IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140213

Docket: M148954

Registry:
New Westminster

Between:

James Michael Hoy

Plaintiff

And

Melanie
Dawn Williams and Shawn Gregory Williams

Defendants

– and –

Docket:
M136079
Registry: New Westminster

Between:

James
Michael Hoy

Plaintiff

And

Christopher
Denis Einhorn and
Top Comfort Heating & Air Conditioning Ltd.

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice Kent

Reasons for Judgment

Table of Contents

Introduction. 3

The Plaintiff’s Testimony. 3

The Accidents and the Injuries. 6

Medical Witnesses. 9

Dr. Patrick Leung. 9

Dr. John Arthur 11

Dr. Reajn Dost 13

Dr. Douglas Connell 14

Dr. Russell O’connor 15

Lay Witnesses. 16

Paul Pakulak. 16

Mr. Steven Wright 18

Jennifer Hoy. 20

Steve Crump. 21

Dieter Kulhanek. 22

Causation and the Assessment of
Damages in a Negligence Case. 23

Findings as to Injury and Causation. 27

Non-Pecuniary General Damages. 30

Past Loss of Income and Special
Damages. 31

Loss of Earning Capacity. 32

Past Loss of Earning Capacity. 32

Loss of Future Earning Capacity. 35

Cost of Future Care. 40

Summary. 42

Introduction

[1]            
The plaintiff, a 36 year old firefighter from Port Coquitlam, was
involved in two motor vehicle accidents which occurred on November 13, 2009 and
September 7, 2012 respectively. On both occasions Mr. Hoy’s vehicle was lawfully
stopped on the roadway it was struck in the rear by the vehicles owned and
operated by the respective defendants in these two actions.

[2]            
In each case, liability for the accident is admitted by the defendants.
The issues for determination in the actions are the nature and extent of the
loss and injury sustained by the plaintiff as a result of the accidents, and
particularly the manner in which pre-accident injury incidents should be taken
into account. Both parties have asked me to assess damages on a global basis
without allocation to each accident.

[3]            
The major issue in dispute between the parties concerns the plaintiff’s
claim for loss of earning capacity. He has continued to work as a fulltime
firefighter since the accident, however, he stopped his “side job” as a
mortgage broker. The parties disagree respecting the quantum of any loss of
earning capacity to be assessed and the manner of assessment.

The Plaintiff’s Testimony

[4]            
I observed the plaintiff carefully while he was testifying both in
direct examination and cross-examination. He impressed me as a matter of fact,
plain spoken, and credible witness who did not exaggerate events or symptoms.

[5]            
The plaintiff was born June 7, 1977 and is currently 36 years old. He
has lived in Port Coquitlam since grade 6, having moved from Ontario. He
married his wife, Jennifer, in 2008 and they have two young daughters, Charlie
born in 2009 and who is currently four-and-half years old, and Frankie who was
born in 2011 and is presently three years old.

[6]            
The plaintiff has a high school diploma. He worked at Earls restaurant
during the years 1997 to 2003 working his way up from being a line cook to
becoming manager of the restaurant. He left that employment because the working
lifestyle was not conducive to much of a family or personal life outside work.

[7]            
The plaintiff had always been interested in firefighting as a career. He
attended a three month program at the Justice Institute of BC in 2003 and
thereafter became a volunteer firefighter with the Maple Ridge fire department.
He was hired as a fulltime firefighter with the Port Coquitlam Fire Department
one year later in November 2004.

[8]            
The Port Coquitlam Fire Department comprises four “shifts” (16 members each)
and two fire halls. Like most departments, advancement is based upon seniority.
The first year is a probationary year, thereafter department members are ranked
and promoted according to their years of experience.

[9]            
Members of the fire department work two day shifts, followed by two
night shifts, and thereafter have four days off. Members can “trade” shifts.

[10]        
Because the working shifts are followed by four days off, many
firefighters hold side-jobs to make additional money and perhaps create a
business or a career that can be pursued following retirement from the
department.

[11]        
The Port Coquitlam Fire Department has a mandatory retirement age of 60
years. Members qualify for a full pension based on a formula involving their
age and years of service. In the plaintiff’s case, he stands to qualify for a full
pension in approximately 17 more years around age 53 or 54 years of age.

[12]        
The plaintiff’s income tax returns for the years 2007 to 2013 were put
into evidence. They reflect the following income as a firefighter in the
following years:

2007 – $65,000;

2008 – $72,000;

2009 – $78,000;

2010 – $77,000;

2011 – $83,000;

2012 – $82,000; and

2013 – $90,000 (approximated by
Plaintiff, ITR not yet prepared).

[13]        
It is apparent that the motor vehicle accidents have not yet impacted
the plaintiff’s earnings as a firefighter. He says he aspires to be a fire
chief one day and he intends to start the course work necessary for advancement
as soon as his seniority within the organization permits that to occur. He is,
however, very worried about the manner in which his injuries may affect his
future in the department. He says that while he can continue with the job for
the present he is “not hitting all standards” and to him it seems fairly
obvious that “in the future a decision has to be made” (about his ability to
continue as a firefighter).

[14]        
Working as a firefighter can involve strenuous physical activity. The “turnout
gear” weighs approximately 35-40lbs and some of the additional equipment used
can substantially increase that load. Such equipment includes ladders, hoses, hydraulic
tools, and the like. At present, there is no physical fitness testing of
firefighters in the Port Coquitlam Fire Department but the plaintiff says there
is a very high expectation respecting both effort and fitness on the job.

[15]        
Both of the Port Coquitlam fire halls are equipped with gyms. Fire
fighters are expected to work out in the gym every shift.

[16]        
In the early years, the plaintiff’s side-jobs involved working on
tugboats on the river, driving a concrete truck, and working for other fire
fighters’ businesses in the area of construction, landscaping, and the like.

[17]        
The plaintiff first met a mortgage broker when he and his wife were
mortgaging their town home. He found the career interesting and thought it
might be an excellent opportunity to build up his own business. He took the
requisite course at UBC’s Sauder School of Business and became licensed as a
mortgage broker in 2008. He then joined Dominion Lending (Mountain View), a
franchisee mortgage broker. He testified “I was in it for the long haul” as he
enjoyed the work very much and it complemented the fire department hours of
employment very well.

[18]        
 Working as a mortgage broker is essentially a form of self-employment
at Dominion Lending. “Sub-brokers” such as the plaintiff pay the franchise
owner certain fees for access to advertising and technical support but
thereafter success is very much dependent upon the sub-broker’s own drive and
abilities. There were 40 such brokers at Dominion Lending, the majority of whom
held other jobs, and almost all of whom (like the plaintiff) worked out of
their home.

[19]        
The plaintiff’s wife, Jennifer works for Canada Post for 6 to 7 years.
His wife took one year maternity leaves following the birth of each of the two
children. The plaintiff says that the changes in his circumstances (injuries
making it difficult for him to continue as a mortgage broker) “forced” Jennifer
to go back to work earlier than might otherwise have been the case.

The Accidents and the Injuries

[20]        
At the time of the first accident, the plaintiff was driving a 2003 Ford
F150 truck. He says his vehicle was struck in the rear with such force that his
truck was pushed forward five to six feet. He described it as a “solid impact”.

[21]        
The other vehicle was not driveable because of the resultant damage. No
emergency vehicles were summoned to the scene. The parties exchanged
information and went on their way after 15 to 20 minutes.

[22]        
The plaintiff initially carried on towards his gym but he started not
feeling well and decided to go home instead. He attended a walk in clinic later
that morning as he could not get an appointment with his family doctor.

[23]        
The second accident was very similar, although this time the plaintiff
was driving his 2007 Chevy Tahoe. His vehicle was struck in the rear. He
described the impact as a “solid thud” but it did not involve any skidding
forward and it was “nowhere near the severity of the 2009 accident”.

[24]        
Again, no emergency personal were called to the scene, information was
swopped between the drivers, and they went on their way after 15 to 20 minutes.

[25]        
As a result of the first accident, the plaintiff says he developed pain
in his neck, left shoulder, and left jaw as well as low back pain which started
to intensify within the first month and radiated down the buttock, thigh and
into the legs.

[26]        
The discomfort in the neck, shoulder and jaw along with the related
headaches resolved themselves within a relatively short period of time.
However, the lower back pain and the pain radiating into the legs continued to
persist through to the second accident on September 7, 2012 and they continue
to cause problems to this day.

[27]        
After the first accident, the plaintiff was off work for approximately a
month and thereafter returned on a light duty program (fire inspections and
office work). He returned to full duty by the end of January 2010,
two-and-a-half months after the accident. While the upper body symptomology had
generally resolved, the lower back/leg pain continued and the plaintiff has
simply continued to work full time as a firefighter notwithstanding the
discomfort.

