IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150819

Docket: M67691

Registry:
Nanaimo

Between:

Kevin MacDonald

Plaintiff

And

Julia Joseph and
Joseph Titian

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Madam Justice Dillon

Reasons for Judgment

Introduction

[1]            
The plaintiff was injured on January 9, 2011 in a head on collision with
a vehicle driven by the defendant, Julia Joseph (“Joseph”), and owned by the
defendant, Joseph Titian. Liability was not an issue in this Rule 15-1 trial
because the third party acknowledged that Joseph caused the accident which
resulted in significant material damage to both vehicles. Neither defendant
took any part in this litigation. The issues are: the nature and extent of the
injuries caused by the accident, whether the plaintiff had recovered from his
injuries by the summer of 2012, what is an appropriate award for non-pecuniary
damages, what is the proper method for calculation of past wage loss, whether
the plaintiff established his claim for diminished future earning capacity and
how to calculate that loss, and whether the plaintiff established his claim for
cost of future care and how that loss is to be calculated.

Non-Pecuniary Damages

[2]            
Prior to the accident, the plaintiff was an extremely fit, active,
hardworking, and dedicated father and husband with a strong work ethic and
history of community service. He owned and operated his own janitorial
business, working extremely hard. He regularly played squash, attended a gym,
and was physically fit. Other sports included rugby, football, and basketball.
He had been a volunteer firefighter since 2002. He assisted with household
work, particularly yard work.

[3]            
The plaintiff attended to his general practitioner and a chiropractor
from time to time prior to the accident for incident related problems. This
history was reviewed in evidence. Although there is a prior history of low back
injury, neck pain, and headache, these had all resolved by the time of the
accident. The headaches were of a minor nature, a couple per teenage year, and
resolved with Tylenol.

[4]            
I found the plaintiff to be a solid, truthful witness who did not
exaggerate his injuries and who applied his strong work ethic to his recovery.
He was frank with doctors. His evidence of continuing disability due to
injuries suffered in the accident was plain, consistent, and corroborated by
other witnesses.

[5]            
The plaintiff was 29 years old when the accident occurred on a Sunday as
the plaintiff was a passenger in a vehicle coming home from church. The head on
crash destroyed both vehicles. The airbags deployed in the plaintiff’s vehicle,
crushing against the plaintiff’s chest, and he was forced against his seatbelt.
The dashboard came down onto the plaintiff’s legs. The plaintiff was taken to
hospital. He experienced immediate pain in his shoulder, chest, knees, back and
neck. Headaches developed within a couple of days. The plaintiff attended to
his general practitioner, Dr. Fraser, within days. He was referred for
physiotherapy.

[6]            
Dr. Fraser reported and testified that the plaintiff sustained numerous
soft tissue injuries in the accident including cervical strain, dorsal and
lumbar strain, rotator cuff strain and muscle strain of the right inner thigh
and groin. He also suffered contusion and bruising of the left knee and nerve
bruising of the left foot. He had trauma related headaches. Dr. Fraser
described significant ligamentous injury, particularly to the back.

[7]            
The plaintiff was completely immobile with pain for at least two weeks,
taking pain and anti-inflammatory medications. He remained completely disabled
until October 2011. He had tried to return to work in July but was unable to
continue, and returned part time in October. He worked while in pain and
suffered incremental pain. He returned to work full time in June 2012.

[8]            
The plaintiff attended for physiotherapy regularly in January, February,
March and April of 2011. Further physiotherapy was obtained in March 2012. He also
attended to a chiropractor in February and April 2011 and then again in
November to December 2011, in the spring of 2012, and then periodically in 2013
and 2014.

[9]            
The plaintiff benefited from professional fitness training which he
first used to get back to progressive work and then used again starting in
December 2011 to get back to full performance fitness level. The trainer worked
with the plaintiff three times per week from January to June 2012, during which
time the plaintiff lost the 30 pounds that he had gained during recovery from
the accident. There is no doubt that this concentrated fitness effort enabled
the plaintiff to return to full time work.

