IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101217

Docket: M120478

Registry:
New Westminster

Between:

Russell Cross

Plaintiff

And

Christian David
McLean Bouwman,
Spencer Cross and Gail Theresa Zeilstra

Defendants

Before:
The Honourable Mr. Justice Williams

Reasons for Judgment

Introduction

[1]            
On September 5, 2008, the plaintiff was a passenger in an automobile,
owned by his mother (the defendant Gail Theresa Zeilstra) and driven by his
brother (the defendant Spencer Cross). The vehicle was struck by another
automobile operated by the defendant Christian David McLean Bouwman.

[2]            
The plaintiff claims that he suffered injuries in the collision and
seeks to recover damages.

[3]            
The action against Mr. Bouwman has been discontinued; the lawsuit
continues against the other two defendants.

[4]            
Liability is not in issue. Adjudication of this matter requires an
assessment of damages only.

Background

The Plaintiff’s Work

[5]            
The plaintiff is 23 years of age. He has a high school education. At the
time of the accident he was employed as an industrial painter working at the
Chevron refinery in Burnaby. In fact, only about 10% of the actual work he does
is painting. The majority is cleaning and preparing structures and surfaces for
painting. That involves the use of sandblasting machinery and wire brushes,
often in close confined spaces. The work is physically demanding. For example,
the sandblasting operation requires him to load 80 pound sacks of abrasive
material into a machine, lifting it up to an eye level height. There is other
lifting and carrying as well. The work site is spread out. Part of the job
necessitates working on scaffolding and reaching overhead in awkward postures
and positions. Much of the work requires the wearing of a respirator.

The Accident and Immediate Aftermath

[6]            
The accident took place on Friday, September 5, 2008. That was a regular
day off work for the plaintiff. He was travelling with his brother, as a front
seat passenger in the vehicle. His seatbelt was done up. They were struck from
behind. Police and ambulance attended.

[7]            
The plaintiff says that there was an immediate sensation of pain from
the accident; he felt a sore neck in the area of his shoulders. He attended at
hospital and was subsequently released that day. He testifies that his neck and
lower back by his beltline were then hurting.

[8]            
The plaintiff says that he was sore over the weekend and that he rested.
The following Monday (September 8) he went to see his doctor and a
representative of ICBC. He attempted to return to work the following day,
Tuesday, but says that his back caused him pain when he lifted items. He left
midway through his shift and did not resume his employment until June 1, 2009.

Medical and Therapeutic Follow-Up

[9]            
The doctor upon whom he attended on September 8 referred him for
physiotherapy treatment. He was also prescribed anti-inflammatory and pain
control medications.

[10]        
The plaintiff next saw his family doctor, Dr. Ross, on September 18.
At the time, he was complaining of pain and soreness of his neck and back pain
which was somewhat variable in intensity. An examination indicated tenderness
in the neck, shoulder and back region. He had a full range of motion. X-ray
results showed no evidence of abnormality. The doctor concluded that the
situation was a back strain and recommended the continuation of
anti-inflammatory and pain control medications and physiotherapy.

[11]        
Between October 15, 2008 and November 19, 2008, the plaintiff was
enrolled in a relatively intensive physiotherapy regime called a Work Hardening
Program. It is a physical rehabilitation program designed to enable a safe
return to work. The program involved five sessions per week, four hours per
session; it was administered and supervised by a kinesiologist and a
physiotherapist. In all, Mr. Cross participated in 23 sessions.

[12]        
On November 19, 2008, following a series of tests and assessments, the
plaintiff was discharged from the program. The conclusion at that time was that
he was physically rehabilitated and ready to make a return to his pre-injury
employment.

[13]        
In fact, Mr. Cross did not return to work. Instead, he returned to
see his doctor and reported that he was continuing to experience soreness in
his neck and back. Dr. Ross prescribed a continuation of the pain medication
and anti-inflammatories; he concluded that Mr. Cross was unable to do
physical work although he might be considered for sedentary work or some form
of graduated return to work program.

[14]        
His conclusions were documented in a Form CL19 Medical Report which was
provided to the insurance adjuster. That is in evidence.

[15]        
Mr. Cross subsequently attended upon Dr. Ross on four
occasions:  February 4, 2009, March 18, 2009, March 26, 2009 and May 4,
2009.

