IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140822

Docket: 11-2480

Registry:
Victoria

Between:

Geoffrey Robert
Michael

Plaintiff

And:

Natalie Christa
Bayfield

Defendant

Before:
The Honourable Mr. Justice Johnston

Reasons for Judgment

[1]            
In this action the plaintiff claims damages for injuries suffered in a
motor vehicle accident. The defendant admits that the accident was her fault
and further admits that the plaintiff suffered some injury, entitling him to
compensation. At issue are the extent of the injuries resulting from the
accident and, in particular, the causal connection between the accident and
ongoing headaches suffered by the plaintiff.

[2]            
The accident happened on September 20, 2009, about five days before Mr. Michael’s
30th birthday.

[3]            
Mr. Michael was raised on Gabriola Island, took his primary schooling
there, and attended high school in Nanaimo. He was a self-described B student,
whose marks were not quite good enough for admission to the University of
Victoria following high school. Mr. Michael attended Camosun College for three
or four years and worked a variety of jobs while going to school. Eventually he
decided to obtain trade certification and enrolled in the Electricians Program
at Camosun College in 2004.

[4]            
Mr. Michael and his now wife, Morgane, started living together in 2003
or 2004. They were married in 2011.

[5]            
Mr. Michael started his apprenticeship at the Department of National Defence –
Dockyard (“DND”) in 2005.

[6]            
In 2006 or 2007 Mr. Michael and Morgane bought a townhouse, part of
which they rented out from time to time.

[7]            
Mr. Michael obtained his Journeyman qualifications as an electrician in
2009 and went to work full-time for the DND. He is a member of the
International Brotherhood of Electrical Workers and his employment is governed
by a collective agreement. Mr. Michael’s job is often physical. To
distinguish the more physically demanding aspects of his job from those that
are not so physically demanding, Mr. Michael refers to the harder physical
work as “on tools,” meaning work that may require him to use tools which can
weigh 30 to 50 pounds. When he is not “on tools,” Mr. Michael might be working
in an office environment or at a desk doing things like quality control.

[8]            
Not surprisingly there is an hierarchy in the electrical trade, with
apprentices and journeymen with lower seniority doing the heavier, physical
aspects of a job, and more senior journeymen doing the lighter — perhaps more
cerebral — parts of the job. Mr. Michael had no difficulties performing
the physical requirements of his job while he was in his apprenticeship, or as
a journeyman electrician, prior to his motor vehicle accident. Mr. Michael
has always been fit, and participated in several sports. While he was in high
school he played basketball and football as team sports, and he continued to
play those sports on a pick-up basis after he graduated. In addition, Mr.
Michael has played baseball, both slow pitch and fast pitch, and continues to
do so. He has also golfed six to twelve times a year, has surfed and gone
snowboarding when he could.

[9]            
He described himself as a competitive athlete, often challenging himself
physically by, for instance, snowboarding the more difficult runs. Perhaps as a
consequence, Mr. Michael from time to time suffered sporting-related
injuries. In 2009, before the accident, he injured a knee ligament sliding into
base while playing baseball. This injury took him off work for about a month.
In July, just after recovering from his knee injury, Mr. Michael broke a finger
playing in a baseball play-off game, and was again off work for perhaps three
to four weeks with that injury. Both of these injuries recovered fully and were
not a factor at the time of his car accident.

[10]        
In addition, Mr. Michael injured his lower back at work in 2007 and
missed perhaps another month of work as a result. He fully recovered from that
injury as well. There may have been a shoulder injury that was work related,
but the details of that are unclear and, in any event, that injury was not
affecting him in any way at the time of the accident.

[11]        
The accident occurred when Mr. Michael was on his way home from a golf
game in the Cowichan Valley. He was driving a Toyota Forerunner SUV vehicle
when the defendant came out of a side road when Mr. Michael was so close
to the defendant’s vehicle that he was unable to avoid striking her. The
vehicle damage was sufficient that Mr. Michael’s vehicle was not drivable
after the accident and was later written off.

[12]        
Mr. Michael described feeling numb immediately after the accident
and said that on his way home he began to feel a mild headache, in addition to
a numb sensation in his lower back, neck and head. Later that day he developed
neck pain that got progressively worse and radiated up to the back of his
skull.

[13]        
On the day after the accident, Mr. Michael went to his family physician,
Dr. Thibodeau. Dr. Thibodeau, as was her practice with accident-injured
patients, had Mr. Michael complete a form on which he listed his complaints as
a sore neck and back, without mentioning a headache.

