IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120105

Docket: M096198

Registry:
Vancouver

Between:

Mike
Loeppky

Plaintiff

And

Insurance
Corporation of British Columbia and John Doe or Jane Doe

Defendants

Before:
The Honourable Madam Justice Gray

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff, Mr. Loeppky, was injured in a motor vehicle accident
on December 23, 2007. At that time, he was working as a police constable, and
was a passenger in a police car stopped at the intersection of Lougheed Highway
and Madison Avenue in Burnaby, B.C. The police car was struck in the rear by a
vehicle which neither the police nor Mr. Loeppky have been able to
identify. As a result, Mr. Loeppky sued the Insurance Corporation of
British Columbia as nominal defendant under the “hit and run” provisions of
s. 24 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231.

[2]            
ICBC applied under Rule 9-7 for a Summary Trial of the question of the
quantum of Mr. Loeppky’s damages arising from the collision. Counsel
advised that the defence has accepted liability for the collision.

[3]            
Mr. Loeppky’s position is that the question of damages should not
be resolved under Rule 9-7, but instead requires a full trial. ICBC’s position
is that it is not attacking Mr. Loeppky’s credibility, and that it accepts
his evidence as clarified and explained in his examination for discovery.

[4]            
It was not possible to resolve as a preliminary application the question
of the suitability of the matter for determination under Rule 9-7. ICBC’s
application proceeded to a one-day hearing on the basis of affidavits and
excerpts from Mr. Loeppky’s examination for discovery. Defence counsel
agreed not to rely on the clinical records attached as Exhibit C to Ms. Fleming’s
affidavit sworn January 26, 2011, or on Ms. Fleming’s affidavit sworn
April 25, 2011, which attached further clinical records.

[5]            
Mr. Loeppky is 36 years old. He has been employed as a Vancouver police
officer for approximately nine years. He claims damages including non-pecuniary
loss, past and future income loss, and future cost of care.

[6]            
Mr. Loeppky claims damages for injury to his jaw, neck, mid and
upper back, and thigh. He also claims damages for headaches in the days
following the collision. He deposed that he has recovered fully from his jaw,
neck, and thigh injuries, and the headaches, but the recovery of his back
injury has plateaued at 90% of his former capacity. He deposed that he
continues to experience debilitating “flare-ups” approximately every week or
so. He claims that as a result of his injuries, he has been unable to accept
overtime opportunities in his work as a police officer, and has been forced to
curtail his recreational pursuits.

[7]            
ICBC argued that Mr. Loeppky’s soft tissue injuries have
substantially resolved, and that he has not suffered lost income from overtime.
ICBC also submits that the changes to Mr. Loeppky’s recreational pursuits
are minor.

FACTS

 a)       Before the Collision

[8]            
Mr. Loeppky finished high school in 1992. He then studied a mix of
criminology, psychology, and kinesiology at several educational institutions.
Starting in 1998, he co-owned and operated a gym and worked as a personal
trainer. Mr. Loeppky was very active, playing hockey and competing in
triathalons. He finshed second in one triathalon, even though he had only
learned to swim in the months prior to the event.

[9]            
After completing the necessary training at the Justice Institute of
British Columbia, Mr. Loeppky joined the Vancouver Police Department (“VPD”)
in August 2002. He joined the VPD because he wanted to work in a front line
capacity.

[10]        
The VPD assigned Mr. Loeppky to work as a patrol constable. His
duties consisted of patrolling, taking in-progress calls, and interacting with
citizens. He enjoyed working as a police constable.

[11]        
When patrol constables are on duty, they are required to wear a police
duty belt, which weighs about 22 pounds, and a bullet proof vest.

[12]        
As a patrol constable, Mr. Loeppky worked a rotating shift pattern
alternating four days on and four days off. The shifts would rotate through
morning shift, early afternoon shift, late afternoon shift, and late shift.
Most of the time on shift would be spent sitting in a police car going from
call to call.

[13]        
VPD police constables can earn overtime income by attending court,
working extended tours of duty, and working scheduled or emergency “call-outs”.
Scheduled call-outs involve such things as roadblocks or special events, like a
concert, where an additional police presence is required. Police officers are
paid double their normal hourly rate when working a call-out, and the shifts
are usually eight hours long.

[14]        
Mr. Loeppky and his business partner closed their gym in 2003.

[15]        
In the three years prior to the accident, Mr. Loeppky earned on
average $4,068 per year from call-outs. That is on average almost one call-out
per month.