[28]        
Before the accident the plaintiff was a very active individual. He
played hockey twice a week, went to the gym almost daily, frequently rode his
mountain bike (often to and from work as well), and if not working at his
side-job as a mortgage broker, was “always doing something”. Other recreational
activities included hunting and fishing as well as wakeboarding on an
occasional basis.

[29]        
Most of these activities have come to a halt. He no longer plays hockey
and rarely rides a bike. Wakeboarding and skiing is “not in the cards”. He
still hunts on occasion (road hunting) but there are limitations and he is
unable to do the backpack hunting in remote areas that he prefers. He can
neither stand nor sit very long as there is too much discomfort. He says “there
is almost no activity that doesn’t aggravate the problem”.

[30]        
All of this has affected the plaintiff’s mood. He sleeps poorly because
he cannot get comfortable. The painkiller prescriptions sometimes cause him to
“space out mentally”. He says he is “down” emotionally most of the time. It
“wears on me” and he has become moody and snappy, even with his young children.

[31]        
Two days before the second accident the plaintiff underwent a functional
capacity evaluation at the request of his counsel. It was a rigorous day that
caused a lot of discomfort in the lower back and left leg. The second accident
did not cause further injury to any other parts of the body but it did
aggravate the already sore lower back and leg.

[32]        
Following the second accident, the plaintiff was off work for
approximately one month and he has continued to work fulltime as a firefighter
since that time. He has followed the treatment modalities recommended by his
family doctor, including various sessions of physiotherapy from time to time
and has taken the pain killer medication prescribed.

[33]        
For the past year he has taken a painkiller, Oxycodone, on an almost
daily basis. The medication “takes the edge off the pain for a period of time
but nothing seems to relieve or improve the back condition”. Indeed, the
plaintiff believes the level of discomfort he is experiencing “slowly creeping
up each day”.

[34]        
Following the first accident, the plaintiff stopped his side-job as a
mortgage broker. He says he tried to return to that work but just couldn’t do
it. He was mentally worn down by the constant pain and fatigue and the attempts
at rehabilitation. His family and firefighting job came first and “the side-job
had to go”.

[35]        
With respect to the firefighting job the plaintiff says that while there
are some challenges posed by the back condition, he tries to work around them.
There are some tasks he cannot perform as ably as before the accidents. He is
careful how he lifts things. No supervisor has specifically expressed concern
about his abilities but the plaintiff believes they are aware of his
difficulties and that it is apparent in the way they choose to deploy him.

[36]        
A recent structure fire, three weeks ago, reinforced the work issues for
the plaintiff. He was pulling the two-and-a-half inch hose from the fire truck
and charging it with water to direct towards the fire. He says he simply
couldn’t do it as it was too painful. Eventually, he had to ask two other
firefighters to take over the task. The plaintiff is obviously worried about
the implications these limitations may have for his career as a firefighter.

[37]        
The plaintiff said he was generally very healthy before the accidents,
and certainly, he appears to have been very active. There were, however, a
couple of incidents involving injury to his back. In 2005 he hurt his back in a
hockey game and had to take a couple of days off work. In early 2009 he was
experiencing pain in his upper body and, at his wife’s insistence went to her
chiropractor who corrected a rib problem. In the Summer of 2009 he twisted his
back while in the crawl space under the stairs of his home and experienced
severe pain that lead him to attend Ridge Meadows Hospital the following day.
He says that condition resolved within a week or so.

[38]        
On cross-examination the plaintiff was confronted with some of the notes
maintained by his family doctor, Dr. Leung. There are a number of entries
in those notes reflecting right shoulder pain which had been experienced “on
and off for years”. The plaintiff acknowledged that this may have been the case
but denies he had any lower back pain condition of a sort similar to what he
has experienced since the accidents.

Medical Witnesses

Dr. Patrick Leung

[39]        
Dr. Leung specializes in family medicine. He has been the plaintiff’s
family doctor since March 1999.

[40]        
Dr. Leung has produced four medical-legal reports, the first of
which is dated August 18, 2010 and the most recent of which is dated October
10, 2013. No objection was taken to the tendering of these reports into evidence
nor as to Dr. Leung’s qualifications.

[41]        
Dr. Leung has seen the plaintiff as a patient on many occasions
both before and after the motor vehicle accidents.

[42]        
Dr. Leung is of the view that the plaintiff suffered
musculo-ligamentous strain of the neck as a result of the first accident that
resolved fairly quickly. However, he has also diagnosed “musculo-ligamentous
strain of the low back, with trauma to the L5/S1 disk, the latter causing a
different type of pain that would be more “discogenic” in nature”. With respect
to the etiology of the tear, he expresses the following opinion:

With respect to the tear in the
L5/S1 disk of his lower spine revealed by his two MRIs subsequent to the MVAs,
one could not be certain whether that was already present prior to the MVA even
though his lumbar spine x-ray was reported to be normal. Plain x-ray is not
sensitive enough to detect a tear in the disk. Even though Mr. Hoy had
suffered similar symptoms in the past, there is no denying that the MVAs have
converted them from an intermittent and brief, episodic nature to a constant
and chronic condition. This conversion is most probably caused by the MVAs.

[43]        
With respect to work capacity and prognosis, Dr. Leung opines as
follows:

It is my opinion that Mr. Hoy currently has the functional
ability to be employed in his current occupation as a firefighter. I do
however, have some reservations in two aspects.

1.     As Mr. Pakulak’s
functional assessment about a year ago as illustrated, Mr. Hoy was more
than capable in performing the heavy lifting and physical demands of a
firefighter. However, in a prolonged or repetitive situation, his performance
might deteriorate due to pain inhibition. His condition might have changed as
it has been a year since he was assessed but it would still be a concern.

2.     With the
presence of the tear in his L5/S1 disk, he would be an increased risk of
rupture of the disk, resulting in an impingement of his spinal nerves and
probably at least temporary but prolonged restriction in or preclusion of his
ability to work and even possibly permanent restriction or preclusion to work
as a firefighter.

As it is coming up to five years
since his first MVA and he still has ongoing constant symptoms related to his
MVA related injuries, his prognosis for a complete recovery is guarded.

As I would expect Mr. Hoy
would likely have repeated future exacerbations of his symptoms, he would
require treatment such as manipulative therapies (physiotherapy or chiropractic
therapy) and medications for pain and/or inflammation. He might benefit from
facet joint steroid injection or nerve blocks to help with his pain. In fact,
he has an upcoming appointment with Dr. Heran on April 10, 2014 for
consideration of such treatment. Of course, if his L5/S1 disk ever ruptures, he
would require surgical treatment as well.

As Mr. Hoy is at risk of such future deterioration in
his lower back, it would be advisable for him to consider re-training for a
less physically demanding career. Nevertheless he would still need to be
diligent to continue maintaining is overall physical fitness especially his
core muscle strength to protect his back.

[44]        
On cross-examination, Dr. Leung acknowledged he cannot say if the
July 2009 crawl space incident caused the tear later diagnosed by the MRI. He
said “he can’t rule it out”. He also acknowledged that, even without the car
accidents it would have been possible for the plaintiff’s low back problems to
continue from time to time especially if the plaintiff was doing a lot of
twisting and bending.

[45]        
Dr. Leung also confirmed that the plaintiff had suffered “chronic
rotator cuff tendonitis in his right shoulder”, on and off for years. He
confirmed that this condition may well flare up from time to time in the future
and that it was not caused by the accidents.

Dr. John Arthur

[46]        
Dr. Arthur is an orthopedic surgeon who has been in practice since
1980. At the request of counsel for the defendants he undertook an independent
medical examination of the plaintiff on June 5, 2013 and prepared a report
dated October 15, 2013. No objection was taken to Dr. Arthur’s
qualifications as an expert in orthopedic medicine nor to the admissibility of
the report.

[47]        
Dr. Arthur’s opinion is based upon the review of certain medical
documentation that he was provided as well as an interview and physical examination
of the plaintiff which took approximately one hour.

[48]        
Dr. Arthur review the MR scan report from the Royal Columbian
Hospital dated July 31, 2013 which described “very minimal degenerative change
at L5-S1 whether there is a small left central, left paracentral disc
protrusion, where there is mild bilateral foraminal narrowing”. He noted the
report made no comment on the nerve roots as to whether there is some
effacement or compression. It was his impression, a “soft finding” as he termed
it, was that Mr. Hoy had some nerve root irritation resulting from the
disc protrusion but that he would not be a candidate for surgical intervention.

[49]        
In his report, Dr. Arthur opined that Mr. Hoy’s prognosis is
guarded but in his testimony he suggested the plaintiff might benefit from a
nerve root block to “see if it works” to reduce or eliminate the pain
condition.

[50]        
The conclusion in the report is as follows:

It is clear that he had lower
back complaint following the motor vehicle accident and his leg complaints did not
start for several months later and, in my opinion, it is more likely than not
secondary to the degenerative change at this level rather than the direct
effect of a motor vehicle accident.

