IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Easton v. Wolovets, |
| 2015 BCSC 210 |
Date: 20150216
Docket: M130510
Registry:
New Westminster
Between:
Daryl Alan Easton
Plaintiff
And
Mitchell Curtis
Wolovets
Defendant
–
and –
Docket: M147357
Registry:
New Westminster
Between:
Daryl Alan Easton
Plaintiff
And
Chane Neil Joseph
Munro and
Marie Levesque
Defendants
–
and –
Docket: M152239
Registry:
New Westminster
Between:
Daryl Alan Easton
Plaintiff
And
Roger Eric Deglan
Defendant
Before:
The Honourable Mr. Justice Williams
Reasons for Judgment
Counsel for Plaintiff in all actions: | R. W. McMullan and |
Counsel for Defendants in all actions: | F. Batista and |
Place and Dates of Trial: | New Westminster, B.C. June 2-6; 9-13, 2014 |
Place and Date of Judgment: | New Westminster, B.C. February 16, 2015 |
Table of Contents
The Evidence and the Circumstances
Multiple Motor Vehicle Accidents
Loss of Future Earning Capacity
(a) Richard
Carlin, Vocational Rehabilitation Counsellor
(b) Dr.
R.D. Hamm, Occupational Medicine Specialist
(c) Louise
Craig, Certified Functional Evaluator
(d) Dr.
Dean Powers, Vocational Rehabilitation Expert
(e) Robert
Carson, Labour Economist
Introduction
[1]
These reasons for judgment are rendered in respect of three actions in
negligence brought by the plaintiff Daryl Easton claiming damages resulting
from injuries sustained in three separate motor vehicle accidents. All three
actions were tried together. Liability has been admitted by the defendants for
each of the collisions. Accordingly, these reasons deal with the assessment of
the claims for damages.
[2]
The plaintiff was 33 years old as at the date of trial. He is a
carpenter by trade, although his ability to work at that vocation has been
significantly impacted by the injuries he has suffered, and that is a major
component of his claim for compensation.
[3]
Mr. Easton is married; he and his wife have a son, age two at the time
of trial. As well, the birth of a second child was expected shortly.
[4]
The claims which are advanced by the plaintiff fall under a number of
separate heads:
·
non-pecuniary damages;
·
past income loss;
·
future income loss / loss of capacity;
·
cost of future care; and
·
special damages.
The quantum of the past income loss and the special
damages has been agreed upon by the parties. The other heads of damage are at
issue.
[5]
The defendants do not dispute that injuries were incurred by the
plaintiff and that he is entitled to an award of damages. However, they take
issue with the extent of the claims advanced and the amount of the sums sought.
The Evidence and the Circumstances
[6]
A significant body of evidence was adduced at trial, including the
opinions of a number of medical practitioners and other persons with expertise
in other relevant matters. As well, six lay witnesses were called to testify as
to the practical aspects of the accidents effects on Mr. Easton’s life respecting
his personal and family circumstances and also his employment. Of course,
Mr. Easton testified as well.
[7]
By way of general overview, I will set out a description of the motor
vehicle accidents and the injuries that Mr. Easton says that he sustained; his
work circumstances at the relevant times; and the medical and therapeutic
resources that he accessed.
[8]
The first motor vehicle accident occurred on October 6, 2008 at an
intersection in Langley. The plaintiff was driving his 1994 GMC Sonoma pickup
on 208th Street. He came to a complete stop near 84th Avenue because of a traffic
jam. The defendant Mr. Wolovets was travelling behind Mr. Easton in his own
pickup truck. He did not stop and drove into the back of Mr. Easton’s vehicle.
The force of the collision was apparently significant. There was substantial
damage to Mr. Easton’s vehicle and it was ultimately written off as a
total loss.
[9]
At the time, Mr. Easton was employed as a lead hand/foreman carpenter by
Marino General Contracting (Marino). The company’s work was principally
custom home renovations and some new construction. The plaintiff had been employed
there since 2006 and was well regarded by the employer and those with whom he
worked as a confident, capable and reliable tradesmen. He performed a full
spectrum of responsibilities, including managing jobs and supervising employees,
as well as hands-on responsibilities: various site work, demolition, rough
carpentry and framing, through to fine finish work. He was also sometimes
called upon to do the work of other related trades, such as plumbing and
tiling. He was well able to perform those tasks.
[10]
Three days after the first accident, the plaintiff went to the clinic
where his family doctor, Dr. Pabani, practiced. Dr. Pabani was not available
but Mr. Easton saw another doctor there, Dr. Lee. Mr. Easton complained of
soreness in his left shoulder and neck, as well as discomfort in his lower and
mid back. He returned two weeks later and was seen by Dr. Pabani. He was
directed to take anti-inflammatory and muscle relaxant medications and was
referred to physiotherapy.
[11]
In November, Mr. Easton attended at the Marpole Physiotherapy &
Rehabilitation Clinic where he underwent five sessions of therapy. Otherwise, he
carried on with his work and his usual activities, although he reports that he
was experiencing weakness and tingling in his left arm, particularly when he
was doing overhead work. Because of that, he went back to see Dr. Pabani in
August 2009. The doctor observed what he thought to be a muscle spasm in the
plaintiff’s neck and upper trapezius area, especially on the left side. He advised
Mr. Easton that he should work on conditioning and strengthening exercises and
considered that this might be a matter of carpal tunnel syndrome.
[12]
Between April and June 2010, the plaintiff attended a physical therapy
program, Life Force, for a total of 15 sessions.
[13]
In January 2011, because of the persisting discomfort, Mr. Easton was
examined by Dr. Travlos, a physiatrist. Based upon his examination, Dr. Travlos
diagnosed Thoracic Outlet Syndrome (TOS) of the left upper extremity. To
further investigate, he recommended that MRI tests be conducted. That
information was subsequently communicated to Dr. Pabani, who ordered a nerve
conduction study and also referred the plaintiff to Dr. Fry, a surgeon with substantial
expertise and considerable experience in dealing with TOS.
