IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130904

Docket: M092149

Registry:
Vancouver

Between:

Stefan
Majchrzak

Plaintiff

And

Nicolette
Eveline Avery

Defendant

Before:
The Honourable Madam Justice B. Brown

Reasons for Judgment

Introduction

[1]            
Mr. Majchrzak seeks damages for injuries he received in a motor
vehicle accident on October 5, 2007.

Liability

[2]            
Mr. Majchrzak was riding his motorcycle at the intersection of
Vedder Road and Thomas Road in the City of Chilliwack. A vehicle driven by Ms.
Avery failed to yield the right of way, and Mr. Majchrzak struck her
vehicle. He was thrown from his motorcycle. Although liability is not admitted,
only Mr. Majchrzak gave evidence with respect to the circumstances of the
accident. I accept his evidence, and I am satisfied that Ms. Avery is solely
responsible for the accident.

Positions of the Parties

[3]            
The plaintiff argues that all of his injuries are the result of the motor
vehicle accident. He says that an appropriate award for pain and suffering is
$125,000. He says that he did not lose any income from work until he took time
off to have surgery in November 2010, in an attempt to recover from his
injuries received in the accident. He was then off work until April 2, 2012. He
says that his past loss of income is $106,572.36 and that his net loss is
$79,929.27.

[4]            
He further argues that he has suffered a loss of capacity to earn income
and that he will be required to retrain, which he anticipates will take him four
and a half years, resulting in a loss of $405,190. In addition, he anticipates
that there will be some time lag before his earnings are equivalent to those he
enjoys presently. He anticipates an additional loss of $28,910 as a result. Furthermore,
he says that he should also receive an additional loss of earning capacity
award, bringing the total future income/capacity loss to $570,190. After
deducting positive contingencies and considering negative contingencies, he
submits that the loss of earning capacity should be in the range of $450,000.

[5]            
The plaintiff also says that he has incurred special damages of $11,757.

[6]            
Lastly, he says that he will incur costs for future care. He seeks an
award of $30,000 under this heading of damages.

[7]            
The defendant submits that an appropriate award for non-pecuniary
damages is $40,000-$50,000. Further, the defendant says that
Mr. Majchrzak’s total past wage loss is $83,967 and that the appropriate
loss of capacity award is $35,000. The defendant questions whether the claimed
special damages are the result of injuries received in the motor vehicle
accident. The defendant says that the plaintiff has not produced evidence of
the cost of medication and therapy for his knee symptoms in the future.

Issues

[8]            
The significant issues in this action are the nature and extent of the
injuries caused by the motor vehicle accident, and whether it is appropriate
for Mr. Majchrzak to retrain as he proposes and recover damages from the
defendant for doing so.

Nature and Extent of the Injuries Caused by the Motor Vehicle Accident

[9]            
Mr. Majchrzak testified that immediately after the accident, he was
in a lot of pain. As his motorcycle was still rideable and he was concerned
that it may be damaged further if it was towed, he decided to slowly ride home.
When he arrived home, he packed his knee with ice, took pain killers, and
rested. He made an appointment to see his doctor the following Tuesday. By the
time of the appointment, he was quite sore all over, but the worst pain was in
his knee, which was swollen and sore.

[10]        
Mr. Majchrzak is a steel fabricator. He continued to work but had
ongoing pain. He struggled. His job is very physically demanding, so he
required strategies to adapt. He went for physiotherapy two to three times per
week for several months, until ICBC withdrew its funding. He remained in
constant pain in his left knee. In addition, he felt clicking and popping in
the knee, and sometimes sharp pain would cause him to stumble without warning. If
he became more active, the pain in his knee would increase.

[11]        
As a result, he limited his leisure activities and spared his knee for
work. In 2008, his general physician referred him to an orthopedic surgeon, Dr.
Yao. He had an MRI, which did not show any damage to his knee. Dr. Yao advised
him to return if his symptoms continued.

