IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Rutledge v. Jimmie, |
| 2014 BCSC 41 |
Date: 20140110
Docket: 1140214
Registry:
Prince George
Between:
Leo David Rutledge
Plaintiff
And
Vivian Jimmie
Defendant
And
Insurance
Corporation of British Columbia
Third
Party
Before:
The Honourable Mr. Justice R. S. Tindale
Reasons for Judgment
Counsel for the plaintiff: | D. Byl and K. Aimetz |
Counsel for the defendant: | No Appearance |
Counsel for the third party: | J. Haines |
Place and Date of Trial: | Prince George, B.C. May 6 to 10, 2013 |
Written submissions of the plaintiff: | May 15, 2013 |
Written submissions of the third party: Rebuttal submissions of the plaintiff: | May 21, 2013 May 23, 2013 |
|
|
Place and Date of Judgment: | Prince George, B.C. January 10, 2014 |
Table of Contents
EVIDENCE ON BEHALF OF THE THIRD PARTY
INTRODUCTION
[1]
The plaintiff seeks damages as a result of a motor vehicle accident that
occurred on 19 March 2011 in the City of Quesnel, in the province of British
Columbia.
[2]
The defendant Vivian Jimmie did not attend the trial. Liability is not
contested by the third party.
[3]
The plaintiff seeks general damages, future loss of earning capacity,
future cost of care, loss of domestic capacity and special damages.
[4]
The third party alleges that there are causation issues with regard to
the plaintiff’s claim that he suffers from thoracic outlet syndrome as a result
of the motor vehicle accident. The third party also opposes damages for future
loss of earning capacity and loss of domestic capacity.
EVIDENCE FOR THE PLAINTIFF
Leo Rutledge
[5]
The plaintiff is now 48 years of age. He is married and has three
children. At the time of the motor vehicle accident he was employed as a manager
at Douglas Lake Equipment in the City of Quesnel.
[6]
The plaintiff worked for Douglas Lake Equipment from August 2004 to
November 29, 2012. Prior to that he was a maintenance manager and general
manager for Argo Road Maintenance from 1991 until 2004.
[7]
The plaintiff left his employment with Douglas Lake Equipment due to a
difference of opinion between himself and the new president of the company. He
did not agree with the policies that the new president brought to the company
and in particular there was a dispute with regard to a contest between the
various dealerships of Douglas Lake Equipment.
[8]
After the plaintiff left Douglas Lake Equipment, he went into business
with Dan O’Brien. They formed a company called O’Brien Equipment. Dan O’Brien
is a businessman with a number of business ventures. O’Brien Equipment was a
new business venture which initially employed the plaintiff and another
individual named Colin Anderson. The plan was that once the business was up and
running the plaintiff would become a 50% partner with Mr. OBrien. The
plaintiff testified that had he not been injured in the motor vehicle accident
he would not have needed to hire Mr. Anderson at OBrien Equipment.
[9]
The plaintiff testified that as a result of the motor vehicle accident he
gets headaches if he lifts things. He also testified that he cannot do vacuum
cleaning, wash windows or paint as these activities cause headaches.
[10]
The plaintiff testified that on the day of the motor vehicle accident he
had attended the Save-On-Foods in Quesnel with his youngest daughter. He had
parked his truck and was exiting it when he saw a black GMC 4×4 pickup truck
coming towards his vehicle. He honked his horn. He said that at the point of
impact his left arm was holding onto the open driver’s side door of his
vehicle. After impact, the vehicle that struck his departed. He had to chase it
while calling the police.
[11]
Later that day he drove to Prince George with one of his daughters to
attend her dance recital. He said that his neck began to feel hot and by the
next morning he had a slight headache.
[12]
The plaintiff did not initially visit any medical practitioner as he
felt his stiff neck would go away. The plaintiff did attend the Avery Health
Clinic on March 23, 2011. He was told that he had soft tissue injury and was
given a referral to see a massage therapist named Erica Lynds.
[13]
The plaintiff estimates that he saw the massage therapist approximately
21 times. He agreed that the massage therapy helped with the tension in his
shoulders and neck and with his headaches. These symptoms plateaued in June of
2011.
[14]
The plaintiff testified that during the summer of 2011 his wife did all
of the yard work. He testified that he took 25 to 30 Tylenol a day and drank to
cope with his pain.