[14]        
Dr. Thibodeau examined Mr. Michael, prescribed pain killers and a
muscle relaxant, and told him to take some time off work. Mr. Michael tried to
return to work two days after the accident but had to leave because of
discomfort. He remained off work another two weeks. Mr. Michael returned to
work in October 2009 at which point he was working with another journeyman
electrician on a service vessel. They were rolling out electrical cable and
troubleshooting electrical problems.

[15]        
In the two weeks Mr. Michael was off work, he said he had lower back
pain, neck pain and headaches, but that these pains progressively improved.
Mr. Michael saw Dr. Thibodeau toward the end of September and she
recommended physiotherapy, which he started at Oak Bay Physiotherapy.

[16]        
Mr. Michael returned to Dr. Thibodeau in early October and again in
early November 2009. On both visits Dr. Thibodeau noted tenderness to
palpation in Mr. Michael’s neck and mid-back as well as tightness of his
neck and back muscles. By the November 2009 visit, Mr. Michael had changed from
Oak Bay Physiotherapy to Victoria Exercise Rehabilitation Centre. He attended
that facility until the end of January 2010 when he was discharged.

[17]        
There is a dispute in the evidence over whether Mr. Michael told Ms. Cuttiford
of Victoria Exercise Rehabilitation Centre that his previous episodes of daily
headache had resolved by the time of his discharge at the end of January 2010.
That was Ms. Cuttiford’s note to which she testified, but Mr. Michael,
on the other hand, said that was not his recollection of his condition at the
time, although he could not recall what he had said to Ms. Cuttiford at their
discharge meeting.

[18]        
The nature of Mr. Michael’s work changed in March and April 2010 when he
went on a course where the physical workload was light. When the course ended,
he was put to work on the electrical systems in the diesel engine room of a
submarine where he says the work area was fairly spacious and at least some of
the work could be done sitting down. He said he was also working night shifts
which meant that the job pace was somewhat more relaxed than the day shift and
there were fewer people around.

[19]        
Mr. Michael says that during the spring of 2010 his neck pain and
headaches were present but not unduly troublesome. When he was discharged from
Victoria Exercise Rehabilitation Centre, he was given a low-weight stretching
program and he did that three to five times a week for about an hour each time.

[20]        
Mr. Michael took off most of August 2010 so that he and Morgane could
travel to Europe.

[21]        
Toward the end of August 2010, when Mr. Michael returned from Europe, he
went to see Dr. Thibodeau, at which time Dr. Thibodeau noted that
Mr. Michael told her that he was feeling “quite good with a minimal pain
in his neck or lower back.”

[22]        
When Mr. Michael returned to work after his vacation, he was again
assigned to work on the submarine, but in areas other than the engine room.
This meant doing heavier work than he had done for much of the year to that point
and in more confined spaces where he was often required to work in awkward
positions. Mr. Michael testified that this was followed by an increase in
his neck pain and recurrence of severe headache.

[23]        
There was a further increase in heavy work in November 2010 when the
pace of work picked up because some engineers were visiting and this increase
in heavy work, with the increased pain symptoms, continued through to January
2011.

[24]        
Mr. Michael testified that, although his symptoms had increased in
frequency and severity, he did his best to not show it at work as he was
concerned about becoming known as less than fully fit, and what that might do
to his career. Fortunately, and coincidentally, Mr. Michael was reassigned to
more office type duties working in quality control in February 2011. That
lighter physical load lasted through to August 2011.

[25]        
In early 2011 Mr. Michael and Morgane sold their townhouse and bought a
three-storey house with a lower suite they rent out to tenants.

[26]        
The change in Mr. Michael’s work duties in early 2011 led to an
improvement in his symptoms, although he testified that he continued to have
neck pain and what he described as low grade headaches. Occasionally, he would
get a more severe headache but those episodes he attributed to things he was
doing outside his job, recreationally or otherwise, and not to work-related
activities.

[27]        
The change in work duties in early 2011 also allowed Mr. Michael to go
to the gym more frequently. During this time he tried acupuncture at
Dr. Thibodeau’s suggestion.

[28]        
Mr. Michael and Morgane were married in August 2011 on Gabriola Island.
Mr. Michael had purchased his parents’ home on Gabriola Island in 2008,
and he and Morgane rented it out. The tenants in the Gabriola Island property
were responsible for general maintenance but major problems were
Mr. Michael’s responsibility and, between tenants, he would have to
repaint and take care of those things that needed fixing to make the place presentable
for new tenants.