[14]
Dr. Fry met with and examined the plaintiff in May 2011. He concluded
that Mr. Easton had functional thoracic outlet syndrome on the left side and
also suspected that he might have multiple crush syndrome. Based upon his
findings, he recommended surgery for Mr. Easton, namely first rib resection of
the left side.
[15]
The plaintiff also had a number of sessions with a kineseologist in 2011,
Mr. Tsai, who conducted an evaluation and then began a strengthening program
for Mr. Easton.
[16]
The surgery was scheduled for December 6, 2011. Prior to that, on
November 15, 2011, Mr. Easton was involved in the second of the subject motor
vehicle accidents. He was in the parking lot outside a bowling alley with his
wife and son. He was putting his son into a car seat in the rear of the vehicle.
At that point, another automobile, parked nearby and operated by the defendant
Ms. Levesque, began to move and came into contact with the door of the Easton
vehicle, pushing the door into Mr. Easton. While this was an upsetting incident,
the actual consequences in terms of injury were relatively minor.
[17]
Dr. Fry conducted the operation on December 6, 2011. The surgery
proceeded in a normal and straightforward fashion without any apparent
complications. Mr. Easton was subsequently released from hospital and directed
to remain away from work. It is to be noted that up to the time shortly before
the surgery, he had not taken time off but had continued to work at Marino.
[18]
On February 3, 2012, the plaintiff returned to see Dr. Pabani. At that
point he was eight weeks post-surgery. Matters appeared to be progressing well;
however, Dr. Pabani recommended that Mr. Easton remain off work for a further
two months. At the next visit, in April, Mr. Easton reported experiencing left
arm pain and had a reduced range of motion. His grip strength on his left side
was decreased. Dr. Pabani recommended exercise and physiotherapy.
[19]
Mr. Easton attended at the Glover Physiotherapy and Hand Clinic in Langley
and received treatment between April and August 2012. Some improvement in his
condition was noted.
[20]
From an employment perspective, the plaintiff’s circumstances continued
in an unfortunate state. He remained unable to return to work at Marino.
[21]
That situation came to a head in June 2012. Mr. Easton had repeatedly
indicated to his employer that he would be returning to work. When that did not
happen and he was unable to return to work, the employer decided that he could
not wait indefinitely. He advised Mr. Easton that his employment was
terminated.
[22]
In the summer of 2012, Mr. Easton returned to see Dr. Fry, who was
concerned about the condition of the plaintiffs left shoulder. He suspected a
scapular/thoracic left shoulder dysfunction syndrome and advised Mr. Easton
that he was not fit to return to work.
[23]
Mr. Easton remained off work. On October 12, 2012, as part of his
rehabilitation, he began an extensive work reconditioning program at a facility
called HealthEx. The program was comprised of four hours per day of physical
therapy and extended over a total of 12 weeks. This was undertaken on the basis
that Mr. Easton had not recovered sufficiently so as to be able to return to
work. In the early stages of this program, the plaintiff saw Dr. Pabani. He
concluded that Mr. Easton appeared to be making a proper recovery and felt
that in short order he would be able to engage in light duties and probably be
able to return to full work duties at the conclusion of the program.
[24]
Matters did not proceed as hoped. On January 7, 2013, the plaintiff
again visited Dr. Pabani. He reported that there had been a flare-up of his
symptoms while performing the HealthEx program. He complained of experiencing
soreness and tightness in his left neck and shoulder area and having tingling
in his left arm and finger. Dr. Pabani advised the use of heat, muscle
relaxants, anti-inflammatories and stretching.
[25]
Mr. Easton found those measures alleviated some of the symptoms but he
continued to experience pain in his left arm.
[26]
The third subject motor vehicle accident occurred on March 19, 2013. Mr.
Easton was driving his Ford truck, travelling eastbound on 28th Avenue in
Langley. Approaching an intersection, he slowed with the intention of turning
left. A van operated by the defendant Mr. Deglan came through the stop sign
without stopping and drove into the left side of Mr. Easton’s truck. The damage
was fairly significant and again the vehicle was deemed a total loss. Mr.
Easton was wearing his lap and shoulder belt. He described having sustained a
sore jaw, and said that his left side arm and shoulder were inflamed and tightened
up. Two days after the accident, the plaintiff attended at Dr. Pabanis clinic
where he saw Dr. Carlson. His injuries were observed and he was advised to
continue his physiotherapy and to take a low dose of nortriptyline as Dr. Travlos
had earlier recommended.
[27]
A further medical complication developed in that the doctors who were
involved in the case, particularly Dr. Travlos and Dr. Pabani, recognized that
circumstances appeared to be taking a psychological toll on Mr. Easton. Both
observed evidence of low mood and some suggestion of depressive symptoms. In
August 2013, Mr. Easton saw Dr. Anderson, a psychiatrist. Dr. Anderson found
that the plaintiff was emotionally withdrawn, irritable and having
concentration difficulties.
[28]
Earlier in the year, in May of 2013, Mr. Easton had met with a
psychologist, Dr. Chung, for an assessment. Dr. Chung had diagnosed the plaintiff
with an anxiety disorder and depressive symptoms, and began a course of
cognitive behavioural therapy. Dr. Anderson concurred in that view. In his
opinion, Mr. Eastons symptoms were consistent with a diagnosis of
moderately severe major depressive disorder. He recommended continuing psychotherapy
with a psychologist and antidepressant medication.
[29]
Matters have continued in that general trajectory for the plaintiff. He has
continued to experience pain in his upper left extremity. He has been unable to
return to his usual work as a carpenter. He has attempted a number of courses
of physical therapy; some have been of some benefit. He has made efforts to
find other work, mostly without success. In order to make ends meet, he found a
number of odd jobs. Because of the fact he was unable to generate a regular
income, his wife has had to continue working at multiple jobs, mostly of a
quite basic type. Mr. Easton also found himself forced to sell a number of his
recreational possessions in order to have money for day-to-day purposes. As
well, he has had to borrow funds from his father.
[30]
In the course of preparing for this litigation, Mr. Easton met with a vocational
counsellor Dr. Powers. In addition to conducting an evaluation of the plaintiffs
circumstances, Dr. Powers made active efforts to find suitable employment for
Mr. Easton. In late 2013, a placement was found at a small construction company,
Intrinsic General Contracting (Intrinsic). In fact, Mr. Easton’s younger
brother is the lead hand at Intrinsic and was instrumental in organizing a
place for the plaintiff, although that entailed substantial accommodation.