[10]        
The plaintiff returned to the volunteer fire department with light
duties in January 2012 and full duties in July 2012. However, he still does not
regularly attend call outs due to migraine headaches.

[11]        
The plaintiff has not resumed playing squash. The renovation of a fire
damaged home for his family was lengthened due to the plaintiff’s inability to
perform heavy work and to work to a schedule with his father and a friend after
a regular day’s work as a janitor. He still cannot stand the vibration of the
lawn mower and his wife and others have assumed this job. His relationships
have suffered, particularly his ability to play with his young son. He has
angry moods and a “shorter fuse”.

[12]        
Dr. Fraser said in his first report of August 4, 2012 that, due to the
plaintiff’s hard work and determination, he had almost fully recovered from his
injuries by June 14, 2012. Hard work with a personal trainer had resulted
in a high level of fitness and resolution of most injuries. Dr. Fraser
considered the plaintiff’s prognosis to be excellent, given his high level of
fitness, although he was at increased risk for osteoarthritis or degenerative
disc disease in the future. Fitness had to be maintained. Despite this report,
the doctor continued to see the plaintiff sporadically for injury related back
and neck pain or headaches in October 2012, May 2013, November 2013, February
2014 and August 2014. This pattern has continued.

[13]        
The plaintiff said that he was not fully recovered by the summer of
2012, although he hoped that he was. He explained that he did not see Dr.
Fraser regularly about his problems because there was nothing that the doctor
could do except prescribe medications. Since June 2012, the plaintiff misses
the odd day from work due equally to migraine headache and to low back
radiating pain.

[14]        
Dr. Hawkeswood, a physical medicine and rehabilitation specialist,
examined the plaintiff for purposes of a medical-legal report on May 21, 2013.
At that time, the plaintiff reported continuing lower and upper back pain and
headaches. He had severe pain symptoms radiating down the left leg, suggestive
to the specialist of a “sciatica-type issue”. He also appeared to suffer from
episodic posttraumatic migraine headaches. Although the plaintiff reported
persistent and recurrent pain symptoms, there were substantial pain free
intervals. The most affecting problems were the radiating pain down the left
leg and migraine symptoms.

[15]        
Dr. Hawkeswood found that the plaintiff had suffered upper, lower, and
mid back discomfort and pain as a result of the accident.  Dr. Hawkeswood
disagreed with Dr. Fraser’s report that the plaintiff’s symptoms had fully
resolved by June 2012. He found that the plaintiff continued to be bothered by
episodic pain that did not limit overall function. He found the presence of
ongoing migraine headache to be “quite unfavourable”. Based upon previous
history of some mid-back issues, he concluded that the plaintiff likely would
have experienced some mid back pain in the future in any event of the accident.
He recommended supervised physical activity for the back pain and a
prescription of five to eight doses of Axert per month for the migraines. He
recommended an MRI of the lumbar spine. On balance, he did not think that the
upper and lower back pain would completely resolve. The same was said for the
migraines.

[16]        
The plaintiff was examined by Dr. Kemble, a neurologist, on October 28,
2014. The doctor found that the plaintiff’s headaches were caused by the
accident. However, based upon chiropractic reports from 2009, the doctor
thought that the plaintiff probably had previous migraine headaches that were
accentuated by the cervical soft tissue injury in the accident. He expected
that the plaintiff’s headaches and cervical pain would reduce, but the
plaintiff would be prone to develop headaches and cervical pain in the future
because of the accident.

[17]        
The plaintiff was examined by Dr. Robinson, a specialist in neurology
and headache disorders, on November 3, 2014. He concluded that the plaintiff
sustained soft tissue injury to his neck, right shoulder, anterior chest, back
and left knee in the accident. The doctor reviewed the history of resolution of
most of the injuries except for the headaches, intermittent neck pain, and low
back pain.

