IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140203

Docket: M112877

Registry:
Vancouver

Between:

Curtis Andrew
Hillman

Plaintiff

And

Michael Peter
Esaryk and Ian Robert Macpherson

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice McEwan

Reasons for Judgment

[1]            
The plaintiff was injured in a motor vehicle accident on July 4, 2009,
near Nanaimo, B.C. He was a passenger in a vehicle involved in an intersection
collision. The other driver, Michael Peter Esaryk, was responsible for the
accident. The third party has admitted liability. The claim against Ian Robert
Macpherson has been discontinued.

[2]            
The plaintiff suffered soft tissue injuries to his neck and lower back,
and headaches. He struck his left knee on the dashboard. At the time of the
accident, he was living with his parents where he was recovering from an
appendectomy. He had been off work for about three weeks when the accident
occurred.

[3]            
The plaintiff was working as a porter at a number of different hospitals
to put himself through flight school with the objective of becoming a pilot,
and ultimately achieving a career with a major airline.

[4]            
The plaintiff was able to resume work by August 15, 2009, about six
weeks after the accident. He was financing his education and living expenses
through these jobs. He was on a combined business degree/flight training
program through a course of study offered at the University of the Fraser
Valley in conjunction with Coastal Pacific Aviation. The training was expensive
and required those in the program to attain (and pay for) flight training
hours. Availability was sometimes limited, and weather could cause backlogs in
the hours required to meet course expectations. It was not unusual for students
to be somewhat behind and to make time up in the summers between school terms
when the weather was better.

[5]            
As a result of the accident, the plaintiff experienced pain in his neck
and back and headaches that were constant at first, but gradually improved with
physiotherapy. The records show some 44 physiotherapy sessions running from
July 17, 2009 to November 23, 2011. These symptoms have essentially
settled.

[6]            
The plaintiff’s most significant concern was with his knee. He reports
difficulty with exercise, getting in and out of planes, squatting, or putting
any stress on it. Work was a struggle, but he went back because he needed the
money. He went back to his course work in September of 2009 but felt unable to
fulfil the flying requirements. He resumed flying in September of 2010 but this
put him back a full year. He graduated in April 2012 instead of April 2011.

[7]            
The plaintiff eventually saw Dr. Kostamo, an orthopaedic surgeon because
of the pain in his knee. Dr. Kostamo performed arthoscopic surgery on the knee
in September 2011. He was off work for about a month, but with physiotherapy
there was significant improvement. By the time of trial, he had reached the
point where the knee was only occasionally bothering him. He is able to carry
out strenuous exercises like running 7-1/2 kilometres and snowboarding.

[8]            
In May of 2012 the plaintiff secured a position with Air North, working
the ramp. The court heard a considerable amount of evidence about the nature of
the aviation industry. Young pilots who graduate from the sort of programs the
plaintiff completed generally get work with tier 3 airlines, which tend to be
small regional carriers operating small aircraft. It often takes several months
to obtain a flying position, and young pilots put in time on the ramps or in
the dispatch office until their turns come up. It sometimes happens that an
opportunity is available at a tier 2 airline that operates turbo props or jets.
The plaintiff’s Air North opportunity is with such an airline. It may take
longer to obtain flying positions but the experience at such airlines is
better. Students at flying schools graduate with something like 250 hours
typically. The major airlines tend not to hire pilots with fewer than 1500
hours, so the objective is to get on with an airline where it will be possible
to build up time and to build up time on the most sophisticated airplanes
possible. The industry tends to be somewhat cyclical, with periods where the
airlines are hiring in good numbers and periods where they take very few.

[9]            
Several young pilots who were in the class of 2011 testified as to their
luck in obtaining employment and flying time. The plaintiff’s case is partly
that 2011 was a better year than 2012, and that, apart from losing a year due
to his injuries, he missed a better year for hires.

[10]        
A predictable feature of this system given the level of competition and
the need to build up hours is that young pilots tend to be poorly paid and
$15,000-$18,000 per year is normal.

[11]        
Dr. Kostamo’s report includes the following description of the
plaintiff’s condition:

At the time of my initial assessment of Mr. Hillman on April
13, 2011, he gave the following history. He was a 21-year-old gentleman, who
came to see me regarding his left knee. He was involved in a motor vehicle
accident when he was a passenger in a Nissan that was coming through an
intersection. Apparently someone came through a stop sign and struck them on
the passenger’s side. His knee went into the dashboard with a fair amount of
force. He also had some pain with his neck and some associated whiplash pain in
the back. Following that he developed pain in the knee with pain over the
anteromedial aspect of the knee as well as a sense of painful catching and
popping. Despite going through fairly extensive physiotherapy and the passage
of time, he continued to have these symptoms. He did not have any symptoms of
buckling or instability.

