IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100909

Docket: M082966

Registry:
Vancouver

Between:

Walter Neumann

Plaintiff

And

Sasha Eskoy and
Rezko Painting and Decorating Ltd.

Defendants

Before:
The Honourable Mr. Justice Brooke

Reasons for Judgment

[1]            
The plaintiff in this action seeks damages arising out of a motor
vehicle accident on August 9, 2006 when the vehicle operated by the plaintiff
was rear ended by a vehicle operated by the defendant, Mr. Eskoy. Liability
is admitted.

[2]            
By way of background, the plaintiff at the date of trial was 47 years
old, married, and the father of two children:  a 17-year-old daughter and a 14-year-old
son. Mr. Newmann was employed by West Coast Reduction where he had worked
since 1981, when he was 19. He remained in the employment of West Coast
Reduction at the time of the accident. His job description included:  driving a
25-ton truck, and using a heavy ground hose to vacuum raw grease product. His
work required the ability to lift tank lids weighing as much as 40 pounds, and
to manoeuvre one-ton bins filled with animal waste product; thus, a very
physical job description.

[3]            
Prior to the accident the plaintiff had been diagnosed with
osteoarthritis in the right hip, and asymptomatic degenerative changes in his
spine. He was also significantly overweight and considered obese. Nevertheless,
in addition to an exemplary work record, Mr. Newmann worked around the
home as a handyman and auto mechanic, and he took an active interest in the
education and extracurricular activities of his two children.

[4]            
Mr. Newmann was seen by his family doctor, Dr. Ryan, following
the accident and his reports of July 21, 2008 and June 26, 2009 were placed in
evidence. Dr. Ryan referred the plaintiff to Dr. James Dunne, a
specialist in internal medicine and rheumatology, whose reports of July 15,
2008 and March 10, 2009 were also received in evidence. Both Dr. Dunne and
Dr. Ryan gave evidence at trial, and were extensively cross examined. Both
physicians noted complaints of chronic neck pain, as well as sleep difficulties,
headaches and fatigue. Dr. Ryan diagnosed a chronic pain syndrome and
prescribed narcotic and anti-inflammatory medication. Dr. Dunne similarly
diagnosed a chronic pain syndrome and in an attempt to break the pain cycle he
injected cortisone on multiple occasions without significant therapeutic value.

[5]            
Prior to the accident the plaintiff did not complain of neck pain, nor
was he limited in physical function by the osteoarthritis in his hip, for which
no medication had been prescribed.

[6]            
The plaintiff was seen on independent medical examination by Dr. Kokan,
a specialist in orthopaedic surgery, whose report of May 12, 2009 was accepted
in evidence. Dr. Kokan saw the plaintiff on a single occasion on May 12,
2009 and he gave evidence at trial. In his report, Dr. Kokan noted that
x-rays taken two days after the accident showed mild degenerative changes to
the spine and significant arthritis of the right hip. Dr. Kokan opines
that these factors may predispose Mr. Newmann to ongoing pain “which may
have been present despite the accident”. Dr. Kokan does accept that the
accident was one of the precipitating causes of ongoing pain but says it was
not the most responsible cause of that pain. He concluded that while Mr. Newmann
would always likely have pain, that was related to degenerative changes and Dr. Kokan
did not think the plaintiff had suffered any permanent orthopaedic structural
injury.

[7]            
While the plaintiff was off work for approximately two months, losing 38
working days, he attended physiotherapy and physical rehabilitation. He
returned to his demanding physical job, although he says he has enough
seniority that he has been able to obtain routes that are best suited to his
present capacity. He also makes use of a hook to lift the lids of the
containers. But, Mr. Newmann and Mrs. Newmann say that at the end of
the work day he is fatigued, and rather than working around the house or in his
yard or on his car he sleeps in a La-Z-Boy chair. Prior to the accident the
plaintiff took an active interest in the schooling and extracurricular
activities of his children, but he now worries whether he will be able to
assist them in pursuing higher education. He is pessimistic about the future.

Position of the Parties

[8]            
The plaintiff submits that an appropriate award for pain and suffering
and loss of enjoyment of life is between $75,000 and $100,000; that past wage
loss for 38 working days, net of a s. 54 deduction, is $7,320; and that
the loss or impairment of his future earning capacity should attract an award
of $200,000. The plaintiff also seeks damages for the loss of his capacity of a
handyman of $25,000 and special damages of $8,841.

[9]            
The defendants submit that the proper range of non-pecuniary damages is
$25,000 to $30,000 and that such an award should be reduced by 30 percent to
reflect the pre-existing degenerative condition of the plaintiff as well as the
plaintiff’s obesity. Moreover, the defendants say the plaintiff has failed to
take reasonable steps to mitigate his damages by pursing an exercise program or
swimming program as recommended by Dr. Ryan, and the defendants suggest a
40 percent reduction is appropriate. The defendants accept the past income loss
of $7,320 but says that if any award is made for a future loss or impairment of
capacity that award should be in the range of $10,000 to $15,000. Moreover, the
defendants submit that there are significant negative contingencies in the
degenerative changes to the spine and arthritis of the hip, as well as obesity
that should reduce any award by 50 percent.