[16]        
Mr. Loeppky’s non-work-related activities were primarily centred
around physical exercise and conditioning. He was a member of a private gym and
also used the gym at the VPD. He worked out for two to two-and-a-half hours at
a time, four to five times a week. His workouts consisted of lifting weights,
including performing heavy bench presses, squats, and dead lifts, and, two to
three times a week, running about five or six miles on a treadmill. Mr. Loeppky
believes he was one of the most fit constables in the VPD before the collision.

[17]        
Mr. Loeppky suffered a back injury while struggling with a
disorderly drunk on March 4, 2005. Starting that month, Mr. Loeppky went
for regular massages about every week or two to help recover from his strenuous
work outs. Before December 23, 2007, Mr. Loeppky’s symptoms from this
injury had resolved completely.

[18]        
In March 2007, Mr. Loeppky went on a holiday to Hawaii. He had no
difficulty with the long flight.

[19]        
In addition to working out in the gym, Mr. Loeppky enjoyed walking
his dogs, rollerblading, cycling with his then common-law spouse, Ms. Greenhalgh
(who is now his wife), and hiking. Mr. Loeppky and Ms. Greenhalgh
usually drove at least once each year to Alberta to visit her family. The drive
typically took 12 hours, and they usually drove it in one segment, stopping
only for meals and gas. Mr. Loeppky enjoyed the scenery. The drive was
less costly than flying.

[20]        
Mr. Loeppky and Ms. Greenhalgh owned (and continue to own) a
house with a yard in Tsawwassen. Ms. Greenhalgh works as a school
principal, and was always busy during the work week. Because of his shift
schedule, Mr. Loeppky had a lot of spare time when Ms. Greenhalgh was
working, and he enjoyed working overtime. Mr. Loeppky took the primary
responsibility for household cleaning, meal preparation, lawn-mowing, and any
major landscaping that was required.

[21]        
Mr. Loeppky turned 33 years of age in October 2007. Before the
accident, he was earning $34.71 per hour.

 b)       The December 23, 2007 Collision

[22]        
In the early morning of December 23, 2007, Mr. Loeppky and his
police partner were on duty. At approximately 2:30 a.m., they were seated in a
marked police car at the intersection of Lougheed Highway and Madison Avenue,
waiting for the light to change. They were at a complete stop. Mr. Loeppky
was in the passenger seat and was wearing his seat belt.

[23]        
While waiting, Mr. Loeppky heard a loud screeching sound and in the
side view mirror saw headlights approaching from the rear. Before Mr. Loeppky
had any time to react, the approaching vehicle, a van, struck the right rear of
the police car at high speed, throwing the police car into the intersection and
causing it to spin.

[24]        
The van also struck another car and pushed it front-first into a pillar.

[25]        
The police car was rendered inoperable by the collision and was towed
from the scene.

[26]        
The van drove away from the scene. The police tried to locate it but
were unsuccessful.

 c)       After the December 23, 2007 Collision

[27]        
Immediately after the collision, Mr. Loeppky was examined by the
Emergency Health Services paramedic at the scene. Mr. Loeppky declined to
go to the hospital. After completing required VPD paperwork, Mr. Loeppky
left work early and drove home in his own car. Shortly after the accident, he started
feeling stiffness in his back, neck, and jaw.

[28]        
After sleeping for a few hours, Mr. Loeppky woke up feeling very stiff
in his back, neck, and jaw, and also experienced moderate painful back spasms.

[29]        
The same day, December 23, 2007, Mr. Loeppky went to the office of
his family doctor, Dr. Martin. His doctor was not in the office that day,
so Mr. Loeppky saw another doctor. That doctor recommended that Mr.
Loeppky undergo physiotherapy for his injuries.

[30]        
Mr. Loeppky had headaches for a few days and took a combination of
ibuprofen and Tylenol. Later, he started taking ibuprofen and Robaxacet for the
other pain.

[31]        
Subsequently, Dr. Martin gave Mr. Loeppky referrals for massage
therapy and additional physiotherapy. Dr. Martin also advised him to take
Robaxin and ibuprofen and encouraged him to remain as active as he could.

[32]        
Mr. Loeppky was diligent in following this advice. Mr. Loeppky
attended seven physiotherapy treatments over the next six weeks, for which he
paid $320. He also attended massage therapy, initially twice a week but later
once a week.

[33]        
Mr. Loeppky stopped going to the gym for at least one month after
the collision. When he resumed going to the gym, he initially worked out for no
more than one hour at a time, 3 to 4 times a week, and he worked out less
intensely.