[12]        
His symptoms did not improve. Ultimately, he returned to Dr. Yao,
who performed arthroscopic surgery on his knee in the fall of 2010. After the
surgery, however, his pain increased and he had to take prescription medication.
At times after the surgery, his right leg and back would bother him, in his view,
because he was compensating for the pain in his left knee.

[13]        
Mr. Majchrzak was not able to return to work. He was still in pain
and continued to experience clicking, popping and stiffness in his knee. There
were no light duties at work, and no partial return to work was available.

[14]        
After surgery, he received physiotherapy and massage therapy. Six months
after the surgery, in the summer of 2011, Dr. Raffle and Dr. Aitken
suggested that he should look for less physical work. He started taking night
school courses.

[15]        
He was eventually able to return to work on April 2, 2012, although
he continues to be in pain. Every day is a struggle. In addition, he finds that
his injuries put him in further danger at work. He has fallen because of the
pain in his knee. While he tries to mix up his tasks as much as possible to
ease the stress on his knee, the company has deadlines and his components are part
of the machine being manufactured. His work affects the whole flow in the shop.
He must keep up. He does stretches to limber up, and he stretches again on
breaks. As well, he takes medication when the pain is at its worst and ices his
knee when he gets home.

[16]        
Dr. Yao also gave evidence. Dr. Yao said that he first saw the
plaintiff on May 8, 2008. At that time, he suspected that the plaintiff
had suffered a meniscal tear, but the MRI was reported to be normal.
Dr. Yao recommended conservative treatment and that Mr. Majchrzak
return if his complaints continued. They did. He ordered another MRI, which
disclosed a tear in the medial meniscus.

[17]        
At that point, the plaintiff decided to have surgery, on Dr. Yao’s
advice, because of the persistent complaints.

[18]        
When he conducted the surgery, he found that the tear in the meniscus was
non-displaced, so he left it alone. He found wear on the medial femoral condyle,
so he shaved it. While it would not be a cure, he anticipated that this may
help relieve some of Mr. Majchrzak’s symptoms.

[19]        
With this injury, essentially, the layer of cartilage was worn down, although
not as far as the bone. Dr. Yao described it as a grade 2 chondromalacia.
In his opinion, the lesion correlates with the accident. It is also consistent
that Mr. Majchrzak did not improve with conservative treatment. Debridement
provides temporary relief, but the knee has permanent damage. Furthermore, it is
not unusual to have continuing pain after surgery. The damaged cartilage
regrows as fibrous cartilage, which is not as smooth or strong as the original.
This can result in post-traumatic arthritis.

[20]        
In Dr. Yao’s opinion, Mr. Majchrzak has post-traumatic arthritis.
He says the ongoing complaints are not due to the meniscus tear but to the
medial condyle defect. Physical activity which puts pressure on the joint
increases the wear. It is likely that Mr. Majchrzak will require knee
replacement as the wear on his knee continues. Moreover, the heavier the use,
the sooner surgery will be required, although no one can say when the knee will
need to be replaced.

[21]        
The defence relies on the opinion of Dr. Stone. Dr. Stone saw
Mr. Majchrzak on September 24, 2012 for a medical assessment at the
request of the plaintiff’s solicitors. Dr. Stone was not called to give
evidence. His report provides:

…I believe his current problems are accounted for by a
diagnosis of early medial compartment osteoarthritis and possibly early patellofemoral
arthritis.

…This early medial compartment arthritic disease was
asymptomatic prior to the accident and I would conclude that the accident did
lead to the onset of the symptoms at an earlier date than might otherwise have
occurred.

…It is my opinion that a direct impact or blow to the knee
as a result of the MVC did contribute to either the development and/or
progression of both. From a prognostic point, osteoarthritis is a gradual,
progressive pathology, although, the symptoms may improve temporarily.

It is expected that his articular
disease will progress to the point where it will interfere with his ability to
continue his current employment and may require him to either seek alternate
employment or cease to work as a steel fabricator, as Mr. Majchrzak has
indicated that there is no option for reduced or light duties at his current
job. It is not possible to predict, with reasonable accuracy, the timing of
when his disease progression will cause such difficulties.

Is Mr. Majchrzak a “crumbling skull” plaintiff?

