IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Pilfold v. Jaswal, |
| 2014 BCSC 719 |
Date: 20140428
Docket: M112881
Registry:
Vancouver
Between:
Peter Pilfold
Plaintiff
And
Jaswinder Jaswal,
Royal City Taxi Ltd., John Doe
and Insurance
Corporation of British Columbia
Defendants
Before:
The Honourable Mr. Justice Savage
Reasons for Judgment
Counsel for the Plaintiff: | K.R. Taylor J.M. Sarophim |
Counsel for the Defendants J. Jaswal and Royal City Taxi | A. Smith K.H Owen-King |
Place and Date of Trial: | Vancouver, B.C. March 31, 2014 April 1-4, 2014 |
Place and Date of Judgment: | Vancouver, B.C. April 28, 2014 |
Table of Contents
VII. Loss of Future Earning Capacity. 10
I. Introduction
[1]
On March 2, 2010, Peter Pilfold was a passenger in a Royal City taxi
negligently operated by Jaswinder Jaswal which struck the Pattullo Bridge curb
in a single vehicle accident in New Westminster, B.C. (the Accident). Mr.
Pilfold was on his way to the dispatch office in New Westminster to work as a
longshoreman. This case concerns the assessment of damages arising from the
negligent operation of the taxi.
II. Background
[2]
Mr. Pilfold, who is originally from Prince Rupert B.C, is 57 years old
and is a third generation longshoreman. Although cross-examined on some matters
which are arguable inconsistencies, I find him generally to be a credible
witness.
[3]
As an adolescent Mr. Pilfold left school early when his father was
injured falling off a vessel. He and his brother worked to help support the
family. He commenced longshoring at 15 and has worked in that occupation since.
He was able to complete his high school education five years after leaving
school.
[4]
Mr. Pilfold is registered for work under the collective agreement
between the British Columbia Maritime Employers Association (BCMEA) and the
International Longshore and Warehouse Union. He has worked as a longshoreman
since 1972 except during a period from 1982-1985 when he pursued an art career
while taking courses at the Ontario College of Art and while on a scholarship
to Florence, Italy. He completed diplomas in multi-media and fine arts in the
1990s and a Bachelor of Fine Arts in 2005.
[5]
Mr. Pilfold is married to Carol Anne (Kaleila) Pilfold. They have
three adult children. Mrs. Pilfold has worked on the docks as a first aid
attendant.
[6]
Longshore employment differs from other employment in that each employee
chooses when to make themselves available for work. There is neither a regular
schedule of employment nor a guarantee of employment on any given day. Work is
assigned at a labour hall. The type of work varies widely from light duty short
duration work to eight hours of heavy physical labour.
[7]
Mr. Pilfold testified that he and Mrs. Pilfold planned to move back to
Prince Rupert in 2010. That is because a new container terminal had opened
which promised dependable employment. It was an advantage to Mr. Pilfold to
work out of Prince Rupert because in the lower mainland he had only visitor
status as a wolfer at the labour hall. That meant that preferred longshore
employment went first to members of the lower mainland locals. In Prince Rupert
he was thirteenth on the seniority list where he would receive preferred
employment.
[8]
Mr. Pilfold was generally in good health before the accident, and enjoyed
his employment, walking, biking and his social life. He pursued artistic
endeavors in his spare time with Mrs. Pilfold. He was easy going.
III. The Accident
[9]
The Accident occurred on the early morning of March 2, 2010. Mr. Pilfold
was a front seat passenger in a taxi operated by Mr. Jaswal and owned by Royal
City Taxi. Mr. Pilfold was on his way to the union dispatch hall in Surrey. The
taxi was proceeding onto the Pattullo Bridge in the right lane. Mr. Pilfold saw
Mr. Jaswal make a sudden movement and then the right front tire hit the curb on
the right side of the bridge. The vehicle came to an abrupt stop.
[10]
Mr. Jaswal introduced in evidence photographs of his vehicle which,
according to the date stamp, were taken two weeks after the Accident. The
photographs do not show the flattened tire or damaged rim, which were changed
after the Accident. Mr. Jaswal testified that he saw another vehicle and
explains his driving as an evasive manoeuver. That said, the defendants admit
liability for the Accident.