[34]        
As a result of his injuries, Mr. Loeppky missed 13 days of work,
which is about a month of work. This amounts to $6,804.77, calculated on the
basis of his hourly rate plus 6% vacation pay and 23.5% representing fringe
benefits. Pursuant to a subrogation agreement in the Collective Agreement
between the Vancouver Police Union and the Vancouver Police Board, Mr. Loeppky
will owe that amount to the Vancouver Police Board if he recovers it in this
lawsuit.

[35]        
Mr. Loeppky returned to work in mid-January 2008, at which time he
began working on light duties only, mainly consisting of computer work. He was
no longer experiencing headaches or jaw pain, and his bruised left thigh had
healed. He was still experiencing upper and mid back pain on a daily basis.

[36]        
Mr. Loeppky’s sleep was disrupted by pain in the period shortly
after the collision. Mr. Loeppky purchased a special neck pillow and a
reclining couch, both of which assisted him.

[37]        
In early February 2008, Mr. Loeppky was assessed by Dr. Lepard,
a physician working for the City of Vancouver, who concluded that Mr. Loeppky
was fit to return to full duties. Mr. Loeppky did not challenge this
recommendation.

[38]        
In mid-February 2008, Mr. Loeppky returned to work on full duties as a
patrol constable. Since that time, he has not missed any regular shifts of work
as a result of back pain.

[39]        
Mr. Loeppky’s neck symptoms subsided about two to three months
after the collision.

[40]        
Including the period 2008 through 2010, Mr. Loeppky has gone on an
annual March trip to Hawaii. His back becomes stiff during the long flight, and
he tries to take stretch breaks.

[41]        
Mr. Loeppky found that wearing the bullet proof vest and duty belt
and sitting in a patrol car for long periods of time aggravated his back. He
also found that at the end of a four-day shift, his back was so painful and
stiff that he needed the full four days off to recover for his next shift. He
describes his condition at approximately 3-6 months after the collision (being
about April to June 2008) as being plateaued at 90% recovery, with a constant
low dull back ache every day, and periodic flare-ups of stiffness and pain.

[42]        
Mr. Loeppky explained that he used the figure of 90% based on his
own scale compared to his pre-collision state, and that figure reflected that
he could work his regular tours of duty as a police constable. Mr. Loeppky deposed
that he would describe himself immediately following the collision (when he was
experiencing painful back spasms which resulted in his back and neck seizing up
and he was unable to work safely), as being 70% from his peak physical
abilities. He deposed that he would describe a person who had suffered a broken
bone that required hospitalization as being at 50%, a person in a coma at 30%,
and a person who is dead at 0%.

[43]        
Within six months of the accident, Mr. Loeppky was also back to
working out in the gym for several hours at a time about five times a week.
However, he stopped doing heavy dead lifts, squats, or bench presses. He
adjusted his workout routine to focus on core strength and to include
stretching and physical therapy exercises, in an effort to improve the
condition of his back. He has maintained this adjusted workout regime ever
since.

[44]        
In July 2008, Mr. Loeppky was earning $35.75 per hour.

[45]        
In late October 2008, Mr. Loeppky injured his ribs while
participating in an employment-related judo course. He missed some time at work
as a result of the injury, but it did not affect his mid-back symptoms.

[46]        
Mr. Loeppky worked only one call-out in 2008, for which he earned
$613.87. He did not work any other call-outs in 2008 because of the condition
of his back.

[47]        
On or about June 2009, Mr. Loeppky applied for and was transferred
to an investigative position with the VPD’s General Investigation Unit (the
“GIU”). This was a lateral transfer with no change in salary.

[48]        
Detective constables in the GIU work mostly in an office environment.
They do not attend in-progress police calls and do not ordinarily wear bullet
proof vests or duty belts.

[49]        
Mr. Loeppky finds the work in the GIU to be less exciting than the
work on patrol. However, it is better for his back because it is sedentary and
allows him to take breaks. He works four ten-hour shifts, from approximately 6
am to 4 pm, and then has three days off, including the weekend.

[50]        
Members of the GIU are still eligible to take patrol call-outs if they
wish. However, because of the condition of his back, Mr. Loeppky has not
declared himself eligible for any formal call-outs, and he removed his name
from the emergency call-out list. Mr. Loeppky has continued to earn
overtime on GIU stand-by shifts, which involve being on call to provide
investigative assistance to specific investigations.