[22]        
The defence argues that Mr. Majchrzak is a “crumbling skull”
plaintiff, in that there was prior wear and tear on his knee and it was a
matter of time until the knee became symptomatic. The defendant, relying on the
decision of Athey v. Leonati, [1996] 3 S.C.R. 458, says that she should
not have to compensate the plaintiff for any debilitating effects of a pre-existing
condition if the plaintiff would have experienced those effects regardless of
the accident. In Athey v. Leonati at para. 35, the Court said:

[35]      The so-called “crumbling skull” rule simply
recognizes that the pre-existing condition was inherent in the plaintiff’s
“original position”. The defendant need not put the plaintiff in a
position better than his or her original position. The
defendant is liable for the injuries caused, even if they are extreme, but need
not compensate the plaintiff for any debilitating effects of the pre-existing
condition which the plaintiff would have experienced anyway. The defendant
is liable for the additional damage but not the pre-existing damage … Likewise,
if there is a measurable risk that the pre-existing condition would have
detrimentally affected the plaintiff in the future, regardless of the
defendant’s negligence, then this can be taken into account in reducing the
overall award

[Emphasis in original. Citations
omitted.]

[23]        
Here, Dr. Stone said, “the accident did lead to the onset of the
symptoms at an earlier date than might otherwise have occurred”. As quoted
above, he continued:

It is my opinion that a direct
impact or blow to the knee as a result of the MVC did contribute to either the
development and/or progression of both [medial compartment osteoarthritis and patellofemoral
arthritis].

[24]        
Dr. Stone’s opinion is, at best, inconsistent on this issue, in
that he says that the development of symptoms took place earlier than they may
have otherwise done, but he also says that the accident contributed to either
the development or the progression of the symptoms. In other words, the
accident maybe the cause of the symptoms and not simply an accelerant of the
symptoms.

[25]        
As such, the evidence does not satisfy me that there was a measurable
risk or, as the defendant says, that there was a real or substantial
possibility that the pre-existing condition would have manifested in the future,
regardless of the plaintiff’s negligence. That is, I am not satisfied that the
condition was, in fact, pre-existing. Dr. Stone’s opinion does not permit
me to reach that conclusion and, as I have indicated, he was not called to give
evidence and clarify his opinion.

[26]        
I prefer the opinion of Dr. Yao, who is clear that the plaintiff’s
symptoms are caused by the motor vehicle accident. The plaintiff was
asymptomatic before the accident. He began to complain of knee pain immediately
after the accident and has complained of that pain consistently since. In
addition, the arthroscopic findings are consistent with an injury received in
the accident and with the plaintiff’s complaints. Finally, the development of
arthritis in the knee is also consistent with that injury.

[27]        
In my view, the motor vehicle accident caused the injuries which the
plaintiff is suffering from. Again, I am not persuaded that there was a
measurable risk that his condition would have manifested, regardless of the
plaintiff’s negligence.

What was the purpose of the arthroscopic surgery?

[28]        
Secondly, the defendant argues that the arthroscopic surgery was undertaken
because the second MRI disclosed a meniscal tear. I do not accept that
proposition.

[29]        
Dr. Yao was clear that the arthroscopic surgery was the result of
the ongoing symptoms. When he conducted the arthroscopic surgery, he found the
meniscal tear. He did not consider that to be contributing to the symptoms,
however, so he left it alone.

Was the meniscal tear an unrelated injury?

[30]        
Finally, the defence suggests that the meniscal tear might be due to
some other incident, such as the one-day skiing trip that Mr. Majchrzak
undertook in February 2010.

[31]        
Mr. Majchrzak testified that he did not fall during his day of
skiing. He is an expert skier. Moreover, given that he was teaching his teenaged
daughters how to ski, he was skiing only on a bunny slope and an intermediate
slope.

[32]        
It is, in my view, mere speculation that he developed the meniscal tear
during skiing at that time or due to some unrelated event.

[33]        
In any event, I accept Dr. Yao’s evidence that the meniscal tear was not
the cause of Mr. Majchrzak’s ongoing complaints.