[29]        
The wedding was largely a do-it-yourself affair with family and friends
helping to set up what needed to be set up for the wedding itself. Most of the
help left when the wedding was over and there were fewer people to help out
with the taking down and cleaning up. More unfortunately, on the day after the
wedding, Mr. Michael was suffering a headache severe enough that he was unable
to assist his wife and the one friend who had remained. Consequently, they did
most of the work without Mr. Michael’s assistance.

[30]        
After the wedding, Mr. and Ms. Michael went on their honeymoon.
Mr. Michael had used up all of his sick leave and in order to get time off
for his honeymoon, he took advantage of a program that allowed him to take the
time off but required him to pay it back through a reduced wage rate until the value
of the time off was made up.

[31]        
Mr. Michael has tried various treatments, including injections from
Dr. Vincent to the back of his skull. Some of those injections cause a
temporary worsening of headache symptoms, followed by three to four weeks of
improvement in the amount of headache and neck pain. That period of improvement
lengthened somewhat after the last injections.

[32]        
Mr. Michael is limited to what he can do around his house. Before the
accident he had no limitations in what he could do but now he finds that he
cannot do what he feels should be his share of the workload around the house, things
like vacuuming, carrying the laundry up and down the stairs or doing the
dishes. These activities, he has found, can bring on headaches. He still does
them or at least some of them, but has to be careful how he does them. His
concern is that if such activities lead to a headache, that headache could be
sufficiently disabling that he will miss time off work.

[33]        
Ms. Michael has taken on some of the outdoor work formerly done by
Mr. Michael such as mowing the lawn, working in the garden and cleaning
the gutters. They both say that this has been hard on Mr. Michael’s
self-esteem.

[34]        
Mr. Michael has a wide circle of friends, many of whom he met through
his sporting and recreational activities. Members of that circle have habitually
helped each other do physical projects or move house. Mr. Michael has
found, since his accident, that he can no longer offer his services as he did
before the accident, and he is therefore reluctant to call on his friends for
help because he feels he cannot reciprocate.

[35]        
Additionally, Mr. Michael, as a trades person, had been developing
a network of trades people with whom he could barter skilled services. Again,
Mr. Michael has had to pull back from that sort of thing because he can no
longer contribute what he feels is his full work capacity.

[36]        
As an example, Mr. Michael testified that at one point he was to help a
friend replace the roof on the friend’s house. Mr. Michael hoped that he
could learn enough doing that to be able to replace the roof on the Gabriola Island
rental property. Mr. Michael’s accident injuries prevented him from
helping his friend do the roof job, thus he did not pick up any roofing skills,
and had to hire someone to replace the roof on the Gabriola Island house.

[37]        
Mr. and Ms. Michael try to get to the Gabriola Island property once a
month if they can, partly because their insurance broker told them they should
do so for insurance purposes, and partly just to keep an eye on the place and
to visit friends and family on the Island. Ms. Michael has done some of the
maintenance Mr. Michael would have done on the Gabriola Island property, but
this is not by choice. Ms. Michael gives as an example that the deck on
the Gabriola Island property needed power washing and painting and because Mr.
Michael was unable to do it, she had to do it.

[38]        
Mr. Michael said that he bought a boat with a friend, Mr. Russell, that they
intended to fix up and use between them. Mr. Michael had to sell his share in
the boat because he was unable to do some of the heavier work involved in
fixing up the boat, giving engine replacement as an example.

[39]        
Mr. Michael has reduced his recreational activities since the accident.
He still plays baseball, but has made perhaps half the games, whereas before
his accident he would have been at all the games. He still goes surfing and
snowboarding, but rather than participating on both days of a weekend as he
would before his accident, he limits himself to one day on a weekend trip. He
has largely given up basketball because it involves overhead activity, and
working overhead or playing sports requiring overhead action causes both neck
pain and headache.

[40]        
At the time of trial, Mr. and Ms. Michael were expecting their first
child in June 2014 and both were concerned that Mr. Michael’s injuries would
impair his ability to fully interact and participate in child rearing.