Initially Mr. Easton worked there on an unpaid basis but in early 2014 he was
taken on at a reduced workload and reduced salary. As at the date of trial,
that arrangement was continuing although it could fairly be described as
somewhat tenuous.
Discussion
[31]
Before examining the specific heads of damages that have been claimed, I
wish to make certain observations and deal with a number of matters that are of
general relevance to the claims at bar.
Prior Accidents
[32]
The evidence disclosed that Mr. Easton had been involved in two
relatively minor motor vehicle accidents, one in 2001 and one in 2002. I am
satisfied that the consequences of those accidents had fully resolved by the
time of the first accident at issue in this case, and that neither of those
prior accidents has any bearing upon the claims at issue in this litigation.
The Plaintiffs Credibility
[33]
In a trial such as this, the issue of credibility is often raised,
particularly the credibility of the plaintiff. Here, the defendants have made
submissions in that regard: they contend, quite forcefully, that Mr. Easton is
a witness whose credibility should leave the Court with real reservations. A number
of specific instances are cited as examples of the unreliability of his
testimony.
[34]
I have considered those carefully in the course of examining the
evidence in this trial. I have had the opportunity to see Mr. Easton in the
witness stand and to reflect upon the issue. My conclusion is that the
plaintiff is essentially a credible witness. For the most part, he is something
of a stoic and non-complaining individual. He is not an especially sophisticated
or glib person. He is plain-spoken. There were times in the course of the trial
where his frustration became apparent. There were times that he was confronted,
as almost inevitably will be the case, with discrepancies in records. Having
considered those circumstances, I am satisfied that he has attempted to be
truthful and that his testimony is believable.
Causation
[35]
A central issue in this trial is the diagnosis of TOS, which is Mr.
Eastons principal injury and the one that I find is the driver for most of the
difficulties that found his claims.
[36]
The defendants urge this Court to conclude that the plaintiff has not
established that the TOS condition was caused by the negligence of the
defendants, individually or collectively. Instead, they submit that it is
reasonable to find that this condition resulted from some pre-disposition Mr.
Easton had, in conjunction with the effects of the work that he performed. In
that scenario, it is the submission of the defendants that the plaintiff sustained
no more than soft tissue injuries in each of the subject accidents, and that
the TOS diagnosis, which was not made until some time after the 2008 accident,
could well have been precipitated by repetitive strain, heavy lifting and
overhead work. They also suggest there is a possibility that the earlier motor
vehicle accidents in 2001 and 2002 may had a causal role.
[37]
I am unable to accept that characterization of the matter. The medical
evidence, and there is a substantial body of such evidence here, taken in its
totality, leaves me entirely satisfied that the TOS was caused by the 2008
accident. The fact that its full manifestation was delayed and not immediate,
namely that he was able to carry on with his work and other activities for some
time after the accident, accords with the opinions of those who have expertise
in the matter. It is telling, in my view, that the medical expert of the
defendants, Dr. Woolfenden, supports that conclusion.
Mitigation
[38]
The defendants submit that the plaintiff has failed to mitigate his
damages by not complying with recommendations made by his treating medical
professionals, specifically, with respect to medications and exercise. They
also raise the issue of mitigation with respect to what they say was a failure
to have taken timely steps to find other work that was compatible with his
diminished capability.
[39]
The defendants rely on the general principle of the duty to mitigate and
make specific reference to three decisions where plaintiffs were found not to
have complied with recommendations to take specific medications and where the
plaintiffs had not followed through with exercise programs which had been
recommended: Besic v. Kerenyi, 2011 BCSC 1277 [ the court reduced the
non-pecuniary damages by 10%]; Pond v. Bucsis, 2013 BCSC 2001 [30%
reduction in non-pecuniary damages]; Middleton v. Morcke, 2007 BCSC 804
[a 40% reduction in non-pecuniary damages].
[40]
In the submission of the defendants, the result of the plaintiff’s
failure to mitigate his damages in this case should be a reduction of 30% to
40% in the non-pecuniary award. The defendants also submit that "arguably,
that deduction should also carry over to the issue of past income loss and
future loss of income". They say that if the plaintiff had appropriately
followed his physicians advice with respect to treatment, his symptoms would
have been reduced and his function would have improved. He accordingly would
have been able to return to work sooner and in a less limited capacity than he
did. Additionally, they say that if the plaintiff had maintained the very significant
improvement in his function that he gained in his exercise program in the
spring and summer of 2013, he likely could be working regular hours rather than
the reduced hours that he currently works and may continue to work in the
future.
[41]
One element of this allegation is that the plaintiff chose not to take
medications as he ought to have and was not sufficiently aggressive in asking
his doctor to prescribe medications for him. In response, the plaintiff says
that he took the medication that was prescribed for him but points out that he
experiences difficulty in taking pills. However, it is also evident that this
information may not have been fully communicated to Dr. Pabani. As well, the
defendants suggest this Court should be wary of accepting the plaintiffs claim
that he has difficulty tolerating medications. They say it is more a matter of
him taking them when it suits him.
[42]
The facts of the matter are, it seems to me, not straightforward.
[43]
I note that for example with respect to the Neurontin medication Lyrica,
there is no evidence that Dr. Pabani prescribed that medication to Mr.
Easton.
[44]
The issue is made somewhat more complicated because, over the relevant
time, there were four separate medical practitioners involved: Dr. Pabani, Dr.
Travlos, Dr. Fry and Dr. Anderson.
[45]
The reality is that there was a significant element of confusion with
respect to recommendations that were being made for medications. With the
benefit of hindsight, it is apparent that instructions should have been given
and prescriptions should have been written, such that the plaintiff would have
been provided with directions to take specific medications. In fact, that did
not happen.
[46]
It is also a factor that Mr. Easton is not one who is keen to take
medications or who seeks them out. That is in keeping with what appears to be a
general attitude of some stoicism and reluctance to make appointments to see
doctors frequently.