Damages

Future loss of earning capacity

[34]        
The defence argues that Mr. Majchrzak has been able to continue at
work since the motor vehicle accident, even doing overtime work until the
arthroscopic surgery. The defence says that there is no opinion that
Mr. Majchrzak cannot work as a steel fabricator and that there is no
reason for him to retrain. Moreover, the defence submits that
Mr. Majchrzak is pursuing a “dream job” that is not reasonable and that
the expense for doing so should not be borne by the defendant.

[35]        
I do not accept these submissions.

[36]        
The weight of the medical evidence is that Mr. Majchrzak has a
progressive deteriorating condition in his knee. The more load that is placed
on his knee as he continues to perform as a steel fabricator, the faster the
deterioration in his knee and the sooner he will require knee replacement
surgery.

[37]        
Mr. Majchrzak has soldiered on for six years since the motor
vehicle accident, trying to cope with his knee while continuing to work as a
steel fabricator. I have no doubt that he is a stoic and hardworking person. I
found him to be entirely credible, and I accept the evidence of
Mr. Majchrzak and his wife as to his efforts to continue at work and the
effect that continuing with work has had on his lifestyle.

[38]        
I further accept that Mr. Majchrzak has suffered dearly from
continuing to work. I accept that he suffers pain daily and is now required to
take medication to continue at work. He must also stretch and ice his knee. And
he must avoid leisure activities to “save” his knee for work. In this regard,
it is simply not reasonable to expect a plaintiff to continue to work at a
particular job regardless of the pain and regardless of the ultimate impact on
him. While Mr. Majchrzak has struggled to this point in time, there is no
indication of how much longer he will be able to keep it up, even if it were
reasonable to expect a plaintiff to work in such painful circumstances.

[39]        
The plaintiff has produced an occupational therapy opinion. In that
opinion, Ms. Winkler states:

Based on my assessment of
Mr. Majchrzak, he does not meet the body dexterity requirements of this
position, as when he participates in significant amounts of activity which
place increased load on the left knee, he experiences more pain and his gait
pattern deteriorates. Therefore, he is considered employable versus
competitively employable in this position.

She explained that “competitively employable” means that he
can perform all physical requirements, while “employable” means that he can do
some aspects of the job.

[40]        
Mr. Majchrzak’s physicians, Dr. Raffle and Dr. Aitken,
suggested that he may need to pursue an alternate occupation. This spurred him
to start taking courses while he was off work recovering from the surgery.

[41]        
Mr. Majchrzak has testified that after considering his options, he
concluded that the most reasonable option would be for him to return to school
and become a mechanical engineer. This would enable him to use his experience
as a steel fabricator and permit him to return to such a business environment,
but without requiring him to work on the floor. He would be able to earn as
much as he has as a steel fabricator and would be able to support his family.

[42]        
He considered his other options, such as a two-year mechanical
certificate from BCIT, but that would still require him to work on the floor
and would still put excessive strain on his knee. Moreover, he would not earn
as much as he currently does and he would not be able to support his family.
Accordingly, he rejected this option. He also has experience as a truck driver,
driving semi-trailers for long-haul trucking and some short-haul trucking, but
that too is very heavy physical work and would be too demanding on his knee.

[43]        
While he recognizes that at 51 years of age, he will not be qualified
until he is 55 or 56 years old, he remains very positive in his outlook and
confident that he will continue to work once he is re-qualified.

[44]        
In my view, Mr. Majchrzak’s plan of retraining by taking four and a
half years at BCIT to become a mechanical engineer is a reasonable prospect. He
is an exceptionally committed man. I do not view it as providing him with his
“dream job” at the expense of the defence. I accept his evidence that his job
as a steel fabricator was, in fact, a dream job and that he would be happy to
continue in that position were he able to do so.

[45]        
The plaintiff has prepared a mathematical calculation of his losses.
Assuming he is without income for four and a half years and then is qualified
and hired as a mechanical engineer, he will suffer a loss of $405,109. In
addition, there will be retraining expenses of $37,000, plus a gap of income of
$28,910.