He was otherwise in good health. He had had a previous
appendectomy. He was taking no medications and had no known drug allergies. He
is a student in Business Aviation working toward his commercial pilot’s
license. He does not smoke and drinks minimally.

At the time of my initial examination, he stood 6’3" and
weighed 130 lbs. He walked with a normal gait and stood with normal alignment.
He was able to do most of a squat without any significant crepitus. He did have
pain with squatting and demonstrated this pain in the anteromedial area of the
knee. He also had pain to palpation with a palpable plica in that area. The
joint line itself coming around posteriorly on the medial side was non-tender.
Lateral and patellofemoral joints were asymptomatic. There was normal patellar
tracking and motion. There was no effusion. McMurray’s testing was negative.
Ligaments were all intact and stable. Range of motion was 0 to 140 degrees,
symmetric to the other side. Quadriceps bulk was symmetric and adequate. Hip
and ankle screening and neurovascular examination was normal.

I reviewed the result as well as the images of the MRI. These
showed edema in the medial femoral condyle consistent with bony bruising. He
also has an area of increased signal within the medial meniscus although there
was no clear tear, as this signal did not surface through the meniscus.

At the time of my initial assessment I felt that he could
possibly have a symptomatic plica or possibly a meniscal tear that was not seen
clearly on the MRI. Because of his persistent symptoms we discussed
arthroscopy, and after going over the risks and benefits of that he decided to
proceed with arthroscopy. Subsequent to that he underwent arthroscopic
treatment of the left knee on September 2, 2011. At the time of surgery there
was a fibrotic appearing medial plica that appeared to be rubbing on the medial
femoral condyle going from flexion into extension. We were able to observe this
dynamically. There was also a suprapatellar plica that was fairly large. Both
these plicae were removed with the shaver. The medial meniscus showed a slight
area of possible damage with a change in color but there was no tear. This was
carefully probed anteriorly, posteriorly, superiorly and interiorly and we did
not find any area of tear in the medial meniscus itself. Cartilage surfaces and
the remainder of the joint were normal.

I then subsequently saw him two
weeks following arthroscopy and removal of the medial plica on September 15,
2011. There was still some bruising around the knee but the portals were
healing well with minimal swelling. He had a range of motion of 10 to 110
degrees. He started physiotherapy at that time. I then assessed him on November
16, 2011, about two and a half months following the knee arthroscopy. At that
time he felt overall the knee felt improved compared to prior to the surgery.
He still had a mild sense of medial tightness in deep flexion with the knee
completely flexed up. He felt an occasional medial twinge during rotational
movements with the knee. At that time he had full range of motion, no effusion
and no residual areas of tenderness medially with good stability of the knee. I
did not see him in further follow-up after that.

[12]        
He summarized the plaintiff’s condition following the surgery as
follows:

…

3.      I think overall prognosis for normal knee function is
excellent as he responded well to the surgical treatment required. As he did
show slight damage to the medial meniscus, there is a chance that he may have
mild residual medial pain intermittently. As he did have bone bruising on the
MRI, there is a slightly higher risk of associated arthritis given that knee
injury down the line, although whether or not that will be an issue is unknown.

4.      In terms of whether Mr. Hillman is disabled from
forms of recreational activities that were habitual for him prior to the accident
or planned recreational activities in the future, I think that as he recovered
well from surgery that he should have no particular restrictions in this
regard. Certainly in the interim from the date of his accident of July 4, 2009
until his recovery from surgery, he was restricted in terms of impact
activities and any activities involving twisting or pivoting and he was unable
to carry those through at that time.

5.      In terms of whether Mr. Hillman is currently disabled
from any forms of employment or future employment during the time of his
post-accident and pre-recovery, he was unable to carry out certain higher
impact activities. However, as he has recovered well, I do not anticipate any
current or future vocational restrictions. I do not have the details of how
much time he required off of work or off of school following the accident, but
certainly any time that he required would be deemed as appropriate given the
nature of the injuries he sustained.

6.      In terms of whether Mr. Hillman’s ability to care and
look after himself has been reduced at all in terms of personal activities of
daily living, I do not think that he has any current or future restrictions in
this regard.