[16]        
On the first two occasions, he reported continuing low back pain. On the
visit of March 26, 2009, the plaintiff advised Dr. Ross that he had pain
in his sternum and that this had been present since the motor vehicle accident.
An x-ray and bone scan were taken, indicating an apparent abnormality that was
felt to be compatible with a fracture of the sternum.

[17]        
The final visit was May 4, 2009. Mr. Cross continued to report low
back pain, tenderness in the chest area, some neck stiffness and occasional mid
back pain. A decision was made to refer him to a specialist in physical
medicine for a review. He was also prescribed Amitriptyline for pain control.

[18]        
On June 1, 2009, Mr. Cross returned to work. The first two
assignments that he took upon his return involved painting a bank and working
at a hydro dam facility. He then attended classroom training as part of his
ongoing apprenticeship program. That continued until November 2009 at which
time he was assigned to work on a ship in drydock.

Current Condition

[19]        
The plaintiff says that upon returning to work in June of 2009 he
experienced some back discomfort. At the time of trial, he was working on a
ship and reports experiencing some lower back pain. He says that that condition
continues and is particularly aggravated if his movement involves twisting. He
has not found complete relief from the pain but intends to carry on and deal
with it.

Issues

[20]        
The plaintiff’s claim for damage is comprised of four separate elements.
These are:

·                
general damages for pain and suffering;

·                
wage loss;

·                
loss of future earning capacity;

·                
special damages.

[21]        
The essence of his position is that the pain caused by the collision
continued for many months after the incident and in fact it lingers up to time
of trial. He says as well that the injuries prevented him from returning to
work until June 1, 2009. In addition, he says that the accident has resulted in
a compensable loss of capacity to earn income in the future. Finally, he
advances a claim for special damages.

[22]        
The defendants take a substantially different view. They say that this
was a relatively minor incident which resulted in fairly inconsequential injury.
In the submission of the defendants, the plaintiff should have returned to work
at the conclusion of the Work Hardening Program, and any subsequent loss of
income is not properly attributable to the defendants. They also dispute the
claim for loss of capacity.

Discussion

[23]        
There is no question that there was a collision which resulted in the
plaintiff incurring some injury which resulted in pain and discomfort to him. The
issue is the extent and ramifications of that.

[24]        
Insofar as the effect upon the plaintiff’s ability to perform his job
duties is concerned, there does not seem to be any great controversy with
respect to the earlier time, that is up to the point Mr. Cross was
discharged from the Work Hardening Program.

[25]        
Ms. Chiasson, the physiotherapist who oversaw the rehabilitation
program and who made the assessment that Mr. Cross was fit to return to
work, testified at trial. She expressed substantial confidence in her
conclusion.

[26]        
She also expressed her view that the plaintiff was not especially
diligent in applying himself conscientiously to the rehabilitation program. There
was some suggestion that the plaintiff and his brother, who was also enrolled
in the program, were involved in an episode of truancy. The impression left was
that the plaintiff did not take the program seriously.

[27]        
There was another point raised by Ms. Chiasson that is relevant to
the issue at hand. She reports that, at or near the conclusion of the program,
she “discussed return to work plans with Russell and he stated at the present
time he does not have transportation to his pre-injury employment and therefore
has not contacted his employer regarding a return to work.”

[28]        
This is something of a recurring theme for the defence. The insurance
adjuster who had conduct of the file testified as to a conversation that she
had with the plaintiff, enquiring about his status and his return to work. She
says he told her he was not back at work and when she asked why, part of his
answer was to the effect that he didn’t have transportation to get there. He
also made reference to his doctor’s advice.

[29]        
The plaintiff disputes the proposition that he did not return to work
when he was able. He says that he had arrangements available to him that would
have enabled him to drive to the works site and says that in fact he did make
those arrangements when he was physically able to resume work. He has adduced
evidence to indicate that there was transportation available for him.

[30]        
Another issue in some dispute at trial was whether or not the plaintiff
sustained a real injury to his sternum as a consequence of the accident.

[31]        
Dr. Ross prepared a report setting out his involvement with Mr. Cross
and his opinion; that is in evidence. As well, Dr. Ross testified at trial,
and particularly with respect to the five occasions upon which he saw the
plaintiff. While his observations and opinions are based substantially upon
self-reports of the plaintiff and non-objectively-verifiable factors, Dr. Ross
is quite staunchly of the view that Mr. Cross sustained low back, mid back
and cervical strain as well as a fracture of his sternum, all as a consequence
of the accident that occurred on September 5, 2008. He believes that the pain
and discomfort continued well into 2009 and that it legitimately prevented Mr. Cross
from returning to his employment until June 2009.