[51]        
In late 2009, Mr. Loeppky was concerned that he was not improving,
and complained to Dr. Martin. Dr. Martin referred Mr. Loeppky
for an MRI on October 24, 2009. The results indicated that Mr. Loeppky had a
posterior disk bulge at the T2-T3 area of his thoracic back. That is the
mid-back area where he has continued to experience discomfort.

[52]        
Mr. Loeppky earned $2,234.82 in 2009 for GIU call-outs and standby
pay.

[53]        
Mr. Loeppky married Ms. Greenhalgh in March 2010.

[54]        
Dr. Helper is a physician who specializes in physical medicine and
rehabilitation, which is often referred to as “physiatry”. The emphasis of Dr. Helper’s
clinical practice involves the assessment and management of painful spine
disorders. Dr. Helper examined Mr. Loeppky on June 9, 2010, at the
request of counsel for Mr. Loeppky.

[55]        
Dr. Helper concluded that Mr. Loeppky’s clinical presentation
was mostly in keeping with mechanical upper thoracic pain. Dr. Helper
concluded that the most likely structure involved is the intervertebral disk at
the T3-T4 segment, and the formal name of the condition would be “T3-T4
internal disk disruption syndrome”. In Dr. Helper’s opinion, the collision
is directly responsible for Mr. Loeppky’s upper thoracic complaints of
aching and stiffness, and the work-related incident on March 4, 2005 was
unrelated. In Dr. Helper’s opinion, Mr. Loeppky’s symptoms are
unlikely to significantly improve or significantly deteriorate, and he is
likely to continue to experience mild chronic symptoms that are subject to the
occasional flare with provocative events.

[56]        
In October 2010, Mr. Loeppky purchased a treadmill for home use. He
uses it three times a week to help his back symptoms.

[57]        
Mr. Loeppky earned $2,747.03 in 2010 for GIU call-outs and standby
pay.

[58]        
By April 17, 2011, Mr. Loeppky had received over 145 massage
therapy treatments, and had spent $11,641 for them. Assuming 145 appointments,
that is an average of $80 per session.

[59]        
On April 23, 2011, Mr. Loeppky suffered an extreme flare-up of his
mid upper back symptoms. He was in sufficient pain that he did not drive. He
had two massage treatments, but still felt too much pain to attend a planned
family dinner. He went for physiotherapy and has continued to go for treatment
weekly. The treatment includes intramuscular stimulation treatment (“IMS”),
which he finds helps relieve the symptoms. He was also shown different
stretches and exercises, and is doing them on his own.

[60]        
The initial IMS physiotherapy treatment cost $63, and the subsequent
sessions cost $53 per session. As at July 29, 2011, Mr. Loeppky had paid
$646 for IMS treatments.

[61]        
Mr. Loeppky deposed that he has constant back pain and stiffness,
which is aggravated by physical activity. He deposed that he has simply learned
to cope with his back injury, and to try to minimize the activities that may
aggravate it. He deposed that every two or three weeks, usually provoked by an
activity like shovelling, the pain flares to the level of mild to moderate for
a couple of days. Mr. Loeppky deposed that he takes ibuprofen and Robaxacet
occasionally.

[62]        
Mr. Loeppky’s posting to the GIU ends in around April 2012. At that
time, he may be required to return to work as a patrol constable. His present
hourly rate is $37.89.

[63]        
Mr. Loeppky and his wife continue to live in a townhouse with their
two dogs. Mr. Loeppky and Ms. Greenhalgh now share the responsibility
for household cleaning, meal preparation, lawn-mowing, and any major
landscaping that is required.

[64]        
Mr. Loeppky continues to be active and focused on physical exercise
and conditioning. He still walks his dogs, rollerblades, cycles, and runs, and he
has added boxing to his exercises. He has also taken judo classes. However, Mr. Loeppky
is weaker than he was prior to the collision, and no longer lifts weights by
squatting or “dead” lifting owing to his back. He cannot bench press as much weight
as previously. He complains that he sometimes finds that the dogs pulling on
the leash aggravates his back.

[65]        
While Mr. Loeppky is still able to clean the house, prepare meals,
and do the lawnmowing and heavy landscaping, these activities can aggravate his
back pain. Such activities also take longer than previously, because he has to
take frequent breaks. Mr. Loeppky has also stopped taking car trips to
visit his wife’s family. He prefers to fly because he finds that it is less
aggravating to his back.