In summary, Mr. Curtis Hillman
was involved in a motor vehicle accident on July 4, 2009 resulting in
whiplash-related injuries with problems with pain in the neck and back. He also
struck his left knee and had mechanical symptoms of catching-type pain and
popping. He also had some original pain and swelling related to bony bruising over
the medial femoral condyle. Final diagnosis as well involves fibrotic medial
plicae of the knee that required operative treatment. He recovered well
postoperatively and in terms of the knee has a very good prognosis of normal
long-term function. He did, however, require extensive physiotherapy prior to
surgery as well as operative intervention and therapy following the surgery and
a time of partial disability over a year and a half.

[13]        
The plaintiff was seen by Dr. Jordan Leith, an orthopaedic surgeon, for
an independent medical assessment on August 13, 2012. His opinion was as
follows:

Opinion: Based on this evaluation and review of the
documents provided, Mr. Hillman sustained whiplash-type injuries to his neck
and back, which have fully recovered. He also most likely sustained a contusion
to his left knee as a result of striking the knee on the dash of the vehicle. This
direct blow to the left knee more likely than not affected the soft tissues of
the medial parapatellar region and likely the patellofemoral joint.

Mr. Hillman has made a full recovery for the most part from
all of his symptoms and, as a result, there is no indication that he will
require further surgery or develop any long-term degenerative sequelae as a
result of this accident. His prognosis is excellent.

All of the injuries/symptoms were due to the subject
accident. All are clearly soft tissue related and no structural or physical
injury actually occurred to the areas involved. The direct blow to the left
knee possibly inflamed the medial soft tissue of the knee or a plica that
pre-existed the accident. Without the surgery the knee symptoms likely would
have recovered with time.

The fact that Mr. Hillman had surgery is not the direct
result of the subject accident. It should be understood that the decision to
proceed to surgery was not based on any traumatic damage to the knee indicating
that there was a surgical solution to the symptoms. The MRI of the knee was
normal other [than] describing some bone edema to the medial femoral condyle
(increased signal within the bone) and some intrasubstance posterior horn
medial meniscus signal changes. The location of these reported findings did not
correlate with the location of Mr. Hillman’s symptoms to the left knee, which
were well described during this evaluation. Therefore the MRI reported findings
were incidental in nature.

The decision to proceed to surgery was based on the failure
of time for the symptoms to settle and the failure of all non-surgical
treatments up to that point. One should not confound this decision to proceed
to surgery as an explanation that the subject accident caused damage to the
structure of the knee.

The operative findings were negative with respect to the
medial meniscus and one cannot visualize a bone bruise arthroscopically. The
knee was normal at arthroscopy except for the finding of a medial plica. A
medial plica is a normal structure of the knee and not caused by any trauma.
This finding again was incidental but it was treated with removal as it was
felt to be a source of Mr. Hillman’s symptoms. The location of the plica and
Mr. Hillman’s actual pain also do not correlate but his symptoms have for the
most part settled.

In summary, Mr. Hillman sustained
some minor soft tissue symptoms following the subject accident. He has
recovered and has returned to all activities. He should not have any problems
in the future that would be attributable to the subject accident. He will not
require any surgery as a result of the subject accident. He will do very well.

[14]        
Both doctors testified. Although Dr. Leith did not see a reason for the
surgery he did acknowledge a placebo effect in some cases and accepted that the
plaintiff’s pain seems to have abated after Dr. Kostano’s intervention.

[15]        
Dr. Lisa Caillier, a physiatrist, made the following observations in her
report:

Prognosis: Given the chronicity of his pain, the
likelihood of Mr. Hillman becoming pain-free is poor. He is likely to have
intermittent knee pain now and beyond the next 12 months.

I will defer to my colleagues in Orthopedic Surgery to
discuss as to whether or not he will require further surgery in the future with
respect to the medial plica.

I will defer to my colleagues in orthopedic surgery to
discuss whether he is at risk of post-traumatic arthritis.

Recommendations: Long-term management of his pain will
involve a regular exercise program for the left knee which will include
ensuring that he maintains the strength of his left knee, particularly the
quadriceps muscles that are attached directly to the medial plica, as well as
to ensure that he maintains his hamstring flexibility. Lifelong access to a gym
or other exercise environment would be beneficial.

I am recommending Mr. Hillman have four sessions of
physiotherapy per year for the next two to three years, such that he can be
assessed and reviewed during times of symptomatic flares.

I am recommending that he have six to eight sessions with a
kinesiologist to increase the strength of the core, hips, pelvis and knee
regions to facilitate improved management of his pain with a lessening of pain
provocation with activity.