[11]
Mr. Pilfold was wearing his seatbelt. I accept his evidence that his
body was jolted front and then back, and he experienced pain in his shoulder. He
told Mr. Jaswal of the problem with his shoulder. Mr. Jaswal, who
testified at trial with the assistance of an interpreter, did not respond. Eventually,
as he waited outside the taxi, one of Mr. Pilfolds co-workers drove by the
scene. The co-worker stopped and drove Mr. Pilfold to the dispatch hall in
Surrey.
IV. Post Accident
[12]
Mr. Pilfold took a light duty hatch tender job the day of the Accident.
The next day he saw his physician, Dr. P.J. Wodynski. Dr. Wodynski reported
that Mr. Pilfold complained of a sore neck and a sore right shoulder. Dr. Wodynski
found tenderness in Mr. Pilfolds right trapezius muscle and right posterior
cervical spine muscles. Mr. Pilfold had a significantly limited range of motion
in the cervical spine and right shoulder. Dr. Wodynski diagnosed multiple
strains and recommended alternating heat and ice application and ibuprofen.
[13]
Mr. Pilfold continued to try light duty work. He returned to Dr.
Wodynski five days later, reporting that he was unable to work as a crane
operator, was stiff, and had pain in his cervical and lumbar spine. Dr.
Wodynski found tenderness in Mr. Pilfolds cervical and lumbar spine
muscles as well as in the muscles around Mr. Pilfolds right shoulder
blade. Mr. Pilfold had a loss of mobility in the cervical spine. Mr. Pilfold
needed to rotate his entire trunk in order to rotate his head to the right. Dr.
Wodynski prescribed massage therapy.
[14]
Mr. Pilfold attended Motion Physiotherapy on March 16 and 19, 2010.
On March 22, 2010 Mr. Pilfold went on a planned extended holiday to Mexico with
his wife. He had 12 massage therapy treatments in Mexico. Mr. and Mrs. Pilfold
returned from Mexico in June 2010. Mr. Pilfold returned to his employment but
selected light duty work and passed on heavier duty employment. As a result of
various exigencies, he had an extended period as a crane operator on logs from
June to October 2010. This was easier work although he experienced pain,
fatigue, and stiffness in his neck and shoulder.
[15]
Following an incident in October 2010, Mr. Pilfold saw Dr. Wodynski
again in November 2010. Dr. Wodynski found tender cervical spine muscles and a
tender right shoulder girdle. Mr. Pilfold reported difficulty doing his job as
a crane operator because of the flexion and extension required. Dr. Wodynski
prescribed physiotherapy. Mr. Pilfold had nine physiotherapy treatments in
November and December 2010.
[16]
Dr. Wodynski next saw Mr. Pilfold on December 20, 2010 and
February 9, 2011. His situation was unchanged. Mr. Pilfold tried kinesiology in
October 2012 but found it exacerbated his problems.
[17]
Mr. Pilfold reports ongoing pain and stiffness in his neck, upper back
and shoulder. Dr. Wodynski opines that as most extension-flexion injuries
resolve within two years, he considers the injuries chronic. Mr. Pilfold may
experience intermittent pain and limited mobility for the foreseeable future.
[18]
Mr. Pilfold was seen by Dr. T. Giantomaso whose report is generally
consistent with that of Dr. Wodynski. Dr. Giantomaso opines that the vast
majority of improvement occurs within 6 to 18 months post trauma, and that Mr. Pilfold
has reached maximal medical improvement and that his injuries are permanent.
[19]
Dr. Wodynski and Dr. Giantomaso were both skillfully cross-examined by
the defendants counsel. There were no contrary expert opinions offered by the
defendants. On balance I accept the expert opinions that Mr. Pilfold has likely
reached maximal medical improvement and that his injuries are permanent.
[20]
I accept that Mr. Pilfolds injuries have affected both his personal
life and working life. He is less jovial and upbeat and is more moody and
irritable. It has affected his life with Mrs. Pilfold, as they no longer go for
long bike rides, as they did previously, or go on the long walks together they
previously enjoyed. Mr. Pilfold has also shown less interest in his art which
he used to pursue with more interest prior to the Accident. Mr. Luckett, a
friend of Mr. Pilfold noted that Mr. Pilfold is more irritable, less social,
and more negative since the Accident. Mr. Luckett says that Mr. Pilfold
appears disheartened.