ANALYSIS

i)        Suitability for resolution by Summary Trial

[66]        
Mr. Loeppky’s position is that the quantum of the damages he
suffered in the collision is not suitable for determination by Summary Trial.
His counsel argued that deciding the issues on Summary Trial will prevent him
from bringing evidence about the nature and extent of his injuries. His counsel
further argued that the nature of his injuries were too complex for resolution
by Summary Trial.

[67]        
The evidence consisted of two affidavits of Mr. Loeppky, about 90
pages from the transcript of Mr. Loeppky’s examination for discovery, an
affidavit of Ms. Greenhalgh, Dr. Helper’s report, and an affidavit
from a police constable regarding his earnings from call-outs.

[68]        
There were no significant differences between Mr. Loeppky’s
evidence in his affidavit and at the examination for discovery. The defence did
not challenge Mr. Loeppky’s credibility. Mr. Loeppky’s work loss is minimal,
there is no suggestion of malingering, and there is no challenge to Mr.
Loeppky’s credibility.

[69]        
Mr. Loeppky claims an amount for damages which is more than modest,
and his claim for lost future earning capacity could be considered
“complicated.” However, it is possible to make the findings of fact necessary
to make those determinations. The question of quantum of damages is suitable
for determination as a summary trial.

ii)       Quantum of damages

[70]        
Mr. Loeppky claims damages under the following headings:

a)       non-pecuniary damages;

b)       past wage loss;

c)       loss of future earning
capacity;

d)       special damages; and

e)       cost of future care.

a)       Non-pecuniary
Damages

[71]        
Mr. Loeppky argued that he should receive an award in the range of
$50,000 to $65,000 for non-pecuniary damages. The defence argued that he should
receive an award in the range of $13,000 to $21,000.

[72]        
Mr. Loeppky relied on the following cases: Love v. Lowden,
2007 BCSC 1007; Cash v. Wong, [1996] B.C.J. No. 1311; Andres v.
Leslie & Swackhamer, 2005 BCSC 1096; Heller v. Bradford, 2 March
2010, Vancouver M081470 (B.C.S.C.).

[73]        
The defence relied on the following cases: Ceraldi v. Duthie,
2008 BCSC 1812; Hoang v. Smith Industries Ltd. et al, 2009 BCSC 275; Woods
v. Shahal, 2008 BCSC 1555; and Lehtonen v. Marasco, 2008 BCSC 1734.

[74]        
Mr. Loeppky continues to suffer mild back pain and stiffness, and will
likely continue to do so. These chronic symptoms are subject to occasional
flare-ups where he experiences more severe pain.

[75]        
Fitness and physical activity are an integral part of Mr. Loeppky’s
life. Prior to the accident, Mr. Loeppky maintained a very high level of
physical activity. Since the accident, he has been able to return to a high
level of activity, but with some adjustments to his routines and some
limitations on what he can do, particularly in the area of weightlifting.
Chores around the house also take him longer than before the accident.
Nevertheless, he has been able to try-out activities like judo and add
boxing-type exercises to his regular routine.

[76]        
Mr. Loeppky joined the VPD to be a patrol officer. The accident and his
resulting injuries were the major factor in his transfer to the GIU and may
limit his ability to work as a patrol officer in the future.

[77]        
In all the circumstances, an appropriate award is $45,000.

b)       Past Wage Loss

[78]        
Mr. Loeppky claims $41,804 for past income loss. This consists
of $6,804.77 in respect of his loss of 13 work days following the collision,
and the balance for loss of the opportunity to work on call-outs.

[79]        
The defence argued that Mr. Loeppky is not entitled to any award
for past wage loss. With respect to the claim for $6,804.77, the defence
argued that it is entitled to deduct wage replacement benefits from any award
pursuant to s. 24 of the Insurance (Vehicle) Act, RSBC 1996,
c. 231, and s. 106 of the Insurance (Vehicle) Act regulations.
With respect to the claim for the loss of opportunity to earn income from call-outs,
the defence argued that Mr. Loeppky has not established any loss.

[80]        
The legislation referred to by the defence is as follows in relevant
part:

Remedy for damage
in hit and run accident

24 (1)      If
bodily injury to … a person … arises out of the use or operation of a vehicle
on a highway in British Columbia and

(a)     the names of both the
owner and the driver of the vehicle are not ascertainable,

any person who has a cause of action

(c)     as mentioned in paragraph
(a), against the owner or the driver,

in respect of the bodily injury … may bring an action against
the corporation as nominal defendant, either alone or as a defendant with
others alleged to be responsible for the injury,

(2)               Proceedings must not be brought against the
corporation as nominal defendant under this section unless the person bringing
them gives written notice to the corporation as soon as reasonably practicable
and in any event within 6 months after the accident that caused the bodily
injury, death or property damage.