[51]        
When asked if the impact of the motor vehicle accident might be an
indirect or contributory cause, if not the sole or direct cause, of the
plaintiff’s chronic pain, Dr. Arthur expressed the opinion that the motor
vehicle accident “was an aggravating factor”.

[52]        
On cross-examination Dr. Arthur also conceded the following points:

·       
It can be difficult to determine with certainty the cause of a
patient’s back pain;

·       
Trauma can cause an asymptomatic condition to become
symptomatic;

·       
A number of people with disk problems are asymptomatic;

·       
Patients can have a perfectly normal MRI scan yet still have
debilitating back pain;

·       
Indeed, more often than not, MRI findings do not match up to the
patient’s pain complaint;

·       
Most patients with low back pain do get better however some patients
can and do develop chronic pain (defined as being pain which persists longer
than six months);

·       
Mr. Hoy does have chronic pain;

·       
The longer a chronic pain condition exists, the more likely it
will continue even if the patient is physically active and makes efforts to
maintain core strength.

[53]        
Dr. Arthur was critical of the use of narcotic pain killers such as
oxycodone being widely prescribed for persons with low back pain suggesting
such narcotics “are often abused”. He confirms such medications have various
negative side effects such as drowsiness, constipation, reduced effectiveness
as the patient become more tolerant, and the potential for dependency
(addiction). He agreed such medication might be “very risky for a firefighter”.

[54]        
Dr. Arthur repeated his opinion that the plaintiff is not a
candidate for surgery. Although treatment modalities such as massage and
physiotherapy may assist with temporary flare ups or if the patient has become
deconditioned, they may only provide temporary relief and do not change the
underlying condition. In his view, the main treatment for these sorts of low
back pain conditions is appropriate exercise and keeping the back strong
through activity.

Dr. Rehan Dost

[55]        
Dr. Rehan Dost is a neurologist who has a private practice which includes
IME assessments. He has produced two reports at the request of the defendant
dated July 19, 2012 and October 23, 2013 respectively. No objection was taken
to either Dr. Dost’s expert qualifications nor as to the admissibility of
his report and the same were put in to evidence by consent.

[56]        
Dr. Dost reviewed various medical records, including the MRI of the
plaintiff’s lumbar spine, and conducted an interview and clinical examination
of the plaintiff on July 19, 2012. Dr. Dost confirmed the observation
already made by others that the MRI scans of the plaintiff’s spine show minimal
degenerative changes at the L5-S1 level where there is a small left
central/left para-central disc protrusion and where there is mild bilateral
foraminal narrowing. In his opinion the MRI scans do not disclose any
neurological compromise related to the L5-S1 disc herniation which would
explain the plaintiff’s symptoms of constant low back pain. In his view, there
is “no neurological explanation for this gentleman’s low back pain … it is
mechanical in origin”.

[57]        
Dr. Dost expresses no opinion regarding the etiology and causation
of Mr. Hoy’s mechanical back pain saying he would “defer further
commentary to the appropriate musculoskeletal specialist”.

[58]        
Dr. Dost was not called as a witness and there was no
cross-examination on his opinions.”

Dr. Douglas Connell

[59]        
Dr. Connell is a radiologist with subspecialty training in
musculoskeletal radiology. He prepared a report dated November 5, 2013 which
was tendered into evidence on behalf of the defendants. No objections were
taken to either Dr. Connell’s qualifications nor as to the admissibility
of the report and the opinions contained therein. Dr. Connell was not
called as a witness for the purposes of cross-examination.

[60]        
Dr. Connell reviewed the MRI studies of the plaintiff undertaken
July 31, 2010 and July 9, 2013.

[61]        
Dr. Connell confirmed the existence of disc space narrowing at
L5-S1 with some small disc protrusion and annular tear. He observed no change
in the condition between the two MRI studies. The disc protrusion does not abut
or displace the thecal sac or the descending or exiting nerve roots.

[62]        
Dr. Connell described the observed condition as degenerative disc
disease in the lumbar spine. He says such degenerative disease is extremely
common as are annular tears. Such matters occur on a degenerative basis without
any direct inciting event. Indeed, disc herniation related to a single
traumatic incident is extremely uncommon. Dr. Connell’s opinion is that
the degenerative changes noted in the plaintiff’s lumbar spine would in all
likelihood not have been caused by either of the motor vehicle accidents in
which the plaintiff was involved.

Dr. Russell O’connor

[63]        
Dr. O’connor is a physiatrist who specializes in physical medicine
and rehabilitation including the treatment and diagnosis of musculoskeletal
disorders. At the request of the plaintiff he prepared two reports dated June
30, 2011 and August 12, 2013 respectively. No objection was taken to either Dr. O’connor’s
qualifications as an expert witness nor to the admissibility of the two reports.
Dr. O’connor’s opinion was based on a clinical history taken from the
patient, a physical examination on both occasions, as well as a review of
various medical records.

[64]        
Dr. O’connor’s assessment of the MRI scans of the plaintiff is the
same as the other physicians who provided evidence. It is his opinion that the
plaintiff’s persistent low back pain radiating into the left leg is primarily
discogenic in nature, meaning it is coming from degeneration of the disc at the
L5-S1 segment. He noted the plaintiff was having trouble with back pain on an
intermittent basis in 1994, 2005 and 2009, although each was for a temporary
period of time lasting in the order of days or up to a few weeks.

[65]        
Dr. O’connor’s opinion is that the motor vehicle accidents have
aggravated the plaintiff’s pre-existing intermittent condition and caused
further injury to the disc structure both of which has led to persistent and
chronic low back and left leg pain. He says that precisely when the disc
herniation occurred, and whether this was at the time of the motor vehicle
accident or before, is difficult to determine. However, he notes:

He went from having three bouts
of intermittent back pain to having chronic and daily back pain that persists
in the left sided low back and left leg pattern. This, in my opinion, is
attributable to the motor vehicle accident in the absence of any other obvious
cause.

[66]        
With respect to prognosis, Dr. O’connor opines:

His symptoms are no approaching
the four year mark and it is very likely the symptoms are not going to improve
with the passage of time. In fact, he is at increased risk of re-injury given
the chronicity of his ongoing back and leg pain. Patients with ongoing or
chronic pain are at increased risk of worsening of their pain with trivial
activities such as the passage of time. Given the fact that he had three bouts
of back pain before, he was still at increased risk of re-injury even if the
accident had not occurred, but this risk has been elevated given the chronicity
and persistence of his symptoms to date.

[67]        
Dr. O’connor expresses concern that the plaintiff’s

ability to maintain his employment
as a firefighter is in jeopardy to some extent. … Most days he is able to
manage or be it with ongoing discomfort. He has to manage through his pain.
Should he develop significant worsening in his leg or back pain, he may be
unable to perform his duties at work.

[68]        
At trial, when questioned about his opinion whether the plaintiff would
be able to complete his career as a firefighter, Dr. O’connor opined it is
more likely than not the plaintiff can carry on with his career long-term. The
intermittent pain episodes have deteriorated into constant chronic pain but if
the plaintiff can get off the narcotic pain killers, if he can keep his back
strong, and if he modifies some of the more troublesome activities, he may be
able to retain his career as a firefighter.

[69]        
Dr. O’connor is particularly critical about the ongoing
prescription of narcotics for the plaintiff’s pain symptoms. He notes narcotics
are very addictive and have depressant qualities that impair functionality. He
“strongly discourages [the plaintiff] from continuing on with this medication”.

Lay Witnesses

Paul Pakulak

[70]        
Mr. Pakulak is a registered occupational therapist who graduated from
the faculty of rehabilitation sciences at UBC in 1997. He also has advanced
training as a work capacity evaluator and functional capacity evaluator. In the
past 16 years he has worked in a private rehabilitation setting and in addition
to medical-legal work he has extensive experience in developing
rehabilitation/treatment programs and return to work programs for person with
various orthopedic injury and other medical problems.

[71]        
Mr. Pakulak prepared a “functional capacity evaluation report”
respecting Mr. Hoy. The report is dated September 7, 2013 but is based on
an assessment preformed one year earlier on September 5, 2012. No objection was
taken to either the admissibility of the report nor to Mr. Pakulak’s
qualifications to provide expert evidence regarding occupational therapy and
functional capacity evaluation.

[72]        
Mr. Hoy was subjected to day long interviews and testing.
Questionnaires were completed, musculo-skeletal examinations were held, and
work simulation testing took place. The latter involved repeated tasks
permitting the assessment of upper/lower extremity strength, task performance
while bending, crouching, squatting and kneeling, sitting/standing/walking
tolerances, as well as grip strength and lifting/carrying tasks.

[73]        
In Mr. Pakulak’s opinion, Mr. Hoy demonstrated a consistent
and high level of effort during the testing and that his reports of perceived
capacities were reliable and consistent with the physical findings.