[47]
However, where the treating medical professionals have not prescribed
medications, I am not prepared to lay the blame at the feet of the plaintiff
and find that he failed to take reasonable measures such that he can be said
not to have mitigated his losses.
[48]
My view is informed by the fact that Mr. Easton is a relatively
unsophisticated individual and that was a factor in his dealings with the
doctors with whom he dealt. It is also relevant that, for a substantial portion
of the time, he was, I am satisfied, impacted by depression, and that is a
consideration.
[49]
With respect to exercise programs, while there is room to conclude he
could have been more diligent, when the evidence is examined, the case does not
rise to the point that it warrants finding that Mr. Easton should be penalized.
[50]
As examples of his shortcoming in that regard, the defendants make
reference to the program he undertook with Mr. Tsai in 2011, noting that he did
not complete the program because its scheduling conflicted with his work
obligations. Reference is also made to the occasion in 2012 when he attended
the Glover Physiotherapy program. It now appears that the therapy which he was
receiving there may not have been optimal: it seems to have been focused upon
stretching and passive activities. However, I am unable to see how the fault
for that deficiency can be attributed to the plaintiff.
[51]
In 2013, both Dr. Pabani and Dr. Travlos were recommending strengthening
and conditioning. Dr. Travlos specifically said that Mr. Easton should be
engaging in sessions of approximately 80 minutes of cardio and core
strengthening, in the order of three to four times per week.
[52]
The evidence suggests that Mr. Easton was not complying with that
recommendation; he was doing less. However, a short while later, he commenced a
program under the supervision of Mr. Tsai, a kineseologist. That therapy was
effective and resulted in significant improvement his pain levels decreased,
his strength and endurance improved markedly. Accordingly, I cannot see that
there was any significant harm done.
[53]
Mr. Easton did not continue on his own at that level. What he did
subsequently was less intensive, consisting of some stretching but no strength
training. In determining what significance should be assigned to this, I
consider it to be relevant that the evidence establishes that at the relevant
time Mr. Easton was coping with a serious depression. The testimony of Dr.
Anderson indicates that an effect of that condition is a degree of apathy that
can adversely impact the focus and discipline necessary to carry on with
self-directed exercise programs. To my mind, there is a striking logic to that
explanation, and I find that to have been a factor in the present case.
[54]
As I understand the submissions of the defendants, there are other
aspects as well to the contention that the plaintiff did not conduct himself in
ways that would have lessened the effects of the accidents upon his health and
his ongoing prospects for vocational success. As an example, issue is taken
with what is alleged to have been Mr. Easton’s failure to make mention to Dr.
Pabani of his symptoms of depression. Another matter raised in this regard is
that the plaintiff did not really make the necessary modifications to his
duties at work while he was still at Marino. Those changes would have
presumably been more accommodating and more forgiving of the physical problems
he was experiencing. Finally, the defendants say that the plaintiff should have
recognized from the results of the medical investigations that it was unlikely
that he would be able to return to the same level of work performance that he
had previously had. By persisting in the expectation that matters would
resolve, rather than actively taking steps to find and qualify for another
vocational path, they submit he has failed to take reasonable steps to mitigate
his damages.
[55]
With respect, I am unable to accede to these submissions.
[56]
When considering whether a plaintiff should be found not to have
mitigated his losses, the standard of judgment to apply must be one of
reasonableness: what would be expected of a sensible and responsible person in
the circumstances of the plaintiff: Gregory v. Insurance Corporation of
British Columbia, 2011 BCCA 144 at paras. 53, 56. It is not a state of near
perfection, assisted by the benefit of 20:20 hindsight. In this case, the facts
are somewhat unusual in that the problems which ultimately came to define the
extent of this man’s condition were not immediately apparent following the
first accident. Mr. Easton continued his work, as would be expected of a
reasonable plaintiff. Only later did the full extent of the effects of the
accidents manifest themselves. He then sought medical care and complied in a
reasonable way with the advice of medical professionals.
[57]
That he was not especially ardent in attending upon doctors is not, in
the circumstances, a basis to penalize him. Nor is the fact that he did not
pursue every possible inquiry with his doctors. It is quite relevant as well
that, when the evidence is examined in detail, much of what is complained of
respecting the medication issue is due to the fact that the doctors, and
particularly Dr. Pabani, did not prescribe the medications that, as now seems
apparent, should have been prescribed.
[58]
In short, I am not prepared to find that Mr. Easton failed to mitigate
his damages so as to warrant a reduction in the entitlement to the appropriate
awards.
Multiple Motor Vehicle Accidents
[59]
It is my conclusion that the first of the three subject motor vehicle
accidents was the event which has substantially resulted in the injuries with
which this trial is concerned. The second and third accidents resulted in what
I would describe as relatively minor and fairly transitory effects, aggravating
the symptoms that were already established from the original 2008 event.
[60]
In the course of trial and in the submissions which have been made, the
defendants have not suggested that the Court should allocate damages as among
the individual defendants. Accordingly, the awards of damages that are made
here are not apportioned among the defendants or the specific accidents.
[61]
With those matters addressed, I will now turn to a discussion of the
various heads of damages claimed.
Non-Pecuniary Damages
[62]
Mr. Easton seeks an award of damages to compensate him for the pain,
suffering and loss of enjoyment of life resulting from the negligence of the
defendants.
[63]
In the plaintiff’s submission, an appropriate award under this head is
in the amount of $200,000. In support of that, he relies upon two cases, Stapley
v. Hejslet, 2006 BCCA 34, and Hubbs v. Escueta, 2013 BCSC 103.
[64]
The defendants say that an appropriate award is in the range of $28,000-$30,000
if the Court concludes that the plaintiffs TOS condition was not caused by
their negligence.
[65]
As indicated, I reject that position. I find on a balance of
probabilities that the TOS was a consequence of the collisions, specifically
the first collision.
[66]
In that event, the defendants submit that an appropriate award of non-pecuniary
damages is in the range of $90,000-$100,000. The authorities relied upon are Carr
v. Simpson, 2010 BCSC 1511 and Gillam v. Weib, 2013 BCSC 565.