[46]        
The plaintiff has also provided me with the expert opinion of Mr.
Pivnenko to assist me with actuarial income multipliers and to establish
present value of future earnings or loss of earnings.

[47]        
The defence calculates Mr. Majchrzak’s base-line income that he
would earn but for the motor vehicle accident at $73,000. If, rather than
retraining, Mr. Majchrzak were to obtain some undemanding form of
employment earning $35,000 per year, the shortfall to him would be
approximately $40,000 per year (I note parenthetically that I was not provided
with any evidence of any “lesser” form of employment). Using the tables
provided to me by Mr. Pivnenko, if Mr. Majchrzak were to lose $40,000
per year from now until the date of his retirement, the present dollar value
would be $458,320.

[48]        
A claim for loss of future earning capacity raises two questions: (i)
has the plaintiff’s earning capacity been impaired by his injuries; and (ii) if
so, what compensation should be awarded for the resulting financial harm that
will accrue over time? The appropriate means of assessment will vary from case
to case: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); Pallos
v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.);
Pett v. Pett, 2009 BCCA 232.

[49]        
Insofar as it is possible, the plaintiff should be put in the position
he would have been in but for the injuries caused by the defendant’s
negligence: Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at para.
185. The court’s essential task is to compare the likely future of the
plaintiff’s working life if the accident had not happened with the plaintiff’s
likely future working life after the accident has happened: Gregory v.
Insurance Corporation of British Columbia, 2011 BCCA 144 at
para. 32. It is not the loss of earnings, but rather the loss of earning
capacity for which compensation must be made: Parker v. Lemmon, 2012
BCSC 27 at para. 42.

[50]        
The plaintiff must always prove that there is a real and substantial
possibility of a future event leading to an income loss: Perren v. Lalari,
2010 BCCA 140 at para. 32. A future or hypothetical possibility will be taken
into consideration as long as it is a real and substantial possibility and not
mere speculation. Moreover, a plaintiff may be able to prove that there is a
substantial possibility of a future income loss despite having returned to his
or her employment: Parker at para. 42.

[51]        
If the plaintiff meets this initial burden, there are two possible
approaches to assessing the loss of future earning capacity: the “earnings
approach” in Pallos; and the “capital asset approach” in Brown.
Both approaches are correct. The determination of which approach is most
appropriate in the particular circumstances depends on whether the loss in
question can be quantified in a measureable way: Perren at para. 32.

[52]        
The earnings approach, on the one hand, involves a form of math-oriented
methodology: Pallos; Gilbert v. Bottle, 2011 BCSC 1389 at para.
233. On the other hand, the capital asset approach involves considering factors
such as whether the plaintiff: (i) has been rendered less capable overall of
earning income from all types of employment; (ii) is less marketable or
attractive as a potential employee; (iii) has lost the ability to take
advantage of all job opportunities that might otherwise have been open; and
(iv) is less valuable to herself as a person capable of earning income in a
competitive labour market: Brown; Gilbert at para. 233.

[53]        
While it is clear that an award for future loss of earning capacity is
an “assessment” and need not be based on a mathematical calculation, there
still must be findings of fact on which to base the assessment: Morgan v.
Galbraith, 2013 BCCA 305 at para. 54. Recently, the Court of Appeal in Morgan
emphasized that courts must, under the capital approach, consider
the Brown factors and make appropriate findings of fact as to the nature
and extent of the loss of capacity:

[56]      If the assessment is
still to be based on the capital asset approach the judge must consider the
four questions in Brown in the context of the facts of this case and
make findings of fact as to the nature and extent of the plaintiff’s loss of
capacity and how that loss may impact the plaintiff’s ability to earn income.
Adopting the capital asset approach does not mean that the assessment is
entirely at large without the necessity to explain the factual basis of the
award: Morris v. Rose Estate (1996), 23 B.C.L.R. (3d) 256 at para. 24,
75 B.C.A.C. 263; Mulholland (Guardian ad litem of) v. Riley Estate
(1995), 12 B.C.L.R. (3d) 248 at para. 43, 63 B.C.A.C. 145.

