IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100331

Docket: M074932

Registry:
Vancouver

Between:

Robert
John Elgood

Plaintiff

And:

Barrie
Ellison

Defendant

Before:
The Honourable Mr. Justice Bracken

Reasons for Judgment

[1]          
The plaintiff seeks damages for injuries received when he was struck by
a vehicle driven by the defendant.  The accident occurred on January 10, 2006
just after 9:00 a.m.  The defendant admits liability for the accident, but
denies that the injuries are as serious as the plaintiff claims and alleges
that the plaintiff has failed to mitigate his damages.

Background Facts

[2]          
On the morning of the accident, the plaintiff was crossing 208th Street
at 40th Avenue in Langley, British Columbia.  The plaintiff was walking
east on the south side of 40th Avenue.  He had just started across 208th Street
and was in the marked crosswalk.

[3]          
The defendant was driving a small pick-up truck, travelling west on 40th Avenue
and intending to turn left to go south on 208th Street.  He moved partway into
the intersection, waited for an oncoming car to pass and then turned left.  He
did not see the plaintiff in the crosswalk until the last moment.  The accident
occurred when the defendant was driving at a very low speed.

[4]          
The plaintiff saw the defendant’s vehicle just prior to being hit and he
tried to avoid injury by attempting to jump onto the hood of the vehicle.  He
was not successful in his attempt and he fell or was thrown to the pavement. 
He landed on his back and right shoulder and his head struck the pavement.  He
did not lose consciousness.  He was alert and awake when he was first seen by
the ambulance attendants.  He was taken to hospital where he was treated and
released about two hours later.  X-rays were taken, but nothing of significance
was found.

[5]          
He initially reported bruising and soreness to the parts of his legs
where he was hit by the vehicle.  Those injuries resolved after a week or two,
and he has had no further problems since that time.  He had some shoulder pain
as well as neck pain.  He still complains of occasional neck pain although his
main complaint now is low back pain.  The low back pain eases when he is
walking or standing and is worse when he is sitting for periods of time in
excess of 45 minutes to one hour.  The low back pain appears to have become
chronic and has lasted continuously since the date of the accident.

The Plaintiff’s History

[6]          
The plaintiff is 65 years old and has a Grade 12 education.  He went to
work in the machinery sales and parts industry immediately after completing
high school and worked for several employers over a period of years.  He
eventually settled at Finning Tractor in Vancouver and while originally part of
the union and in the bargaining unit, he eventually became part of the
management team.  He stayed at that job for over 15 years until Finning Tractor
reorganized its management and the plaintiff lost his job.

[7]          
After the plaintiff left his job at Finning Tractor, he worked at a series
of short-term jobs.  The first of these was working for Culligan Water as a
sales and delivery man.  He did not like the direct selling aspect of the job
and left after a few months.  He then worked for two separate traffic control
companies for approximately the next 12 months.  The first was a job that he
quite liked; however, he required his own pick-up truck to continue in that
employment.  Initially, they lent him a truck, but after a few months they
insisted that he acquire his own.  He did not have the funds available to
purchase a truck at that time and the employment was lost.  He next went to
another traffic control job, but after a time found that the management of that
company was not to his liking and he quit.  Both of those jobs were quite physically
demanding and he had no difficulty in performing the tasks of loading and
unloading heavy traffic signs from the back of the truck and setting them up on
the road.

[8]          
He next went to work for a company called Canada Bread.  This was a
regular part-time job which required regular shift work.  He was on call and
was frequently called in on short notice.  Again, the job was quite physical
and involved lifting racks of bread products from a conveyor belt, then
stacking them and moving them to a loading bay where they were put on trucks
for shipment.  He performed that job with no difficulty but found the shift
work and on-call status inconvenient.

[9]          
When he was still working at Canada Bread, he made an application to
work for a company called Playtime Community Gaming (“Playtime”) which operates
a bingo hall in Langley, B.C.  The plaintiff was hired by Playtime in November
2004 and he has continued in that job ever since.  The plaintiff’s job at Playtime
is as a “paymaster”.  He sells bingo cards at the commencement of his shift and
then works on the floor to check winning cards and to pay out prizes.  The job
involves a considerable amount of walking and moving throughout his shift and
he is on his feet for virtually all of that time.