[41]        
Ms. Michael described her observations of Mr. Michael before and after
the accident. Whereas before the accident Mr. Michael was fully engaged, active
and enthusiastic about both work and recreational activities, Ms. Michael now
observes that since the accident Mr. Michael will come home from work appearing
as if he were in pain, put ice on his neck, lie on the couch and take pain
killers. She has seen this behaviour wax and wane, associated with what Mr.
Michael tells her he is doing at work, with the pain behaviours increasing with
heavier work, and lessening with lighter job duties. Ms. Michael says that whereas
before the accident Mr. Michael would drive to and from Gabriola Island, about
one and one-half hours each way, she now takes over about half way in each
direction. Ms. Michael testified that last year she aerated the lawn,
mowed and did the weed whacking, something Mr. Michael would have done before
his accident. Both Mr. and Ms. Michael testified that the yard in
their new home is not large and so yard work is not a major factor, but it
still needs to be done and Mr. Michael is impaired in his ability to do
it. Ms. Michael says that something like putting up Christmas lights is a
task Mr. Michael continues to do but he does it in stages with rests in
between.

[42]        
Ms. Michael said that when Mr. Michael’s headaches are severe, she has
observed that he seeks out a quiet, dark environment, does not like to engage
in conversation, and, when he does engage in conversation, sometimes he does
not make complete sense to her. She has seen these episodes last as long as
three days.

[43]        
Ms. Michael said that they have had to cancel or alter planned
activities such that she will go alone and Mr. Michael will stay at home when he
is complaining of a headache.

[44]        
Both Mr. and Ms. Michael say that Mr. Michael’s injuries have put a
strain on their relationship and while Ms. Michael does not resent Mr.
Michael’s inability to participate fully in the workload around the house, she
knows that Mr. Michael is distressed by his inability to do what he feels
he should.

[45]        
Mr. and Ms. Michael’s evidence about Mr. Michael’s pre-accident
activities and the changes after the accident have been corroborated to some
extent by his friends, Mr. Falkenburg and Mr. Russell.

[46]        
The most significant issue insofar as Mr. Michael’s injuries are
concerned is the question whether he has a migraine headache condition, and, if
so, whether it is attributable to injuries he suffered in the accident or whether
it has arisen spontaneously.

[47]        
The defendant points to the gap between November 2009 and late August
2010 when Mr. Michael did not see his physician as indicating the absence of
any serious problem. That, together with the note made by Ms. Cuttiford when
Mr. Michael was discharged from the Victoria Exercise Rehabilitation
Centre at the end of January 2010, and Dr. Thibodeau’s note at the end of
August 2010 suggesting significant recovery, lend some support to the
defendant’s argument that it was Mr. Michael’s reassignment to more
strenuous work on the submarine in September 2010 that led to a spontaneous
development of severe or migraine headaches.

[48]        
The medical evidence on the point is, from the plaintiff’s side, the
opinions of Dr. Filbey, a specialist in physical medicine and rehabilitation,
and Dr. Cameron, a neurologist.

[49]        
For the defendant, the opinions of Dr. Piper, an orthopaedic surgeon,
and Dr. Moll, a neurologist, support the argument that the migraine or
other headache conditions are unrelated to the accident.

[50]        
I place less weight on Dr. Piper’s evidence because he conceded that the
diagnosis of headache condition and related issues were outside his field of
expertise and that there are better and more qualified experts to opine on the
matters, such as Drs. Filbey, Cameron and Moll. That does not mean I place no
weight on his opinion; as a physician he is entitled to give the opinions he
did.

[51]        
With respect to Dr. Moll, he agrees that the headaches described by
Mr. Michael as occurring twice a month are consistent with a diagnosis of
migraine but says that migraine headache does not generally arise as a
consequence of other causative conditions such as trauma. Dr. Moll testified
that the fact that Mr. Michael’s migraine-type headaches developed more
than a year after the accident indicates factors other than injury as the cause
of those headaches. Dr. Moll lists factors such as working on the submarine,
anxieties Mr. Michael may have had about his job, whether a need to retrain,
poor sleep and perhaps litigation stress as potential causes of Mr. Michael’s
headaches. Dr. Moll disagrees with Dr. Filbey that Mr. Michael had
occipital neuralgia and says instead that the headaches described by Mr.
Michael, other than migraine-type headaches, are more consistent with muscle
tension headache and perhaps were stress related.

[52]        
Dr. Filbey has responded to Dr. Moll and has pointed out, first, that
Dr. Moll was apparently not given a copy of Dr. Filbey’s first written
opinion, the one in which he diagnosed occipital neuralgia. Dr. Filbey points
out that, in his first examination of Mr. Michael, reflected in a report
that was not supplied to Dr. Moll, he described a finding of a positive
Tinel’s sign which he said was of significant importance to his diagnostic
conclusions.