[21]
Mr. Pilfolds injuries have also affected his working life in a way
which is not accounted for as a pecuniary loss. Mr. Pilfold, admirably,
continues to work despite his injuries. That work, however, is harder for him,
in that he experiences stiffness, soreness and pain at work. That has not
generally prevented him from working, although he has missed some work,
however, when he works, he often does so while experiencing discomfort. Mr. Pilfolds
working life is an important part of his identity.
[22]
The injuries also affect Mr. Pilfolds ability to work as a gantry crane
operator, which requires high levels of concentration in an awkward position. Both
he and Mr. Luckett demonstrated the awkward position which involves the
crane operator leaning forward looking straight down between his legs through a
glass floor while operating levers with both hands, manipulating containers 170
feet below. Although he did not mention this to management when reviewing his
performance, I accept his evidence that the position aggravates his injuries. Because
of production difficulties he was removed as a gantry crane operator. Although
some additional training is available, Mr. Pilfold has been reluctant to take
that training in his current physical condition because if he does not qualify
he would unlikely ever have another opportunity.
[23]
Gantry crane operation is the most prestigious job in his field of
endeavour, and a four hour job for which one is paid for nine hours. Because of
his seniority in Prince Rupert, Mr. Pilfold would be able to work through the
week. Actually obtaining this job on an ongoing basis in Prince Rupert involves
some contingencies. Not everyone is capable of performing this high stress,
difficult work. Nevertheless, in my opinion Mr. Pilfolds opportunity to work
in this position has been significantly diminished by his injuries. There are
pecuniary and non-pecuniary aspects to these consequences. A significant
non-pecuniary aspect is the lost advantage of working a four hour job daily
instead of an eight hour job.
V. Non-Pecuniary Damages
[24]
Plaintiffs counsel argues that Mr. Pilfolds non-pecuniary losses fall
within a range of $80,000 to $95,000. In doing so she relies on Clark v.
Kouba, 2012 BCSC 1607 ($85,000); Gold v. Joe, 2008 BCSC 865
($80,000); Neumann v. Eskoy, 2010 BCSC 1275 ($90,000); and Kaleta v.
MacDougall, 2011 BCSC 1259 ($80,000).
[25]
Defendants counsel argues that Mr. Pilfolds non-pecuniary losses fall
within a range of $40,000 to $45,000. In doing so they rely on Stein v.
Kline, 2012 BCSC 573 ($40,000); Jackman v. All Season Labour Supplies
Ltd., 2006 BCSC 2053 ($40,000); Fata v. Heinonen, 2010 BCSC 385
($45,000); and Salvatierra v. Vancouver (City), 2008 BCSC 537 ($45,000).
[26]
In my opinion the cases cited by the plaintiff more closely resemble the
situation of Mr. Pilfold here. Bearing in mind the principles referenced by the
Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34, and this court in Hartnett
v. Leischner, 2008 BCSC 1589, and the appropriate contingencies, in my
opinion Mr. Pilfolds non-pecuniary losses are properly assessed at $80,000.
VI. Loss of Past Income
[27]
A plaintiff is entitled to be compensated for the loss of the
value of the work he would have performed but for the injuries sustained in the
accident. In Rowe v. Bobell Express Ltd., 2005 BCCA 141, the Court
describes this as a claim for loss of earning capacity. A trial court should
apply contingencies that affect the loss: Hussack
v. Chilliwack School District No. 33,
2011 BCCA 258, at para. 92; Riding-Brown v. Jenkins, 2014 BCSC 382, at
para. 38.
[28]
Mr. Pilfold here argues that there are two aspects to the loss: (1)
after the Accident Mr. Pilfold had to turn down work on days where there was
work but no light duty work was available, and (2) but for the Accident, Mr. Pilfold
would have returned to work in Prince Rupert in accordance with his plans and
earned a much higher income.