[15]
In January of 2012 the plaintiffs wife asked him to go see their doctor
because she was worried that he was drinking too much. The plaintiff saw his
family physician, Dr. Walker, who initially prescribed stretching and hot packs
for him. This did not alleviate the pain so Dr. Walker gave the plaintiff a
shot of cortisone in his neck. The shot helped with the headaches for a brief
period of time; however the headaches returned.
[16]
The plaintiff then received a Botox shot from his doctor, after which his
headaches subsided substantially. The plaintiff testified that since receiving
the Botox injections he always has a slight headache; however it is on the lower
end of the pain spectrum. The plaintiff says he has to be cautious with
physical activities so that he does not bring on a more severe headache.
[17]
The plaintiff testified that he has tried on three occasions to golf;
however, he says that he is left with a pounding headache when he golfs.
[18]
The plaintiff testified that prior to the accident he attended the gym
at least five days a week and was an avid power lifter. He testified that he
lifted extremely heavy weight and that at his peak his arms measured 19 inches
in circumference and his thighs were 31 inches.
[19]
The plaintiff testified that he stopped going to the gym because he knew
that physical activity would bring on the headaches.
[20]
Prior to the motor vehicle accident the plaintiff was diagnosed with
cancer which resulted in neck surgery on the left side of his neck.
[21]
The plaintiff testified that he is missing out on business
opportunities because he does not spend as much time in the field cultivating
business opportunities as he should. He testified that driving on rough logging
roads or dirt roads causes him pain and headaches.
[22]
The plaintiff testified that he saw three specialists with regard to his
injuries. He saw Dr. Robinson and Dr. Salvian at the request of his lawyer. He
also saw Dr. Dost at the request of the third party.
[23]
The plaintiff testified that his appointments with Dr. Robinson and Dr.
Salvian lasted two hours or more but that he only spent 14 minutes and 38
seconds with Dr. Dost.
[24]
On cross-examination the plaintiff agreed that when he was initially
being treated by the massage therapist and his doctor he did not mention to
them that he had any difficulty with his fingers tingling. He agreed that he
could not say when the tingling in his fingers came on other than to say that
it happened sometime shortly after the accident.
[25]
On cross-examination the plaintiff agreed that he has never returned to
the gym despite the fact that on May 31, 2011 the plaintiff apparently told
Erica Lynds, his massage therapist, that he would be returning to full gym
workouts.
[26]
The plaintiff agreed that his last attendance at the massage therapist
was June 24, 2011.
[27]
When asked on cross-examination whether or not he played a full round of
golf when he was employed at Douglas Lake Equipment in October 2011, the
plaintiff denied that he had. He said they were at a teambuilding function with
the company and that they were drinking whiskey so he may not have looked like
he was in pain when he first started playing golf; however, he did not finish
the round. He also said that the establishment where they were playing golf
went into receivership and they had to quit halfway through the round.
[28]
On cross-examination it was put to the plaintiff that his appointment
with Dr. Dost took 40 minutes. He disagreed with that.
[29]
The plaintiff agreed on cross-examination that he did not inform Gary
Frelick, who was his boss at Douglas Lake Equipment, that he had been in a
motor vehicle accident or that he was having difficulties at work as a result
of that accident.
Dr. Mark Walker
[30]
Dr. Mark Walker was the plaintiffs family physician. He testified that
the plaintiff first attended at his office and saw Dr. Van Dyke on April 1,
2011. He was complaining of left side neck pain as well as headaches and he was
referred to massage therapy.
[31]
On cross-examination he agreed that the plaintiff did not tell him about
numbness or tingling in his fingers and that this would have been something he
would have noted in his clinical records. He also agreed that there was no
mention of shoulder pain by the plaintiff.
Dan OBrien
[32]
Dan O’Brien is a businessman from Prince George who has known the
plaintiff for approximately 10 years. He started a heavy equipment used parts
business in which the plan was for the plaintiff to become a 50% partner once
the company was up and running. Mr. O’Brien had the infrastructure and finances
to start this business.
[33]
He testified that Colin Anderson was hired at a rate of pay of $25 per
hour for 40 hours per week. He also testified that they did not need Colin
Andersons technical skills but rather they only needed a receptionist whom
they could pay $12 an hour. He hired Mr. Anderson because the plaintiff could
not do the physical parts of his job.
Colin Anderson
[34]
Colin Anderson is a licensed mechanic. He testified that he puts lift
kits in vehicles, cleans equipment and services the equipment at OBrien
Equipment.
[35]
He also testified that he knew the plaintiff had problems with his left
arm and had headaches.