[10]       
By all reports, he is a good and valued employee who is well liked by
customers and other staff as well as by management.  Ms. Colleen Schau, who is
his immediate supervisor, testified that he always gives what she referred to
as “110%” when he is at work.  She said he is co-operative and prior to the
accident he always went out of his way to find extra duties to perform.  She
said that she never observed any physical problems before the accident and he
rarely took any time off.  She also testified that from time to time, the plaintiff
was asked to cover the bingo caller’s breaks.  She said that he seemed to do
well at that job and that he seemed to enjoy it.

[11]       
Since the accident, she has noticed that he is somewhat more irritable
and she said that he has had three run-ins with other members of the staff
recently.  He had never had difficulty like that before the accident.  She said
that while he still appears to love his job and the customers are still very
appreciative of him, she has noted a reduction in his ability to do his job. 
She also said that she used to call him in for extra shifts but since the
accident she has quit calling him as he declined to accept any extra shifts
because he said that he was not able to do them any longer.

[12]       
She was aware of the accident on January 10, 2006 as the plaintiff was
not at work the next day and she believed that he was not able to work for
about five or six work days in total although as he was not scheduled to work
all of those days he only missed about three days of work.

[13]       
She said that while the plaintiff still does his job as best as he can,
she notices from time to time that he is having pain by the way he walks and
said that she sometimes notices him grabbing or holding his back when he is at
work.  She said that it is not likely he could train as a bingo caller as he
cannot sit for long periods of time.  She admitted on cross-examination that
there was a bingo caller who was accommodated for a short time by allowing her
to stand while she worked.  However, she said that the work station is set up
for a person to work from a sitting position as the caller has to watch two
video screens that are positioned in a way that they are visible only from a
sitting position.  There is no mandatory retirement age at Playtime and the
plaintiff can work there as long as he is able to.

[14]       
Mr. Jarrod Osborne is the facility manager at the Langley bingo.  He
knows the plaintiff and sees him every day that he is at work as the plaintiff
is always out on the floor.  He confirmed that the plaintiff deals well with
the customers and they appear to like him.  He said that the plaintiff is
required to be on his feet for his whole shift.

[15]       
Mr. Osborne said that he knew the plaintiff before his accident and
described him as always happy, with a “jump in his step”.  He said that the
plaintiff appears to love his job and he was one of the first gold star
employees that Playtime recognized.  The plaintiff had no problems at work
before the accident.  He started at a salary of $10.98 per hour in 2004 and is
earning $11.48 per hour now.

[16]       
Mr. Osborne said that as a bingo caller, the plaintiff could earn $13.92
per hour and Mr. Osborne believes that the plaintiff had a definite opportunity
to become a caller before the accident occurred.  The work of a caller requires
him to sit for about 75% of the shift.  He assessed the plaintiff as having a
good work ethic and that he is dependable, reliable and works very hard.  He
said that since the accident, the plaintiff has lost the “jump in his step”
that he previously had although he still works very hard.  He has seen the
plaintiff at times when it appears that the plaintiff is suffering pain in his
back.  Mr. Osborne did acknowledge that the plaintiff’s work record shows that
he did not take any days off in 2007 or 2008 on account of illness or injury.

[17]       
It appears from the evidence of his supervisors that the plaintiff has
an excellent work record and an excellent reputation as a solid and diligent
worker.  He had been given some opportunities to work as a bingo caller to
cover the regular caller’s breaks and he performed that function well.  Mr. Osborne
felt that the plaintiff had the potential to move up to the higher paid
position of bingo caller and he also acknowledged that there have been two
openings since the date of the accident.  It was his opinion that the plaintiff
would have been considered as a candidate for either of those positions had he been
able to perform the job.

[18]       
During the course of his employment, the plaintiff met Ms. Darcy Kelly. 
Ms. Kelly was a customer at the bingo hall and she came to know the
plaintiff.  She described him as friendly and outgoing.  She heard from someone
at the bingo hall that he enjoyed gardening and as she needed someone to assist
her with her garden, she asked him if he was interested in working for her.  He
appeared to be interested in helping but the matter was put aside for a time. 
Later she became aware of the fact that the plaintiff had been in an accident
and had injured his back and that he could no longer assist.  She was not aware
of any background that the plaintiff had in gardening or landscaping work, but
as I understood her evidence, she was looking for someone to assist her with
general yard work that required no specific training or knowledge beyond what a
normal home gardener might have.  She was prepared to pay him an appropriate
hourly rate for that work.