[29]
The defendants meet the plaintiffs arguments head on. They say that the
best evidence is that of the employment records which do not show any loss of
income by Mr. Pilfold. Further, it is not proven that Mr. Pilfold would have
returned to Prince Rupert as he says. There were other reasons for not
returning other than his health, namely, one of his childrens medical issues.
[30]
I agree that the employment records arguably do not demonstrate any past
loss of income by Mr. Pilfold (based on the assumption that he would stay in the
Lower Mainland). However, the employment records provided by the BCMEA do not
reveal how much work was available from month to month or year to year. Mr. Pilfold
was dispatched from a hiring hall. He had some very incomplete records which
recorded shifts where he refused available work because he was unable to
perform the heavier work. Mr. Luckett, a co-worker, also testified that Mr. Pilfold
passed on heavier work after his injuries. Of course, Mr. Luckett did not have
records or continuous observations, but his evidence supports that of Mr.
Pilfold. The fact Mr. Pilfolds earnings remained relatively stable does
not disprove Mr. Pilfolds evidence, which I accept, that he declined some
heavier work and lost earnings after the Accident.
[31]
Both Mr. and Mrs. Pilfold testified that they planned to move to Prince
Rupert in 2010. Mr. Pilfold moved to Prince Rupert in 2013. Mrs. Pilfold is
going to join him this year. It is their evidence that they were delayed
because Mr. Pilfold sought treatment for his injuries. Because of his position
on the seniority list, and the available work, when Mr. Pilfold went to Prince
Rupert his earnings rose dramatically. Mr. Kurt Slocombe testified that work
was available to Mr. Pilfold in Prince Rupert and it was his expectation that
Mr. Pilfold would have returned years earlier. Mr. Luckett testified that he
knew of Mr. Pilfolds plans to move to Prince Rupert.
[32]
In my opinion but for the Accident, Mr. Pilfold would have returned to
Prince Rupert earlier than he did, and that he deferred going hoping to get
better and with a view to obtaining necessary treatment for his injuries in the
Lower Mainland. In my view his doing so was not unreasonable.
[33]
The plaintiffs counsel calculates Mr. Pilfolds net past loss of
earnings at between approximately $30,000, based on assumptions about refused
work as a visitor or wolfer in the Lower Mainland, and approximately $72,000,
based on a comparison of his earnings in the Lower Mainland and his earnings in
Prince Rupert.
[34]
In my view the second approach is to be preferred, although there is
significant uncertainty over when he would have actually made a move to Prince
Rupert but for the Accident. In the circumstances, allowing for contingencies,
and after deduction for taxes, I award Mr. Pilfold $35,000 for past loss of
earnings.
VII. Loss of Future Earning Capacity
[35]
In Perren v. Lalari, 2010 BCCA 140, the Court of Appeal summarized
the principles to be considered in assessing whether there are damages under
this head and, if so, the approaches to be used in determining the quantum of
such damages. Those were summarized in Parker v. Lemmon, 2012 BCSC 27, at
para. 42 as:
(1) A plaintiff must first prove there is a real and
substantial possibility of a future event leading to an income loss before the
Court will embark on an assessment of the loss;
(2) A future or hypothetical possibility will be taken into
consideration as long as it is a real and substantial possibility and not mere
speculation;
(3) A plaintiff may be able to prove that there is a
substantial possibility of a future income loss despite having returned to his
or her employment;
(4) An inability to perform an occupation that is not a
realistic alternative occupation is not proof of a future loss;
(5) It is not the loss of earnings but rather the loss of
earning capacity for which compensation must be made;
(6) If the plaintiff discharges the burden of proof, then
there must be quantification of that loss;
(7) Two available methods of quantifying the loss are (a) an
earnings approach or (b) a capital asset approach;
(8) An earnings approach will be more useful when the loss is
more easily measurable;
(9) The capital asset approach
will be more useful when the loss is not easily measurable.
[36]
A real and substantial possibility of income loss must be based on
something more than the plaintiffs own perception or a bare possibility: Kim
v. Morier, 2014 BCCA 63, at paras. 6-8.
[37]
Any assessment must have an appropriate factual underpinning: Morgan
v. Galbraith, 2013 BCCA 305 at para. 55.