Grant Erickson
[36]
Grant Erickson has been a friend of the plaintiff for 20 years. He also
worked with the plaintiff at Douglas Lake Equipment.
[37]
He testified that after the accident the plaintiff was at the job consistently
though he did miss some time for appointments. He was unable to say whether
there had been a change in the plaintiff’s attendance at social functions.
[38]
He said that he did not believe that he had golfed with the plaintiff
since the accident.
Dr. Anthony Salvian
[39]
Dr. Anthony Salvian is a vascular surgeon. Dr. Salvian gave his evidence
by way of a video deposition on May 10, 2013.
[40]
In his medical legal report, dated November 20, 2012, Dr. Salvian opines
at page 21 to the following:
Based on these facts and assumptions
of fact then, it is my opinion that Mr. Rutledges complaints of numbness,
tingling and paresthesias radiating down the arm and into the fourth and fifth
fingers of the hand is due to post traumatic thoracic outlet syndrome and
brachial plexus irritation of the C8 and T1 nerve root by the soft tissues of
the neck, particularly the scalene muscles.
[41]
During his video deposition of May 10, 2013, Dr. Salvian was asked
whether he was concerned that the plaintiff did not complain to any of his
treating medical personnel about numbness or tingling in his fingers. On page
36, lines 20 to 33, Dr. Salvian said the following:
I don’t see the connection between those two statements. It
did concern me that when I read when I read through the records, that he had
not complained of this to the paramedical people, particularly the massage
therapist, who noted that he had scalene muscle pain and scalene muscle
tenderness, and he had complained of that, and I was curious as to why, and I
was it was my understanding that he hadn’t felt that it was a major
problem. That was my understanding of why he hadnt complained about it.
But I don’t see why I would
think, then, that his thoracic outlet syndrome was due to something else.
[42]
Finally Dr. Salvian, at page 37, lines 4 to 9 stated the following:
If one accepts that Mr. Rutledge
had these symptoms of numbness, tingling and paresthesias in the arm and they
occurred shortly after the motor vehicle accident as described, which I do,
then the findings are entirely consistent with post traumatic thoracic outlet
syndrome.
Dr. Gordon Robinson
[43]
Dr. Gordon Robinson is a neurologist with a specialty in headache
disorders. Dr. Robinson, in his report of October 19, 2012, opines that the
plaintiffs history and examination is consistent with a diagnosis of chronic
post-traumatic headache related to neck injury.
[44]
Dr. Robinson further opined to the following:
I believe that there will
continue to be improvement over the next 3 – 5 years. During this time it will
be safe for him to continue using Botox, which will probably continue to be
effective in reducing his discomfort. It is possible that he will have a
lingering headache and neck pain for many years to come, although probably at a
lower frequency and severity.
[45]
Dr. Robinson testified that when he wrote in his report that there are
no symptoms of paresthesia, pain or weakness in his arms or hands he was
likely in error. He has no notes as to whether or not he ever asked the
plaintiff if he had those symptoms.
Erica Lynds
[46]
Erica Lynds is a registered massage therapist. She treated the plaintiff
from March 25, 2011 through to June 24, 2011.
[47]
She did not remember asking the plaintiff if he had numbness in his
hands during the time that she was treating him though she did say that she
would normally ask that question 50% of the time.
[48]
She testified that on May 31, 2011 the plaintiff told her that he was
going to resume his gym program and she cautioned him about lifting too heavy
of weights. She also had conversations with the plaintiff about him playing
golf and she told him that the mechanism of the golf swing may mimic his
injury.
[49]
On cross-examination she testified that the treatment was terminated
most likely because the plaintiff felt he was feeling better and he may have
plateaued.
[50]
That concludes the viva voce evidence called by the plaintiff. In
addition the plaintiff produced documents which were marked as Exhibit 3 in
these proceedings. These documents included the plaintiffs income tax assessment
for the years 2007 to 2011. The plaintiff also produced documents which have
been marked as Exhibit 4. These documents relate to the special damages claimed
by the plaintiff.
EVIDENCE ON BEHALF OF THE THIRD PARTY
Dr. Rehan Dost
[51]
Dr. Rehan Dost, a neurologist, was called as an expert witness. Dr. Dost
opined in his medicolegal report, dated March 19, 2013 to the following:
The plaintiffs headaches would
be best classified as chronic headache associated with whiplash. I concur with
the opinions expressed by Dr. Robinson in his medicolegal report.