[19]       
The plaintiff also called Ms. Evelyn Bazian.  She was not aware of the
plaintiff’s work history or experience but they did talk about the fact that
she had been working in Fort McMurray, Alberta.  She advised the plaintiff that
there were many opportunities for work in Fort McMurray as people were coming
and going all the time.  He told her of his background in heavy equipment parts
and she indicated to him that she was sure he could find work in Fort McMurray
if he wished to go to Fort McMurray to look for a job.  She did tell him that
the cost of living in Fort McMurray was very high, but that the wages were
also high.  She said it was very hard to find a place to live, but that he
could stay with her and her boyfriend for a short period of time while he
looked for a place of his own if he was able to find a suitable job in Fort
McMurray.

[20]       
The plaintiff expressed some interest in the possibility and believed
that if he went to Fort McMurray, he could earn a much bigger income and be
able to put some money away for his retirement.  This was important to the
plaintiff as throughout his work history he had never been able to accumulate
any savings and as a result of some business setbacks and job losses, he had
declared bankruptcy some years earlier.  As a result of the bankruptcy, he and
his wife lost their home and have been renting since that time.  They have no
savings or private pension and they will both have to work as long as they are
able to.

[21]       
The plaintiff hoped that he would be able to go to Fort McMurray, find
some work and that he would be able to save some money over the next few
years.  To that end, Ms. Bazian found some job opportunities that she was
able to copy from various websites and sent them to the plaintiff.  He did not
respond to any of the opportunities after the accident as he no longer believed
he could do the work that the jobs required.  He said that all of the job
opportunities he saw involved some lifting which he did not feel he could do
and he now feels that he has lost any opportunity to earn income from a
well-paying job in Fort McMurray.

[22]       
Ms. Bazian was not aware that the plaintiff had not worked in the heavy
equipment or machinery parts industry for approximately 25 years.  Nor did she
know what, if any, qualifications or certifications that he held.  The
plaintiff said that he knew how to drive a forklift, but he has no current
certification, something that is apparently now required.  He has no other
trade certification or diplomas, nor does he have any current work experience
in that field.  While no doubt there are many opportunities in Fort McMurray,
the evidence that was given by Ms. Bazian is based largely on word-of-mouth
information that she has received simply by living there or through her
boyfriend.  She searched some listings of local job opportunities and provided
what she found to the plaintiff.  There is no evidence of any real opportunity
for someone like the plaintiff who has a basic education and very dated
experience.  There was no evidence presented that the plaintiff either searched
for any job in Fort McMurray or that he was qualified for any position that was
available.

[23]       
In addition, the plaintiff and his wife have been married for over 42
years and they have never been apart from each other for more than about one
week at a time.  The plaintiff and his wife have two daughters, one of whom has
some serious health difficulties and continues to live at home.  That daughter
is, to a significant degree, dependent upon the plaintiff and his wife for support
and it is not likely that the plaintiff would find it acceptable to be residing
a considerable distance away in a remote community.

[24]       
It was suggested to the plaintiff that the distance and time away from
home would be a problem.  He disagreed and pointed out that there are direct
flights from Vancouver to Fort McMurray that take approximately one and
one-half hours of travel each way.  While that may be so, the cost of living,
the cost of travel and the absence from his home and family are all factors
that mitigate strongly against the likelihood of the plaintiff accepting work
in Fort McMurray.

[25]       
An additional problem is the plaintiff’s background, age and
experience.  It is not likely that there are significant opportunities for a
man over 65 years of age with a basic education, very dated experience and no
trade certifications.

[26]       
The plaintiff’s wife, Gail Elgood, testified that the plaintiff had some
significant difficulties in the early weeks after the accident and that as his
injuries resolved he was left with chronic low back pain that has interfered
with his ability to perform household chores, engage in recreational activities
and to work at a comfortable pace.

[27]       
She testified that prior to the accident he was very active with a
program of exercise and that he often went for long rides on his bicycle or
jogged at the local high school track.  She said that he performed most of the
domestic chores around their home as she works odd hours at her employment as a
Welcome Wagon hostess.  She said that the plaintiff did all of the yard and
garden work at their home.  She said that he never had any difficulty in
performing any of those duties before the accident.

