IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160120

Docket: M126380

Registry:
Vancouver

Between:

Pino Joe Giuseppe
Arletto

Plaintiff

And

Taeil Kin also
known as Taeil Kim and
Jeong Boo Lee

Defendants

Before:
The Honourable Madam Justice Dillon

Reasons for Judgment

Introduction

[1]            
The plaintiff was injured in a motor vehicle accident on November 13,
2010. The defendants admitted liability for the accident. The trial was for
assessment of damages.

Facts

[2]            
Pino Giuseppe Arletto (“Arletto”) was driving his nephew to a soccer
game on Saturday, November 13, 2010 when he slowed as he approached the
intersection of Parker and Delta streets in Burnaby, British Columbia. The
green light was in Arletto’s favour, but the defendant’s vehicle turned left
into the oncoming plaintiff’s vehicle, causing a head on collision. Arletto
jerked forward into his seatbelt upon impact. The left front corner of the
plaintiff’s 1998 Chevrolet Metro was struck and the vehicle was eventually
written off.

[3]            
After checking on his nephew, Arletto exited his vehicle and spoke with
the other driver and a witness. He remained at the scene for about a half hour
before driving the nephew to the game and then leaving to go home. He had
planned to stay throughout the game but was tired, nervous and upset from the
accident. He napped. By midnight, he had developed a headache and pain in the
left base of his skull and back shoulder blade. He tried to sleep and took
Advil. He had no recollection of the next day. However, by Monday, his left-sided
neck and shoulder pain had worsened. He attended at the Insurance Corporation
of British Columbia to report the accident and left his vehicle there.

[4]            
He saw a doctor, Dr. Stancer, on Tuesday, November 16, 2010. This was
the first time that the plaintiff had been to see a doctor in many years and
the first time that he saw Dr. Stancer. Prior to this, he had been in good
health. By the time that Arletto saw Dr. Stancer, the pain was worse with
pinching and pulling in his neck and throbbing in his shoulder. A “swhooshing”
sensation had developed in his left ear. He was in pain in his left neck if he
looked up or rotated his neck, was in pain in his scapula, and had lower back
pain. The headache continued. The plaintiff testified that the neck pain that
started a couple days after the accident was also associated with occasional
tingling down his arm to his “pinky” finger. However, this was not noted by Dr.
Stancer until February 2011. The doctor recommended physiotherapy, massage, and
pain medication. She also recommended that the plaintiff remain off work.

[5]            
The plaintiff had never attended for physiotherapy or massage before. He
received weekly treatment for several months but he did not find it helpful. In
fact, it sometimes exacerbated his pain. The pain in his neck and shoulder was
worse at night and upon awakening. He still had headaches. In January 2011, Dr.
Stancer told the plaintiff to stop the physiotherapy.

[6]            
By April 2011, the plaintiff’s symptoms continued. He had continuous
left neck and shoulder blade pain and fluctuating periods of numbness and
tingling down his left arm and into his ring and little finger. He continued to
have difficulty sleeping and continued to experience “swooshing” in his left
ear. His lower back pain had improved with some transitory relief. Dr. Stancer
thought that the plaintiff had suffered neck and shoulder strain and suspected ulnar
neuropathy, but referred Arletto to Dr. Nguyen, a specialist in physical
medicine and rehabilitation.

[7]            
Dr. Nguyen first saw and examined the plaintiff on April 4, 2011. By
this time, the lower back pain had improved and was not the subject of
examination. After examination, Dr. Nguyen concluded that the left-sided neck,
shoulder and arm pain and altered sensation was likely due to left-sided
myofascial pain syndrome occurring as a result of soft tissue injuries
sustained in the accident, but could also be due to a cervical nerve root
impingement possibly due to disc herniation. He ordered an MRI of the cervical
spine to assess for possible nerve root impingement and disc herniation.

[8]            
The MRI performed on May 5, 2011 confirmed the presence of a left-sided
posterolateral disc protrusion at C5/6 with associated annular tear. The disc
protrusion impinged upon the nerve root and spinal cord. Dr. Nguyen concluded
that the findings from the MRI were consistent with Arletto’s complaints of left-sided
neck pain and associated complaints of changes in feelings in his left arm. He
also found that “… in light of the lack of … other degenerative disc changes,
the MRI findings of left sided C5/6 disc herniation and tear are likely the
result of his motor vehicle accident”. Because myofascial pain and disc
herniation pain present in similar fashion, Dr. Nguyen pursued treatment to
determine the primary source of the plaintiff’s complaints involving his neck
and left arm.