[54]        
The principles that apply in assessing loss of future earning capacity
were summarized by Low J.A. in Reilly v. Lynn, 2003 BCCA 49 at para.
101:

[101] The
relevant principles may be briefly summarized. The standard of proof in
relation to future events is simple probability, not the balance of
probabilities, and hypothetical events are to be given weight according to
their relative likelihood: Athey v. Leonati, [1996] 3 S.C.R. 458 at
para. 27. A plaintiff is entitled to compensation for real and substantial
possibilities of loss, which are to be quantified by estimating the chance of
the loss occurring: Athey v. Leonati, supra, at para. 27, Steenblok
v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.). The valuation of the
loss of earning capacity may involve a comparison of what the plaintiff would
probably have earned but for the accident with what he will probably earn in
his injured condition: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at
93 (S.C.). However, that is not the end of the inquiry; the overall fairness
and reasonableness of the award must be considered: Rosvold v. Dunlop
(2001), 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.

[55]        
Mr. Majchrzak has proved that there is a real and substantial
possibility of a future event leading to an income loss. As stated above, the
medical evidence is clear that he has a progressive deteriorating condition in
his knee, which condition will worsen at an accelerated rate if he continues to
work as a steel fabricator. I am satisfied that he must retrain or seek
alternate employment as a result of his injuries. He cannot continue at his
current occupation.

[56]        
As for assessing the award under this heading of damages, I have considered
the above calculations as well as the submissions of each of the parties. I
have also considered contingencies, both positive and negative. Assessing these
factors as best as I am able, in my view, a reasonable award to
Mr. Majchrzak for future loss of earnings/loss of capacity is $350,000.

Past wage loss

[57]        
Here, the plaintiff submits that his net loss for the time that he was
off work is $79,929.27. The defence says that the number is $83,967.

[58]        
I accept the figures provided by the plaintiff and award past loss of
income at $79,929.27.

Special damages

[59]        
The plaintiff claims special damages of $11,757. The defendant does not
take exception to the calculation, based on the findings found by the Court.
Accordingly, I award the plaintiff special damages in the amount of $11,757.

Cost of future care

[60]        
The authorities establish that awards for future case are 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.). Future
care costs must be justified both because they are medically necessary and are
likely to be incurred by the plaintiff.

[61]        
The extent, if any, to which a future care costs award
should be adjusted for contingencies depends on the specific care needs of the
plaintiff. Each case falls to be determined on its particular facts. An
assessment of damages for cost of future care is not a precise accounting
exercise: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at para.
21.

[62]        
The plaintiff seeks damages for cost of future care at $2,000 per annum,
with a present value of $28,600 to age 70.

[63]        
The plaintiff will obviously have ongoing issues with respect to his
knee, and the physicians anticipate future treatment. This will undoubtedly
require additional physiotherapy as well as medication.

[64]        
The plaintiff’s special damages include physiotherapy claims in the
amount of $650 for 2013, and $540 for the period from October 2007 until March
2008. Extrapolating from these figures, I find that the amount of $500 per year
is reasonable for physiotherapy.

[65]        
The plaintiff also incurs expenses of $380.80 for window and gutter
cleaning. Again, this appears to be a reasonable expense.

[66]        
In my view, a reasonable award for cost of future care would be $1,000
per year. I award the amount of $15,000, discounted to present value.

Non-pecuniary damages

[67]        
Non-pecuniary damages are awarded to compensate the
plaintiff for pain, suffering, loss of enjoyment of life, and loss of
amenities. In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, the Court of
Appeal outlined the factors to be considered in making an award of this kind:

[46]      The inexhaustive list of common
factors cited in Boyd [v. Harris, 2004 BCCA 146] that influence
an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

I would add the following factors, although
they may arguably be subsumed in the above list:

(g) impairment of family, marital and social
relationships;

(h) impairment of physical and mental
abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as a factor that
should not, generally speaking, penalize the plaintiff: Giang v. Clayton,
2005 BCCA 54).