[67]
I am satisfied that the effects of the injuries which Mr. Easton
sustained, have had both directly and indirectly a serious negative impact
upon a number of aspects of the quality of his life.
[68]
His pain and discomfort have been significant. The effects of the TOS
include myofascial pain and chronic pain. His relations with his spouse and his
ability to properly participate in the upbringing of his infant son have been
impacted. His ability to work at his trade was an important part of his life. As
a result of the accidents, that has been radically changed. His ability to
provide for his family has been greatly altered. Prior to the accidents, Mr.
Easton was active in a number of outdoor pastimes; those have been
substantially limited. As well, the injuries and their effect upon him have had
a significant psychological dimension, including depression and anxiety in an
automobile. The distress that he has experienced and continues to experience is
real and serious.
[69]
Many of his symptoms were continuing at the date of trial, and there is
good reason to expect that those problems will continue, albeit with some level
of resolution to be expected.
[70]
In a related vein, I was struck by the benefit achieved by Mr. Easton in
the physical therapy program which was provided by Mr. Tsai. While I do not
suggest that such a program is a means of achieving total relief from his
symptoms, it is apparent to me that a diligent pursuit of a serious program of
that nature could have very positive effects.
[71]
I turn now to the authorities to which I have been referred.
[72]
Stapley is an oft-cited case. It is principally recognized for
the very helpful framework it provides for assessing non-pecuniary damages and
the many considerations that bear upon the issue. In terms of the actual facts
of that case as a meaningful comparator to the present case, I find it to be of
quite limited value. That is because the circumstances of the plaintiff Mr.
Stapley were unusual in that the injuries that he had sustained resulted (and
were inevitably bound to result) in consequences specific to him: the company-provided
accommodation which was a substantial part of his community connection would be
lost to him. That is not a feature which is present in Mr. Easton’s situation.
[73]
In the result, I am not able to accept that Stapley is useful in
attempting to determine an appropriate quantum of non-pecuniary damages for Mr.
Easton.
[74]
Similarly, the facts of Hubbs do not provide a particularly
useful comparison. The plaintiff there incurred significant orthopedic injury: a
serious fracture of his ankle. The injury necessitated two surgeries; he was
left at risk for arthritic complications and deteriorating physical
capabilities. The injuries were quite unlike those in the present case.
[75]
The plaintiff in Gillam was a 32-year-old production worker at a
meat processing facility. She sustained serious injuries in an accident including
neck and shoulder chronic pain, TOS, headache and low mood. The TOS affected
her dominant hand. In the matter at bar, the effect of Mr. Easton’s TOS is
fortunately to his non-dominant arm and hand. Ms. Gillam’s neck and shoulder
injury and her TOS caused her ongoing pain and limitation of function. Her
prognosis was poor in that it was expected that she would have a permanent
limitation of function and pain. While she was a healthy, active, outgoing and
sociable person prior to the accident, all of that was substantially diminished
by the event. The impact upon her life was substantial. The court found an
appropriate award of non-pecuniary damages to be $90,000.
[76]
Carr also involved a plaintiff who incurred a number of injuries
with similarities to those of Mr. Easton. The plaintiff, Ms. Carr, was 39 years
old at the time of her accident. She had been a housekeeper by vocation. At
trial, some five years later, she had not been able to return to work. Her
injuries included: neck, upper back and trapezius pain; bilateral TOS; injury
to her right wrist that required surgery and for which more surgery was indicated;
injury to the left knee that had been treated surgically; low back pain; hip
pain; headaches; dizziness; and depression. Her non-pecuniary damages were
assessed at $100,000.
[77]
Obviously, no two cases are the same. Nevertheless, decisions of other
courts in similar situations are of value in assessing a fit and proper award. I
find that the latter two cases are useful in providing guidance in the present
matter.
[78]
In this case, it is my conclusion that an appropriate award of non-pecuniary
damages for Mr. Easton is $125,000.
Past Income Loss
[79]
The parties have agreed upon an amount for past income loss of $125,000,
net of taxes.
Loss of Future Earning Capacity
[80]
The law regards an individuals earning capacity as a capital asset.
Where the court determines that this asset has been diminished as a consequence
of a tortfeasor’s conduct, the plaintiff is entitled to a compensatory award: Pallos
v. Insurance Corp. of British Columbia, 100 B.C.L.R. (2d) 260 at paras.
26-27, [1995] 3 W.W.R. 728 (C.A.). Determination of the appropriate compensation
is in most instances not a straightforward matter. The court is obliged to
determine a fit and proper award not by any mathematical calculation, but
rather by an assessment. Essentially, the exercise is to compare the likely
future of a plaintiff if the accident had not happened and the plaintiff’s
likely future with the effects of the accident considered.
[81]
To establish a claim for the loss of future earning capacity, the
plaintiff is required to prove that there is a real and substantial possibility
of a future event leading to income loss. Once the plaintiff discharges that
burden of proof, then the quantification of the loss will be determined on one
of two alternate approaches, either an earnings approach or a capital asset
approach: Perren v. Lalari, 2010 BCCA 140 at para. 32. Either is an
acceptable approach to the assessment.
[82]
At the outset, I have no reservation in concluding that the plaintiff
has proven that there is a real and substantial possibility of a future event
leading to income loss. Mr. Easton was, prior to the accidents at bar, an
able-bodied and active participant in the workforce. He was fully and
productively engaged in the trade of carpentry. He has demonstrated a clear
pattern of employment establishing that.
[83]
As a consequence of the accidents and the injuries which he has
sustained, I am satisfied that he is unable to function at the same level of
productivity in that field, and that it is likely that this diminishment will
continue for the balance of his working life.
[84]
The challenging issue is to establish the quantum of an appropriate
award.
[85]
This head of damages constitutes far and away the most significant
component of the claims advanced by Mr. Easton. It is his submission that the
loss he has sustained under this head warrants an award of $1,200,000.
[86]
The defendants take issue with that amount. While they do not dispute
that Mr. Easton is entitled to an award for this loss, it is their
position that the quantum is substantially less. They say that the appropriate
award is in the range of $200,000-$350,000.