[9]            
Treatment by Dr. Nguyen included trigger point injections, the first in
June 2011. While this provided early relief, the pain worsened after the
plaintiff returned to work and the treatment did not help the left arm paresthesias.

[10]        
The plaintiff returned to work on July 2, 2011. He performed his regular
work as a lift driver, but in pain, and avoided heavy lifting. The plaintiff
explained that he was “edgey”, bored, and financially stressed. Dr. Stancer
supported his decision to return to work. Dr. Nguyen considered this decision
to be “reasonable”, but expected an increase in pain symptoms as a result.

[11]        
Dr. Nguyen reported that the plaintiff experienced worsening pain after
his return to work, caused by the repeated motion of turning his neck. A left
C6 selective nerve root block was performed on February 15, 2013. This did not
result in long-term improvement in neck or arm pain. By November 2014, the
plaintiff had left hand tingling through his 4th and 5th fingers with attendant
percussion of the ulnar nerve at the elbow.

[12]        
On April 24, 2015, the plaintiff attended for an independent medical
examination performed by Dr. Chin, an orthopaedic surgeon. He diagnosed chronic
left-sided neck pain and shoulder girdle pain secondary to musculoligamentous
injury to the cervical spine with underlying disc bulge at left C5-6 resulting
in foraminal stenosis of the left C6 nerve root, chronic cervicogenic
headaches, and unexplained vertigo and tinnitus. Dr. Chin opined that all of
these injuries were the result of the accident on November 13, 2010.

[13]        
A repeat MRI on May 19, 2015 indicated worsening of the disc herniation
with foraminal encroachment occurring as a result. Dr. Nguyen recommended a
repeat of the nerve root block at C5-6, which was performed on June 26, 2015.
When seen afterwards by Dr. Nguyen, the plaintiff reported improvement in the
left arm numbness, tingling and pain but no improvement in the left-sided neck
pain. The doctor concluded that this left neck pain is due to myofascial pain
syndrome and disc herniation and annular tear. Dr. Nguyen told Arletto to
reduce his work hours by 25 percent, which he has done. However, working four
days per week has not reduced the neck pain or symptoms down Arletto’s arms.

[14]        
The plaintiff’s low back pain had substantially subsided by March 2013.
However, other symptoms have remained.

[15]        
The “swooshing” sensation in the plaintiff’s left ear started the day of
the accident and has remained ever since. Arletto described that it is there
all of the time, like a heartbeat in your left ear. Because it gets worse when
he is in loud areas, he avoids crowded places. It is not painful, but it is
distracting and makes his head feel strange. Dr. Stancer referred him to an
otolaryngologyst in March 2011 who diagnosed left pulsatile tinnitus.

[16]        
The plaintiff continues to experience pain in his left neck and has
limited movement towards his left. The pain worsens after a day of work. He has
numbness and tingling down his left arm and now in his shoulder blade. There
has been no significant improvement since the accident, although there have
been periods of stability before the pain “acts up again”. He also experienced
improvement following the nerve root blocks. Dr. Nguyen said that the nerve
root blocks can deliver improvement for 3-12 months before it might be
repeated. Dr. Nguyen also said that the trigger point injections do not provide
sustained improvement and are useful only as a treatment strategy for managing
significant sustained increases in pain. Arletto takes pain medication but
suffers side effects that cause him to use the medications only if needed.

[17]        
The plaintiff continues to suffer interrupted sleep from headaches at
least three times per week. He is fatigued from work and spends more time alone
at home. He is bothered by loud or crowded places. Arletto is known to be a
reserved and private person. He is not a social as he once was, even with
family.

[18]        
Further investigation is ongoing by Dr. Nguyen to isolate the nature of
the numbness and tingling in the plaintiff’s left hand. Dr. Nguyen said that
more work had to be done to determine whether it was thoracic outlet syndrome
or ulnar neuropathy. The recent nerve root block had provided some relief but
the beneficial effect was expected to diminish over time.

[19]        
The plaintiff has been employed as a longshoreman through Local 500 of
the International Longshore and Warehouse Union since 1997. He had worked his
way up through the casual ranks of the union to reach the “A” board at the time
of the accident. He was number two on the wait list to become a member of the
union, a status that he had worked long and hard to achieve through years of
taking whatever work that he could get on boards that offered lesser benefits
than the “A” board. The union member list had been closed for three years. The
“A” board allowed the plaintiff to get more work and better hours, while still remaining
a casual worker. He regularly worked five days per week. As a casual worker,
Arletto would arrive at the work hall and await dispatch by taking a job slip
or waiting his turn for one.