Law

[10]        
The plaintiff relies on the decision of this court in Schroeder v.
Shaw, 2008 BCSC 1757 where Madam Justice Russell found the plaintiff to be active
and hard working, both at work driving a truck and operating heavy equipment
and at home where he was active in the maintenance of the home. He was injured
in a rear‑end collision and at the time constant pain in the neck was the
principal complaint. The plaintiff was prescribed anti-inflammatory and
anti-spasm medication as well as aesthetic block injections of cortisone. While
the plaintiff gradually returned to work, the nature of that work aggravated
his neck injury. At paragraph 169 Madam Justice Russell found that the
plaintiff would have significant neck pain for the foreseeable future. In
considering non-pecuniary damages, Her Ladyship referred to Boyd v. Harris,
2004 BCCA 146 which provides an inexhaustive list of common factors which
includes:

a)    age of the
plaintiff;

b)    nature of the
injury;

c)     severity
and duration of pain;

d)    disability;

e)    emotional
suffering;

f)      loss
or impairment of life;

as well as

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.

[11]        
In Schroeder, five years had passed between the accident and
trial, and the plaintiff continued to suffer severe neck pain on an ongoing
basis, while prior to the accident he was able to perform heavy physical labour.
In the result, $75,000 was awarded in non-pecuniary damages.

[12]        
The defendants say, relying on Athey v. Leonati, [1996] 3 S.C.R.
458, that there is a measurable risk the plaintiff’s pre-existing degenerative
condition would have detrimentally affected the plaintiff in the future,
regardless of the defendant’s negligence. At paragraphs 13, 14 and 19, Mr. Justice
Major, writing for the court, says:

13        Causation is established where the plaintiff proves
to the civil standard on a balance of probabilities that the defendant caused
or contributed to the injury…[citations omitted]

14        The general, but not conclusive, test for causation
is the “but-for” test, which requires the plaintiff to show that the injury
would not have occurred but for the negligence of the defendant…[citations
omitted]

19        The law does not excuse
a defendant from liability merely because other causal factors for which he is
not responsible also helped produce the harm…[citations omitted]

[13]        
I also refer to the decision of the B.C. Court of Appeal in B.P.B. v.
M.M.B., 2009 BCCA 365 where Mr. Justice Chaisson, at paragraphs 42 and
43, says this:

[42]      In my view, the trial judge in this case failed to
determine whether the plaintiff’s injury was divisible or indivisible. She
appears not to have distinguished “between causation as the source of the loss
and the rules for the assessment of damages in tort” as mandated by the Supreme
Court of Canada in para. 78 of Blackwater. The liability question
is whether the conduct of the defendant caused injury. The assessment of
damages requires a determination whether the injury derived from multiple sources
and whether it is divisible. If it is, responsibility is allocated to the individual
sources of the injury.

[43]      It the injury is
indivisible, the court must consider the possible application of the thin skull
or crumbling skull rules in the context of the victim’s original condition. If
the crumbling skull rule applies, it forms part of returning the victim to his
or her original condition and the tortfeasor is not responsible for events that
caused the crumbled skull. Absent the application of the crumbling skull rule,
where the injury is indivisible, all torfeasors who caused or contributed to
the injury are 100% liable for the damages sustained by the victim.

See also the decision of the B.C. Court of Appeal in Bradley
v. Groves, 2010 BCCA 361, which was decided after the trial of this action.

[14]        
I am satisfied that before the accident and despite the asymptomatic
degenerative conditions, the plaintiff was not only functioning adequately, but
also at a very high physical level. But for the accident and the injury
sustained to his neck, the plaintiff would not have sustained the chronic pain
syndrome from which he now suffers. I am satisfied that the plaintiff’s long
and commendable work history was interrupted by the injury sustained by him in
the accident, and that despite the plaintiff’s best efforts he continues to
suffer from chronic pain which is moderated somewhat by medication. I am also
satisfied that the medication itself has an adverse aspect in addition to its therapeutic
effect in that the plaintiff now suffers from sleep apnea and fatigue. Pain and
fatigue on a continuing or chronic basis can and do dramatically impair the
quality of life and the enjoyment of life. The work that Mr. Newmann now
does is well paying and secure, but Mr. Newmann worries that he may not be
able to continue indefinitely. Worry is burdensome and can also impair the
enjoyment of life. I find that an appropriate award for non-pecuniary damages
is $90,000.