[87]
The evidence which informs this aspect of the claim includes the
following.
(a) Richard Carlin, Vocational Rehabilitation Counsellor
[88]
Mr. Carlin interviewed the plaintiff and administered a number of
vocational tests. He then prepared reports which are exhibits in this trial. He
was not required to attend for cross-examination. Mr. Carlin says that:
[The
plaintiff’s] ongoing physical limitations, pain and related emotional issues
have, in my opinion, significantly impaired his capacity to earn income and
continue in his pre-collision career trajectory. Mr. Easton faces a difficult
future; either he will have to be satisfied working at unskilled or semiskilled
occupations or will need to retrain in a formal vocational program.
Mr. Carlin expressed the opinion that there are very few job
opportunities in the field of carpentry that will be available to Mr. Easton
and that Mr. Easton’s limited educational background will substantially
restrict other direct entry jobs which would be available to him. He included
in that short list delivery driver, retail sales, counter clerk, cashier and
inside wholesale jobs.
(b) Dr. R.D. Hamm, Occupational Medicine Specialist
[89]
Dr. Hamm concluded that the plaintiff has residual left TOS, left ulnar
sensory neuropathy, left cervical -scapular myofascial pain syndrome, and a
situational adjustment disorder with mixed mood. It is his opinion that Mr.
Easton’s ongoing problems due to the accident of October 6, 2008 will
adversely affect his employment opportunities for the foreseeable future. In
particular, he will have ongoing difficulties in sustained use of his left
upper limb and he is not capable of heavy physical demand work with his left
upper limb". He expresses the view that Mr. Easton has a permanent
disability with respect to his left upper limb and that the plaintiff is not at
this time fit for sustained work at heavy physical demand activities.
(c) Louise Craig, Certified Functional Evaluator
[90]
Ms. Craig conducted a functional capacity evaluation of Mr. Easton. She
prepared a comprehensive report which was tendered in evidence. That report was
also taken into account by the witnesses Mr. Carlin, Dr. Hamm and Dr. Powers.
(d) Dr. Dean Powers, Vocational Rehabilitation
Expert
[91]
In addition to preparing a report with respect to the employment
prospects of Mr. Easton and recommending certain supports, Dr. Powers made
efforts to assist Mr. Easton to find job duties similar to his pre-injury
occupation, albeit in a significantly reduced capacity. As a result of that
search, he was instrumental in placing Mr. Easton with Intrinsic on a
restricted duty/accommodated basis.
[92]
Dr. Powers has expressed certain opinions, including that
Mr. Easton is likely only employable on a part-time accommodated basis in
occupations within light to medium (modified medium) work strength demands and
likely for the foreseeable future. He also opines that Mr. Easton will likely
find it difficult to obtain part-time employment in the $25 per hour range;
rather, he believes it more likely that the plaintiff will be relegated to a
lower wage, something in the order of $15-$18 per hour. He also recommends that
the plaintiff be provided with support for ongoing vocational rehabilitation
services.
(e) Robert Carson, Labour Economist
[93]
Mr. Carson has provided the Court with a report respecting Mr. Easton’s
past and future income loss and has also provided a report in response to a critique
report that was prepared by an economist retained by the defendants, Mr. Hildebrand.
[94]
The task for a court, simply stated, is to determine as best it can the
circumstances that the plaintiff would have experienced, were it not for the
accident. The court will then attempt to determine a realistic projection for
what the plaintiff’s actual circumstances will be, taking into account the
effects of the accident.
[95]
It is this second aspect of the exercise which is particularly
challenging. There is no way of knowing with any certainty what the future
holds for Mr. Easton, and there are a number of different avenues which his
life might take. Vocationally, it would seem that Mr. Easton’s alternative
courses of action provide three general possibilities. The first is that he
will continue to attempt to carry on in the carpentry trade. Because of the
limitations which have been imposed upon him by the consequences of the
accident, he will not be able to pursue that vocational path as fully as he
would otherwise. As an example, as at the date of trial, he was employed at Intrinsic.
His duties were limited because his capacity to do the work is limited; he was
working four days per week. There is no question that the employer was making
accommodations for him. In the result, his earnings were less because both his
hours per week and his hourly rate were less than he would have attained
without the limiting effects of the injury. As well, his work scenario is
tenuous. His employers cannot assign him a full spectrum of work and so there
is a more precarious quality to his employment situation. It will be harder to
find and harder to maintain jobs of that sort.
[96]
The second scenario which is available to Mr. Easton is that he would
re-orient himself but find work which uses the skillset he has as a carpenter.
In that regard, it may be that there will be job opportunities such as a
building inspector or estimator, or he may find work in sales at a building
supply distributor. The prospect for those jobs is less robust than it would be
for a carpenter without limitation; the rates of remuneration are likely less.
[97]
A third alternative that is available to Mr. Easton is to retrain to
learn a new vocation which will accommodate his more limited physical
abilities. In his favour is the fact that he seems to have a natural interest
in and ability to do mechanical tasks. As well, the evidence indicates he has a
strong work ethic. The ultimate outcome of such an approach is difficult to
know: there may be jobs which will provide an income equivalent to his
carpentry job. On the other hand, many of the jobs of that nature will pay
less. As well, there is a complication because Mr. Easton, objectively and by
his own admission, is not particularly academically inclined. He described
himself as one who learns by doing. Accordingly, the scope of his opportunities
by way of retraining to some other vocation is necessarily somewhat limited.
[98]
As can be seen, looking into the crystal ball to predict what the future
holds for Mr. Easton is challenging indeed. It cannot be foretold with any
degree of confidence.
[99]
The starting point of the analysis is to determine the likely outcome
for Mr. Easton had he not experienced the injuries of the accidents. In
that regard, the report of Mr. Carson provides information upon which I am
satisfied it is appropriate to rely. While there is some dispute between the
plaintiff and the defendants as to what number should be used, I conclude that
the appropriate figure, the present value of his without-accident earnings is
$1,541,000, taking into account all relevant contingencies (all present value
figures used here will be net of relevant contingencies). I note that Mr.
Easton argues that the number should be somewhat greater, based primarily upon his
strong alignment to the workforce". On the other hand, the defendants
contend that the number should be less. They say it is in the order of $1,400,877.