[52]
Dr. Dost did not agree with the opinion of Dr. Salvian that the
plaintiff was suffering from thoracic outlet syndrome. Dr. Dost opined that the
plaintiff most likely had an ulnar entrapment of the elbow.
[53]
Dr. Dost testified in great detail as to the physical examination he
conducts on his patients and would have conducted on the plaintiff. He testified
that his examination would have taken approximately 45 minutes. He did not
agree with the suggestion from the plaintiff’s counsel that the examination
only took 14 minutes and 38 seconds.
[54]
Dr. Dost opined that if there were not any symptoms of thoracic outlet
syndrome within one month of the accident then the accident could not have
caused the problem. He did concede that symptoms such as numbness in the
fingers could develop over a one to three week period.
Gary Frelick
[55]
Gary Frelick became the president of Douglas Lake Equipment on October
26, 2009.
[56]
He testified that he was the direct supervisor to the plaintiff. He said
that the plaintiff never advised him that he was in a motor vehicle accident or
that he was having any medical difficulties that affected his work until
November of 2012 when the plaintiff resigned.
[57]
Mr. Frelick testified that when he asked the plaintiff why he did not
tell him about the accident, the plaintiff said that he did not think it was
that important. Mr. Frelick testified that it was a company policy for
employees to advise the company if they were involved in any accidents.
[58]
He testified that in July of 2011 he played golf at the Quesnel Golf Course
with the plaintiff and some other people. He testified that he had dinner with
the plaintiffs wife during that occasion. He does not remember the plaintiff
complaining about pain at that time.
[59]
He also testified that there was a company retreat in October of 2011 at
the Falls Resort in Chilliwack which the plaintiff attended and played golf. He
acknowledged that the golf course went into receivership but he said he was
able to play 18 holes.
[60]
That was the evidence for the Third Party.
LIABILITY
[61]
The third party has not contested liability in this trial. The defendant
Vivian Jimmie did not participate in this trial.
[62]
Based on the plaintiffs evidence that he was parked at the time that
the defendants vehicle struck his vehicle, I find that the defendant is 100%
liable for this accident.
CREDIBILITY
[63]
The plaintiff correctly states that this case rises or falls with an
evaluation of his own credibility. The plaintiff also concedes that the
evidence shows that he, at times, had an imperfect memory.
[64]
The plaintiff argues that Dr. Robinson made an erroneous note in his
medicolegal report when discussing the plaintiffs lack of shoulder pain and
paresthesia.
[65]
The plaintiff argues that the fact that he golfed three or four rounds
since the accident is not significant.
[66]
The plaintiff also argues that while his memory with regard to specific
visits with Dr. Walker or Erica Lynds is imperfect, there is no malingering or
exaggeration. There is evidence that the plaintiff deliberately did not
complain to certain people such as his former boss, Mr. Frelick, about his
injuries.
[67]
The plaintiff also argues that concerning the discrepancy between his
evidence and that of Dr. Dost with regard to the length of their meeting, the plaintiffs
evidence should be preferred because Dr. Dost does not have a specific
recollection of his meeting with the plaintiff.
[68]
Finally, the plaintiff argues that witnesses such as Mr. Anderson and
Mr. O’Brien were aware of his limitations and that corroborates his evidence.
[69]
The third party argues that the plaintiff has exaggerated the frequency
and severity of his injuries and symptoms as well as the effects on his ability
to function.
[70]
The third party argues that the court should be careful when there is no
objective evidence of continuing injury. The third party points to the fact
that the plaintiff had a generalized inability to recall events and was
inaccurate in his account of events.
[71]
The third party argues that, between his direct examination and cross-examination,
the plaintiff contradicted himself with respect to his ability to perform
household chores following the accident.
[72]
The third party further attacks the plaintiffs credibility as it says
that the plaintiff testified that he was not able to do chores during the
summer of 2011, but Erica Lynds May 11, 2011 records suggests that he was in
fact doing yard work.
[73]
The third party points to the fact that the plaintiff, when filling out
a questionnaire for Dr. Dost, could not point to any activity of any kind that
he was no longer able to complete.
[74]
The third party also argues that the plaintiff was not candid about
playing golf after the accident. The third party points to the plaintiffs
evidence that he had not completed 18 holes of golf since the accident which is
in direct conflict to Mr. Frelicks evidence. Mr. Frelick testified that in
June of 2011 he played a full round of golf along with the plaintiff and two
others.
[75]
Also, there is evidence that the plaintiff attended a Douglas Lake
Equipment retreat in October of 2011 and he played a round of golf at that
time. The plaintiff denies this.