(3)               If, after an action referred to in
subsection (1) has been commenced, it is alleged that the injury, … was caused
or contributed to by another vehicle, but

(a)     the names of both the
owner and the driver of the vehicle are not ascertainable,

the corporation may be added as a nominal defendant on the
application of any party and must be added as a nominal defendant on its own
application.

(4)               In an action against the corporation as
nominal defendant, the corporation may deny generally the allegations in
respect of the unidentified vehicle and its owner and driver, and need not set
out the facts on which it relies.

(5)               In an action against the corporation as
nominal defendant, a judgment against the corporation must not be given unless
the court is satisfied that

(a)     all reasonable efforts
have been made by the parties to ascertain the identity of the unknown owner
and driver …, and

(b)     the identity of those
persons … is not ascertainable.

(8)               On judgment against the corporation as
nominal defendant under this section and expiration of the time limited for
appeal, or on the compromise and settlement of a claim under this section, the
corporation must pay toward satisfaction of the judgment or claim an amount
that the corporation is authorized to pay under this Act and the terms,
conditions and limits of the plan.

In this section, "owner",
in relation to a motor vehicle, includes a lessee.

[81]        
All reasonable efforts have been made by the parties to ascertain the
identity of the unknown owner and driver, and their identity is not
ascertainable. As a result, Mr. Loeppky is entitled to judgment against ICBC.

[82]        
The passage from the regulation referred to by the defence is as
follows:

Exclusion of other insured loss

106 (1)     In this section, "insured claim" means
any benefit, compensation similar to benefits, right to indemnity or claim to
indemnity accruing to a person entitled to benefits, compensation or indemnity
or to the personal representative or guardian of the person, and includes a
benefit, compensation, right or claim

 (a)     under the Workers
Compensation Act or a similar law or plan of another jurisdiction, unless

(i)         the insured elects not to claim
compensation under section 10 (2) of the Workers Compensation Act and
the insured is not entitled to compensation under section 10 (5) of that Act,
or

(ii)        the Workers Compensation Board
pursues its right of subrogation under section 10 (6) of the Workers
Compensation Act,

(2)     No amount shall be paid by the
corporation under section 20 or 24 of the Act in respect of that part of a
claim that is paid or payable as an insured claim.

[83]        
In my view, Mr. Loeppky’s wage replacement benefits do not constitute an
“insured claim” under s. 106 of the Regulation, and therefore may not be
deducted from Mr. Loeppky’s award.

[84]        
In Arklie v. Haskell (1986), 33 D.L.R. (4th) 458, 25 C.C.L.I. 277
(B.C.C.A.), McLachlin J.A., writing for the court at para. 26, held that a sum
of money advanced by an employer to an employee that had to be repaid in the
event of any recovery did not qualify as a benefit under the predecessor of s.
106.

[85]        
More generally, in Lopez v. Insurance Corporation of British Columbia
(1993), 26 B.C.A.C. 142, 78 B.C.L.R. (2d) 157, Hollinrake J.A., writing for the
court at para. 21, held that an “insured claim” for the purposes of the
Regulations must still import at least some element of insurance. He went on
conclude that payments made by reason of a contract of employment, without some
evidence that they originate from an insurer, do not possess such an element of
insurance.

[86]        
The sum of $6,804.77 was paid to Mr. Loeppky under the collective
agreement between the Vancouver Police Union and the Vancouver Police Board.
Under the terms of that agreement Mr. Loeppky must repay that amount if he
recovers it in this action. There is no evidence that the payments originated
from an insurer. Thus, it is not an insured claim under s. 106 and the
defendant is not entitled to deduct it from any award.

[87]        
Mr. Loeppky is therefore entitled to an award of $6,804.77 in respect of
the thirteen days work he missed as a result of the accident.

[88]        
With regard to the lost opportunity to work on call-outs, the evidence
supports a lesser award than claimed by Mr. Loeppky. Prior to the accident, Mr.
Loeppky earned an average of $4,068 a year in overtime from patrol call-outs. Had
the accident not occurred, Mr. Loeppky would likely have continued earning a
similar amount. The difference between that amount and what Mr. Loeppky did
earn in the period from 2008-2010 is $6,608.28.

[89]        
Mr. Loeppky’s total award for past wage loss is therefore $13,413.05
($6,804.77 plus $6,608.28). If counsel cannot agree on the amount net of income
tax, they have liberty to apply.

c)       Loss of Future
Earning Capacity

[90]        
Mr. Loeppky claims $79,000 to $125,000 for loss of earning
capacity. The position of the defence is that Mr. Loeppky has not suffered
any loss of future earning capacity.