[68]        
The award should be fair and reasonable to
both parties. Fairness is measured against awards made in comparable cases,
although such cases serve only as a rough guide. Each case
depends on its own unique facts: Trites v. Penner, 2010 BCSC 882 at
paras. 188-189.

[69]        
The assessment of non-pecuniary damages is necessarily
influenced by the individual plaintiff’s personal experiences in dealing with
his injuries and their consequences, and the plaintiff’s ability to articulate
that experience: Dilello v. Montgomery, 2005 BCCA 56 at para. 25.

[70]        
The parties have provided me with a number of cases.

[71]        
The plaintiff relies on Agar v. Morgan, 2005 BCCA 579; Meghji
v. Lee, 2011 BCSC 1108; Hall v. Cooper Industries, Inc. et al., 2004
BCSC 188, rev’d on other grounds 2005 BCCA 290; and Dufault v. Kathed
Holdings Ltd. et al, 2007 BCSC 186.

[72]        
In Agar, a 32-year-old plaintiff suffered injuries to his chest,
lower back and knees. His right knee was permanently damaged, causing the
plaintiff to suffer pain for prolonged periods of standing or sitting and
impairing his ability to climb stairs, squat or engage in heavy lifting: para.
2. This prevented him from engaging in his regular exercise program, which in
turn complicated his pre-existing cystic fibrosis condition. The trial judge
found that the plaintiff’s condition would still have deteriorated to the point
where he would have required a double-lung transplant, but the time when he
required the transplant was accelerated by three years as a result of those
injuries. She assessed non-pecuniary damages for that three-year loss of
stability, together with the effects of the knee, back and neck injuries, at
$175,000. The Court of Appeal set aside this award as inordinately high and
substituted an award of $125,000.

[73]        
In Meghji, the plaintiff suffered injuries to her left side,
including a fracture to left upper arm and just below her left knee, and an
injury to her left ankle. She was 34 when the accident occurred. As a result of
her injuries, the court found that it was unlikely that she would work beyond
age 50. In addition, the court concluded that the plaintiff had “more
likely than not suffered a brain injury in the accident, and that the
combination of the effects of the brain injury and the depression and chronic
pain disorder … are so inextricably intertwined that they cannot possibly be
disentangled”: para. 270. Non-pecuniary damages were assessed at
$125,000.

[74]        
In Hall, the plaintiff, a 46-year-old steel fabricator, sustained
a fracture of the lower right leg and cartilage damage to his right knee which
required five surgeries. He continued to suffer considerable pain from the
injuries six and a half years after the accident. Further, the injuries caused a
“major exacerbation” of a pre-existing depressive condition, and he suffered
symptoms of post-traumatic stress disorder and chronic pain disorder. The court
held that while his psychological diagnoses had abated and would eventually
disappear entirely, he would suffer pain in his leg indefinitely due to a nerve
injury. The court awarded $150,000 for pain, suffering and loss of enjoyment of
life, past and future.

[75]        
In Dufault, the 35-year-old plaintiff suffered injuries to her
leg and knee, causing chronic bursitis in her left hip, occasional numbness in
her hands and feet, troubles walking, and a worsening limp. She also reported
some depression. While she suffered pain and inconvenience and would likely require
knee replacement surgery, her future employment capacity was nowhere near as
restricted as in other cases: para. 96. The court awarded $110,000.

[76]        
The defendants refer me to Russell v. Parks, 2012 BCSC 1128; Callahan
v. Kim, 2012 BCSC 1615; Eblaghie v. Lee, 2010 BCSC 703; and Dulay
v. Lachance, 2012 BCSC 258.

[77]        
In Russell, the plaintiff, aged 51, suffered a soft tissue injury
to his knee and a broken bone in his left foot. The medical evidence
established that the accident did not cause an acceleration of the
osteoarthritis in the right knee, which predated the accident. The court
awarded $45,000 for non-pecuniary damages.