[20]        
Arletto became a member of the union in July 2011 after working his way
up the ladder for 14 years. He had returned to work a few weeks earlier.
Finally becoming a union member was very significant to the plaintiff. It gave
him opportunities and a benefit package, including the ability to pick his jobs
and shifts, to work if and when he wanted, to get paid for extra hours that he
did not actually have to work, and to finish work earlier. As a result of shift
work being paid regardless of actual hours worked, the hours on the plaintiff’s
annual earnings statements do not represent actual hours worked. The hours
actually worked are much less to the extent that Arletto works less than eight
hours per day at least three or four days per week, especially when he is
working on cruise ships. Working on cruise ships is preferred but is given to
those with 15 years seniority first. The plaintiff clearly is dedicated to his
job and has high job satisfaction.

[21]        
There is no requirement for union members to work full time. However, to
qualify for a full pension under the Waterfront Industry Pension Plan at present,
the plaintiff must earn at least $66,000 in each year. This amount has changed
over time and could change again in the future. There is also a lump sum benefit
upon retirement of $68,750 provided that the worker has worked 1,420 hours per
year. Since returning to work after the accident, Arletto has averaged 2,053
hours per year, including a year with a long vacation period. He had 10 years
credited service by the end of 2013. Given his earnings since then to 2015, it
is assumed that he had 12 years credited service by the end of 2015.

[22]        
Arletto has two classifications or ratings within the union – lift
driver and checker. As a lift driver most of the time, Arletto operates various
types of lift trucks. He is required to change attachments on the trucks. He
drives up to 8 hours per day, two hours at a time. For safety reasons, he is
belted and must drive in reverse with a load while on certain trucks, requiring
him to twist his body to the right. There is vibration and bumping on the
roadways and when a load is straightened and secured. The work requires
concentration. When Arletto is not called to the board as a lift driver, he
works as a checker. The job as a checker is less stressful but requires a lot
of looking up, stooping, and bending. There are fewer checking jobs available.
In the last 10 years, Arletto has worked only about 15 shifts as a checker,
most since the accident. Most checkers are senior to Arletto. He could possibly
become a checker with a guaranteed 40 hour per week job but it would take at
least a year on the checker board to gain this status and then it would be a
“toss” as to whether he got the more permanent position.

[23]        
Arletto prefers work as a driver, but is considering dropping this
rating because of the physical toll that it takes with no resolution of his
disabilities in sight. About three or four times per year, Arletto works as a
labourer if there is no other work available and his pain is tolerable.

[24]        
Arletto expressed interest and admiration for a rating as a crane
operator. However, the evidence of one such operator indicated that this is a
highly specialized job that is suitable for a very few. Arletto had taken no
steps to pursue this rating before the accident. Arletto also did not take any
steps to pursue other ratings before the accident, despite opportunity to do
so. The functional capacity evaluation performed after the accident indicated
that Arletto was prone to vertigo so that work as a crane operator was not
advisable. This vertigo was caused by the accident according to Dr. Chin. The
occupational therapist distinguished between vertigo and tinnitus, finding that
the “swooshing” experienced by Arletto was not functionally disabling. While it
cannot be concluded that Arletto would most likely have qualified for this rating
regardless of the injuries sustained in the accident, the introduction of
vertigo into the equation ended any real possibility for this job.

[25]        
The maximum hours that can be worked in any year is 2,496. A union
member in the upper rating such as a crane operator who is a “2496 guy” can
make as much as $120-130,000 per year, although the average earnings are lower.
Arletto is on the “machine board” which is one of the highest earnings boards
in the union and so can be expected to earn more than the average. Based upon
Arletto’s average historical income, as summarized in the expert report of the
economist, Douglas Hildebrand, and leaving aside the years 2009 and 2010 as
aberrant, the plaintiff earned about $103,500 (in 2015 dollars) annually
pre-accident and about $105,000 in the two years post-accident. He would also
have earned about $105,000 in 2014 but for the accident based upon a
calculation by the economist, Curtis Peever (“Peever”). Based upon earnings in
2015 to July, as annualized by Peever, Arletto can earn about $116,914 in 2015
if he works full time.

[26]        
However, Arletto has recently reduced his hours and is considering
abandoning his rating as a driver. He has not sought a medical exemption from
the union. This could involve a decision to lift his rating, either permanently
or temporarily, something that Arletto has worked through pain to avoid.
However, based upon the medical information that he has received, he does not
think that he can work to age 65 and is considering early retirement at age 60.
Union members can work beyond age 65; however, anecdotal evidence suggested
that less than 15% work past age 65 and Arletto said that he planned to work only
to age 65. Despite Arletto’s high job satisfaction, it is not likely that he
would have worked past age 65 regardless of the accident.