[91]        
In Perren v. Lalari, 2010 BCCA 140, Garson J.A., for the court, conducted
a comprehensive review of the jurisprudence in this province on the assessment
of damages for loss of future earning capacity. Her conclusions were as
follows:

[30]      Having reviewed all of these
cases, I conclude that none of them are inconsistent with the basic principles
articulated in Athey v. Leonati, [1996] 3 S.C.R. 458, and Andrews v.
Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229.  These principles
are:

1.         A
future or hypothetical possibility will be taken into consideration as long as
it is a real and substantial possibility and not mere speculation [Athey
at para. 27], and

2.         It is
not loss of earnings but, rather, loss of earning capacity for which
compensation must be made [Andrews at 251].

[31]      Furthermore, I conclude that there
is no conflict between Steward and the earlier judgment in Pallos.
 As mentioned earlier, Pallos is not authority for the proposition
that mere speculation of future loss of earning capacity is sufficient to
justify an award for damages for loss of future earning capacity.

[32]      A plaintiff must always
prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, that there is a real and
substantial possibility of a future event leading to an income loss.  If
the plaintiff discharges that burden of proof, then depending upon the facts of
the case, the plaintiff may prove the quantification of that loss of             earning
capacity, either on an earnings approach, as in Steenblok, or a capital
asset approach, as in Brown.  The former approach will be more
useful when the loss is more     easily measurable, as it was in Steenblok.
 The latter approach will be more useful when the loss is not as easily
measurable, as in Pallos and Romanchych.  A plaintiff may
indeed be able to prove that there is a substantial possibility of a future
loss of income despite having returned to his or her usual employment.
 That was the case in both Pallos and Parypa.  But, as
Donald J.A. said in Steward, an inability to perform an occupation that
is not a realistic alternative occupation is not proof of a future loss.

[emphasis in original]

[92]        
The factors relevant for assessing the value of lost future earning
capacity are set out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at
para 8:

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.

[93]        
In Reilly v. Lynn, 2003 BCCA 49 at paras. 100-101, Low and
Smith JJ.A. summarized the approach to assessing lost earning capacity as
follows:

[100]    An award for loss of earning capacity presents
particular difficulties. As Dickson J. (as he then was) said, 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: The Queen v. Jennings, supra.
A capital asset has been lost:             what was its value?

[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), 84 B.C.L.R. (3d) 158, 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. In
adjusting for contingencies, the remarks of Dickson J. in Andrews v. Grand
& Toy Alberta Ltd., supra, at 253, are a useful guide:

First, in many respects, these contingencies implicitly are
already contained in an assessment of the projected average level of earnings
of the injured person, for one must assume that this figure is a projection
with respect to the real world of work, vicissitudes and all. Second, not all
contingencies are adverse … Finally, in modern society there are many public
and private schemes which cushion the individual against adverse contingencies.
Clearly, the percentage deduction which is proper will depend on the facts
of the individual case, particularly the nature of the plaintiff’s occupation,
but generally it will be small…

[emphasis added by Low and Smith
JJ.A.]

[94]        
There is a real and substantial possibility of a future event leading to
an income loss for Mr. Loeppky.

[95]        
It is unlikely that Mr. Loeppky’s regular earnings will be affected by
the accident. He has continued to work full-time as a police constable since
the accident. He worked for a year-and-a-half as a patrol constable, and since
that time, has worked with the GIU. His assignment to the GIU will end in June
2012, but at that point he may return to work as a patrol constable and he will
be able to apply for an assignment to other non-patrol units as well. There was
no evidence suggesting that Mr. Loeppky’s injury would prevent him from
receiving promotions or otherwise advancing within the VPD.

[96]        
There is evidence, however, that the accident has limited Mr. Loeppky’s
ability to work patrol call-outs, and thereby to earn overtime pay. In light of
his actual record of call-outs worked both before and after the accident, the amount
of his loss is about $1,300 a year.

[97]        
Mr. Loeppky is now 36 years old. But for the accident, he would likely
have sought overtime work until the end of his career at VPD. While he may be
able to retire before age 60, he might have pursued a physical job after
retiring from the VPD. As a result, consideration of his loss of overtime for
the 24 years until he reaches age 60 provides a rough measure of his lost
future earning capacity.