[74]        
Mr. Pakulak’s conclusions were as follows:

1.     Mr. Hoy
demonstrated physical capacity to be employed on a full time basis at up to a
modified heavy strength level or be it with certain limitations, particularly
in respect of prolonged below waist level activity;

2.     His
overall capacity to compete for work in an open job market has been reduced to
his ongoing limitations relating to back pain i.e. the overall number jobs for
which he is currently able to compete is more limited compared to his before
dash injury status;

3.    
Mr. Hoy did not demonstrate the capacity to complete the physical
demands required of a firefighter on either a fulltime or part-time basis at a
“competitive or sustainable pace” and as such, Mr. Hoy is not well suited
for this work.

[75]        
Mr. Pakulak clarified that the word “competitive” as it appears in
conclusion number three above, means the ability to do the task required
without being affected by symptoms of pain or declining performance.

[76]        
On cross-examination Mr. Pakulak conceded that even though there
was a decline in certain performance results as between first and second testing,
even the reduced results on second testing met or even exceeded some of the
standards for heavy strength readings specified by either the Canadian national
occupational classification or the US counterpart. Counsel suggested the
testing results meant the performance declined from “well above average” to
“average”, the point being that Mr. Hoy was still able to perform the
tasks at a level acceptable to workplace environments. In reply, Mr. Pakulak
emphasized the main concern with the decline in productivity relates to
“sustainability” of performance, an area which believes is problematic for Mr. Hoy
because of the recurrence of pain symptomology.

Mr. Steven Wright

[77]        
Mr. Wright is a 46 year old captain with the Port Coquitlam Fire
Department. He has been a firefighter for 24 years and until very recently was Mr. Hoy’s
direct supervisor for many years.

[78]        
Mr. Wright explained the organization of the Port Coquitlam Fire
Department and the roles performed by its various divisions (suppression,
prevention, training and administration). He also explained the duties required
of a fire captain and the steps that are these days required to be completed to
reach that rank, often a three to four year process. As a captain, Mr. Wright
said that he was expected to do all the things that a firefighter was required
to do and that he physical requirements of the position were the same.

[79]        
Captain Wright has almost always had a side-job alongside his employment
with the fire department. In his case he has a fire and safety consulting
business and has been a faculty member at the Justice Institute instructing
firefighting courses. He says he has trained and educated many hundreds of
firefighters over the years.

[80]        
Captain Wright testified that many firefighters in his department have
side-jobs. He himself was able to juggle both his jobs and his family life,
largely because his wife quit work after the birth of their first child and
remained a home keeper for some 13 years thereafter.

[81]        
These days, most of the calls at the Port Coquitlam Fire Department are
for medical assistance, perhaps as much as 70% of their work. Other work
involves motor vehicle accidents, hazardous materials, and only 3-5% of the
calls actually involve firefighting. The department receives approximately 10
emergency calls a day, usually 6-7 medical assistance matters and 3 motor
vehicle accidents.

[82]        
Captain Wright described the typical day shift. Apart from responding to
calls, much time is involved in equipment maintenance/checking, pre-fire
planning, inspection/enforcement work, and training. He described the various
equipment and gear used by firefighters, wryly observing that the equipment
gets far more use in training than on actual calls.

[83]        
Captain Wright calls the plaintiff a “good firefighter”. He describes
him as smart, self-starting, always there, physically capable and with good
skills. He rates Mr. Hoy in the top half of the fire department members
from a physical ability point of view.

[84]        
Captain Wright has observed some changes in Mr. Hoy since the
accidents. He has seen him struggling on certain occasions with physical tasks
although Mr. Hoy will not usually comment on it. He has noticed Mr. Hoy
has changed his gym routine and is now using a lot less weight and is more
focused on flexibility and cardio routines. He has also noticed that Mr. Hoy
“doesn’t sit well” i.e. he displays discomfort when sitting for any period of
time, often getting up to move around and stretch.

[85]        
Recently, the fire department has started undertaking fitness
assessments of its various firefighters. These are not mandatory and there is
no annual testing that firefighters must pass. However, Captain Wright has
noticed that Mr. Hoy has chosen not to participate in the physical fitness
assessments that have been carried out in the past couple of years.

[86]        
Captain Wright says he is not aware of any issues or impediments that
might affect Mr. Hoy continuing with his career in the fire department and
advancing in the usual manner.

Jennifer Hoy

[87]        
Mrs. Hoy, the plaintiff’s wife, is 29 years old. The couple met in
2005 and married in 2008. As indicated earlier they have two young daughters.
The family lives in a three storey townhouse in Port Coquitlam.

[88]        
Mrs. Hoy works for Canada Post. She started as a letter carrier in
May 2006 and in 2007 became a permanent inside worker in the retail division.
She worked there fulltime for two years until her daughter, Charlie, was born
following which she was on maternity leave for a year.

[89]        
Mrs. Hoy was pregnant again when she returned to work after her
first maternity leave. Six months later, her daughter Frankie was born and she
was again on one year’s maternity leave, returning March 2012.

[90]        
Canada Post allows its employs up to five years off work on an unpaid
basis without loss of seniority. The couple had hoped that Mrs. Hoy would
take a further year off following her second maternity leave so she could have
more time with the children. She then hoped to work on a part-time basis until
the kids went to school.

[91]        
Before the accident, Mrs. Hoy describes her husband as being
outgoing, happy, motivated and affectionate. They often hiked and walked
together around nearby lakes. They would go camping if weather and working
schedules permitted.

[92]        
Physically, she described her husband as “fit, muscular, and buff”.

[93]        
Her husband was a hard worker who did not take time off work. He always
wanted a second job to fill in the days off and he became interested in being a
mortgage broker when the couple remortgaged their town house property.

[94]        
Mrs. Hoy became tearful when she described the post-accident
changes in her husband. She described him as “tired all the time”, not as
motivated as before, and spending “a lot of time on the couch”. He is no longer
as affectionate. They do not hike or walk or do other activities as frequently
as they used to and even when they do, he is still somewhat grumpy and not
really enjoying it.

[95]        
She is doing more of the work looking after the girls. She thinks the
girls sense her husband’s discomfort. When he gets home from work, he is tired
and just wants to sit for the first hour or so. Emotionally, she describes her
husband as having become detached, “in his own world”, and not as affectionate.

[96]        
Mrs. Hoy was not cross-examined.

Steve Crump

[97]        
Mr. Crump is a 31 year old firefighter who has been with the Port
Coquitlam Fire Department for seven years. He gave testimony, similar to what
was already elicited from other witnesses, as to the manner in which
firefighters spend their usual day at work, the sorts of activities and tasks
that occur while attending motor vehicle accident scenes, fire calls and
training activities. He testified as to the nature and handling of equipment
used on the job including the heavy equipment such as ladders, hoses,
hydraulics/pneumatic tools, and the like.

[98]        
Mr. Crump has known the plaintiff for the entire seven years of the
former’s tenure at the department. They were on the same shift for Mr. Crump’s
first year-and-a-half as well as for the last two years.

[99]        
In the years before the accident Mr. Crump observed Mr. Hoy to
be a “big strong guy” and “with no physical problems” and who engaged in a wide
variety of activities outside the job including regular hockey, hiking, hunting
and so on.

[100]     Mr. Crump
testified as to some of the changes he had seen in Mr. Hoy since the 2009
accident. He no longer plays hockey. He is not nearly as active and does not
work out as much as he used to. His workout routine has changed whereby he
appears to do much more cardio than weightlifting. While he has not noticed any
obvious physical changes, he says Mr. Hoy is “not the same person”.

[101]     Mr. Crump
also testified about his own additional employment aside from his job as a
firefighter. In his particular case, he used to work for a private rescue
company primarily in industrial settings, but he is presently a fire technician
at the Maple Ridge campus of the Justice Institute. This involves setting up
courses for recruits and the like.

[102]     Mr. Crump
was not subjected to cross-examination.

Dieter Kulhanek

[103]     Mr. Kulhanek
is a 49 year old captain with the Port Coquitlam Fire Department. He has been a
firefighter for 24 years, and a full captain for the past four years. He
started as an acting captain approximately nine to ten years ago.

[104]     Captain
Kulhanek testified that it was not a job requirement that department members’
physical and mental fitness be assessed annually, however supervisory personnel
make a point of being aware of their shift members’ health and general
well-being. In his view a high level of fitness is a priority expected of all
department members and while there may be no formal standards or testing as
yet, that question is the subject matter of discussion and there may possibly
be change in the future.

[105]     Captain
Kulhanek worked on the same shift as the plaintiff and was his supervisor for a
number of years before the accident. He described Mr. Hoy as being well
above average in terms of fitness and athleticism. He never had concerns about Mr. Hoy’s
ability to perform the job. He described him as an “excellent firefighter”, one
who was enthusiastic and who quickly grasped the mechanical and theoretical
concepts involved.