Non-pecuniary damages

[27]        
The plaintiff continues to experience symptoms as a result of the
accident including left neck pain, tingling in his left arm, a “swooshing”
affect in his left ear, sleep interruption, and headaches. His lower back pain
resolved. The medical doctors were in substantial agreement that these symptoms
resulted from injuries sustained in the accident. Those injuries included
myofascial pain syndrome and disc herniation and annular tear. The only issue
with respect to causation is whether the disc herniation preceded the accident
but was asymptomatic.

[28]        
A report from Dr. Kleinman, a physiatrist who examined the plaintiff on
March 13, 2013, stated that Arletto had prior degenerative changes as
noted in imaging studies. The only imaging study available was the MRI of May
2011. Dr. Kleinman did not testify. Dr. Nguyen was the treating doctor and
reported his findings in a written report in addition to testifying. With
respect to the disc herniation, Dr. Nguyen concluded:

Mr. Arletto’s neck pain symptoms
are also likely due to pain originating from the disc herniation at C5/6. The
left-sided C5/6 posterolateral disc herniation likely occurred as a result of
the motor vehicle accident from November 13, 2010. Both the initial 2011 MRI
and the more recent May 19, 2015 MRI of his cervical spine demonstrate the disc
herniation, with the more recent MRI showing progression and interval worsening
of the disc herniation. However, neither the initial nor subsequent MRI demonstrate
any significant facet arthropathy at that level nor was there evidence of disc
disease at any other levels to suggest that the disc herniation was a
longstanding and pre-existing condition before Mr. Arletto was involved in his
motor vehicle accident.

Although Dr. Nguyen noted an osteophyte recorded in the MRI
report from May 2011, he said in cross-examination that this was not associated
with degenerative disc changes because degenerative disc changes would not
occur at just one level. Chronic change would have been at multiple levels and
the single level, one-sided nature of the disc herniation here meant that it
was caused by the accident.

[29]        
This opinion was supported by Dr. Chin who, upon further review of
updated images and upon review of the actual MRI images, concluded that there
had been no obvious or significant degenerative conditions to suggest a
pre-existing cervical spondyloarthropathy and said that Arletto did not have
any pre-existing conditions affecting his left arm and neck. Dr. Loomer, an
orthopaedic surgeon who examined the plaintiff on August 27, 2013, also came
around to this view upon cross-examination. He had stated in his report that
the MRI findings of May 2011 “may represent degenerative rather than traumatic
changes”. When asked about his diagnosis of soft tissue injury only as a result
of the accident, Dr. Loomer clarified that this diagnosis included the
possibility of disc injury and said that it was a “safe assumption” that this
occurred as a result of trauma. He asked to see the MRI report and then
concluded that the report said that there had been no degenerative changes.

[30]        
The overwhelming medical opinions and testimony lead to the conclusion
that the plaintiff did not have a pre-existing degenerative condition of the
cervical spine. He was very healthy and had not been to a doctor in years.

[31]        
Dr. Chin stated that there was a risk of further progression of the disc
protrusion resulting in worsening symptoms in the future due to repeat injury
or trauma. He considered that Arletto was vulnerable to this risk given the
nature of his occupation and the fact of disease progression in the absence of
additional trauma. Non-surgical management was recommended for now but the
possibility of surgery in the future was not ruled out. Dr. Loomer thought that
surgery could be a therapeutic consideration if Arletto’s symptoms became
intolerable.

[32]        
Dr. Nguyen also thought that there was an increased risk of progression
of the disc protrusion with the plaintiff’s work. He recommended on-site
ergonomic assessment but did not realize that Arletto changes his lift truck
daily such that adaptation for individual ergonomics is not practical. He
concluded that repetitive neck movement placed Arletto at risk for progression
not only of disc herniation, but also arm weakness and worsening neck pain. In
cross-examination, Dr. Nguyen said that Arletto was not a candidate for surgery
now but that he could be in the future if the pain symptoms were accompanied by
weakness or sensory loss.

[33]        
Dr. Stancer said that the whooshing sounds that the plaintiff
experiences in his left ear are not treatable. The symptoms had not improved
over time and are likely to continue indefinitely. The same was said for the
headaches with the expectation that they would continue in the same pattern
with resultant sleep disruption.

[34]        
A functional work capacity evaluation performed by Jodi Fischer
(“Fischer”), an occupational therapist, confirmed that the plaintiff continues
to work as a longshoreman more out of perseverance than full physical
suitability. Arletto is able to do the work, but with symptoms. His work
results in pain and functional compromise but Arletto is able to tolerate the
pain through frequent breaks and lessening work as the work day progresses. The
plaintiff will have to be selective regarding the work that he chooses to keep
his symptoms manageable.