[98]        
The 2.5% discount rate is applicable to future income loss. Using that
rate for a 24-year loss yields the multiplier 17.885. Applying that multiplier
to a loss of $1,300 per year yields $23,250.50.

[99]        
The assessment of loss of future earning capacity is not a mathematical
exercise, and must deal to some extent with the unknowable. As Huddart J.A. put
it in Rosvold v. Dunlop, 2001 BCCA 1 at para. 9, “[p]ossibilities and
probabilities, chances, opportunities, and risks must all be considered, so
long as they are a real and substantial possibility and not mere speculation”.

[100]     As a
result of the accident, Mr. Loeppky is less capable of earning overtime from
the VPD. He is less marketable and more limited in the work he can pursue. He
is less able to take advantage of job opportunities and less valuable to
himself as someone earning income in a competitive market.

[101]     In all the
circumstances, an appropriate award under this head of damage is $25,000.

d)       Special Damages

[102]     Mr. Loeppky
claims $12,607 in special damages ($16,440.76 less the treadmill price of
$3,833.76). This consists of his costs for massage therapy and physiotherapy,
including IMS treatments. The defence argued that Mr. Loeppky is not
entitled to any award for special damages.

[103]     As with
wage replacement benefits, the defence argued that it is entitled to deduct
amounts paid to Mr. Loeppky for therapy costs from any amount to be paid
to him as damages, taking into account s. 24 of the Insurance (Vehicle)
Act and s. 106 of the related regulations.

[104]     Mr.
Loeppky’s largest claim under this head of damage ($11,641) is for costs for
massage therapy since the accident. At the time of the trial, he had received
over 145 massage treatment sessions since Dec. 23, 2007. However, Mr. Loeppky has
received massages on a regular basis since March 2005, a date long before the
collision.

[105]     Mr. Loeppky
was attending for massage treatments about every other week before the accident.
Since the accident, he has been attending about once a week. Had the accident
not occurred, Mr. Loeppky would likely have continued receiving massage
treatments only about every other week. His recovery under this head of damages
is therefore the cost of the extra treatments, being $5,820.50, which is half
the cost of the treatments he received.

[106]     Mr.
Loeppky is entitled to recover his costs for physiotherapy ($320) and IMS
treatments ($646).

[107]     There was
no evidence suggesting that Mr. Loeppky has been reimbursed for these
expenditures. He is entitled to the total of $6,786.50 for special damages
($5,820.50 plus $320 plus $646).

e)       Cost of Future
Care

[108]     Mr. Loeppky
claims $10,000 for future care costs. The position of the defence is that he is
not entitled to any award for future care costs.

[109]     Awards for
cost of future care must be reasonable, both in the sense of being medically
required and in the sense of being costs that, on the evidence, the plaintiff
will be likely to incur: Krangle v. Brisco, 2002 SCC 9, [2002] 1 S.C.R.
205; Laroche v. MacPhail, 2007 BCSC 1451; Izony v. Weidlich, 2006
BCSC 1315.

[110]    
Dr. Helper’s report stated as follows regarding future treatment:

It is not my opinion that massage
therapy will lead to a full resolution of his upper thoraic complaints.
However, I am not opposed to passive modalities used for maintenance purposes
as long as that is understood between the treating practitioner and the patient.

[111]     Massage
treatment helps Mr. Loeppky to alleviate and manage his ongoing pain,
particularly after flare-ups. He may also suffer flare-ups which will require
IMS or other physiotherapy treatment.

[112]     Again, a
complicating factor is that Mr. Loeppky was already going for regular massage
treatments before the accident. As discussed above, had the accident not
occurred, Mr. Loeppky likely would have continued receiving massage treatments
approximately once every two weeks. The massage therapy treatments cost $80 per
treatment, and so 25 additional treatments per year cost $2,000 per year.

[113]     In light
of the costs of massage therapy, IMS treatment, and physiotherapy, Mr.
Loeppky’s claim for $10,000 in future care costs is reasonable.

SUMMARY

[114]     In
summary, Mr. Loeppky is entitled to an award of $100,252.96 less applicable
income tax, consisting of the following:

a)    $45,000 for non-pecuniary
damages;

b)    $13,413.05 for
past wage loss, and if the parties cannot agree on the amount net of income
tax, they have liberty to apply;

c)     $25,000
for lost future earning capacity;

d)    $6,786.50 for
special damages; and

e)    $10,000 for the
cost of future care.

[115]     If the
parties are unable to agree on costs, they should schedule a further hearing
before me through the registry.

“Gray
J.”