[28]       
She said that since the accident, while he is still able to perform most
of the work, he does not do as good a job as he used to do and he works at a
much slower pace.  She says that he has become quite irritable and is often
difficult to be around.  As a result, she said that their two daughters now
often tend to avoid him.  While there was some inconsistency between the
evidence given by the plaintiff and his wife, I find that the evidence was
generally consistent on the key points and that her evidence supports the
plaintiff’s evidence.

Medical Evidence

[29]       
The plaintiff’s family doctor is Dr. Brynjolfson.  He first saw the
plaintiff after the accident on January 12, 2006.  At that time, the plaintiff
complained of bruising and pain in his legs, a stiff neck, pain in his lower
back and that he had trouble standing for long periods of time.  X-rays were done
and suggested a possible compression fracture at the T12 vertebrae in his
back.  Dr. Brynjolfson saw the plaintiff again on February 1, 2006 and the
plaintiff continued to complain of aches and pains and particularly low back
pain.  By February 14, 2006, his back seemed better and on June 7, 2006, the
back pain had decreased although there was still tenderness in the lumbar
sacral area.

[30]       
Dr. Brynjolfson conducted a bone density test and found an indication of
some mild osteopenia or mild degeneration of the plaintiff’s bones.  This was
not considered to be clinically significant and there is only a mild risk of it
developing into anything more serious.

[31]       
On June 23, 2006, Dr. Brynjolfson saw the plaintiff again and the
plaintiff continued to complain of back pain.  He also complained of some
tenderness at the T12 vertebrae on that visit.  The plaintiff saw Dr.
Brynjolfson on August 18, 2006, and the plaintiff was still complaining of some
pain.  He saw the doctor on December 5, 2006, and was complaining of perhaps
more significant pain on that visit.  He saw Dr. Brynjolfson again on January
3, 2007, when he complained of some tenderness and soreness in his neck.

[32]       
His last visit to Dr. Brynjolfson was on July 9, 2007 when the plaintiff
reported that since the accident he is not able to lift very much weight or
engage in recreational activities such as jogging walking and cycling.  He said
that twisting and turning his back quickly caused a sharp pain.  He complained
of problems sleeping and said that he gets up several times each night to walk
around as that seems to ease his back pain.

[33]       
Dr. Brynjolfson diagnosed a general soft tissue injury with a
possible compression fracture to his back at the T12 vertebrae.  An x-ray was
done on June 14, 2006 and the report indicated a slight anterior ridged
deformity at the T12 vertebrae which was the foundation for the suggestion of
the compression fracture. A similar finding resulted from an MRI taken August
12, 2006.  The deformity was described as “very subtle” and was said to be
within normal limits.

[34]       
There was also a referral to Dr. Heran in June of 2008.  Dr. Heran
reviewed the summary of imaging reports indicating the anterior wedge
compression fracture which he stated to be at T11 and indicated that it was
apparently mild.  The plaintiff was not happy with Dr. Heran as he
attended on at least two occasions when x-rays were either lost or not
available.  He eventually lost confidence in Dr. Heran and never returned for
any follow-up.  Dr. Heran indicated that he was waiting to see the actual x-ray
or MRI images before he came to any firm diagnosis and wanted to have a
follow-up appointment.  However, that did not take place.

[35]       
The plaintiff was referred to Dr. Hirsch in January of 2009 for an
independent medical report.  He saw the plaintiff on January 20, 2009 and
dictated his report the same day.  He reviewed the clinical records of Dr.
Brynjolfson, the ICBC claim forms that were completed by Dr. Brynjolfson,
an MSP print-out from January 2004 to March 2008, the ambulance crew reports
from January 10, 2006, hospital records from the same date, and physiotherapy
records from February 12, 2006 to July 12, 2006.  Lastly, he referred
Dr. Heran’s report of June 7, 2008.

[36]       
He noted that the plaintiff was at that time 64 years old and he had no
previous relevant injuries.  He reviewed the initial complaints of the
plaintiff as neck, low back, left knee and right shin pain as well as
headaches.  He noted that the left and right leg pain resolved very quickly and
that there was only intermittent neck pain which was relatively mild in nature.

[37]       
He noted that the low back pain had become “recalcitrant” and that as a
result the plaintiff had restructured his activities.  The plaintiff told him
that he had daily low back pain at the L4-5 vertebrae that was aggravated by
quick movements or extended sitting.  Dr. Hirsch noted that the x‑rays of
the pelvis were normal and he diagnosed soft tissue injuries.