[100] The more
uncertain task is determining a realistic projection for Mr. Eastons future,
allowing for his post-accident limitations.
[101] The
plaintiff says that there are two alternative scenarios to consider:
(a) Mr. Easton retraining
on the job and in a 3 to 12 month community college program suited to his
aptitudes, and then obtaining a job at the level of $15 per hour, working 70%
of a full-time work week. The present value of his lifetime earnings in that
situation is projected by Mr. Carson to be $381,835.50.
(b) Mr. Easton retraining
on the job and in a 3 to 12 month community college programs suited to his
aptitude, then obtaining a job in the approximate pay range of $20 per hour and
working 70% of a full 40 hour work week, Mr. Carson calculates the present
value of the lifetime income from that scenario to be $488,638.
[102] The
defendants urge a different approach to the matter. They invite the Court to
embrace a scenario that was examined by Mr. Carson, which is captured in his
projections at table 2. That entails Mr. Easton taking time out of the
workforce to retrain for a different occupation. It assumes that Mr. Easton’s
injury would present no problem with regard to the time that he could spend on
that new job or to the level of pay he could expect, other than the late entry.
The present value of the projected lifetime income in that scenario is $1,059,510.
[103] In the
submission of the defendants, there are in fact a number of positive contingencies
attached to that approach. For example, it is suggested that his pre-accident
work experience may be a significant asset in future employment endeavors,
resulting in higher income.
[104] Based upon
that scenario, it is the submission of the defendants that the present value to
be attributed to Mr. Easton’s loss of capacity is in the order of $340,000 or
less.
[105] I have
difficulty accepting either position advanced by the parties.
[106] Having
considered carefully all of the specifics of Mr. Eastons circumstances, I have
real reservations that he would be able to retrain and take up a new career as
the defence submission assumes. My sense of Mr. Easton is that he is best suited
to the trade he followed or something similar. I do not believe that he is as
academically able as the submission assumes. Furthermore, there is no assurance
that the limitations which have rendered him unfit for full-time carpentry will
not have some limiting effects upon his future career path. I do agree that it
is reasonable to expect that he might be able to retrain in another field, but
I am not able to accept that it would be with the remuneration track that the
defence position presumes.
[107] Insofar as
the plaintiff’s submissions are concerned, I believe they are more pessimistic
than the circumstances warrant. I believe that Mr. Easton will be able to find
solid remunerative work, likely in a field related to carpentry, and that the
abilities he has shown will serve him well. I also believe that the conclusion
of this litigation and reasonable efforts being made by him toward physical
rehabilitation will provide him with better prospects than his submissions
assume.
[108] The
quantification of damages arising from my views of likely future happenings is
informed by the information contained in Mr. Carson’s report at table 1-A
and table 2-A.
[109] Applying
table 1-A, if Mr. Easton continued in the carpentry trade but earned eight
dollars per hour less, and worked a reduced week of 70%, that is 28 hours per
week, the present value of his projected lifetime income would be $753,830.
[110] I consider
that a realistic and reasonable projection.
[111] Applying
table 2-A, if Mr. Easton elected to retrain to an acceptable nonuniversity
certificate or diploma vocation, suitable to his aptitude and circumstances,
and projecting an income of approximately $22 per hour, with a projected 90% of
workplace participation factor (that is, to allow some time off on account of
his physical condition), the present value of his lifetime income would be in
the order of $700,000.
[112] That too,
in my view, is a viable and reasonable projection.
[113] Considering
each of the three scenarios that have been posited, it is my conclusion that
the scenario urged upon the Court by the defendants is unrealistically
optimistic and, as noted, I find the plaintiffs scenarios more pessimistic than
the evidence warrants. Rather, I believe that the other two scenarios that I
have described are solidly attainable, and I am quite staunchly of the view
that Mr. Easton will make meaningful advances in terms of his physical and
psychological condition as he moves forward, and those types of outcomes will
be quite reasonably achieved.
[114] In the
final analysis, this is a matter for assessment, not calculation. The decisions
I have explained are the result of my considered view of the totality of the
evidence, and they represent my best assessment of the value of the loss.
[115] I conclude
that an appropriate award of damages to compensate Mr. Easton for the loss of
his capacity to earn income in the future is $800,000.
Cost of Future Care
[116] Mr. Easton
seeks an award of damages to compensate him for the cost of future care which
will be required as a consequence of the injuries he sustained. In support of
that, he has provided an assessment prepared by Kim Gibson, an occupational
therapist. She testified at trial and her report was received as an exhibit.
[117] The
plaintiff also relies upon the evidence of Mr. Carson who provided his
calculation of the present value of the elements of the future costs of care
claim.
[118] The
defendants agree that there should be an award made under this head. However,
they take issue with a number of the elements of the claim.
[119] In order
to establish a right to compensation, the plaintiff must prove that the items
sought are medically justifiable and that there is a reasonable need for them: Hubbs
v. Escueta, 2013 BCSC 103 at para. 167; Milina v. Batsch (1985), 49
B.C.L.R (2d) 33 at 84, 30 A.C.W.S. (2d) 257 (S.C.), affd (1987), 49 B.C.L.R.
(2d) 99, 6 A.C.W.S. (3d) 233 (C.A.). The Court must also be satisfied that
there is a reasonable likelihood of incurring the expense: Penner v.
Insurance Corporation of British Columbia, 2011 BCCA 135 at paras. 12-13.
[120] The
components of the claim advanced by Mr. Easton are set out below.
(a) Chronic Pain Program
[121] Mr. Easton
seeks an award of damages to pay the cost of this program. The evidence
establishes that this course of treatment is available in two ways. Such programs
are available on a fee basis through private providers and they are also
available through publicly-funded health facilities such as St. Paul’s
Hospital. Evidently accessing such a program through a public facility will
ordinarily involve a substantial wait time. The cost of for-fee programs
apparently can range in value up to $15,000. The actual cost of accessing the
publicly-funded programs is less clear although the evidence indicates that
there is some cost for that model as well.