[32]        
With respect to the sternum injury, there was some controversy at trial
as to the validity of Dr. Ross’s conclusion, based as it was on his interpretation
of the x‑ray report. He is not a radiologist and thus does not have a
specific expertise in reading and interpreting such film.

Analysis

[33]        
I accept that Mr. Cross sustained injuries from the motor vehicle
accident of September 5, 2008. I conclude on a balance of probabilities that he
sustained moderate low back, mid back and cervical strain. In addition, I find
it more likely than not that he suffered an injury to his sternum. While there
was no displacement of the bone structure, it did result in pain.

[34]        
While it is true that Dr. Ross is not a radiologist, his
examinations, taken in conjunction with the information contained in the
nuclear medicine report (Exhibit 2) and the imaging report (Exhibit 3)
provide a sufficient basis for his conclusion that there was a fracture.

[35]        
In addition, the plaintiff experienced headache as a consequence of his
injuries. That condition resolved within a number of months.

[36]        
I accept that the plaintiff’s injuries caused him pain and discomfort
and interfered with his enjoyment of life. It also prevented him from being
able to return to his work until at least the conclusion of his physiotherapy
program on November 19, 2008. With respect to the time following that,
that is between that date and June 1, 2009, I find that there were continuing
discomforts and limitations which meaningfully hampered his ability to return
to his pre-injury employment.

[37]        
That conclusion is based in substantial part upon the fact that the work
this man does is physically demanding and difficult. It involves heavy lifting.
If he had been in a job that was less physically demanding, my conclusion might
be otherwise. However, the issue that I am called upon to determine is whether
or not his injuries prevented him from returning to his own job. I conclude
that they did.

[38]        
In arriving at these conclusions, I am cognizant of the fact that the
evidence is not without its concerns. There seems to be reason to think that
the plaintiff was not as diligent as he might have been with respect to taking
his prescribed medications. As well, the identification of the chest or sternum
injury was not clear until the March 26, 2009 visit.

[39]        
There is also the issue of his fitness to return to work in November. The
physiotherapist concluded that he was fit. Evidently he did not specifically
advise Dr. Ross of that when he attended on the doctor a few days later.

[40]        
Finally, there is the matter of the plaintiff having told Ms. Chiasson
and the adjuster that getting to work would be a problem. I accept that there
were conversations of that general tenor. However, I also accept the evidence
of the plaintiff that he had the means available to him to get to work. The
reason he didn’t go back was because his injuries were still active to an
extent that they rendered him unable to do the physical work his job required.

[41]        
No doubt there are reasons that would entitle one to be somewhat
sceptical of Mr. Cross’s claim. He did not seek any further physiotherapy
treatment or treatment other than medication between November 19, 2008 and June
1, 2009. I have concluded that the plaintiff is not (or was not at the
relevant time) a particularly mature or conscientious person. However, those
are simply impressions, in the nature of suspicions, and the plaintiff cannot
be held to a standard of perfection. The test is a balance of probabilities,
with appropriate allowance for the concerns  that are associated with
subjective evidence unsupported by objective criteria. On balance, I am
satisfied that he was unable to perform his work over that period of time.

[42]        
It is apparent that the plaintiff made no inquiry or effort to be
assigned to lighter work duties in order to be able to return to work sooner. That
too might give rise to a certain scepticism. While failure to mitigate was
pleaded in the statement of defence, it was not pursued in argument. Given that
the onus to prove a failure to mitigate rests upon the defendant, that is
simply not made out in this case.

[43]        
I turn now to the specific elements of the plaintiff’s claim.

General damages for pain, suffering and loss of enjoyment of life

[44]        
The plaintiff submits that the particular facts of this case justify an
award under this head of damages in the order of $40,000. In support of that,
he makes reference to three decisions: Stone v. Kirkwood, [2008] B.C.J.
No. 1834; Hutchinson v. Cozzi, [2009] B.C.J. No. 348; and Haines v.
Shewaga, [2009 B.C.J. No. 493].

[45]        
The defendants say the appropriate award under this head is
substantially less. They offer five case decisions in support of their position.
The awards there range between $7,500 and $19,000. The cases are: Dao v.
Vance, [2008] B.C.J. No. 1536; Hoang v. Smith Industries Ltd.,
[2009] B.C.J. No. 378; Lubick v. Mei, [2008] B.C.J. No. 777; Munro v.
Thompson, [2009] B.C.J. No. 504; and Ostovic v. Foggin,
[2009] B.C.J. No. 85.