[38]       
Dr. Hirsch commented on the x-rays from June 2006 which indicated a
slight anterior ridge configuration at T12.  He concluded that that
configuration was not relevant and had no contribution to the plaintiff’s
current conditions.  He did note that there was some mild degenerative changes
at multiple levels of the plaintiff’s L1 to L4 vertebrae.  He also noted that
the MRI taken August 12, 2006 showed that the wedge configuration at T12 was
well within normal limits and that the bone density scan was normal.

[39]       
Dr. Hirsch concluded that the plaintiff has made a full recovery with
respect to his legs and that he had a relatively minor neck injury that has now
essentially resolved.

[40]       
The more difficult problem is the lower lumbar spine area and Dr. Hirsch
said that this condition was likely caused by the accident.  He described it as
likely mechanical in nature and that it is exacerbated by stress or loading on
the back.  He believes that the plaintiff should continue his home-based
exercise program and perhaps attend for structured appointments with a
kinesiologist or physiotherapist.  He also thought that some exercise such as
tai chi, yoga, pilates or water-based exercises would be helpful.

[41]       
He concluded that the plaintiff’s restrictions were attributable to
chronic low back pain that was caused by the accident and that the prognosis
for complete recovery was guarded given the plaintiff’s age and the duration of
the symptoms.

[42]       
He did believe that the plaintiff should be capable of performing his
domestic chores but that he may have to pace himself and that he will have
ongoing problems with more strenuous activities such as lifting, snow
shovelling or completing significant household repairs.  He did not foresee any
need for future care or for any surgery.

[43]       
In summary, it appears that the plaintiff’s leg and shoulder injuries
resolved very quickly and his neck pain diminished gradually over time, to the
point where it is now only occasional pain and of a non-debilitating nature. 
He had some early headaches which have now become occasional.

[44]       
The significant pain that the plaintiff suffers is chronic low back pain
that Dr. Hirsch predicts will likely be with him for the foreseeable
future.  No doubt the low back pain will prevent him from doing many jobs,
particularly those that require long periods of sitting.  Given his age and
background, it is most likely that sedentary jobs will most likely be what are
available to him.  He has sharply reduced his recreation, although some of the
intense recreational and physical activities engaged in by the plaintiff would
likely diminish in intensity over time due to the normal aging process
regardless of his injury.  He will likely still have the ability to engage in
mild recreational activities. The plaintiff says that even mild recreation or
physical activity is too painful for him.

[45]       
As Dr. Hirsch pointed out at p. 6 of his January 20, 2009 report:

Three years have elapsed since
Mr. Elgood suffered his low back injury in the subject motor vehicle accident. 
Given the duration of his symptoms, the prognosis regarding complete resolution
of his low back pain has to be viewed as guarded at this juncture.  Given the
temporal profile to date, I would consider it more likely than not that Mr.
Elgood will experience low back pain indefinitely.  Low back symptoms of
sufficient intensity will probably limit his ability to perform tasks which
biomechanically stress his low back.

Damages

[46]       
In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined
the factors that a trial judge should consider when assessing general damages:

[46]  The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary
damages includes:

 (a)  age of the plaintiff;

 (b)  nature of the injury;

 (c)  severity and duration of pain;

 (d)  disability;

 (e)  emotional suffering; and

 (f)  loss or impairment of life;

I would add the following factors, although they may arguably
be subsumed in the above list:

 (g)  impairment of family, marital and social
relationships;

 (h)  impairment of physical and mental abilities;

 (i)  loss of lifestyle; and

 (j)  the plaintiff’s stoicism
(as a factor that should not, generally speaking, penalize the plaintiff: Giang
v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54).

Non-Pecuniary

[47]       
The plaintiff seeks non-pecuniary damages in the range of $55,000.  The
plaintiff referred to Jacobsen v. Beaton, 2009 BCSC 231, where an award
of $50,000 was made to a plaintiff who was 66 years old at the time of the
accident and 69 at the time of the trial.  The summary of injuries in that case
indicates that the injuries both in severity and impact on the plaintiff’s life
were more significant than in the current case.