[35]        
It is now over five years since the accident. Only the soft tissue
injury to the lower back has healed. The plaintiff has continued to work
despite shifting pain and other symptoms. There appears no resolution to
symptoms from his ongoing injuries. He has lost whatever enjoyment he had from
what had already been a limited social life. He continues to look after his
personal needs, in keeping with his non-malingering attitude. He has been
perseverant and dedicated. As stated by Dr. Stancer, Arletto has coped
surprisingly well in the face of continuing pain and uncertainty about his
future.

[36]        
The amount of non-pecuniary damages involves not simply a comparison of
cases and injuries but an appreciation of the seriousness of the injury and an
award’s ability to ameliorate the condition of the plaintiff given his
particular situation (Stapley v. Hejslet, 2006 BCCA 34 at para. 45 (Stapley),
leave to appeal to S.C.C. refused (2006), 240 B.C.A.C. 319, citing Lindal v.
Lindal, [1981] 2 S.C.R. 629 at 637). Factors that influence an award
include: the age of the plaintiff, the nature of the injury, the severity and
duration of pain, disability, emotional suffering, impairment of life,
impairment of social relationships, loss of lifestyle, and the plaintiff’s
stoicism (Stapley at para. 46).

[37]        
The plaintiff seeks an award of $100,000 to $120,000 for non-pecuniary
damages. Cases cited in support are Fox v. Danis, 2005 BCSC 102, aff’d
2006 BCCA 324 (Fox), Carroll v. Hunter, 2014 BCSC 2193 (Carroll)
and Hubbs v. Escueta, 2013 BCSC 103 (Hubbs).

[38]        
In Fox, the 34-year-old plaintiff suffered moderately severe soft
tissue injury to her neck and lower back resulting in increased headaches and a
prolapsed disc with nerve injury in the spine resulting in pain down the leg.
Surgery had improved the pain but not with full relief and numbness and
tingling continued. All of the injuries were permanent. Chronic pain made the
plaintiff more susceptible to depression. She had significant loss of enjoyment
of many activities and personal relationships. The plaintiff was awarded
$100,000 in general damages.

[39]        
In Carroll, the 54-year-old plaintiff suffered a moderate soft
tissue injury to her neck and injury to her facet joints at levels C2-C5. She
received nerve block injections to provide relief of facet joint pain but still
experienced abnormal and heightened sensation of persistent pain and associated
headaches seven years post-accident. Although some improvement was anticipated,
the plaintiff’s ability to work a full day was restricted and her ability to
engage in physically demanding activity was ended. An aggravating factor was
that the plaintiff’s work was a major aggravating factor for chronic neck pain.
General damages were awarded in the amount of $100,000 with a deduction of
$10,000 for the risk that her pre-existing degenerative disc disease would have
become symptomatic regardless of the defendants’ negligence.

[40]        
In Hubbs, the 43-year-old plaintiff suffered multiple injuries to
the head, neck, arm and shoulder and a fractured ankle that required two
surgeries to repair. Despite the surgery, the plaintiff still experienced
difficulty with strength, balance, and pain that affected his work. His ability
to earn his living was impaired and the plaintiff faced a lifetime of
limitation and disability. The plaintiff worked through the pain at great cost
to his family life. $130,000 was awarded for non-pecuniary loss for the
accident that caused these injuries.

[41]        
The defendant says that general damages should be awarded in the amount
of $85,000. Cases cited in support included Chouhan v. Allemeersch, 2014
BCSC 1415 (Chouhan), Carroll, and Lorenz v. Gosling, 2011
BCSC 1250 (Lorenz).

[42]        
In Chouhan, the 34-year-old plaintiff’s pre-existing fibromyalgia
and depression was put over the top by the accident. She was no longer able to
work or care for her family and had worsening depression and post-traumatic
stress disorder. She was not expected to completely recover. The plaintiff was
awarded $90,000 in non-pecuniary damages.

[43]        
In Lorenz, the plaintiff was 52 years old at the time of the
accident which left her with daily and constant head and neck pain as well as
frequent pain in her arms and elbows, resulting in significant ongoing
limitation of function. She also had injury to her spine with consequential
neuropathic pain in her neck and upper limbs. She suffered from panic attacks
and had trouble sleeping. She could still engage in pre-accident activities but
with pain and limitations. The pain condition was not found to be permanent.
The plaintiff was awarded $80,000 for non-pecuniary damages.