[106]     Captain
Kulhanek says he has observed a “dramatic change” in the plaintiff since the
accident. His energy levels have markedly decreased and he appears “drained”
and almost as if he was depressed. He complains a lot about his back and his
inability to undertake physical activities and sports in particular.

[107]     Mr. Hoy
is no longer in the gym very much. He no longer lifts heavy weights, nor does
he do much cardio work. He doesn’t seem to last even ten minutes even with a
light workout.

[108]     On the
job, Captain Kulhanek says Mr. Hoy spends a lot of time avoiding heavy
work and getting more junior members to do it for him.

[109]     Captain
Kulhanek expressed concern for Mr. Hoy. He worries that sooner or later Mr. Hoy
is going to “get caught not doing a job requirement” or that he will perform a
demanding task and then “suffer serious consequences because of it”.

[110]     Captain
Kulhanek observed that there are less physical jobs available in the
department, notably in the fire prevention division, but those positions are
seniority based. There are only four members in that division, one firefighter,
two captains and one deputy chief.

[111]     Cross-examination
of Captain Kulhanek was brief. He confirmed that Mr. Hoy’s ability or
status to undertake the course work necessary for promotion to captain has not
changed.

Causation and the Assessment of Damages in a
Negligence Case

[112]    
Much judicial ink has been spilled on this subject. Fortunately, a very
useful and recent summary of the law in this area can be found in Brewster
v. Li, 2013 BCSC 774 as follows:

[77] In cases of negligence, the plaintiff must establish:
(1) that the defendant was the “cause in fact” of the damage suffered and (2)
that the defendant was a “proximate cause” of the damage, “in other words, that
the damage was not too remote from the factual cause. … The remoteness
inquiry assumes that but for the defendant’s wrongful act, the plaintiff’s loss
would not have occurred, but places legal limits on the defendant’s liability”
(Hussack v. Chilliwack School District No. 33, 2011 BCCA 258 at para. 54,
19 B.C.L.R. (5th) 257).

[78] The plaintiff must establish causation for both injury and
loss. If a defendant did not cause an injury, (s)he is not liable for the
losses flowing from that injury. Even if a defendant did cause an injury, (s)he
is not liable for any losses or damages that were not caused by the injury. In Blackwater
v. Plint, 2001 BCSC 997 at para. 364, 93 B.C.L.R. (3d) 228 [Blackwater
BCSC], Chief Justice Brenner, as he then was, adopted the following
dichotomy between “injury” and “loss”:

"injury" refers to the
initial physical or mental impairment of the plaintiff’s person as a result of
the [defendant’s act], while "loss" refers to the pecuniary or
non-pecuniary consequences of that impairment.

[79] The basic principle of tort law is that the defendant
must put the plaintiff back in the position she would have been in had the
defendant’s tortious act not occurred (Athey v. Leonati, [1996] 3 S.C.R.
458 at para. 32). The corollary of this principle is that the defendant
need not compensate the plaintiff for any loss not caused by his/her negligence
or for “debilitating effects of [a] pre-existing condition which the plaintiff
would have experienced anyway” (Athey at para. 35).

[80] Since the burden is on the plaintiff to prove causation,
she must establish that the defendant’s tortious act caused both an
injury (i.e. her pain disorder and/or her depression) and a resulting
loss (e.g. non-pecuniary loss or lost wages). “The former is concerned
with establishing the existence of liability; the latter with the extent of
that liability” (Blackwater BCSC at para. 363). In the case
at hand, if the plaintiff cannot establish that one of her injuries was caused
by the MVA, then she cannot recover from the defendant for the losses that
flowed from that injury. Additionally, if the plaintiff cannot establish that
the injury caused by the defendant, in turn, caused a certain loss, then she
cannot recover from the defendant for that loss.

[81] The test for causation in Canada is the “but-for” test (Bradley
v. Groves, 2010 BCCA 361 at para. 37, 8 B.C.L.R. (5th) 247; Resurfice
Corp. v. Hanke, 2007 SCC 7 at paras. 21-22, [2007] 1 S.C.R. 333; Blackwater
v. Plint, 2005 SCC 58 at para. 78, [2005] 3 S.C.R. 3 [Blackwater
SCC]; Clements v. Clements, 2012 SCC 32 at para. 8, [2012] 2
S.C.R. 181). To assess whether the defendant caused an injury, the trial judge
asks if, without the defendant’s tortious act, the injury would have resulted.
If the answer is “yes”, the defendant is not liable for the injury or the
losses flowing from it (Athey at para. 41). If the answer is “no”,
the defendant is liable to the plaintiff for the whole of the losses
flowing from the injury (Athey at paras. 22 and 41).

[82] Once causation for an injury is established, the
defendant is liable to the plaintiff for all of the loss(es) flowing
from that injury. The losses “flowing” from an injury are those losses which
the plaintiff proves, on a balance of probabilities, would not have occurred
“but-for” the defendant’s act (Blackwater SCC at para. 78; Smith
v. Knudsen, 2004 BCCA 613 at para. 26, 33 B.C.L.R. (4th) 76).

[83] It is also necessary to recognize that
this case engages both “thin skull” and “crumbling skull” principles. Both
these principles were succinctly summarized in Athey:

[34] … The "crumbling
skull" doctrine is an awkward label for a fairly simple idea. It is named
after the well-known "thin skull" rule, which makes the tortfeasor
liable for the plaintiff’s injuries even if the injuries are unexpectedly
severe owing to a pre-existing condition. The tortfeasor must take his or her
victim as the tortfeasor finds the victim, and is therefore liable even though
the plaintiff’s losses are more dramatic than they would be for the average
person.

[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
reed 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:
Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages
for Personal Injuries and Death (9th ed. 1993), at pp. 39-40.
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: Graham v. Rourke, supra; Malec v. J.C. Hutton
Proprietary Ltd., supra; Cooper-Stephenson, supra, at
pp. 851-852. This is consistent with the general rule that the plaintiff
must be returned to the position he would have been in, with all of its
attendant risks and shortcomings, and not a better position. [Emphasis in
original.]

[84] Recent cases from both the
B.C. Court of Appeal and B.C. Supreme Court continue to paraphrase this
language. Some examples include: T.W.N.A. v. Canada (Ministry of Indian
Affairs), 2003 BCCA 670 at paras. 26-37, 22 B.C.L.R. (4th) 1; Zacharias
v. Leys, 2005 BCCA 560 at paras. 13-21, 219 B.C.A.C. 88; Penland v.
Lofting, 2008 BCSC 507 at paras. 93-97, 60 C.C.L.T. (3d) 265; Carr
v. Simpson, 2010 BCSC 1511 at paras. 113-117.

[113]    
The T.W.N.A. v. Canada case referred to above was a unanimous
decision from a five member panel of the Court of Appeal. It reviewed the
principles outlined in Athey v. Leonati, supra, and addressed
pre-existing medical conditions and how they affect the assessment of damages.
The Athey case articulated the notion of a “measurable risk” or
“realistic chance” of a subsequent medical problem occurring at some point in
the future even without the accident that is the subject matter of the lawsuit,
noting on that account

…a reduction of the overall damage award may [be]
considered. This is because the plaintiff is to be returned to his “original
position”, which might have included a risk of spontaneous disc herniation in
the future [in any event].

(Athey at para. 48, T.W.N.A.
at para. 34-35)

[114]    
The court in T.W.N.A. held that a defendant need not prove on the
balance of probabilities that the pre-existing condition would have actually
caused the subsequent loss regardless of the accident.  It noted:

…a weakness inherent in a plaintiff that might
realistically cause or contribute to the loss claimed regardless of the
tort is relevant to the assessment of damages. It is a contingency that should
be accounted for in the award. Moreover, such a contingency does not have to be
proven to a certainty. Rather, it should be given weight according to its
relative likelihood. (para. 48)

[Underline emphasis added.]

[115]     If the
said “measurable risk” or “realistic chance” can be demonstrated on the
evidence, then “the net loss attributable to the tort will not be as great and
damages will be reduced proportionately” (T.W.N.A. at para. 36
citing Athey paras. 31 – 32).

[116]    
Similar principles are articulated in Moore v. Kyba, 2012 BCCA
361 at paras. 32 – 37 and where the court also described the operation of
the “crumbling skull” rule as follows at para. 43:

…if the plaintiff had a
pre-existing condition and there was a measurable risk that that condition
would have resulted in a loss anyway, then that pre-existing risk of loss is
taken into account in assessing the damages flowing from the defendant’s negligence.