[18]        
The plaintiff testified that he continues to experience back pain most
days upon awakening. However, he told Dr. Robinson, and confirmed in testimony,
that this really only flares up once a month and he is able to push through it
and continue janitorial work. He has occasional flare up of neck pain which is
assisted with professionally guided fitness training. He still has “sciatic
pain”. But, the most significant continuing problem is headaches. These
continue to occur every six to seven weeks, come in clusters, and are severe.
Sometimes, they are more frequent. Without pain killers at hand, he used to
retire to a dark room with ice packs. These headaches initially came in
clusters and could last two to three days, during which time, the plaintiff
could not work. With the prescription of Axert, the plaintiff can recover
within 20 minutes and continue or start work but he cannot drive and the headache
continues without repeated pills. Because of the driving impairment, the
plaintiff explained that he usually drives home to take the Axert when a
headache comes on.

[19]        
The sciatic pain is controversial. Dr. Fraser did not diagnose sciatic
pain as a result of the accident, although he noted back pain which he did not
relate to nerve injury. Dr. Hawkeswood thought it possible that the plaintiff’s
left leg radiating pain was caused by sciatic nerve irritation when he saw the
plaintiff in May 2013. He ordered an MRI to assist in this consideration. Dr. Hawkeswood
reported the result of the MRI findings on December 12, 2013. It did not
substantially change his opinion, although he thought it “possible” that the
left leg symptoms related to irritation from a cyst that was found. Dr. Kemble
reviewed the MRI and found no evidence of herniation which would cause the
radiating left leg pain. Dr. Robinson, the neurology specialist, found no nerve
related damage. As a result of all of this, it is concluded that the plaintiff
does not have sciatic related injury: however, he continues to suffer low back
pain which radiates into his leg and this was caused by the accident.

[20]        
Dr. Fraser said that the plaintiff had no prior history of migraine
headaches. Based upon this review, it was his “strong opinion” that the
continuing migraine headaches were solely caused by the accident. He
acknowledged that he had not prescribed pain medication specifically for
migraine up to three years after the accident and had only supplied sample
medication two years after the accident. Before that, the plaintiff took
Tylenol 3’s. Based upon chiropractic records from 2009, Dr. Hawkeswood
concluded that the migraines were an exacerbation of a premorbid but latent
condition and that the plaintiff would have suffered migraines at some point in
the future absent the accident, although the frequency and severity of the
symptoms could not be predicted. Dr. Kemble thought that the accident
exacerbated the headaches based upon the 2009 chiropractor report of headache,
the nature of which was not described and so was unhelpful to Dr. Kemble. Dr. Kemble
opined that the plaintiff would be more prone to develop headaches in the
future as a result of the motor vehicle accident. Dr. Robinson was clearest in
his opinion. He reviewed Dr. Kemble’s report and concluded that both he and Dr.
Kemble were in agreement with respect to causation of the headaches but Dr. Kemble
was more optimistic about the future prognosis. Dr. Robinson said, and it is
accepted, that the plaintiff continues to suffer from chronic posttraumatic
headache related to neck injury sustained in the January 9, 2011 motor vehicle
accident.

[21]        
The plaintiff had substantially recovered from the accident after 18
months but he continued to suffer and continues to suffer accident caused
symptoms related to migraine headaches, lower back pain and occasional neck
pain. The headaches suffered as a result of the accident are of a different
nature and consistency than any headaches before the accident which dated back
to 2009 and were not medically treated. The treatment for chronic headache
related to head and neck trauma is difficult and often unhelpful, according to
Dr. Robinson who considered that the plaintiff was not a candidate for
preventative medications. He expected the plaintiff to have recurring headaches
for the next three to five years with a definite risk for persisting headaches
indefinitely. These would not be expected to be a “substantial impediment” in
continuing with the plaintiff’s janitorial career.