[44]        
The plaintiff’s situation is unique. The comparison cases are helpful
but only indicators of how others’ pain and suffering were dealt with.

[45]        
Arletto was 47 years old at the time of the accident. He had worked his
way up to a full time union job as a longshoreman driving a forklift truck and
enjoyed some seniority in that position. He was single but with strong family
ties and had looked after his sister. He was driving his nephew to a game when
the accident occurred. He was known to be private and reserved but enjoyed the
collegiality of the union hall. He was healthy and had never been to a massage
or physiotherapist.

[46]        
Arletto is now 52 years old. He suffers from permanent pain in his neck
and shoulder blade and has numbness and tingling down his left arm and into his
fingers. He suffered a left-sided disc protrusion at C5/6 with associated
annular tear in the accident. The protrusion has impinged the nerve and spinal
cord, causing increased pain. He has undergone trigger point injections and two
nerve root blocks to relieve the pain with only temporary relief. He has
tinnitus and vertigo as a result of the accident. He suffers headaches about
three times per week that interrupt sleep. He takes pain medication as required
but not often because it interferes with work. A lower back soft tissue injury
resolved after just less than two and a half years. Work aggravates his pain. His
work has been permanently affected to the point that he has reduced working
hours, given up hope of improving his union rating by becoming a crane operator,
and planned for an earlier retirement. His family and other relationships have
suffered and he cannot tolerate crowds or a noisy family dinner.

[47]        
An appropriate award for non-pecuniary damages in this case is $110,000.

Past wage loss

[48]        
It has been agreed that past wage loss totals $34,017.20. This
represents lost wages from the date of the accident to July 2, 2011 and for
loss of one week in October 2011.

Loss of future earning capacity

[49]        
Arletto is presently 52 years old. He has been very stoical about the
worsening of pain as a result of his work. As time has progressed, however, he
has had to make hard choices to limit his work and possibly to drop his lift
truck rating in order to maintain his status working in the union. There is no
doubt that the plaintiff loved his job, worked hard at it, and planned to work
to the fulfillment of full pension benefits before this accident occurred. There
is also no doubt that the plaintiff would have continued to work full time as a
forklift operator until he reached retirement at age 65. He has benefited from
the fact that he is paid for full time work even though he usually works less
than the registered time as a matter of practice. He has continued as a lift
truck driver most recently with use of pain medications. From all of this, it
is concluded that Arletto would not have chosen to reduce or to leave his
employment early, but for this accident.

[50]        
For reasons expressed above, however, it is unlikely that Arletto would
have worked full time past age 65. Although it is unlikely that the plaintiff
would have worked as a crane operator, he had a real possibility of at least
applying for this job before the accident.

[51]        
Dr. Nguyen said that the requirements of operating a lift truck had
likely contributed to increased neck pain and had likely also significantly
contributed to the interval progression and worsening of the C5-6 herniation as
shown in the most recent 2015 MRI. As a result, upon the recommendation of Dr.
Nguyen, Arletto has now reduced his work by 20 percent, which is slightly less
than recommended. Dr. Nguyen agreed with the conclusions expressed by
Fischer. Dr. Nguyen said that continuation of work as a lift operator
represented risk factors in progression of the disc herniation and arm and neck
pain such that continuation of work would likely result in progression. In
cross-examination, he said that the plaintiff would have to stop work to halt
progression. He concluded that Arletto’s work productivity and work life had
been reduced as a result of the injuries sustained in the accident. Dr. Nguyen
could not quantify the extent of the reduction as it depended on the
progression and change over the coming years.

[52]        
Dr. Chin concluded that Arletto’s vocational future was “potentially in
jeopardy”, especially in consideration of the functional capacity report
prepared by Fischer.

[53]        
Dr. Stancer said that Arletto’s work had aggravated his pain. The doctor
thought that the disc herniation would progress with repetitive head movements
at work. She said that worsened pain as a result of work indicated that he was
no longer suited for this occupation. She said that Arletto has persevered in
his job at “great personal cost”.

[54]        
Arletto testified that he is considering dropping the lift truck driver
rating so that he would be qualified only as a checker. He thought that he
could do this job, although in difficulty due to pain and occasional dizziness.
According to occupational testing by Fischer and based upon the plaintiff’s
obvious desire to continue with work despite adversity, he could probably
continue as a checker for some time. It is accepted, however, that checker jobs
are not as available as that of a driver. It is also accepted that the
plaintiff should not have to work the graveyard shift, which he has not done
for over 10 years and which involves a different social set of workers with
whom Arletto has not worked with by choice. It could take a year for Arletto to
gain full time work as a checker. Overall, the chance of Arletto transitioning
to a full time checker job in the next years is slim given that there are few
such jobs available, Arletto’s limited history in that position, and the fact
that a checker position still promotes physical difficulty for him.