[117]    
A recent example of how pre-existing risk of loss was taken into account
by the Court of Appeal in assessing damages is Bouchard v. Brown Bros. Motor
Lease Canada Ltd., 2012 BCCA 331. In that case the trial judge found that
the accident was a significant factor in the weakening and ultimate herniation
of the plaintiff’s L4-5 disc in his lumbar spine. The trial judge had reduced
the damages by 40% to account for the measurable risk that the plaintiff’s
pre-existing degenerative condition would have affected him even without the
accident injury but the Court of Appeal substituted a 20% reduction on that
account emphasizing,

·      
one cannot predict with certainty at what age disc degeneration
would (or might) have become symptomatic and disabling;

·      
while the process cannot be projected with exactitude, logic
requires that any notion of gradual deterioration over many years should be
reflected in only a modest percentage by which damages are reduced; and

·      
a substantial reduction in damages on that account (40% in that
case) would only be warranted where the evidence supported a conclusion of a
more rapid deterioration in the nearer future.

Findings as to Injury and Causation

[118]     The
medical consensus is that the plaintiff had pre-existing degenerative changes
at the L5-S1 level of the lumbar spine which pre-dated the motor vehicle
accidents. The weight of medical opinion is to the effect that the plaintiff’s
disc herniation has not triggered any neurological compromise and that the
ongoing pain symptomology is discogenic in nature.

[119]     As
indicated above, the plaintiff is a credible witness and I accept without
reservation his testimony as to the onset and persistence of pain symptomology
following the accidents.

[120]     I find, as
several of the physicians have diagnosed, that the motor vehicle accident,
which involved a very substantial impact, aggravated a pre-existing
intermittent, occasionally painful low back condition and further injured the
low back disc structure, all of which has in turn caused the persistent low
back and left leg pain experienced by the plaintiff.

[121]     I accept
the opinion of the physiatrist Dr. O’connor, as to the nature and extent
of plaintiff’s disability as well as his prognosis for the future. I find that the
plaintiff’s pain condition is chronic and it is not likely the symptomology
will improve with the passage of time. Indeed, the plaintiff is at increased
risk of re-injury and further deterioration. He has reduced tolerance for
prolonged sitting, repetitive bending, twisting or loading of the low back.

[122]     I also
accept the testimony of the plaintiff, his wife and co-workers as to the
plaintiff’s persistently depressed mood, irritability, and fatigue. Although
the plaintiff appears to be doing the best he can to modify workouts and
increase core strength with a view to protecting his back, I accept the
evidence of Captain Kulhanek and the plaintiff’s wife as to dramatic change in
energy levels, physical activity and emotional engagement.

[123]     It is
clear that the plaintiff’s chronic pain condition is taking its toll, and
likely will continue to do so. I do not fault the plaintiff for continuing take
the narcotic medication prescribed for him by his family doctor. Both the
orthopedic surgeon, Dr. Arthur, and the physiatrist, Dr. O’connor,
were critical of the prescription and expressed grave concern for potential
dependency and abuse. Dr. Arthur confirmed such medication was “risky” for
a firefighter. Because the narcotics are not only addictive, but also have
depressant qualities, Dr. O’connor “strongly discourages him from
continuing on with his medication”, a recommendation that the plaintiff would
do well to accept as best he can.

[124]     While I
have found that the car accidents were a significant cause, if not the sole
cause, of the plaintiff’s chronic discogenic back pain and related disability,
I must also address the manner in which the plaintiff’s pre-existing condition,
notably degenerative changes in the spine and the previously intermittent
episodes of related pain, must be taken into account in the assessment of
damages in this case.

[125]     In his
opinion, Dr. Connell pointed out that degenerative disc disease within the
lumbar spine is extremely common but it is also common for individuals with
such disease to be completely asymptomatic. In other words, it might have been
possible, but for the accident, for the plaintiff to live out the rest of his
life without experiencing any further back problems. The plaintiff submits the
evidence does not establish that any sort of chronic low back pain
symptomology, whether discogenic in nature or otherwise, was inevitable such
that the so-called “crumbling skull” rule should be engaged in this case. The
plaintiff therefore suggests there should be no reduction of damages on an
account of any pre-existing back pain symptomology.

[126]     The
defendants submit actual proof that chronic back pain would have occurred in
the absence of the accidents is not required in order for the assessment of
damages to be reduced. They submit it is enough that there is evidence (“ample
evidence”) of intermittent, episodic back pain problems and pre-existing
degenerative disc disease in the lumbar spine. The plaintiff in this case had
in fact experienced several episodes of low back problems as a result of his
gym activities, his hockey, bending over in an awkward position in the crawl
space, and even for undiagnosed triggers which were treated by a chiropractor
and which were made worse by activities such as sneezing, bending, and
stooping.

[127]     I agree
with the defendants on this point. There is enough of a history of low back
pain incidents to establish a “measurable risk” or a “realistic chance” that
the plaintiff would have experienced further symptomology and that he was
subject to the risk of future re-injury, whether triggered by incidents in his work,
recreational activities or otherwise. Dr. Leung admitted on
cross-examination that the risk of disc rupture was present even without the
motor vehicle accidents. Dr. O’connor likewise opined that the plaintiff
“was still at increased risk of re-injury even had the accident not occurred.”

[128]     I
therefore find the evidence establishes a realistic chance that the plaintiff
would have suffered further intermittent episodes of back injury had the
accidents not occurred and, indeed, there was similar realistic chance that any
such back pain symptomology might have become chronic. A more difficult
question is the amount by which the assessment of the plaintiff’s damages
should be reduced on that account.

[129]     The
defendant submits the appropriate damages reduction on account of the
plaintiff’s pre-existing back condition should be 25% and rely in particular on
the case Hooiveld v. Van Biert, 1993 CanLII 1753 where the Court of
Appeal imposed such a reduction in a case where the accident transformed a
condition of previous intermittent back problems into one causing constant
pain. Reference was also made to the discounts in Bouchard v. Brown Bros.,
supra, (20%); Zacharias v. Leys, 2005 BCCA 560 (25%); and Fuchser
v. Willson, 2012 BCSC 176 (15%).

[130]     The
plaintiff points to Johal v. Meyede, supra, and also Eblaghie
v. Lee, 2010 BCSC 703 as examples where the medical evidence did not
support that the plaintiff’s pre-accident degenerative changes would worsen or
be anything other than asymptomatic until well until old age. In both cases no
discount was made. The plaintiff also refers to Bouchard v. Brown Bros.
where the Court of Appeal made a 20% reduction, but distinguishes that case on
the basis that there has been no evidence of further deterioration in Mr. Hoy’s
condition.

[131]     I have
already found that there was a realistic chance Mr. Hoy would have
suffered ongoing episodes of back pain and that he was at risk of re-injury
such that the development of possibly chronic pain symptomology might have
occurred. A reduction in the damages to be assessed is therefore warranted.
Bearing in mind the plaintiff’s excellent physical conditioning before the
accidents and also bearing in mind the caution urged by the Court of Appeal in
the Bouchard v. Brown Bros. case, supra (more specifically
discussed at para. 117 above), I find on all of the evidence that a fair
and appropriate reduction in the plaintiff’s damages to reflect his
pre-existing low back problems would be 15%. The parties are agreed that this
discount applies only to any awards of general non-pecuniary damages, as well
as damages for future loss of income earning capacity and the cost of future
care.

Non-Pecuniary General Damages

[132]    
Non-pecuniary general damages are intended to compensate the injured
party for pain and suffering, loss of enjoyment of life, loss of amenities. The
compensation awarded should be fair to all parties, and fairness is often measured
against awards made in comparable cases. Such cases, though helpful, serve only
as a rough guide as each case depends on its own unique facts.

[133]    
A useful, often cited, list of factors that may influence an award of
this type of damages can be found in Stapley v. Hejslet, 2006 BCCA 34
and 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;

                      
(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…)

[134]     In the
present case, the plaintiff seeks non-pecuniary damages of $85,000 to $95,000
and relies on the following cases: Clark v. Kouba, 2012 BCSC 1607; Paller
v. Regan, 2013 BCSC 1672; Johal v. Meyede, 2013 BCSC 2381; Grigor
v. Johal, 2008 BCSC 1823.

[135]     The
defendants submit that the appropriate assessment of the plaintiff’s
non-pecuniary damages in this case would be $80,000 before any reduction to
account for his pre-existing condition. In addition to the Paller v. Regan
case, supra, the defendants cite a number of cases involving adult males
with similar injuries including Bradshaw v. Matwick, 2009 BCSC 564
(varied on appeal on other grounds 2011 BCCA 111); Esau v. Myles, 2010
BCSC 43; Wiener v. Ralla, 2009 BCSC 1743; Trites v. Penner, 2010
BCSC 882; Demarzo v. Michaud, 2010 BCSC 255 Doho v. Melnikova,
2011 BCSC 703; and Ng v. Sarkaria, 2011 BCSC 1643.

[136]     I have
read each of these cases and noted the similarities with the present case. In
this case, rather uniquely, the parties are only $5,000 apart in their
respective valuations of this aspect of the claim and there is little point in
articulating lengthy reasons for picking one number over another. Suffice it to
say in these circumstances that after having read the case law and considered
each of the factors mentioned in the Stapley case as applied to the
plaintiffs particular circumstances, I assess the plaintiff’s non-pecuniary
general damages in this case in the amount of $85,000 before any reduction to
account for his pre-existing condition.