[53]        
Dr. Filbey also points out that Dr. Moll did not personally examine
Mr. Michael, but rather based his opinion entirely on a review of the
medical reports and records. In Dr. Filbey’s view, given that the medical
reports provided to Dr. Moll were incomplete, Dr. Moll was at a significant
diagnostic disadvantage.

[54]        
I note that Dr. Cameron’s second opinion, dated November 15, 2013, and
delivered in response to Dr. Moll’s opinion, itself fell somewhat short of
saying outright that Mr. Michael’s migraine headaches were caused by the
accident. Instead, Dr. Cameron’s opinion was that, in the first year after his
accident, Mr. Michael’s headache pattern changed from musculoskeletal or cervicogenic
headaches to include occasional intermixed migraine headaches and that
Mr. Michael now has developed intermittent migraine or probable migraine
headaches associated with the post-traumatic musculoskeletal headache, or
tension‑type headache, that he developed as a result of soft tissue and musculoskeletal
injuries sustained in the car accident. Dr. Cameron falls short of drawing a
direct causal link between the migraine-type headaches and the motor vehicle
accident and this is properly so because that is a conclusion that should be
left to the trier of fact.

[55]        
In this case, I draw that conclusion, based in part on the weight of all
of the medical evidence, and in part on my acceptance of Mr. Michael’s evidence
that, in spite of there being some gaps in his attendance on doctors, he is
never completely free of headache, albeit low-grade headache, and that his
headache complaint, often associated with neck pain, waxes and wanes with the
physical nature of this job requirements which also waxes and wanes.

[56]        
I accept the combined evidence of Drs. Filbey and Cameron that what may
have begun as a soft tissue related headache condition naturally progressed to
a mixture of cervicogenic or musculoskeletal soft tissue type headaches and
migraine‑type headaches.

[57]        
I therefore conclude that Mr. Michael’s present complaints of low grade
constant neck pain, associated with headache, which becomes severe perhaps
twice a month, but otherwise remain low grade, are mildly disabling on a
constant and ongoing basis, becoming substantially disabling perhaps twice a
month.

[58]        
I accept that Mr. Michael occasionally feels as if his balance is at
risk if he has to work overhead or look upwards for a significant time, and that
although this has not caused him to fall, it is nonetheless disquieting on the
job.

Damages

[59]        
In approaching damages, it is often important to determine how long an
injury condition will continue to affect the plaintiff. The quantum of
non-pecuniary damages is influenced by the duration of an injury, one of the
factors set out in the often-cited decision in Stapley v. Hejslet, 2006
BCCA 34, at para. 46. Similarly, claims for lost future earning capacity are
heavily influenced by how long into the future an injury may impair earning
capacity. The same holds true for costs of future care and loss of housekeeping
capacity.

[60]        
Having concluded that Mr. Michael’s headache condition, including his
migraine headaches, are causally connected to the accident, it then becomes
necessary to determine how long these conditions will continue to affect him.

[61]        
In her report of February 21, 2013, Dr. Thibodeau hinged her prognosis
on whether Mr. Michael would continue with his current job. If he were to
change to a less physically demanding job, Dr. Thibodeau thought he would have
a good chance of having his neck pain and headaches settle down or even fully
resolve, whereas if he carries on with his current duties, she thought he would
continue to have neck pain and headaches. That presents Mr. Michael with an
unenviable choice.

[62]        
In his first opinion of February 2011, Dr. Filbey thought that Mr.
Michael’s prognosis for recovery was positive. In his second opinion of January
2013, Dr. Filbey’s prognosis was significantly different. In the latter
opinion, Dr. Filbey thought it was more likely than not that Mr. Michael would
continue to have ongoing, low grade, soft tissue pain exacerbated by activity,
that he would continue to have pain associated with the nerves in his head,
that his pattern of headache, including a functionally limiting migraine
disorder, was likely to continue, and that even if his job could be altered to
limit heavier lifting and working in confined spaces, he would likely continue
to miss days from work due to migraine headache.

[63]        
Dr. Cameron’s opinion was that Mr. Michael would probably remain
permanently partially disabled because of ongoing chronic pain and headaches.

[64]        
I accept the cumulative effect of these opinions as establishing that
Mr. Michael’s current condition, while it might wax and wane according to
activities at work or outside work, is more likely than not permanent.