[22]        
Decisions in similar cases presented by counsel suggest a range for the
non-pecuniary damages suffered by the plaintiff from $55,000 to $100,000. In my
view, the plaintiff here suffers headaches more frequently at present than the
plaintiff in Sandhu v. Gabri, 2014 BCSC 2283. The nature of his job
doing heavy physical work places him in a more precarious position at work than
the plaintiff in Rutledge v. Jimmie, 2014 BCSC 41. The plaintiff was off
work for a considerably longer period than the plaintiff in Wepryk v.
Juraschka, 2012 BCSC 974. At the same time, the plaintiff is not in
constant pain as was the plaintiff in Smith v. Fremlin, 2013 BCSC 800
and has not developed psychological or pain disorders as a result of the
accident as the plaintiff did in Roth v. Hes, 2015 BCSC 161.
Nonetheless, the plaintiff’s prognosis of persisting debilitative headaches
into the future with unresolved low back and neck pain more than four years
after the accident place him at the higher end of the range. Non-pecuniary
damages are awarded in the amount of $90,000.

Past Wage Loss

[23]        
The plaintiff has a strong work history in various jobs as a log
salvager, gas attendant, cashier, store manager, and painter. In 2009, he
purchased the local franchise for the Jani King janitorial service. He was not
only the manager for the company, but he performed regular hands on physical
shift work as a janitor, working eight hours per day, five days per week, and
sometimes more. This was heavy, physically demanding work cleaning at
industrial and office sites. His franchise held several substantial contracts
for janitorial services at the time of the accident, including a local
university and a meat packaging company.

[24]        
The plaintiff was unable to work until July 2011 when he tried to work
for two days per week for two weeks but was unable to continue due to
continuing pain. He then remained off work until the beginning of October 2011
when he returned to work progressively with the assistance of fitness
professionals. He worked a four hour shift, two days per week, but remained
sore. The plaintiff increased his work from January to June 2012, eventually
working four hour shifts, five days per week. He resumed full time work in June
2012. However, he continues to miss work three to four days per month, about 20
hours per month, due to headaches or back pain. This can sometimes be more or
less. Although the plaintiff has not kept track of time missed for this reason
since June 2012, he estimated the 20 hours per month based upon his use of
Axert for migraines even though the medication takes effect quickly. His wife
confirmed this estimate and reported that the plaintiff missed two weeks work
in January 2015 because of an episode of back pain and migraines.

[25]        
It is accepted from the evidence of Dr. Fraser that the plaintiff was
unable to work due to injuries sustained in the accident. It was only his drive
and determination that brought him back to work briefly in July 2011 and he did
not return to full time work until June 2012, but with continued problems.

[26]        
The plaintiff said that when he was or is unable to perform the physical
work of a janitor, other workers have to fill in. One of the employees hired in
February 2012 to help out testified about the plaintiff’s inability to work and
having to leave work early. He said that he was often called on short notice
because of the plaintiff’s inability to work. He has to help the plaintiff
lifting heavier carts and machinery. The plaintiff’s wife had never worked
physically at janitorial service before the accident but pitched in
immediately. She received a wage for her work at a lower scale than most
workers because it took her longer to perform the work.

[27]        
The plaintiff testified that he initiated cancellation of the contract
for janitorial services with the meat packaging plant in December 2011 because
he was unable to perform the required work. This was a particularly dirty and
disgusting job that neither his wife nor the teenager that the plaintiff
employed to replace him could perform. He could not find people who would
continue to work there. However, about this time, he managed to secure a
contract for janitorial services at a medical clinic which made up for the
cancelled contract.

[28]        
All parties agree that the appropriate approach to assessment the value
of the plaintiff’s past wage loss is through calculation of the cost of funding
an employee who undertook the tasks that the plaintiff was unable to do, taking
into account all realistic contingencies (Sirak v. Noonward, 2015 BCSC
274 at para. 179).