Past Loss of Income and Special Damages

[137]     The
parties have agreed that the plaintiff’s past loss of income as a firefighter
with the Port Coquitlam Fire Department as a result of this accident is the net
amount $16,520. I am also advised that the parties have agreed that other
special damages attributable to the accident amount to $2,191.86. I therefore
award these amounts as special damages in this case. Neither award is subject
to any discount for the plaintiff’s pre-existing condition and both will
attract interest in accordance with the provisions of the Court Order
Interest Act, R.S.B.C. 1996, c. 79.

Loss of Earning Capacity

[138]     As noted
above, the plaintiff had a side-job as a mortgage broker in addition to his
fulltime occupation as a firefighter. The defendants acknowledge liability for
the plaintiff’s past loss of net income due to his absence from work as a
firefighter. However, there is a dispute between the parties as to the
existence and quantum of any past loss of income that would otherwise have been
derived from the plaintiff’s side-job as a mortgage broker.

[139]     With
respect to claims for future loss of earning capacity, the defendants
acknowledge some exposure as it pertains to the plaintiff’s firefighting
occupation but again dispute liability for any such loss of capacity pertaining
to the plaintiff’s ability to engage in side-jobs, whether as a mortgage broker
or otherwise.

[140]     During
argument, the plaintiff accepted that if the plaintiff’s medical problems
during the accident were at least one factor in the plaintiff’s decision to
cease his employment as a mortgage broker, then causation/liability is proved
under the Athey v. Leonati test, albeit that  the quantum of the loss
remains in issue. In that regard, the defendants deny the plaintiff’s medical
condition had any role in his decision to cease work as a mortgage broker but
rather assert the decision was triggered by the demands of the rapidly
expanding family as well as the undertaking of additional course work necessary
for advancement within the fire department. Even if causation is proved, the
defendants’ claim these latter two factors mean the plaintiff would have had
less time to devote to any activity as a mortgage broker and that any loss of
income earning capacity should be substantially discounted on that ground.

Past Loss of Earning Capacity

[141]     Compensation
for past loss of earning capacity is to be based on what the plaintiff would
have, not could have, earned but for the injury that was sustained:  Rowe
v. Bobell Express Ltd., 2005 BCCA 141 at para. 30; M.B. v. British
Columbia, 2003 SCC 53 at para. 49. The burden of proof of actual past
events is a balance of probabilities. An assessment of loss of both past and
future earning capacity involves consideration of hypothetical events. The
plaintiff is not required to prove these hypothetical events on a balance of
probabilities. The future or hypothetical possibility will be taken into
consideration as long as it is a real and substantial possibility and not mere
speculation: Athey v. Leonati at para. 27; Morlan v. Barrett,
2012 BCCA 66 at para. 38.

[142]     Earlier in
these reasons I referred to the plaintiff’s testimony as to why he gave up his
side-job as a mortgage broker. I accept that testimony and find that although
the plaintiff tried to return to that work he was simply unable to do it. He
was mentally worn down by the constant pain and fatigue as well as the attempts
at rehabilitation. As he says, “the side-job had to go”, so he could first
concentrate on his firefighting employment as well as his family.

[143]     In these
circumstances, it is clear that the plaintiff’s medical difficulties following
the motor vehicle accidents was at least one factor in his decision to quit his
side-job as a mortgage broker. The defendants are therefore liable to
compensate for the plaintiff’s past loss of earning capacity in that regard,
whether measured with reference to his earnings from that position or otherwise.
The contentious issue is how the damages should be assessed under this heading.

[144]     The
plaintiff concedes that even if the accident had not occurred, he would have
been busy with his firefighting job, his young family and his course work. He
claims, however, he would have continued with the mortgage broker work had he
not been in the accident for several reasons; he always liked to keep busy, the
work was very flexible in terms of time commitments, and the family could use
the additional income. Both the plaintiff and his wife testified it was their
plan that the plaintiff would continue with the side-job.

[145]     While
paying lip service to the notion of assessing and not calculating damages, the
plaintiff nevertheless posits a rather mathematical approach to the assessment
of this portion of his claim.

[146]     Mr. Hoy
obtained his license as a mortgage broker in late 2007. He testified that he
did about five or six deals in 2008 and eight or nine transactions in 2009. The
following table summarizes the gross and net income earned by the plaintiff
from his work as a mortgage broker:

[147]     The
plaintiff submits that most of the expenses were of a fixed nature and that
while some expenses would increase as the business and resulting commission
revenue increased, the two are not directly related. He points to what occurred
in 2008 and 2009 where gross revenue increased by approximately $6,000 but
expenses increased by only approximately $1,000. The mathematical model
provided by counsel assumes annual growth in commission of 25% (less than half
the increase between 2008 and 2009), and expenses growing at 10% per annum (as
was the case between 2008 and 2009) thereby positing annual net income in 2010
of $6,300 growing to some $21,000 in 2013.

[148]     I would
observe that the arithmetical model is nothing but speculation. There was no
evidence led at trial as to the net income earned by part-time brokers
generally or by those employed in the plaintiff’s own franchise operation.

[149]     Not
surprisingly, the plaintiff uses similar modeling to illustrate the claim for
future loss of income earning capacity. In that regard a table was provided
illustrating the actuarially calculated present value of an annual $10,000 loss
for periods ending alternatively upon the plaintiff reaching 50, 55, 60 and 65
years of age, thereby generating figures for future loss ranging from $117,000
to $205,000.

[150]     Assessing
the plaintiff’s damages for past loss of earning capacity or past loss of
income arising from his side-employment as a mortgage broker is a largely
speculative exercise in the circumstances of this case. I accept that the
plaintiff and his wife both intended for the plaintiff to continue
side-employment, whether as a mortgage broker or otherwise and I accept that
even with the time demands of the plaintiff’s young family and course work in
addition to his regular firefighting employment, the plaintiff could have and
would have pursued such work.

[151]     However, I
consider the plaintiff’s claim of a net income increasing from $1,400 in 2009
to over $20,000 in 2013 to be completely unrealistic. While the evidentiary
basis for any past income loss for work outside that of a firefighter is
admittedly weak, some award is nonetheless warranted and a fair amount based on
the assessment of real and substantial possibilities would be $5,000.

[152]     In
argument, plaintiff’s counsel conceded that, even though s. 98 of the Insurance
(Vehicle) Act refers to income loss, any award for past loss of
earning capacity in this case should also be subjected to the netting process
contemplated by the Act. Rather than engaging in the detailed accounting
of such a minor amount, I propose to simply fix the net award under this heading
in the amount of $3,500.

Loss of Future Earning Capacity

[153]     A claim
for loss of future earning capacity raises two key questions: 1) has the
plaintiff’s earning capacity been impaired by his or her injuries; and, if so
2) what compensation should be awarded for the resulting financial harm that
will accrue over time? The assessment of loss must be based on the evidence,
and not an application of a purely mathematical calculation.  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.

[154]     The
assessment of damages is a matter of judgment, not calculation: Rosvold v.
Dunlop, 2001 BCCA 1 at para. 18.

[155]     Insofar as
possible, the plaintiff should be put in the position he or she 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 essential
task of the Court 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: Gregory v. Insurance Corp. of British
Columbia, 2011BCCA 144 at para. 32.

[156]     There are
two possible approaches to assessment of loss of future earning capacity: the
“earnings approach” from Pallos, and the “capital asset approach” in Brown.
Both approaches are correct. The “earnings approach” will generally be more
useful when the loss is easily measurable: Perren v. Lalari, 2010 BCCA
140 at para. 32. Where the loss “is not measurable in a pecuniary way”,
the “capital asset” approach is more appropriate: Perren at para. 12.

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

[158]     The
capital asset approach involves considering factors such as i) whether the
plaintiff has been rendered less capable overall of earning income from all
types of employment; ii) whether the plaintiff is less marketable or attractive
as a potential employee; iii) whether the plaintiff has lost the ability to
take advantage of all job opportunities that might otherwise have been open;
and iv) whether the plaintiff is less valuable to herself as a person capable
of earning income in a competitive labour market: Brown v. Golaiy
(1985), 26 B.C.L.R. (3d) 353 (S.C.); Gilbert v. Bottle, 2011 BCSC 1389
at para. 233; Morgan v. Galbraith, 2013 BCCA 305 at paras. 53
& 56.

[159]     Though the
capital asset approach is not a “mathematical calculation”, the trial judge
must still explain the factual basis of the award: Morgan v. Galbraith,
2013 BCCA 305 at para. 56.

[160]    
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:

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 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.

