian
ad litem of) v. Low, 2000 BCSC 345; Spehar (Guardian ad litem of) v.
Beazley, 2002 BCSC 1104.

[168]     The test
for determining the appropriate award under the heading of cost of future care
is an objective one based on medical evidence. For an award of future care: (1) there must be a medical justification for claims for cost of
future care; and (2) the claims must be reasonable: Milina v.
Bartsch at p. 84.

[169]     In the
present case, with the exception of the award sought for family counselling,
the claims are based upon medical evidence and the recommendations of the
expert: I note that Mr. Hubbs can obtain counselling through his
employment. I find that the balance of the claim is both reasonable and
justified and award $53,040 for the cost of future care.

Special Damages

[170]     Mr. Hubbs
claimed $1,591.32 as special damages, which was accepted by the defendant.

Summary

[171]     I have
awarded the following :

Escueta Accident

Martin Accident

“Ross
J.”