[78]        
In Callahan, the 63-year-old plaintiff injured his left shoulder,
left elbow, lower back, right knee and left ankle when he was hit by a vehicle
while riding his bicycle. The plaintiff’s main complaints at trial related to
ongoing problems with his right knee and left ankle. The court found that the
plaintiff suffered a medial collateral ligament sprain, which resolved within
18 months of the accident, and right knee symptomatic osteoarthritis. While the
plaintiff suffered intermittent pain on exertion and permanent injury to his
ankle and knee, he did not suffer from chronic pain. Nonetheless, the court
found that the plaintiff’s daily life had been affected by his injuries because
he focused on avoiding pain by curtailing his activities, resting frequently,
and elevating his legs. In particular, he no longer took long walks as he used
to do. The court awarded $55,000.

[79]        
In Eblaghie, the plaintiff, a 40-year-old psychological
therapist, suffered patellofemoral derangement and a small medial tear of the
medial meniscus in her knee after being struck by a car as a pedestrian. She
did not require surgery. Before the accident, she was a healthy, happy
individual who was quite social, participated in Yoga and Pilates, and engaged
in other physical activities on a regular basis. After the accident, she
suffered nightmares and was anxious and upset when travelling in a car. The
court further found that, post-accident, all aspects of the plaintiff’s life,
both at work and apart from work, had been adversely affected. She had low back
pain, pain in both knees, pain in the right ankle, reduced energy, and an
inability to multi-task to the extent she once did. The court concluded that
the plaintiff would, in the future, have to endure “persistent continuing pain,
discomfort and anxiety … [with] only slight continuing improvement”: para. 47.
Non-pecuniary damages were awarded at $60,000.

[80]        
Finally, in Dulay, the plaintiff experienced back pain, dizziness
and chest pain that all resolved within six to twelve months after the
accident. His primary complaint, as here, was knee pain. At trial, the
plaintiff continued to suffer from symptomatic and painful osteoarthritis in
his knee. He could no longer jog, garden or take part in temple activities as
he had done prior to the accident. The court found that while the plaintiff
continued to work after the accident, he was doing so through significant pain
and required medication and frequent breaks. Knee replacement surgery was not
indicated for the near future, but was a possibility in the long term. Citing
Griffin J. in Fata v. Heinonen, 2010 BCSC 385 at para. 88, the court
further held that these injuries would have a profound effect on the plaintiff,
who, at 57 years old at the time of the trial, was nearing retirement and would
not be able to enjoy that period of his life as much had he not been injured in
the accident.

[81]        
I consider the following factors relevant in this case:

(a)      Age of the plaintiff: Mr. Majchrzak was 51 years old
at the time of trial. The evidence establishes that he will likely suffer some
measure of pain for the remainder of his life.

(b)      Nature of the injury: Mr. Majchrzak suffered grade 2
chondromalacia and post-traumatic arthritis from the impact of the accident.
His knee is permanently damaged, and it is likely that he will require knee
replacement, although it is unclear when that will be. He also suffered minor
injuries and bruising to his left hand and back that resolved uneventfully.

(c)      Severity and duration of pain: Almost six years
post-accident, the plaintiff continues to suffer pain daily. While he has been
able to work through the pain, by doing stretching exercises, icing his knee
and taking medication, I have concluded that he has endured much pain doing so.
Indeed, he is now retraining to work in a less physically demanding position.

(d)      Disability: The plaintiff has a permanent impairment
of his physical capabilities.

(e)      Emotional suffering: Dr. Raffle and Mrs. Majchrzak
both gave evidence that Mr. Majchrzak has suffered some measure of depression
and anxiety caused by chronic pain and his inability to work and provide for
his family.

(f)       Loss and impairment of life: Mr. Majchrzak has
permanent injuries that require him to leave what he described as his “dream
job”. Furthermore, many of his non-work activities, such as ballroom dancing
with his wife, sports activities with his children, and maintenance of his home
have been affected.

[82]        
After both reviewing the authorities and considering the specific
factors in this case, in my view, an appropriate award for the plaintiff is $95,000.

Costs

[83]        
Unless there are factors of which I am not aware, the plaintiff is entitled
to his costs at Scale B.

“B.J. Brown J.”
The Honourable Madam Justice B.J. Brown