[55]        
Based upon the figures in evidence of Arletto’s average and most recent earnings,
if this accident had not occurred, it is reasonable that the plaintiff could
have been expected to make about $110,000 per year from 2015 onwards as a
forklift operator, as estimated by the economist, Peever. Although this figure
reflects income from the plaintiff’s higher earning years, it averages the
earnings of about $105,000 per year post-accident with the potential higher
earnings reflected in the 2015 year and is a reasonable base for estimation of
future earnings. This potential for earnings is, of course, not determinative
but assists in assessment of future losses.

[56]        
It is concluded that the plaintiff would not have voluntarily chosen not
to work, absent this accident. It is also concluded that the plaintiff would
not have chosen to work part time. He has high job satisfaction. He has worked
hard to achieve his status in the union and is proud of his accomplishments. He
has not sought accommodation despite working in pain. The recent reduction in
work was medically recommended.

[57]        
It is also concluded that the risk of unemployment is minimal in the
plaintiff’s situation and given the likelihood of having to work even in the
event of a labour dispute.

[58]        
It is a realistic possibility that the plaintiff will not be able to
work until the usual retirement age, but will have to take early retirement,
possibly as early as age 60. The plaintiff’s thoughts on this are supported by
the medical and other professional opinion that Arletto is working in pain
through perseverance in a job for which he is no longer suitable. In the
meantime, he will likely continue to reduce his work hours from his usual rate.
The plaintiff’s position that Arletto will work at a reduced rate of 20% for
five years and then further reduced by 25% to age 60 is a ‘soft’ figure because
Dr. Nguyen declined to give estimates about progression. However, the plaintiff
testified about recent reduction in work hours based upon medical
recommendation and so, combined with the medical opinion, it is not conjecture
that the plaintiff will have to reduce his work hours in the future, the exact
rate of reduction presently between 20-25%. It is concluded that there is a
reasonable likelihood that the plaintiff will work at reduced rates until age
60 or until he can take early retirement with a full pension. While the
defendant objects to this calculation of risk as not founded on the evidence
and speculative, this Court finds that there is evidential support for the
figures as possibilities that go beyond conjecture.

[59]        
With respect to the pension, Arletto is expected to work at least until
age 60 at or above the annual earnings requirement for full pension, even with his
hours of work reduced by at least 20%. This creates the expectation that he
will have achieved 20 years pensionable time before there is a real possibility
that he may retire. It is also possible that he may continue to work past age
60 and this must be factored into the assessment.

[60]        
There is no doubt, and the defendant has conceded, that the plaintiff’s
future earning capacity has been impaired as a result of this accident. The
question is what amount should be awarded in light of his impairment.

[61]        
The assessment of this damage claim is assisted by the summary of the
law provided by Kent J. in Hoy v. Williams, 2014 BCSC 234 at
paras.153-161 as follows:

[153]    A claim for loss of future earning capacity raises
two key questions: 1) has the plaintiff’s earning capacity been impaired
by his or her injuries; and, if so 2) what compensation should be awarded for
the resulting financial harm that will accrue over time? The assessment of loss
must be based on the evidence, and not an application of a purely mathematical
calculation. The appropriate means of assessment will vary from case to
case: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); Pallos v.
Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.); Pett
v. Pett, 2009 BCCA 232.

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

[155]    Insofar as possible, the plaintiff should be put in
the position he or she would have been in but for the injuries caused by the
defendant’s negligence: Lines v. W & D Logging Co. Ltd., 2009 BCCA
106 at para. 185. The essential task of the Court is to compare the likely
future of the plaintiff’s working life if the accident had not happened with
the plaintiff’s likely future working life after the accident: Gregory v.
Insurance Corp. of British Columbia, 2011BCCA 144 at para. 32.