[15]        
With regard to the defendants’ submission that the plaintiff has failed
to mitigate his losses, I am not satisfied that the plaintiff has failed to
take reasonable steps to avoid an avoidable loss. The defendants say that the
plaintiff has not participated in an active exercise program or of weight
reduction. The evidence is that the plaintiff made use of the pool and the hot
tub and he has been successful in losing some weight on a modified Atkins diet.
In the result, I decline to make any reduction in non-pecuniary damages for any
failure to mitigate.

[16]        
With regard to past loss of earnings, those will be assessed at $7,320
net of the s. 54 deduction, as agreed.

[17]        
With regard to the loss or impairment of earning capacity, I am
satisfied that the continuing pain the neck is chronic and will be present
indefinitely. I find that the income‑earning capacity of the plaintiff is
irreparably damaged. In his report of July 15, 2008, Dr. Dunne says this
at page 4:

In spite of physiotherapy and exercise programs and recurrent
trigger point injections Mr. Neumann continues to have significant neck
pain. He gets transient improvement of his neck pain with the trigger point
injections, however it hasn’t brought his condition under control.

He continues to be symptomatic and continues to have
headaches. Some of his morning headaches may be due to sleep apnea.

He has not recovered from the
regional myofascial pain and chronic musculoskeletal pain he developed following
his motor vehicle accident. This condition is now chronic and well entrenched
and probably permanent.

[18]        
I find that the motor vehicle accident was a material cause of the chronic
myofscial pain and musuloskeletal pain of which the plaintiff now complains. Despite
Dr. Kokan’s conclusion that the accident is not the most significant cause
of these injuries and complaints, that does not enable the defendants to escape
liability in whole or in part. I am satisfied that these two causes are not
divisible and that the motor vehicle accident was a material cause. I am also
satisfied that the plaintiff’s earning capacity has been impaired and that as a
result of the defendant’s negligence the plaintiff has been rendered less
capable overall from earning income from all types of employment; is less
marketable or attractive as an employee to potential employers; has lost the
ability to take advantage of all job opportunities which otherwise might have
been open to him had he not been injured; and is less valuable to himself as a
person capable of earning income in a competitive labour market (Brown v.
Golaiy, [1985] 26 B.C.L.R. (3d) 353; and Dycke v. Nanaimo Paving and
Seal Coating Ltd., 2007 BCSC 455 at paragraph 95). The plaintiff has
worked all of his working life for West Coast Reduction and that work had been
physically demanding. It is unlikely that with his education and experience and
at his age that any retraining that would reproduce the income that he now
enjoys would reasonably be open to him. In Dycke, Mr. Justice
Warren awarded $100,000 for future loss of earning capacity. I am satisfied
that the appropriate award in all of the circumstances is $100,000 for future
loss of earning capacity. I take into account the most positive contingency
that the plaintiff will not suffer any loss of employment and with his ability
to obtain less onerous routes and make use of physical and mechanical aids and
assistants that he may be able to continue in his work until he retires. But
there nevertheless remains a real and substantial risk that this optimistic
view will not materialize and the plaintiff will be obliged to give up his
present employment. If that happens, the plaintiff’s loss will be far in excess
of what I have awarded. I am satisfied that there is a real and substantial possibility
that the plaintiff will not be able to continue in his present employment,
given its onerous physical demands. However, but for the two months immediately
following the accident, the plaintiff has been able, so far, to continue in his
employment. Taking into account the factors set out in Brown v. Golaiy,
I am satisfied that this is a fit and proper award.

[19]        
With regard to the plaintiff’s claim for special damages which are set
out at tab 6 of exhibit 2, the defendants take issue with a payment for
orthotics at item 18, for which no evidence in support was adduced. Similarly,
the defendants point to items 19 and 20 which represent payments to a
contractor for labour and dumping in respect of improvements to the plaintiff’s
home. I accept the defendants’ submission that there is no evidence that the
payment for orthotics is in any way linked to the injuries sustained by the
plaintiff and that claim will not be allowed. The defendants’ submission that
the claims for general labour and dumping should be disallowed is rejected. The
defendants say that because the plaintiff was able to do a physically demanding
job during his work days, he ought to be able to do a no more demanding job in
his home renovations. I accept the evidence of Mr. and Mrs. Newmann
that the plaintiff would have done this work but for the injury and the items
claimed numbered 19 and 20 will be allowed in the aggregate. There will be an
award of special damages of $8,841.23 as claimed, less $435 being the amount
claimed for orthotics.

[20]        
I am not satisfied that the plaintiff’s claim for a loss of handyman
ability can be quantified on the evidence before me. That claim is, therefore,
dismissed.

[21]        
In summary, then:

a)    non-pecuniary
damages:  $90,000;

b)    past loss of
earnings:  $7,320;

c)     future
loss of earnings:  $100,000; and

d)    special
damages:  $8,406.23.

Costs will follow in the event, unless there are matters
which counsel wish to bring to my attention, in which case they may do so in
the ordinary way.

“T.R. Brooke J”
The Honourable Mr. Justice Brooke