[122] The
defendants note that the evidence in support of Mr. Easton accessing such a
course was less than unanimous. Dr. Hamm was quite unequivocal in his support.
Dr. Anderson and Dr. Travlos recommended the program, although not as
resoundingly as did Dr. Hamm.
[123] Given the
proposition that the plaintiff is entitled to the cost of care which is
reasonably necessary to restore him to his pre-accident condition, and given
the overarching importance of seeing him achieve that level of restoration, I
am satisfied that he has established that it is appropriate that the chronic
pain program should be part of his future care. Furthermore, I am satisfied
that it is appropriate that he should be awarded the cost of attendance at a
private clinic, as a means of maximizing his opportunities to achieve the best
restoration that he can so that he can get on with his life.
[124] There will
be an award in the amount of $15,000 to provide funding for that program.
(b) Physical Exercise
[125] Mr. Easton
claims the cost of six supervised exercise sessions per year, as well as an
annual gym pass, through to the age of 75, for an annual cost of $1000. The
present value of that expense, as calculated by Mr. Carson, is $27,190.
[126] The
defendants do not take issue with the benefits of physical exercise therapy. In
light of Mr. Easton’s evidence that attending at the gymnasium was a bother,
and his track record of some reluctance on the physical exercise front, they
say that the expense should not be allowed because the evidence clearly suggest
that he will not participate in or use the program. They cite the authority of Coulter
(Guardian ad litem) v. Leduc, 2005 BCCA 199, in support of that position.
[127] My view is
that the evidence establishes that physical exercise is an important part of
Mr. Easton being able to achieve maximum rehabilitation and deal effectively
with the pain and psychological distress he experiences. At the same time, I
agree that it is unlikely that Mr. Easton is going to avail himself of the
supervised exercise sessions and regular attendance at a fitness facility as
reliably and rigorously as his claim suggests.
[128] It is my
conclusion that he should be entitled to a sum under this head, but in a lesser
amount. In my view, an award of $12,500 adequately addresses this need. I
consider that this will allow him to have reasonable access, commensurate with
his demonstrated commitment and motivation, to appropriate physical fitness
support and facilities.
(c) Psychological Counselling
[129] Mr. Easton
seeks an award of damages in the amount of $3,700 to fund 20 sessions of
psychological counselling at a rate of $185 per hour.
[130] The
defendants are not opposed in principle to that; however, they say that the
amount claimed is excessive.
[131] On my
review of the evidence, while the best estimate is that 20 sessions were
required, some of that counselling has already been rendered. In the result, I
would award the sum of $1,850 for this purpose.
(d) Occupational Therapy
[132] The plaintiff
seeks an award to provide funding for occupational therapy, specifically
cognitive therapy, to teach to him cognitive remediation strategies. By that, I
understand he would seek assistance to enable him to deal with concentration
and memory issues. The amount sought is $900.
[133] Given that
Mr. Easton has had and will continue to have psychological counselling, I find
that the medical necessity of this particular therapy has not been established
and I would not be prepared to make an award for this service.
(e) Vocational Services
[134] Mr. Easton
seeks an award to provide funding for a number of vocational services,
principally related to enabling him to reorient his career targets.
Specifically, he seeks the sum of $3,000 plus tax for placement services, $1,000
plus tax for counselling services, $3,750 plus tax for ongoing vocational
rehabilitation services and $5,000 for the costs associated to retraining,
namely tuition fees and other such costs.
[135] I agree
that there is a basis to believe that services of this type will be necessary
and will be utilized. However, with respect, it is my view that the sums sought
are more generous than the reality would warrant. Accordingly, for the
placement and counselling services, I conclude that the sum of $2,500 should be
awarded. Furthermore, the sum of $1,750 should be awarded for ongoing
vocational rehabilitation services as they may be required, and the sum of $5,000
will be awarded to provide for the costs of retraining as may be required.
[136] In a
result, the total sum of $9,250 is awarded in respect of vocational services.
(f) Non-Professional Services
[137] Mr. Easton
asks the Court to make an award of damages to compensate him for certain
nonprofessional services that he says will be incurred annually and which his circumstances
prevent him from being able to perform. These include heavy housecleaning in
the amount of $560 per year; house maintenance in the amount of $1,820 per
year; and yard maintenance in the amount of $1,050 per year. The total present
value of those services, until the plaintiff is 75 years old, is $91,226.
[138] In my
view, considering the criteria applicable for establishing a future care award,
this is not a claim that should be allowed. The evidence does not establish
that it is medically necessary. My sense of Mr. Easton’s testimony is that he
is able to perform those tasks, albeit not as quickly or nimbly as he once did.
Nevertheless he is able to do so. Furthermore, he presently lives in rented
quarters. The idea that he would be taking responsibility for heavy scale property
maintenance is dubious in his present circumstances at least. If the time comes
that he purchases a home, I would expect that he will be able to manage his
needs.
[139] A modest
lump-sum award should be made to provide for such special occasions that may
require hiring help. There will be an award in the amount of $5,000.
[140] It will be
noted that the future cost of medication does not form any part of this claim.
Mr. Easton conceded that while there may be times when medication is required,
he accepts that he does not enjoy taking medications. Accordingly, he has
advanced no claim.
[141] The total
award under this head is $43,600.
Special Damages
[142] The
parties have agreed upon an amount of $11,591.14 for special damages.
Summary
[143] the
following damages are awarded to the plaintiff:
Non-pecuniary damages | $ 125,000 |
Past income loss | $ 125,000 |
Future income loss | $ 800,000 |
Cost of future care | $ 43,600 |
Special damages | $ 11,591.14 |
Total | $1,105,191.14 |
[144]
In addition, the plaintiff is entitled to prejudgment court order
interest on the past income loss and special damages awards.
[145] Further,
the plaintiff claims a tax gross up with respect to the award of future care
and assistance. That is allowed and it will be for the parties to determine the
appropriate sum.
[146]
Finally, the plaintiff is entitled to recover his costs and
disbursements. In the event there are relevant considerations of which I am
unaware, then counsel are at liberty to make those known to me. Arrangements can
be made to do so through the New Westminster Trial Scheduling office.
The Honourable Mr. Justice Williams