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

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

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

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

[160]    The principles that apply in assessing loss of
future earning capacity were summarized by Low J.A. in Reilly v. Lynn,
2003 BCCA 49 at para. 101:

The relevant principles may be briefly summarized. The
standard of proof in relation to future events is simple probability, not the
balance of probabilities, and hypothetical events are to be given weight
according to their relative likelihood: Athey v. Leonati, [1996] 3
S.C.R. 458 at para. 27.  A plaintiff is entitled to compensation for
real and substantial possibilities of loss, which are to be quantified by
estimating the chance of the loss occurring: Athey v. Leonati, supra, at
para. 27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135
(C.A.).  The valuation of the loss of earning capacity may involve a
comparison of what the plaintiff would probably have earned but for the
accident with what he will probably earn in his injured condition: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is
not the end of the inquiry; the overall fairness and reasonableness of the
award must be considered: Rosvold v. Dunlop, 2001 BCCA 1 at
para. 11; Ryder v. Paquette, [1995] B.C.J. No. 644 (C.A.)
(Q.L.). Moreover, the task of the Court is to assess the losses, not to
calculate them mathematically: Mulholland (Guardian ad litem of) v. Riley
Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.).  Finally, since the course
of future events is unknown, allowance must be made for the contingency that
the assumptions upon which the award is based may prove to be wrong: Milina
v. Bartsch, supra, at 79.

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

[62]        
The earnings approach to loss of earning capacity is appropriate here
when the loss is quantifiable in a measurable way. As stated by Garson J.A. in Perren
v. Lalari, 2010 BCCA 140 at para. 12 (Perren):

[12]      These cases, Steenblok
[v. Funk, (1990), 46 B.C.L.R. (2d) 133 (C.A.)], Brown [v.
Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.)], and Kwei [v.
Boisclair, 6 B.C.A.C. 314] illustrate the two (both correct) approaches to
the assessment of future loss of earning capacity.  One is what was later
called by Finch J.A. in Pallos the ‘real possibility’ approach.
 Such an approach may be appropriate where a demonstrated pecuniary loss
is quantifiable in a measurable way; however, even where the loss is assessable
in a measurable way (as it was in Steenblok), it remains a loss of
capacity that is being compensated.  The other approach is more
appropriate where the loss, though proven, is not measurable in a pecuniary
way.  An obvious example of the Brown approach is a young person
whose career path is uncertain.  In my view, the cases that follow do not
alter these basic propositions I have mentioned.  Nor do I consider that
these cases illustrate an inconsistency in the jurisprudence on the question of
proof of future loss of earning capacity.

It should always be kept in mind that it is not loss of
earnings but loss of earning capacity for which compensation is made (Perren
at para. 30). Some compensation should be made for the vertigo which has ended
any hope for work as a crane operator, however slight that may have been. The
possibility that Arletto may secure full time work as a checker is also to be
taken into account.

[63]        
In this case, the defendant has argued that the plaintiff continues to
work full time, that he can work full time, and that the plaintiff has only
established an unquantifiable risk of being unable to work in the future. Each
of these propositions has been rejected.

[64]        
The plaintiff no longer works full time according to his evidence. The
medical evidence generally supports the conclusion that the plaintiff should
not be working as a forklift driver because this will only exacerbate his
condition and obtaining full time work as a checker is uncertain. Although the
plaintiff’s dream of being a crane operator is ended, the reality of this
position and the plaintiff’s circumstances before the accident are such that
there was not a substantial possibility of getting this job regardless of the
accident. However, the fact that he cannot ever get this job because of the
vertigo from the accident must be taken into account. While the risk of being
unable to work in the future as a forklift driver is not specifically
quantifiable, it does exist and must be taken into account.

[65]        
All of this creates a large task in quantifying future loss of earning
capacity. Thankfully, the approach taken here is not one of mathematical
precision but rather is a judgment based upon the whole of the evidence. In
this regard, the reports of the economists have been of tremendous assistance,
although none of them use the exact risk factors that are considered
appropriate here.

[66]        
Overall, I have concluded that there is a substantial possibility that
the plaintiff will probably work but with work hours reduced by 20% in each
year to the point of taking early retirement at age 60 in 2023. Given the
estimated cumulative value of this income adjusted without risk of
unemployment, minus the present value, the plaintiff potentially has lost earning
capacity of about $132,000 over this period. Based upon comparison of estimated
figures to date of retirement without the accident in 2028, the total potential
loss of earnings is about $420,500.

[67]        
There is also a loss of pensionable benefits in the five years from age
60 to age 65 when the plaintiff would likely not contribute but could otherwise
have been expected to contribute and to retire at that age, but for the
accident. These are estimated to be about $48,800 based upon Hildebrand’s suggested
calculation from his Table 4 of a loss of about $2,440 per quarter of
pensionable year lost.

[68]        
Future loss of earning capacity is assessed overall at $500,000.

Special damages

[69]        
The parties have agreed that special damages total $3,865.86.

Conclusion

[70]        
The plaintiff is awarded damages in the following amounts:

[71]        
The plaintiff is awarded costs throughout on Scale B.

“Dillon J.”

________________________________

The Honourable Madam Justice Dillon