Limitations and Restrictions: It is my opinion that
Mr. Hillman is unlikely to be limited or restricted as a result of his
intermittent left knee pain.

He is capable of continuing forward and doing heavy jobs of
unloading and loading planes but should ensure he wears knee protection for
both knees; particularly when he is kneeling in the “pit” of the plane.

He is capable of pursuing his airline pilot career.

If he is involved in repetitive flexion and extension
activities of the knee, particularly squats, he should be cautious with this
and ensure that he is doing this with correct posture such that he is not
inadvertently loading the patellofemoral joint with incorrect posture.

He is capable of participating in his usual recreational
activities that he enjoyed prior to the accident but should be cautious of the
type of ground that he is running on as well as posture when loading the knee
joint.

He is capable of doing activities
around the home, both in and outside seasonal work. He is unlikely to require
household assistance.

[16]        
Dr. Caillier was also of the opinion that it was reasonable for the
plaintiff to suspend his flying training for a year due to his knee injury.

[17]        
The plaintiff submitted that the evidence supports inferences that he
was an accomplished student before he began flight training and that he was
clearly instructed to do well in his pilot training. He qualified as a glider
and private pilot by the time he was 17. He worked to fund his education and has
been working two jobs since hiring on at Air North. He also had a job in
wildlife control at the Vancouver airport.

[18]        
The defence cross examined the plaintiff on some of his hospital
employment records, which seemed to indicate that he sometimes avoided work and
was not always reliable. The plaintiff disputes these suggestions.

[19]        
I take limited account of this. I think the plaintiff has shown a degree
of diligence in his studies and his progress that suggests that he will be
reasonably competitive in the field he has chosen. I do not credit him with
extraordinary zeal or ambition but accept that he probably has what it takes to
succeed.

[20]        
I accept that the plaintiff was injured in the motor vehicle accident
and that he had soft tissue injuries that were symptomatic but not particularly
troubling for about two years. I accept that whether or not the surgery on his
knee was medically necessary, it appears to have marked a point where
the plaintiff was essentially recovered from anything more than pain that will
be occasionally nagging but not in any way disabling. I do not think the
evidence supports an inference that the knee will deteriorate in the future. I
do not think any allowance for future loss of income earning capacity is
warranted.

[21]        
The plaintiff has suggested non pecuniary damages in the range of
$40,000 – $60,000. The defendants suggest $30,000 – $40,000. I think an
appropriate award is $40,000 for pain and suffering and loss of enjoyment of
life.

[22]        
The plaintiff claims a past income loss for work he was unable to take
at the hospitals owing to his injuries, of $5,000. I accept that estimation as
reasonable.

[23]        
The plaintiff’s claim for future loss of income proceeds in a theory
that having finished flight school a year later than his peers as a result of
his injuries, he will always be behind and has suffered both a past (or
to-date) income loss, and future income losses. These come to actuarially
determined figures of $39,983 to date and $117,632 for future losses, in his
submission.

[24]        
The theory is essentially that the plaintiff will have lost one year as
his peers achieve each incremental increase, as they become co-pilots and pilots
on smaller aircraft and move on up to larger airlines and larger aircraft until
they are senior captains on the most prestigious aircraft. In its crudest terms
this would suggest that at age 60 the plaintiff would have had one year less of
earning the top salary available than other 2011 graduates.

[25]        
I do not think that is an appropriate approach. At the near end of an
airline career, it is evident that graduates work for almost sacrificial wages —
in many cases for less than they could earn in many other gainful occupation —
in order to have a chance at an airline position in due course. There are a
great many variables along the way, some of which may be due to a person’s own
interpersonal skills and some of which may be simply the luck of being at the
right place at the right time. I am satisfied that at some point a few years
hence the difference between graduating in 2011 and 2012 will be meaningless,
and that all that is really compensable is a near-term chance that the
plaintiff will not jump up as quickly to the $45,000 or $50,000 level of pilot
as he might otherwise. This is not at all a matter of calculation but of
assessment and I am satisfied that a modest global sum of $35,000 will
adequately compensate the plaintiff for past and future losses due to delayed
entry.

[26]        
I do not think the plaintiff’s knee problem warrants more than a nominal
award for future care. I allow $1,000 for pain medication or any occasional
therapy that may be required.

[27]        
I allow $911 for special damages.

[28]        
The plaintiff shall have his costs unless there is a need for further
submissions.

“McEwan J.”

_______________________________

The Honourable Mr. Justice McEwan