[65]        
Turning to non-pecuniary damages, I am mindful of the non-exhaustive
list of factors set out in Stapley. Mr. Michael is still young, he is
just starting a family, he is relatively early in his career as an electrician,
and before the accident he had demonstrated some ambition to improve his
economic circumstances by acquiring rental properties he could work on himself,
as well as having demonstrated a relatively high degree of recreational and
athletic ability and interest.

[66]        
All of these facets of his life have been affected by his injury and
this will continue indefinitely into the future.

[67]        
Each party has tendered authorities establishing what each says is the
appropriate range of damages. The defendant presents two alternative ranges, the
first, assuming no causal connection between the accident and the ongoing
headache condition; and the second, assuming a causal connection but only to
ongoing low-grade intermittent neck pain, sometimes aggravated by physical
work.

[68]        
The plaintiff’s authorities could support non-pecuniary damages ranging
between $70,000 and $100,000. Of the authorities put forward, some are
sufficiently dissimilar to the plaintiff’s situation that they are of little
assistance. As an example, Crane v. Lee, 2011 BCSC 898, involved a plaintiff
with a herniated disc that caused ongoing pain, likely to be permanent.

[69]        
Three of the decisions cited by the plaintiff are reasonably closer to
the injuries suffered by Mr. Michael. Murphy v. Obrien, 2013 BCSC 339,
involved a 59 year old plaintiff left with chronic frontal headache that
was constant and occasionally led to vomiting. Damages assessed there were
$65,000.

[70]        
In Combs v. Bergen, 2013 BCSC 321, a 42 year old plaintiff was
awarded $70,000 for soft tissue neck and low back injuries.

[71]        
Perhaps the closest in terms of facts is Rayner v. David, 2012
BCSC 2048, where a 28 year old plaintiff was awarded $65,000 for neck and
shoulder injuries and associated headache occurring once or twice a month,
often triggered by overhead work, heavier tasks or computer work.

[72]        
The assessment of damages is an acutely personal exercise, as the
damages must be fit for a particular plaintiff and that plaintiff’s particular
circumstances. Damages awarded to other plaintiffs in different circumstances
can be, at best, a very rough guide.

[73]        
Given the impact on Mr. Michael’s recreational activities and allowing
that increasing age and family responsibilities might have curtailed those
activities in any event, but bearing in mind the many ways in which the
injuries, particularly the headache condition, have caused Mr. Michael to alter
his work, his activities around the home, his social and recreational
activities outside the home, and his relationship with his wife, a fit and
proper award for non-pecuniary damages is $65,000.

Loss of Earning Capacity:  Accident to Trial

[74]        
I have examined the chart of income loss prepared by Mr. Michael
and I accept that the dates and amounts he states having lost as a result of
injuries suffered in the accident are accurate. If anything, they may somewhat
understate his accident-to-trial income loss. I say that having in mind some
uncertainty over the impact on Mr. Michael’s accumulated sick time and some
effect on his vacation time as a result of his early attempts to mask the
extent of his disability by avoiding claiming sick time.

[75]        
I accept that, after the agreed upon reduction for the impact of income
taxation, the plaintiff’s loss of earning capacity accident-to-trial is
$26,447.46 and the defendant is ordered to pay that amount.

Loss of Future Earning Capacity

[76]        
I accept that Mr. Michael has demonstrated a real and substantial
possibility of future income loss as a result of the injuries suffered in the
accident. His collective agreement permits him 120 hours per year of sick
leave. He had used considerable portions of his sick leave from time to time
prior to the accident, for injuries suffered outside the work environment,
largely as a result of the aggressive way he pursued some of his recreational
activities.

[77]        
The fact remains that, in 2011 Mr. Michael was off work for 248 hours;
in 2012, 240 hours; in 2013, 308 hours. In the first two of those years, he
doubled his allowable time off and in 2013, exceeded his allowance by a factor
of 1.5. 2010 may seem to be an anomaly in that he only took off 56 hours. I
accept his explanation that 56 hours understates the situation because I accept
his evidence that he tried to avoid appearing hurt or incapacitated and so took
vacation time or compensatory time off (crediting overtime to time off rather
than wages). I also accept that Mr. Michael had somewhat easier job duties
in the spring and summer of 2010.

[78]        
As is stated in Perren v. Lalari, 2010 BCCA 140, at para. 32, if
a plaintiff discharges the burden of showing a real and substantial possibility
of future income loss, the plaintiff may then prove the quantum of that loss on
either an earnings approach or a capital asset approach. The former is as set
out in Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 (C.A.), the latter
in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.).