[48]       
The plaintiff also refers to Larlee v. Shier, 2008 BCSC 1610; Raponi
v. Phagura, 2005 BCSC 567; and Pingitore v. Luk, [1994] B.C.J. No.
1866.  In my view, in each of those cases, the injuries were more serious and
more debilitating than the injuries suffered by the plaintiff in this case.  In
Pingitore, supra, the court referred to an English Court of
Appeal case, Frank v. Cox, where the court said:

I take the view myself that when
one has a person in advancing years, in some respects an impairment of movement
may perhaps be more serious than it is with a younger person.  It is true, as
Mr. Chedlow has stressed, that he has not got as many years before him through
which he has to live with this discomfort, pain and impairment of movement. 
But it is important to bear in mind that as one advances in life one’s
pleasures and activities particularly do become more limited, and any
substantial impairment in the limited amount of activity and movement which a
person can undertake, in my view, becomes all the more serious on that
account.  (per Lord Sachs.  This decision is reported only, so far as I can
tell, by Kemp & Kemp on Damages (looseleaf edition)).

[49]       
The defendant refers to cases of Asere v. Whelton, 2006 BCSC
1617; Hoang v. Smith Industries Ltd., 2009 BCSC 275; and Shore v.
Bierans, 2005 BCSC 259.  In each of those cases, the award for non-pecuniary
damages was in the range of $20,000 to $25,000.  The defendant says that the
injuries in this case are close to the injuries described in each of those
cases and that the appropriate award here should be in the same range.

[50]       
The defendant pointed out that the plaintiff was only prevented from
working for a period of five or six days and actually missed only three
scheduled shifts.  He has been able to earn essentially the same amount of
money in each of the years post-accident as he did pre-accident.  The defendant
also noted that the plaintiff’s work history indicates that he has been largely
engaged in short term employment since the loss of his position at Finning
Tractor.

[51]       
While the plaintiff has been able to carry on with work, he and his wife
both said that he has only been able to do so by enduring a level of chronic
pain.  Based on the opinion of Dr. Hirsch, which I accept, his condition is not
likely to be alleviated over time.  Bearing in mind his age and the impact of
his injuries on his personal life and work life since the accident, in my view,
the range of damages is between that of the plaintiff and defendant and I
assess general damages at $35,000.

Past Income Loss

[52]       
The parties agree that the plaintiff’s wage loss for the work that he
missed immediately post-accident is $370.28.  The plaintiff also claims damages
for lost wages that he could have earned from working overtime and from working
extra shifts in the years after the accident.

[53]       
It was the plaintiff’s practice to accept any additional shifts that
were offered and paid at regular hourly rates as well as any overtime that was
offered.  It appears that about 17 additional shifts were likely to be offered
to him each year.  Ms. Schau testified that it was her practice to call the plaintiff
and offer extra shifts to him before the accident and he accepted them.  After
the accident she understood that he was not able to accept any more shifts and
was declining them, so she simply stopped calling him.

[54]       
The evidence presented satisfies me that the plaintiff would have been
offered three-quarters of those shifts had he been able to work them.  The
plaintiff calculates that his income loss is $999 per year for a gross income
loss over four years of $3,996.  The plaintiff also calculates that the lost
overtime would work out to a gross loss of $1,320 per year.

[55]       
Playtime had a policy of avoiding overtime wherever possible and
structured its shift schedules to minimize or eliminate overtime, but even so,
the evidence indicates that the plaintiff had worked a number of overtime
shifts before the accident.   His claim is consistent with the evidence on the
amount of overtime he had worked in the past.

[56]       
Finally, the plaintiff seeks compensation for past income that he says
he would have earned as a bingo caller at the higher hourly rate.  The
difference between his pay and the bingo caller’s pay was about $2.50 per
hour.  The evidence of Ms. Schau and Mr. Osborne was that there have been
at least two vacancies for bingo callers since the accident and the plaintiff
said that he would liked to have worked in his current position for three
shifts per week and as a caller perhaps once per week.  The increase in pay on
that basis would amount to an extra $910 per year in gross wages.  Over the
four-year period since the accident that loss is $3,640.

[57]       
The total overtime, extra shifts and caller’s pay losses amount to
$8,956 in gross losses.  Calculated on a net basis, the plaintiff’s losses are
estimated to be equal to $7,612.60.  I accept the plaintiff’s estimate on the
net figure and make an award on those heads of damage for past income loss in
the amount of $7,612.60, plus the amount of $370.28 for the plaintiff’s wage
loss in the week immediately post-accident, for a total of $7,982.88.