[38]
The capital asset approach to assessing damages should address the four
factors in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353, 1985 CanLII 149
(S.C.); namely (1) capacity, (2) marketability, (3) opportunity, and (4) value.
[39]
In my opinion Mr. Pilfold has established there is a real and
substantial possibility of a future event leading to a loss of earning capacity.
I base this on (1) Mr. Pilfolds prognosis, i.e., the likely chronicity of Mr.
Pilfolds complaints; (2) the evidence regarding the work available to him
because of his seniority; (3) the evidence regarding the physical requirements
of such work; (4) the evidence regarding the physical impact on him of such
work; and (5) his experience working as gantry crane operator in Prince Rupert
and Vancouver. In my opinion there is a real and substantial possibility that
the plaintiff will miss some work because of the chronic nature of his
complaints. Likewise, there is a real and substantial possibility that the
position of gantry crane operator will be foreclosed for him because of his
injuries.
[40]
Those losses have the following components (1) the loss of a shift
differential of $2.00 per hour for a dock gantry crane operator; (2) the loss
of one hour pay per shift as a dock gantry crane operator who is paid for nine
hours instead of eight (for four hours actually worked); and (3) the occasional
loss of work due to dispatch assigning heavy labour. I accept the plaintiffs
calculation of those losses amounting to $25,619 per year as a reasonable
approximation; however whether Mr. Pilfold would have been able to qualify
and maintain his qualification for such a position in Prince Rupert but for the
Accident is subject to a considerable contingency which is not accounted for in
the plaintiffs calculation. The position is high stress and requires greater
speed than in the lower mainland. I would reduce the amount calculated by 50%
to account for such contingency. The loss to age 65 is then, rounded, $65,000.
[41]
The plaintiff argues that but for the injury he would have an extended
working life as a gantry crane operator to age 70. The amount claimed for the
period from age 65 to 70 is $124,035. I would apply two contingencies to this
amount. First, I would reduce the amount by 50% to account for the contingency
that he would not have been able to qualify and maintain his qualification for
such a position.
[42]
Further, I agree with the defendant that the plaintiffs calculation is
flawed in that it does not account for any specific contingencies related to
longshoring and gantry crane operation. Longshoring generally is a physical
activity as is gantry crane operation. Gantry crane operation is stressful and
requires prolonged intense concentration. In my opinion a very substantial
contingency should be applied to work after age 65. Further, the calculations
offered do not account for pension entitlement which, in my opinion, must be
considered after age 65.
[43]
Given these factors and the contingencies at play, considered globally,
in my opinion a fair award for the total loss of earning capacity in this case
is $75,000.
VIII. Future Cost of Care
[44]
With respect to the cost of future care, I would allow $1000 for the
cost of medication and $10,200 for the cost of IMS treatment. In my opinion
these are reasonable and necessary costs.
[45]
I do not view the functional capacity evaluation as a necessary or
appropriate cost. Mr. Pilfold is fully familiar with the work available as a
longshoreman. My sense is that at 57 he understands what he is or is not capable
of doing. Moreover, I am not persuaded that the type of work lends itself
easily to accommodations that would be useful. I am not persuaded that a
functional capacity evaluation is reasonable or necessary.
IX. Special Damages
[46]
Mr. Pilfolds special damages consist of treatment of massage therapy,
physiotherapy, and some miscellaneous expenses totalling $1,713. The defendants
would allow $903, disallowing costs associated with recent massage therapy. I
accept that the massage therapy provided the plaintiff with some relief of his
symptoms. I would allow the special damages as presented at $1,713.
X. Summary
[47]
In summary, I assess Mr. Pilfolds damages as follows:
1. | Non-pecuniary | $ 80,000 |
2. | Loss of past income: | $ 35,000 |
3. | Loss of future earning | $ 75,000 |
4. | Future cost of care: | $ 11,200 |
5. | Special Damages: | $ 1,713 |
| Total: | $202,913 |
[48]
In addition to the above sums Mr. Pilfold is entitled to court order interest.
Unless there is something of which I am not aware, Mr. Pilfold is entitled to
costs, pursuant to Rule 15-1.
The Honourable Mr. Justice Savage