[76]
The third party also argues that there are two dramatically different
versions of events surrounding the conduct and length of the September 10, 2012
examination of the plaintiff by Dr. Dost. In particular, the plaintiff suggests
that the examination only took approximately 14 minutes while Dr. Dost says it
likely took over 45 minutes.
[77]
The third party also argues that the credibility of the plaintiff is
suspect because he gave contradictory evidence with regard to having to leave
work early due of headaches, the plaintiffs lack of reporting to the medical
experts as to numbness and tingling in his hand and the lack of reporting
regarding neck or shoulder pain.
[78]
The third party also argues that the plaintiffs credibility is suspect
because of the plaintiff’s reporting on the frequency and severity of the
headaches. In particular, the third party points to the fact that the plaintiff,
on direct examination and when reporting to Dr. Robinson, said that he had
constant and severe headaches up until the point that he received his Botox
treatments. The third party contrasts this to the clinical records of Dr.
Walker and Erika Lynds which report intermittent headaches of decreasing
severity after the accident.
[79]
In reply to the third partys arguments relating to the household chores,
the plaintiff makes the point that the comments made by Erica Lynds and the
questionnaire filled out by the plaintiff for Dr. Dost are not inconsistent
when taking into account that the plaintiff had received Botox treatment prior
to filling out the questionnaire.
[80]
In reply to the third partys arguments relating to golf, the plaintiff observes
that the third party did not call evidence from such people as the manager of
the Quesnel Golf Club, the plaintiff’s regular golfing friends or anyone else who
was apparently golfing with the plaintiff and Mr. Frelick.
[81]
In reply to the third partys arguments relating to leaving work early, the
plaintiff points to the different symptoms he had before and after the Botox
treatments.
[82]
The plaintiff further argues that if the third party is saying that the
plaintiff is fabricating the evidence with regard to the lack of reporting as
to the numbness and tingling in his hands, then the third party should have
confronted him directly on this point, which it did not.
[83]
The plaintiff argues that there is objective evidence of neck pain since
Ms. Lynds found neck spasms. Also, with regard to the third partys contention
that there was a lack of reporting of shoulder pain, again the plaintiff points
to the clinical records of Ms. Lynds which indicate that between March 25 and
June 24, 2011, there are notations regarding the shoulder.
[84]
In the decision of Bradshaw v. Stenner, 2010 BCSC 1398, affd
2012 BCCA 296, Madam Justice Dillon summarizes the approach to be taken in
assessing credibility at para. 186 as follows:
[186] Credibility involves an
assessment of the trustworthiness of a witness testimony based upon the
veracity or sincerity of a witness and the accuracy of the evidence that the
witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452,
50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various
factors such as the ability and opportunity to observe events, the firmness of
his memory, the ability to resist the influence of interest to modify his
recollection, whether the witness evidence harmonizes with independent evidence
that has been accepted, whether the witness changes his testimony during direct
and cross-examination, whether the witness testimony seems unreasonable,
impossible, or unlikely, whether a witness has a motive to lie, and the
demeanor of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202
(Ont.H.C.); Farnya v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.) [Farnya];
R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para. 128 (S.C.C.)). Ultimately,
the validity of the evidence depends on whether the evidence is consistent with
the probabilities affecting the case as a whole and shown to be in existence at
the time (Farnya at para. 356).
[85]
In my view the plaintiff was forthright in his evidence. In assessing
the plaintiffs credibility it must be taken into account that his evidence
spans over two years of living with his injuries. I agree that the plaintiffs
memory in some areas is not perfect. However, I do not agree with the third
partys contention that the plaintiff was deliberately trying to mislead the
court or bolster his claim. There is clear evidence that the plaintiff was suffering
after the accident from pain and headaches. There is also evidence that the
plaintiff is a stoic person who may not have complained about every ache to the
variety of medical practitioners that he dealt with.
[86]
The plaintiff was candid in saying that if he does not overexert himself
then his headaches are not severe. The plaintiff was also candid in saying that
he has participated in golf though he may be mistaken as to the number of times
he played.
[87]
I accept the plaintiffs argument that some of the comments he made to
his medical practitioners in relation to his ability to perform certain activities
would have been influenced by whether or not he had received his Botox
treatment.