[161]     The
plaintiff may be able to prove a substantial possibility of future loss of
income despite having returned to his or her usual employment and even where he
has received a raise or obtained a promotion: Perren v. Lalari, supra;
Combs v. Bergen, 2013 BCSC 321. There is no principle of law requiring
the medical evidence to establish an impairment of earning capacity; rather,
such impairment is established on the totality of the evidence: Miscisco v.
Small, [2001] B.C.J. No. 2042.

[162]      In the
case at bar both parties have approached the plaintiff’s claim for loss of
future income earning capacity as consisting of two separate components. The
first relates to the real and substantial possibility of a loss of capacity to
work as a firefighter. The existence of such a possibility is not contested by
the defendants although the parties differ as to the reasonable assessment of the
resulting damages; the plaintiff posits a value of $270,000 whereas the
defendants submit this aspect of the loss is more properly valued at $200,000.

[163]     The second
component of the claim relates to the plaintiff’s loss of capacity to engage in
side-work, whether as a mortgage broker or in some other occupation. Here the
plaintiff submits the appropriate award of damages should be in the range of
$200,000 whereas the defendants suggest there is simply no proper evidentiary
basis for such a claim.

[164]     The
evidence clearly establishes a real and substantial possibility that the
plaintiff’s capacity to perform all the requirements of his job as a
firefighter has been compromised. The plaintiff is clearly having difficulty
meeting the physical demands of his job at the present time and it is entirely
possible, perhaps even probable, he will be unable to complete his intended career
as a firefighter through to retirement. Dr. O’Connor, whose testimony I
accept, says “he is at high risk for re-injury” and while he is presently
capable of working as a firefighter, “should his back pain worsen
significantly, he would be at increased risk of not being able to meet his
demands at work”.

[165]     Dr. Leung
holds a similar opinion that the plaintiff currently has the functional
capacity to be employed as a firefighter but performance may deteriorate due to
pain inhibition and there is an increased risk of a disk rupture which might
restrict or preclude the plaintiff’s ability to work as a firefighter.

[166]     If, as the
defendants concede, there is a real risk that the plaintiff in the future may
not be able to meet the physical demands of his employment as a firefighter,
then it follows he has the same risk of not being able to undertake other
occupations with similar physical demands. That alone might warrant some sort
of award for loss of future income earning capacity from a side-job that
required such physical demands.

[167]     In any
event, in argument both parties appear to endorse the approach taken in several
of the cited cases where the court has made a “rough and ready” estimate of the
loss of capacity award with reference to a one, two or even three year
multiplier applied to the plaintiff’s annual income. Many of the cases which
have taken this approach are referred to in Miller v. Lawlor, 2012 BCSC
387 where, even though the plaintiff continued in the same work he had before
the accident, the court was satisfied the criteria for the capital asset
approach existed on the evidence and assessed the loss of future earning
capacity claim in an amount equivalent to three years’ annual income for a
journeyman sprinkler-pipefitter on Vancouver Island.

[168]     The plaintiff’s
submission in favour of a $270,000 award for loss of future earning capacity as
a fireman obviously reflects three years’ salary at the plaintiff’s current
salary level ($90,000 per annum). The defendants’ submission, $200,000,
reflects a current annual salary multiplier of approximately 2.2.

[169]     I am not
completely satisfied that the “two component approach” to future loss of
earning capacity adopted by both the plaintiff and the defendants in this case
is appropriate. The assessment is a global assessment based on the totality of
the evidence.

[170]     The
defendants urge that while there may exist some loss of future capacity with
respect to firefighting or similar work involving strenuous physical demands,
this impairment exists only at the “extreme end” of the physical work spectrum
and that there is no impairment of “capital asset” with respect to lighter,
less physically demanding work. It is on this basis the defendants submit there
should be no recognition in the award of any impairment or loss of capacity
with respect to the plaintiff’s ability to perform side-jobs such as a mortgage
broker. I note this submission overlooks the impairments, both present and
potentially future, connected with the plaintiff’s depressed mood, fatigue and
risk of dependency or addiction associated with the prescription of narcotics.

[171]     In any
event, the evidence clearly establishes a real and substantial possibility of a
loss of future earning capacity for this plaintiff. That includes physically
demanding employment as a firefighter but it also likely extends to other less
physically demanding forms of employment. I will adopt the suggested valuation
approach that considers a multiplier of present earnings, but also build in a
factor to reflect the possible impairment of side-job employment and
post-firefighting retirement.

[172]     In my view
an appropriate global award for all aspects of loss of future earning capacity,
and one that is fair to both parties in this case, would be the sum of $295,000.
Like the award of general non-pecuniary damages, this award is subject to the
15% reduction mandated by my finding with respect to the impact of the
plaintiff’s medical issues pre-existing the motor vehicle accidents.

Cost of Future Care

[173]     The
plaintiff is entitled to compensation for the cost of future care based on what
is reasonably necessary to restore her to her pre-accident condition in so far
as that is possible. When full restoration cannot be achieved, the court must
strive to assure full compensation through the provision of adequate future
care. The award is to be based on what is reasonably necessary on the medical
evidence to preserve and promote the plaintiff’s mental and physical health:
 Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.); Williams
v. Low, 2000 BCSC 345; Spehar v. Beazley, 2002 BCSC 1104; Gignac
v. Rozylo, 2012 BCCA 351 at paras. 29-30.

[174]     The test
for determining the appropriate award under the heading of cost of future care
is an objective one based on medical evidence. For an award of future care: (1) there must be a medical justification for claims for cost of
future care and (2) the claims must be reasonable: Milina v. Bartsch at
84; Tsalamandris v. McLeod, 2012 BCCA 239 at paras. 62-63.

[175]     Future
care costs are “justified” if they are both medically necessary and likely to
be incurred by the plaintiff.  The award of damages is thus a matter of
prediction as to what will happen in future.  If a plaintiff has not used
a particular item or service in the past it may be inappropriate to include its
cost in a future care award. However, if the evidence shows that previously
rejected services will not be (able to be) rejected in the future, the
plaintiff can recover for such services:  Izony v. Weidlich, 2006
BCSC 1315 at para. 74; O’Connell v. Yung, 2012 BCCA 57 at paras. 55,
60, & 68-70.

[176]     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.  In
some cases negative contingencies are offset by positive contingencies and,
therefore, a contingency adjustment is not required. In other cases, however,
the award is reduced based on the prospect of improvement in the plaintiff’s
condition or increased based on the prospect that additional care will be
required. Each case falls to be determined on its particular facts: Gilbert
v. Bottle, 2011 BCSC 1389 at para. 253.

[177]     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.

[178]     The
plaintiff submits there is a requirement for ongoing prescription narcotic
medication. In 2013 the monthly cost of that medication was approximately $40,
the present value of which to age 80 is almost $11,000 using the statutorily
prescribed discount rate, but without any adjustment for positive or negative
contingencies.

[179]     The
plaintiff also submits there will be a need for a periodic therapy to help the
plaintiff manage future episodes of severe pain aggravation. Because the
plaintiff attended 40 sessions of physiotherapy in the four years since the
first motor vehicle accident (an average of ten sessions a year at $600 per
annum) the present value of such a rate of treatment to the age of 60 is
approximately $9,600, again before application of any contingencies. The
plaintiff therefore suggests the plaintiff’s aggregate claim for cost of future
care is sensibly valued at $19,000.

[180]     The
defendants submit that the plaintiff is in a “dynamic state of treatment” at
present and is scheduled to see a neurosurgeon later in the spring of this year
for possible treatment by way of nerve blocks or epidural steroid injections.
It is possible this treatment may see an improvement of symptoms which may
afford a good opportunity for the plaintiff to get off his current narcotic medications
as several of the physicians have recommended.

[181]     The
defendants also submit that the plaintiff has been very diligent with respect
to his exercise and efforts to maintain core strength. If he continues to do
this, severe aggravations of the low back pain may be reduced or avoided, along
with a necessity for a periodic therapy.

[182]     For the
moment at least, it is clear that the plaintiff has not been weaned off his
medication and that pain killers will continue to be prescribed for the
foreseeable future. It is also sensible to assume periodic therapy for ongoing
flare-ups is likely, although the frequency of same is essentially just
speculation. In my view, there is little doubt that future care costs will be
incurred. Even taking into account both negative and positive contingencies, an
award under this heading is warranted in the circumstances of this case.

[183]     Doing the
best I can with the available medical evidence and the “crystal ball gazing”
required, I assess damages for the plaintiff’s cost of future care in the
amount of $8,500. This amount should be reduced by 15% to reflect the
measurable risk of the plaintiff’s pre-existing back condition would have
triggered such care requirements in any event.

Summary

[184]     In
summary, damages are awarded to the plaintiff as follows:

*plus court order interest as appropriate.

[185]    
Should anything have occurred between the parties that might affect any
award of costs in this case, the parties may make submissions forthwith on
same. Otherwise, costs will follow the event and are awarded to the plaintiff
to be assessed under Scale B.

“The
Honourable Mr. N. Kent”