[46]        
Assessing the appropriate quantum of compensation is an exercise in
judgment. Comparing other cases is useful in that it provides some guidance for
the assessment by demonstrating what other judges have determined to be
reasonable. It is not a clear linear exercise.

[47]        
Considering all of the evidence in the case at bar, I conclude that the
appropriate award for non-pecuniary damages is $20,000.

Wage loss

[48]        
In view of the findings I have made, it follows that the plaintiff is
entitled to recover his wage loss from the date of the accident through to the
point in time that he returned to work, June 1, 2009.

[49]        
Counsel have agreed that the quantum of that loss is $35,767. That is
the gross loss; they have proposed that the matter of determining the net sum
which the plaintiff should recover should be left to them. I am content to deal
with the matter in that fashion.

Loss of future earning capacity

[50]        
The plaintiff contends that the evidence supports an award of damages
under this head. The defendants dispute that.

[51]        
The proper approach to determining whether a plaintiff is entitled to an
award for lost future earning capacity is a matter of some controversy. A
survey of the authorities reveals that there are two approaches to the matter,
and that they are conceptually different. One approach requires that there be
established a real possibility of a future loss of income. The other approach,
the so-called “capital asset” approach, entails four inquiries:

·                
Has the plaintiff been rendered less capable overall from earning
income?

·                
Has the plaintiff been made less marketable or attractive?

·                
Has the plaintiff lost the ability to take advantage of all job
opportunities that might come his way?

·                
Has the plaintiff been rendered less valuable to himself in the
job market?

[52]        
The authorities in this province are not reconciled on this issue. There
has been some considerable discussion of the issue in the trial judgments that
have dealt with such claims. In Haines v. Shewaga, Halfyard J.
examined the authorities carefully in an attempt to find some reconciled
position. He concluded as follows:

100      It seems clear that, if
a plaintiff can establish a substantial possibility that he or she will suffer
a loss of income in the future by reason of injury caused by the defendant,
entitlement to an award will be made out. The debate in the authorities seems
to be whether proof of this element is essential to entitlement, or whether
entitlement can be shown by proof of a real possibility that a plaintiff’s
earning capacity (capital asset) will be impaired in the future, but without
causing a loss of income. I agree with Macaulay J. that the Court of Appeal
will have to finally settle this dispute.

[53]        
In the present matter, I have come to the conclusion that the plaintiff
is entitled to recover damages for a loss of future earning capacity. This is a
man who has embarked upon a career path which requires him to be capable of
substantial physical exertion and performance. On the evidence as it stands
(his testimony on the matter), I find that his ability or capacity to perform the
full spectrum of the work that his job entails has been diminished to a modest
degree by the injuries that he sustained. Specifically, he has testified that
he continues to experience some residual pain and, because of that, he is not
able perform the more difficult tasks, such as lifting the abrasive container
that is used in the refinery project. As a result, he elects to decline to
accept such assignments. To my mind, that informs that application of the four
“capital asset” enquiries so as to result in affirmative answers. That said, the
loss is not a substantial one; indeed it would probably be more fairly
described as marginal and certainly not overwhelming, but it does merit
compensation.

[54]        
I find the plaintiff is entitled to recover the sum of $10,000 in
damages in respect of his loss of future earning capacity.

Special damages

[55]        
The parties were agreed that the plaintiff has a claim for special
damages in the amount of $130. There will be an order that he recover that sum.

Summary and Conclusion

[56]        
I find that Mr. Cross was injured in the motor vehicle accident of
September 5, 2008 and that he suffered injuries which entitle him to recover
damages against the defendants. Specifically, he is entitled to recover $20,000
by way of general non-pecuniary damages, $35,767 (subject to reduction on
account of statutory deduction) for wage loss, $10,000 for loss of future
earning capacity, and $130 for special damages.

[57]        
The plaintiff is entitled to recover prejudgment interest pursuant to
the Court Order Interest Act, R.S.B.C. 1996, c. 79, in respect of
the lost wages and special damages.

[58]        
In the absence of there being consideration of which I am unaware, the
plaintiff shall recover his costs of this action. As the matter proceeded under
the provision in Rule 66, the costs regime provided for applies.

“The Honourable Mr. Justice
Williams”