[79]        
In this case, the loss is measurable in a pecuniary way by assessing the
time Mr. Michael will likely lose from work as a result of his injuries in
the future.

[80]        
The amount of time he has lost from work up to the trial is informative
but it is not determinative of the amount he will lose in the future. The
assessment of lost future earning capacity is an exercise in prediction, often
referred to as “crystal ball gazing,” with the objective being fairness to both
the plaintiff and defendant. Using the present values provided by Mr. Wickson,
an economist, in sample calculations, as altered by an updated report, updated
to reflect the changes in discount rates ordered by the Chief Justice after the
evidence and argument had concluded but before judgment, if one assumes the
loss of one shift per month, the damages’ present value would be just over $80,000.
Assuming the loss of two shifts per month, the present value would be just over
$158,000. Assuming the loss of three shifts per month would amount to over
$232,000.

[81]        
These results are also influenced by the length of service Mr. Wickson
used in his sample calculations, assuming retirement at age 67 for the
one-shift loss, retirement at age 66 for the two-shift loss, and retirement at
age 65 for the three-shift example.

[82]        
How much time Mr. Michael will lose is influenced by the physical
demands of his job and, to a lesser extent, how many physically demanding
activities he avoids at home or recreationally when he is not on the job. With
respect to his employment, I accept that there are few job openings for
electricians in areas that would be less physically demanding, and that there
is a fairly large pool of applicants competing for those few jobs.

[83]        
I note the increase in time off work from 2012 to 2013 as some
indication that things are not improving for Mr. Michael with respect to his
attendance at work.

[84]        
I did not get the impression from Mr. Michael that, although he enjoyed
his work and took some pride in it, it was so central to his existence that he
would have continued to work for as long as he was permitted if the accident
had not occurred. I also bear in mind that Mr. Michael had missed work for
various reasons before the accident.

[85]        
It is impossible at this point to know whether things will get better or
get worse for Mr. Michael insofar as his job attendance is concerned. Doing my
best to avoid either over or under compensating Mr. Michael, I award $150,000
for lost future earning capacity.

Cost of Future Care

[86]        
The test for damages under this head is set out in Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 (.S.C.): claims for future care costs must be
medically justified and reasonable. Medically justified does not require a
doctor’s prescription for each and every item for which damages are claimed
under this head but there must be some rational link between the item for which
damages are claimed and a medical condition for which the defendant is liable,
see Gregory v. Insurance Corp. of British Columbia, 2011 BCCA 144, .

[87]        
Here there are claims for which no rational link has been established.
These include the recommended costs of upgrades to baby carriers, strollers,
adjustable height cribs, and a swivel base for a child car seat. Those expenses
are not awarded.

[88]        
There is a recommendation for 60 pain killers per month, 30 each of
Advil and Tylenol. The present value of those is $3,600. Mr. Michael testified
he takes five to ten pain killers per week. At the high end, he takes
two-thirds of the pain killers recommended by the plaintiff’s expert.

[89]        
The pain killers are medically justified and the cost of them is
reasonable. Two-thirds of the amount sought is awarded, or $2,400.

[90]        
The expert recommends Relpax, a drug prescribed for a time by
Dr. Thibodeau but which the plaintiff testified was not achieving any
purpose. No award is made for Relpax.

[91]        
The expert recommends a cervical pillow and replacements over time. The
medical justification for that item is tenuous at best, although the amount
claimed is reasonable. On balance, it is not sufficiently related to Mr.
Michael’s injuries so no award is made for the pillows.

[92]        
The expert recommends physiotherapy, massage therapy, a gym membership
and psychological counselling. Mr. Michael has had physiotherapy in the past,
but seems to have achieved whatever benefit he will achieve from it. Continued
physiotherapy is not medically justified based on the medical evidence or Mr.
Michael’s pattern of use.

[93]        
On the other hand, Mr. Michael continues to use massage therapy (nine
times in 2013). For symptomatic relief, particularly of his neck injury, which
might also have some incidental benefit to his headache condition, this is
medically justified and the cost is reasonable. The present value of the
recommended six sessions per year is $11,450, and that is awarded.

[94]        
Gym membership is presently free to Mr. Michael through his employment.
I expect that he will continue to be employed at the DND, and that gym
membership will be available to him free of charge. No award is made for gym
membership.