[88]
In my view, Mr. Frelicks evidence has limited value because it is not
clear that he actually golfed at the same time with the plaintiff in the fall
of 2011 at the Falls Resort. Also, he was mistaken about having dinner with the
plaintiffs wife when they golfed in July of 2011. It is not clear to me
whether or not Mr. Frelick made any specific observations regarding the pain
experienced by the plaintiff or how many holes of golf the plaintiff played on
that occasion.
[89]
I accept the plaintiffs evidence that he has had continuing headaches
since the motor vehicle accident and that these headaches have decreased significantly
since his Botox treatments. I also accept that he had some pain in his neck and
shoulder as a result of the motor vehicle accident and he has had to modify his
daily activities so as not to bring on a headache.
[90]
However, based on the plaintiffs evidence, I cannot conclude when the
numbness and tingling in his fingers began. The plaintiffs evidence in that
regard is far too vague to make any assessment as to when that may have
occurred.
[91]
With regard to the discrepancy regarding the duration of the plaintiffs
visit with Dr. Dost, I accept that the assessment likely took 45 minutes. I say
this because Dr. Dost gave a very detailed description of the procedures he
performed on the plaintiff and, in my view, those could not have been done in
the time the plaintiff says. Having said that I also take into account that the
plaintiff was clearly frustrated at having to wait for Dr. Dost prior to the
examination and is likely just mistaken in terms of his evidence as to how long
the assessment took. I do not accept that the plaintiff was deliberately trying
to mislead the court in that regard.
NON- PECUNIARY DAMAGES
[92]
The plaintiff argues that this is a case of severe chronic headaches
with thoracic outlet syndrome. In that regard he suggests that damages in the
range of $80,000 to $100,000 are appropriate. If however the court finds the
thoracic outlet syndrome has not been made out then the plaintiff says that the
damage award should be $70,000 to $80,000.
[93]
The plaintiff relies on the following cases with regard to the
non-pecuniary damages: Gilliam v. Wiebe, 2013 BCSC 565; Murphy v. Obrien,
2013 BCSC 339; Combs v. Bergen, 2013 BCSC 321; Smith v. Moshrefzadeh,
2012 BCSC 1458; Noon v. Lawlor, 2012 BCSC 545; Yeung v. Dowbiggin,
2012 BCSC 206; Olson v. Ironside, 2012 BCSC 546; Fell v. Morton,
2012 BCSC 428; Singh v. Clay, 2011 BCSC 1172; Carr v. Simpson,
2010 BCSC 1511; Cimino v. Kwit, 2009 BCSC 912; and Durand v. Bolt,
2007 BCSC 480.
[94]
The plaintiff argues that his lifestyle has been profoundly affected by
the accident. He went from a very physical lifestyle to a very sedentary
lifestyle.
[95]
The third party argues that the most likely cause for the numbness in
the plaintiffs hands is an ulnar entrapment of the elbow and not thoracic
outlet syndrome. The third party argues that there is no evidence of an injury
to the plaintiffs elbow which would link the ulnar entrapment to the motor
vehicle accident. In any event it says the symptoms of numbness and tingling
are very minor.
[96]
The third party also argues that the cases relied on by the plaintiff
concern more serious injuries than those sustained by the plaintiff.
[97]
The third party argues that an appropriate award for non-pecuniary
damages would be $35,000 to $45,000. The third party further argues that if it
is determined that the plaintiff has thoracic outlet syndrome then an
appropriate award would be $45,000 to $55,000.
[98]
The third party relies on the following cases with regard to the
non-pecuniary damages: Burton v. Insurance Corporation of British Columbia,
2011 BCSC 653; Sooch v. Snell, 2012 BCSC 696; Hammond v. Meeker,
2012 BCSC 198; Abdalle v. British Columbia (Public Safety and Solicitor
General), 2012 BCSC 128; Naidu v. Mann, 2007 BCSC 1313; and Harris
v. Zabaras, 2010 BCSC 97.
[99]
In making a diagnosis of thoracic outlet syndrome, Dr. Salvian accepted
that the numbness and tingling in the plaintiffs arm occurred shortly after
the accident. This is obviously an important factor in the making of that
diagnosis. However, on the evidence before me it is not clear that the numbness
and tingling occurred shortly after the accident or even when it occurred at
all. For this reason, the plaintiff has failed to prove that he is suffering
from thoracic outlet syndrome which was caused by the motor vehicle accident.
[100] The
plaintiff, based on the preponderance of evidence, has clearly established that
the motor vehicle accident caused him to have chronic post- traumatic headaches
related to a neck injury.