[29]        
In the first year after the accident, January 2011 to January 2012, the
plaintiff tried to return to work in June, was unable to continue, and then
returned in October 2011 on a limited basis. The plaintiff did not keep records
of his hours or the hours of others as it pertained to filling in for him. It
is not known exactly how much the plaintiff worked from October 2011 to January
2012. However, the pay slips for employees whom the plaintiff said replaced him
in 2011 are in evidence and total $23,637.14. This includes the amount paid to
the plaintiff’s wife of $15,354.60 and labour costs for three others whom the
plaintiff said that he would not have hired except for his disabling injuries.
The defendant refutes these costs as a fair reflection of the money paid to
others to work for the plaintiff because the 2011 income tax return shows a
wage expense increase in 2011of only $11,016. Wages and salaries claimed in
2011 were $30,027. With the fixed wage of about $10,000 for one worker, Brian
Noble, regardless of whether the plaintiff worked or not, there remained about
$20,000 in labour expenses that were incurred to replace the plaintiff based
upon tax return information. While there are some contingencies here that must
be reflected, a reasonable assessment of wages lost in 2011 is $20,000.

[30]        
The plaintiff worked part time from January to June 2012. He hired one
employee to fill his lost time and the wages of that employee were in evidence.
Both parties agreed that $4,000 is a reasonable sum for lost wages during this
period.

[31]        
Since June 2012, the plaintiff has missed about 20 hours per month due
to headaches or back pain, according to his and his wife’s estimate based upon
the amount of prescription medication that he uses and their best recollection.
Unfortunately, the plaintiff did not keep records of his lost hours. The lost
time is variable and has improved with more efficiency with use of medication.
The defendant refutes the 20 hours per month and says that it is more likely five
days per year or about 40 hours per year. However, there is no evidence to
support that specific calculation and I accept the evidence of the plaintiff
and his wife. For the balance of 2012, based upon a wage of $12.50 per hour,
the plaintiff lost approximately $1,500. The amount would be $3,000 for each of
2013 and 2014 and $750 to the date of trial in 2015. The total amount of past
wage loss from June 2012 to the date of trial is $8,250.

[32]        
The plaintiff also claims for loss of the contract to the meat packaging
plant. The client had lowered the hours for janitorial service from five to two
days per week in March or April 2011. Nobody really wanted to perform the
janitorial work at this plant, including the plaintiff regardless of his
injury. It is accepted, however, that the plaintiff cancelled the contract due
to his inability to find anyone else to perform the nasty work. But, the
plaintiff was constantly on the search for new clients and had no trouble
filling the slot with cleaner, more desirable work after a few months. The loss
of profit on the contract was about $700 per month, given franchise and
employee costs. In this circumstance, an award for loss of profit for three
months in the amount of $2,100 is appropriate.

[33]        
The total awarded for past wage and profit loss is $34,350.

Loss of Future Earning Capacity

[34]        
Dr. Hawkeswood reported in May 2013 that the plaintiff was able to work
full time based upon his current situation and that his career would not be
shortened as a result of the accident. However, he expected that the plaintiff
would continue to miss the occasional work day because of migraine headaches or
left leg pain. Dr. Robinson was in substantial agreement when he said that
the plaintiff’s headaches would not be a substantial impediment in continuation
of the plaintiff’s career or in becoming a professional firefighter. Dr. Robinson
considered that the headaches would recur over the next three to five years
with possible improvement and definite risk for persisting headache
indefinitely. The testimony of the plaintiff is consistent with the doctors’
reports. The plaintiff continues to have headaches occasionally which prevent
him from working. Based upon all of the evidence, it is concluded that these
headaches are reasonably controlled with medication and the plaintiff will not
continue to lose 20 hours work per month as in the past. The lower back pain is
something that the plaintiff has been able to work through and it is unlikely
that he will miss work for that reason. It remains, however, that the plaintiff
has ongoing headache symptoms as a result of the accident which will prevent
him from working occasionally.

[35]        
The plaintiff’s janitorial business has thrived since the accident,
despite the plaintiff’s ongoing headaches. This is no doubt due to the
plaintiff’s hard work and determination.