Loss of Future Income Earning Capacity

[58]       
The plaintiff seeks an award of damages for reduced income earning
capacity.  The plaintiff claims $75,000 as total compensation for his lost
earning capacity.  He puts these losses in two categories.  The first category
relates to his lost potential earnings had he been able to find employment in
Fort McMurray at a much higher annual wage.

[59]       
The job postings in Fort McMurray that were entered in evidence indicate
that a partsman could earn $40,000 to $60,000 per year in Fort McMurray.  As this
would have been a significant increase in pay, the plaintiff submits that his
total lost earnings in that category is significant.

[60]       
The defendant argues firstly, that the Fort McMurray opportunity was
fanciful and speculative at best, that no likelihood of employment in Fort
McMurray at that or any other rate of pay has been demonstrated, nor is there
any convincing evidence that the plaintiff would have taken a job in Fort
McMurray if one had been offered.  In addition, the higher cost of living, travel
expenses and other associated expenses would offset most of any income gain.

[61]       
The defendant submits, correctly in my view, that on the authority of Steward
v. Berezan (2007), 64 B.C.L.R. (4th) 152 (C.A.) that the plaintiff bears
the onus to prove at trial a substantial possibility of a future event leading
to an income loss, and the court must then award compensation on an estimation
of the chance that the event will occur.  The defendant further submits that
the evidence of the plaintiff regarding various lost employment opportunities
falls far short of the required substantial possibility of income loss.

[62]       
The defendant emphasizes that the plaintiff lacked any of the training
or certification required for jobs in Fort McMurray and that he had no
experience or training in that field for 25 years.  The plaintiff did nothing
prior to the accident to pursue an opportunity in Fort McMurray and in my view,
the defendant is correct in his assessment that the Fort McMurray opportunities
were speculative and not founded on any factual foundation.  I therefore find
that there is no basis for an award of damages for lost future income earning
capacity with respect to opportunities in Fort McMurray.

[63]       
The second category is that of opportunities for extra overtime shifts
and a lost opportunity to accept a caller’s position at a higher rate of pay
that the plaintiff would likely have been offered.  The plaintiff also submits
that the potential for additional shifts, overtime and occasional jobs of
gardening or handyman work provides a basis for a claim of lost income earning
capacity.  The plaintiff submits that his financial circumstances require him
to work for the rest of his life or at least so long as his health permits. 
His wife earns only $8,000 per year for her part-time employment and the
plaintiff’s reported income from one year pre-accident to 2008 is in the
$20,000 range.  He now earns another $500 per month from his Canada Pension
Plan.

[64]       
In addition to those lost opportunities, the plaintiff submits that his
ability to work will diminish over time at a much greater rate due to his
injuries.  He emphasizes that if he were to lose his current job, it would be
very difficult for him to find anything by way of new full time employment.

[65]       
The classic starting point in this analysis is encapsulated in the
quotation of Dickson J. (as he then was) in Andrews v. Grand & Toy
Alberta Ltd., [1978] 2 S.C.R. 229 at 251:

We must now gaze more deeply into
the crystal ball.  What sort of a career would the accident victim have had? 
What were his prospects and potential prior to the accident?  It is not loss of
earnings but, rather, loss of earning capacity for which compensation must be
made.   … A capital asset has been lost:  what was its value?

[66]       
In Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353, the court
stated:

[8] The means by which the value of the lost, or impaired,
asset is to be assessed varies of course from case to case.  Some of the considerations
to take into account in making that assessment include whether:

 1. 
The plaintiff has been rendered less capable overall from earning income from
all types of employment;

 2. 
The plaintiff is less marketable or attractive as an employee to potential
employers;

 3. 
The plaintiff has lost the ability to take advantage of all job opportunities
which might otherwise have been open to him, had he not been injured; and

 4.  The plaintiff is less
valuable to himself as a person capable of earning income in a competitive
labour market.

[67]       
The first step, as already noted, is to examine whether the plaintiff
has established that there is a substantial possibility of future income loss. 
If the plaintiff has proven such a possibility, then, and only then, is one to
embark on assessing the loss.  In this case, I am satisfied that there is a
substantial possibility of future income loss due to the plaintiff’s injuries. 
While I accept that there has not been any significant decrease in the
plaintiff’s overall income since the accident, there has been no increase
either.  His hourly rate has gone up slightly and he has also taken cash in
lieu of holiday time.  The plaintiff’s supervisors testified that he is working
fewer shifts and in my view the evidence supports the conclusion that he will
continue to work in that pattern for the future.