[101] This
injury has caused significant changes to his lifestyle, particularly to his
passion for powerlifting. He has also had to modify his lifestyle with regard
to recreational activities, activities at home and some of his activities at
work. I am mindful that the plaintiff did not miss any employment as a result
of this accident; however, I also accept that he is a stoic individual and
persevered in his employment.
[102]
The parties have each relied on the decision of Stapley v. Hejslet,
2006 BCCA 34, leave to appeal to SCC refused, [2006] S.C.C.A. No. 100, where the
Court of Appeal discusses the factors to be considered when assessing non-pecuniary
damages:
[46] The inexhaustive list of common factors cited in Boyd
[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 plaintiffs stoicism (as a
factor that should not, generally speaking, penalize the plaintiff: Giang v.
Clayton, [2005] B.C.J. No.163 (QL), 2005 BCCA 54).
[103] Dr.
Robinson opined that despite the success of the Botox treatment, the
plaintiffs headaches may continue to linger for many years to come although at
a lower frequency and severity than the plaintiff is experiencing now.
[104] The
majority of the cases relied on by the plaintiff have fact patterns which are
far more serious than the case at bar. Likewise, the cases relied on by the third
party do not appropriately address the significant lifestyle changes and pain
suffered by the plaintiff.
[105] In my view
the appropriate award for non-pecuniary damages is $55,000.
FAILURE TO MITIGATE
[106] The third
party argues that the plaintiff has failed to mitigate his damages. In
particular the third party argues that the massage therapist records of Erica
Lynds suggest that her treatment was beneficial in reducing the plaintiffs
headaches.
[107] The plaintiff
argues that while there was an improvement in his symptoms from the massage
therapy there is clear evidence on a review of the clinical records that his
symptoms had, in fact, plateaued.
[108] The third
party relies on the Supreme Court of Canada decision of Janiak v. Ippolito,
[1985] 1 S.C.R. 146. As I understand that decision the question to be
considered is whether or not the plaintiff has acted reasonably in refusing to
accept recommended medical treatment.
[109] The
evidence, in my view, establishes that the benefits that the plaintiff derived
from the massage therapy had plateaued. I have no expert evidence to suggest
one way or another what the gravity of the consequences was for stopping the
massage therapy. In any event, I accept the plaintiffs evidence that he felt
the massage therapy had plateaued and he certainly pursued other treatment
modalities, in particular the Botox treatment.
[110] The third
party has failed to establish that the plaintiff failed to mitigate his
damages.
LOSS OF EMPLOYMENT CAPACITY
[111] The
plaintiff is not seeking damages for past wage loss. It is clear on the
evidence that he did not suffer any past wage loss.
[112] The
plaintiff argues that Dr. Robinson’s evidence that the plaintiff may have
lingering headaches and neck pain for many years to come triggers the loss of
capacity analysis.
[113] The
plaintiff argues that there is a real and substantial possibility of a future
event leading to an income loss: see Perren v. Lalari, 2010 BCCA 140.
[114] The
plaintiff argues that the factors as expressed in Kwei v. Boisclair (1991),
60 B.C.L.R. (2d) 393, [1991] B.C.J. No. 3344, have been met. The court in Kwei
looked to the judgment of Finch J. (as he then was) in Brown v. Golaiy [1985]
B.C.J. No. 31 for the factors. Those factors are set out in Kwei as
follows:
1. The plaintiff has been rendered less capable overall from
earning income from all types of employment;
2. The plaintiff is less marketable or attractive as an
employee to potential employers;
3. The plaintiff has lost the ability to take advantage of all
job opportunities which might otherwise have been open to him, had he not been
injured; and
4. The plaintiff is less
valuable to himself as a person capable of earning income in a competitive labour
market.
[115] The plaintiff
argues that he has a physical job but he cannot exert himself because of his
headaches. He further argues that he had income in the neighborhood of $120,000
per year and at the time of the trial he was 47 years old. The plaintiff argues
that if he retires in 20 years, even a 10% loss would amount to $180,000, based
on future earnings in the magnitude of $1.8 million.
[116] Secondly,
the plaintiff argues that because he is in business with Mr. O’Brien and they
had to hire Mr. Anderson at $25 an hour instead of a receptionist at $12 per
hour, this equates to a $200,000 loss in profit over the period of 20 years.
[117] I have
difficulties with these arguments because I do not have any information as to
what the plaintiffs present income is as a result of his change of employment (which
is not related to the motor vehicle accident). Secondly, I do not accept that
Mr. Anderson could be replaced by someone working for only $12 per hour. Mr.