[36]        
The threshold question is whether the plaintiff has proven that there is
a real and substantial possibility of a future event leading to an income loss
(Perren v. Lalari, 2010 BCCA 140 at para. 32 (Perren); Midgley
v. Nguyen, 2013 BCSC 693 at para. 236 (Midgley); Morgan v.
Galbraith, 2013 BCCA 305 at paras. 24 and 53). If the plaintiff has
established an impairment of earning capacity in the sense of ongoing symptoms,
then he may go on to quantify the loss of earning capacity either on an
earnings approach or on a capital asset approach as in Brown v. Golaiy
(1985), 26 B.C.L.R. (3d) 353 (Brown) (Perren at para. 32). There
must be cogent evidence to trigger any of the four considerations in Brown
(Moore v. Cabral, 2006 BCSC 920 at para. 78).

[37]        
In the circumstances here as established by medical reports and the
plaintiff’s evidence of continuing headaches that do prevent him from working,
the plaintiff has shown a real and substantial possibility that continuing
headaches probably will prevent him from working from time to time in the
future. He satisfies the third criteria in Brown that he is less
valuable to himself as a person capable of earning income in a competitive
market.

[38]        
Assessment of the value of this loss cannot just be based upon the
plaintiff’s statement, accepted for purposes of calculation of past wage loss,
of loss of earnings of 20 hours per month due to headaches. The doctors both
considered that the plaintiff could work full time and his career was not
shortened. He will only miss the occasional work day into the future. It is not
possible to say exactly how many days per year this will be. However, based
upon a wage of $12.50 per hour, the loss is about $100 per day. Both parties
agree that a 30-year multiplier should be used.

[39]        
The assessment here is not mathematical but based upon the evidence, all
the contingencies, and the overall fairness and reasonableness of the award (Midgley
at para. 237).

[40]        
Damages for loss of future earning capacity are awarded in the amount of
$40,000.

Cost of Future Care

[41]        
The award for future care is based upon what is reasonably necessary on
the medical evidence to support the mental and physical health of the plaintiff
(Milina v. Bartsch (1987), 49 B.C.L.R. (2d) 99).

[42]        
Both parties agree that ongoing costs related to the prescription for
Axert should be compensated. The issue is how often the plaintiff will need
this medication and the annual cost. Based upon medical reports, the plaintiff
can be expected to improve over time and to use less medication, especially in
retirement years. The prescription presently costs $162 for 18 tablets which
last for three months at rates of use as at trial.

[43]        
There is also a claim for yard work, particularly lawn mowing which the
plaintiff’s wife and father in law have done. Evidence established that the
plaintiff paid about $200 since the accident for yard help. The plaintiff has
been able to undertake renovation of a house in his off hours in addition to
janitorial work. The complaint of vibration preventing use of a lawnmower is
questionable in this circumstance. The plaintiff has not proven this cost.

[44]        
Similarly, the plaintiff has not proven the need for an ongoing personal
trainer as a result of the accident. His fitness level has fully recovered with
use of the trainer that he used before the accident. The plaintiff said that he
did not use the trainer in 2014 because he was busy renovating the house. The
doctors have not said that he needs ongoing professional assistance to stay fit
because of his injuries.

[45]        
The plaintiff is awarded $8,000 for costs of future care.

Special Damages

[46]        
The parties agreed that special damages amount to $5,580.07.

Conclusion

[47]        
Damages are awarded to the plaintiff as follows:

1.  Non-pecuniary damages in the amount of $90,000;

2.  Past wage loss in the amount of $34,350;

3.  Loss of future earning capacity in the amount
of $40,000;

4.  Costs of future care in the amount of $8,000;
and

5.  Special damages in
the amount of $5,580.07.

[48]        
Costs shall follow the event unless either party wishes to speak to the
matter, in which case, the matter must be set for further hearing within 30
days.

“Dillon J.”

________________________________

The Honourable Madam Justice Dillon