[68]       
In applying the test in Brown, supra, it appears to me
that the plaintiff has been rendered less capable of earning income from all
types of employment.  This includes not only his job at Playtime where he will
continue to be restricted from taking extra shifts and overtime, but also he
will likely be precluded from taking on any additional jobs such as gardening
work that he could have done before his injuries.  He is certainly less
marketable or attractive as an employee to potential employers.

[69]       
Given his age, experience and education, he is likely to have limited
job opportunities in any event and adding an injury to that package seems to me
to further diminish his prospects.  As noted, he has lost the ability to take
advantage of job opportunities that might otherwise have been open to him and
in that category, I include the opportunity to work for Ms. Kelly or for anyone
else who had similar opportunities for part-time or casual work.

[70]       
Finally, it seems to me on the evidence that the plaintiff is less
valuable to himself as a person capable of earning income in a competitive
labour market.  It must be remembered that the plaintiff is competing with
people who are generally younger.  Thus, in terms of opportunities that will
likely be available, his physical limitations will continue to make him less
attractive and less valuable in a competitive market.

[71]       
For these reasons, I am of the view that the plaintiff is entitled to an
award for loss of income earning capacity; however, I do not put the quantum of
that award in the range suggested by the plaintiff of $75,000.  Rather, it is
my view that the plaintiff is entitled to a far more modest award.  The
appropriate award under this head of damage is $20,000.  In my view, that
amount takes into account the limited opportunities to earn additional income
that the plaintiff had pre-accident.  It also includes the potential of the
plaintiff to find other work should he lose his current employment or find that
he is unable to continue with it.

Future Care

[72]       
Finally, the plaintiff seeks an award for future care.  The award sought
is a modest one and is based on the recommendation of Dr. Hirsch that the
plaintiff participate in a structured series of exercises under the direction
of a kinesiologist or physiotherapist.  The amount suggested under this head is
$1,350 based on 15 sessions at $90 per hour.  The plaintiff refers to Milina
v. Bartsch, [1985] B.C.J. No. 2762 (S.C.) where McLachlin J. (as she then
was) stated:

[198]  … The test for determining the appropriate award
under the heading of cost of future care, it may be inferred, is an objective
one based on medical evidence.

[199]  These authorities
establish (1) that there must be a medical justification for claims for cost of
future care; and (2) that the claims must be reasonable.

[73]       
The defendant points out that the plaintiff did not complete all of the
physiotherapy that was recommended and available to him in the months following
the accident, nor has he at any time sought funding for additional treatments. 
However, in my view, the claim satisfies the test set out in Milina, supra,
and I award the plaintiff $1,350 under this head of damage.

[74]       
Finally, the defendant submits that the plaintiff has not mitigated his
damages in that he failed to follow medical advice, failed to follow-up on
treatment with Dr. Heran and simply abandoned any attempts at exercise or
recreation.  The defendant points out that there was never any restriction placed
on the plaintiff’s activities or employment.  Dr. Hirsch said that some
physical exercise seemed to be helpful to the plaintiff; however, the plaintiff
simply decided that he could not cycle or jog anymore and discontinued all
effort.

[75]       
With respect to the plaintiff’s failure to follow-up on physiotherapy,
the plaintiff said in his evidence that he could not afford to continue with
treatment once the payments that had been authorized ended.  While he did not
seek any additional funding, he did not believe that the sessions were
particularly helpful and believed that he could do his exercises at home and be
just as well off.  He and his wife both testified that he has regularly done
those exercises at home since the accident.  I accept the evidence of the plaintiff
and his wife on that point and I conclude that he should not be penalized for
failing to attend on further physiotherapy appointments or attending a
follow-up appointment with Dr. Heran.

[76]       
Similarly, while he was frustrated by the delays in the service from Dr.
Heran, the medical evidence seems clear that there was not likely any
compression fracture and even if there was, on the evidence of Dr. Hirsch, it
was not relevant to the plaintiff’s claim for damages in relation to the
accident.  I therefore reject the submission that the plaintiff has failed to
mitigate his damages.

Summary

[77]       
In summary, the plaintiff is entitled to the following damages:

[78]       
The plaintiff is entitled to Court Order Interest from January 10, 2006
and absent any application, the plaintiff is entitled to costs on Scale B.

               “J.
K. Bracken, J.”                

The
Honourable Mr. Justice Bracken