[95]        
There is no justification that I have seen in the evidence, medical or
otherwise, for psychological counselling. It is neither medically justified nor
reasonable in my view and no award is made.

[96]        
The more difficult claim under future care is for housekeeping and yard
work.

[97]        
In my view, the evidence in this case does not take the matter over a
threshold which I think must exist for the court to consider a separate award
of damages for loss of housekeeping capacity, see McTavish v. MacGillivray
(1997), 38 B.C.L.R. (3d) 306 (S.C.).

[98]        
By “threshold” I mean a loss beyond merely being impaired or unable to
do something that he feels obliged to do as a contribution to domestic
activities. For there to be a loss of homemaking experience, it seems to me
that there should be some evidence that homemaking or the activities thereof
are something that produce enjoyment or pride so that the loss of it is
sufficient to attract separate compensation. That is not the evidence in this
case. Mr. Michael simply feels badly because he cannot carry his weight around
the house insofar as the ordinary activities of housekeeping are concerned.

[99]        
The yard work is a different matter. Mr. Michael has suffered a loss
here in that he is unable to do, or to do as efficiently or without risk of
losing time from work, those activities that he did either at his home or at
his rental property, prior to the accident.

[100]     The
expert, Ms. Phillips, recommends $2,000 per year for house maintenance, $1,000
for each of the homes and the Gabriola Island rental property. She also recommends
$300 per year for seasonal yard maintenance.

[101]     There may
be medical justification for these claims but, in my view, they are not
reasonable as presented.

[102]     Dealing
first with the house maintenance, there is little upon which one can evaluate
the recommended cost. It is not clear from the report what sort of maintenance
Ms. Phillips is postulating, how long it might take, nor at what rate one might
have to pay for replacement. Additionally, the Gabriola Island property is a
separate matter. As a rental property, presumably the costs of maintenance, if
someone else is paid to do it, becomes deductible from income, which has income
tax complications not explored in the report. Additionally, Mr. Michael’s
evidence was that the tenants at the Gabriola Island property are responsible
for the routine maintenance of that property, and his responsibility as
landlord is only major things, such as repairs, painting, etc.

[103]     Finally,
Mr. Michael does not say he is incapable of doing any of this work. Instead, he
says that he must be careful how he does it, and perhaps do it more slowly in
order to avoid triggering the onset of a headache which may impair his ability
to work.

[104]     The claim
presented for maintenance and yard work is around $46,000. A more reasonable
amount and the amount I award for this aspect of future care is $20,000.

[105]     The only
remaining item are the hot and cold packs. Mr. Michael uses these to control
his neck symptoms and his headaches. They are medically justified and the cost
proposed is reasonable. Hot and cold packs are awarded at the present value of
$262.13.

[106]     The last
item to be dealt with is out-of-pocket expenses or special damages. The claims
presented are for physiotherapy, massage therapy, acupuncture and
pharmaceuticals. The physiotherapy and massage therapy were recommended by
Dr. Thibodeau or other physicians, and the amounts claimed are reasonable.
Mr. Michael is awarded $7,048.99 for special damages.

[107]     In
summary, the awards are as follows:

[108]     There are
some matters outstanding from the trial that require attention. First, I
reserved decision on an objection to the portions of Mr. Wickson’s opinion
containing sample calculations. I did so on the basis that the evidentiary
basis for calculations based on Mr. Michael losing shifts had not been
established. A review of Mr. Michael’s evidence persuades me that a basis has
been established and Mr. Wickson’s report, marked “B” for identification,
should be marked as an exhibit in the trial.

[109]     Mr.
Wickson’s opinion of May 2, 2014, prompted by the change in discount factors,
will also be marked as the next numerical exhibit.

[110]     Mr.
Michael sought an adverse inference because the defendant did not call
witnesses on her witness list. These were people who worked with or supervised
Mr. Michael. They were witnesses equally available to Mr. Michael. I will
not draw an adverse inference in this case.

[111]     Similarly,
Mr. Michael asked me to draw an adverse inference from the failure to call a
Dr. Tessler, despite the defendant’s assertion that Dr. Tessler’s evidence
would be tendered. I am not clear what inference Mr. Michael asks me to draw
other than a general inference that the defendant’s case has less merit, and I
decline to do so.

[112]    
Costs follow the event unless there is something that requires counsel
to speak to costs.

               “R.T.C.
Johnston, J.”             

The
Honourable Mr. Justice Johnston