Anderson is doing significant mechanical work for O’Brien Equipment which the
plaintiff is not qualified to do. Also, Mr. O’Brien made it clear in his
evidence that the plaintiff would be brought in as a partner once the business
was up and running. I have no evidence that this has happened yet and therefore
I have no evidence that the plaintiff is losing out on profits of the company.
[118] The third
party argues that the plaintiff has not established any form of impairment or
that there is a real and substantial possibility of a future event leading to
an income loss.
[119] The third
party also argues that the plaintiff did not testify about any limitations on
his ability to act as a manager or sell equipment while he was employed by
Douglas Lake Equipment. In my view, the plaintiff did testify to the
difficulties he had with traveling in the field which is required to sell heavy
equipment. He also testified regarding limitations to physical labour which is sometimes
required in his position at O’Brien Equipment.
[120] I am
satisfied on the evidence that the plaintiff has established a claim for loss
of future earning capacity. There is a real and substantial likelihood that the
plaintiff will have headaches in the future which will affect his employment.
Clearly, the plaintiff is not capable of performing the more physical tasks
associated with his employment and has lost the ability to take advantage of
all employment opportunities which he could have before the motor vehicle
accident. However, the potential for loss is not great, given that he has
considerable managerial skills and as such he is likely to be self-employed or
employed as a manager in the future.
[121] The
plaintiffs income for the years 2007 to 2011 is as follows:
2007 $121,661
2008 $112,304
2009 $115,121
2010 $108,984
2011 $118,759
[122] As I have
already stated I do not have any specific information as to the income earned
by the plaintiff since he started at O’Brien Equipment, nor do I have any
information as to what his potential income might be.
[123] Based on
the evidence available to me, an appropriate award for loss of employment capacity
would be $25,000.
COST OF FUTURE CARE
[124] The
plaintiff argues that the cost of future care is limited to the cost of the
Botox treatments which is $1600 per year. He further argues that there are many
contingencies to consider such as whether or not the plaintiffs family doctor
who has training and experience to administer the Botox injections may move or
retire which would increase the cost to the plaintiff.
[125] The
plaintiff seeks $15,000 under this head of damage.
[126] The third
party argues, given its concerns about the plaintiffs credibility and
reliability, that an award for the Botox treatment at the lower end of the time
frame suggested by Dr. Robinson should be awarded. The third party argues that
the appropriate time frame is three years.
[127] The
evidence that I have from Dr. Robinson is that these headaches may linger for
years to come. However, the plaintiff should see improvement over the next 3 to
5 years.
[128] In my view
an appropriate award under this head of damage would be to compensate the
plaintiff for the Botox treatments for 4 years which would be $6,400.
LOSS OF DOMESTIC CAPACITY
[129] The
plaintiff argues that an award for loss of domestic capacity in the amount of
$10,000 would be appropriate. The plaintiff points to the fact that he cannot
do certain household tasks.
[130]
The third party argues against any award under this head of damage. The
third party relies on the decision of Travis v. Kwon, 2009 BCSC 63 at
para. 114, where the court says the following:
Part of the housekeeping portion
of these claims arises out of the fact that the plaintiffs husband is not
terribly helpful in that regard. While the defendants cannot expect a family
member to take on an unreasonable burden created by injuries to another member
of the family, it is not reasonable to expect defendants to pay to have someone
perform services that can and should reasonably be taken on by members of the
family.
[131] The
plaintiff in the case at bar is not disabled from performing household tasks.
In addition, there is evidence that his wife did many of the household tasks in
any event.
[132] In my view
the plaintiff has not proven a loss of domestic capacity and I will not make an
award in that regard.
SPECIAL DAMAGES
[133] The
plaintiff as part of his case had marked as Exhibit 4 a booklet of receipts
relating to special damages. The plaintiff seeks $1,266 for special damages.
[134] I have no
argument from the third party against an award for special damages and I find
that the damages as presented by the plaintiff are reasonable.
[135] The
plaintiff will have special damages in the amount $1,266.
CONCLUSION
[136] I make the
following awards in favour of the plaintiff:
Non-pecuniary damages: $55,000
Future loss of earning capacity: $25,000
Cost of future care: $
6,400
Special damages: $
1,266
Total $87,666
COSTS
[137]
Unless the parties wish to address me with regard to the matter of
costs, the plaintiff will have his costs of this trial.
R.
S. Tindale, J.