IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120207

Docket: M60980

Registry:
Nanaimo

Between:

Ronald Courtney

Plaintiff

And

Kenneth Hutchinson

Defendant

Before:
The Honourable Madam Justice Power

Reasons for Judgment

[1]            
 

Introduction

[1]            
This action relates to a motor vehicle accident that occurred on
November 11, 2008, in Port Alberni, British Columbia. The plaintiff
was rear ended by the defendant’s vehicle when he was stopped at a three-way
intersection on 3^rd Avenue and Bute Street.

Issues

[2]            
Liability is admitted.

[3]            
At issue are the extent, nature and ongoing nature of the injury
suffered by the plaintiff and the quantum of damages that should be assessed
for the injury. The plaintiff claims damages for soft-tissue injuries to his
neck and back and headaches. The plaintiff seeks non-pecuniary damages, wage
loss and future wage loss, cost of future care and a modest sum for special
damages which is agreed to by the parties.

[4]            
The trial proceeded in Nanaimo, British Columbia and I heard seven
witnesses:  the plaintiff, Mr. Courtney, who described the accident, his
injuries and the financial impact of the accident; his wife, his brother-in-law,
as well as from medical witnesses including his general practitioner, a chiropractor
and physiotherapist and an independent medical examiner called by the plaintiff,
Dr. MacKean. The defendant did not call any witnesses.

Background Facts:

[5]            
The plaintiff was 48 years of age at the time of the accident and was a
physically fit man who had an active lifestyle including a physically demanding
job in the logging industry operating heavy machinery and a part-time business
doing home renovations to supplement his income, and also to provide income
when the logging opportunities were limited. His recreation pursuits included
squash, weight lifting (Bowflex machine), wind surfing, surfing, bicycling,
camping and other travel. He is married and lives with his wife in Port Alberni
and has three grown children, two sons and one daughter.

[6]            
It is clear from the evidence that the plaintiff has worked very hard to
build a very comfortable life in Port Alberni. He had no significant health
complaints prior to the accident. An x-ray and MRI conducted after the accident
indicated that he had degenerative disc disease and osteoarthritis as an
underlying problem. However, he had no neck discomfort prior to the accident. His
brother-in-law, Ted Sexton, described him in evidence in relation to the
intensity that he brought to a squash game as “high, Ron only knows one speed –
full speed ahead. He is 15 years younger than I and he never gave me any breaks.”

[7]            
I conclude from all of the evidence that those words could equally be
applied to all aspects of the plaintiff’s life prior to the accident.

The accident

[8]            
The accident took place on November 11, 2008. The plaintiff was driving
his Ford F-250 truck home from his sister and brother-in-law’s home. At sometime
around 6:00 p.m. he was proceeding northbound on 3rd Avenue in Port Alberni
when he saw a bicycle which he thought was going to possibly enter the intersection.
He stopped at the cross-walk and was rear-ended by the defendant’s vehicle, a
Ford Focus. He did not have any warning that an impact was going to occur. Road
conditions were poor at the time of the impact. As a result of the accident the
plaintiff’s vehicle was pushed into the intersection. His Ford truck suffered
damage to the bumper including the tailgate falling off and damage to the fuel
tank. The defendant’s vehicle suffered extensive damage including a broken
windshield and significant front end damage. Repair costs to the plaintiff’s
vehicle were in the range of $3,300 and just under $10,000 to the defendant’s
vehicle. I conclude from the evidence that the impact was significant.

[9]            
Mr. Courtney exited his vehicle to check on the driver of the other
vehicle since he was concerned that the other driver was injured. At the scene
he noted that his neck was sore and he was feeling nauseous. The police
attended and after he spoke to the police he drove home in his vehicle since it
was drivable. At home that evening he was feeling neck pain but he tried to
relax.

Dr. Lund

[10]        
The next day Mr. Courtney made an appointment with his general
practitioner Dr. Daryl Lund. Dr. Lund is a busy family practitioner
and the soonest the plaintiff could see him was November 19, 2008. Dr. Lund’s
medical legal report is detailed and Dr. Lund testified at trial and was
qualified as an expert in general medicine. Dr. Lund had been Mr. Courtney’s
primary care physician since 2000, and was familiar with Mr. Courtney’s
health prior to and subsequent to the accident.

[11]        
In his report dated May 9, 2011, Dr. Lund noted his examination
findings:

Examination revealed discomfort
and stiffness at the range of neck rotation both to the left and right. He had
a reduction in the neck extension and a mild reduction in lateral bending. He
was tender over his interspinous ligaments from C4 to T1 and his cervical
paraspinal muscles from C3 to T1, the left side being more tender than the
right side. He was also tender over his trapezius muscles. His muscle mass was
normal. His reflexes were intact. He stated that his mid-thoracic spine area
bothers him while stooping over a sink.

[12]        
Dr. Lund’s overall assessment at page 6 was as follows:

Ron suffered a cervical
interspinous ligament strain as well as thoraco-lumbar interspinous ligament
strain. His neck continued to be problematic with activities requiring
extension. He also continued to be bothered by intermittent muscle tension pain
in his cervical spinal muscles, his trapezius muscles, and his rhomboid
muscles. He had underlying multi-level degenerative disc disease with
osteoarthritis and osteophyte disc complexes causing neural foraminal narrowing
at various levels of his spine . . .

[13]        
Dr. Lund summarized Mr. Courtney’s prognosis as:

Ron is now 2.5 years since his
motor vehicle accident. He continues to be symptomatic especially in his
cervical spine. Because of his injuries and underlying pre-existing neck
problems, I feel it is highly likely that he will continue to have neck
discomfort a least intermittently going forward. His neck is likely to be
aggravated by activities requiring neck extension. (page 7)

[14]        
As part of his treatment of Mr. Courtney, Dr. Lund sent him
for an x-ray which revealed degenerative changes in his vertebrae. In mid 2009 Dr. Lund
ordered an MRI when Mr. Courtney’s symptoms were not resolving. The MRI
revealed degenerative-disc disease and indicated that Mr. Courtney had
disc bulging at several disc levels. Dr. Lund’s opinion was that the disc
degeneration and osteo-arthritis was pre-existing prior to the collision. He
testified at trial that the disc bulges could be as a result of the trauma of
the accident but he could not provide any definitive opinion since he did not
have any images pre-accident. Dr. Lund testified that since Mr. Courtney
did not complain of pain prior to the accident that the degenerative disc
disease was asymptomatic at that time.

Dr. MacKean

[15]        
Dr. MacKean was qualified as an expert medical specialist in physical
medicine and rehabilitation. She examined Mr. Courtney for the purposes of
preparing a medical-legal report in this action and provided a report dated
September 22, 2011. Dr. MacKean testified at trial. In her report, she
detailed the findings on physical examination as follows on page 4:

He was a very fit appearing man. There were no specific
postural abnormalities of the spine. There was no muscle wasting in the
shoulder girdle region or upper extremities. Neurologic screening assessment of
the upper extremities was normal with normal strength, normal sensation and
deep tendon reflexes were 2+ and symmetrical.

. . .

With cervical spine range of motion he demonstrated decreased
range of motion in flexion, extension, side flexion, and rotation lacking about
the last 10 degrees of movement in all directions. He complained of pain felt
more in the right side of the neck with extension and rotation of the neck to
the left. He described pulling on the left side of the neck with side flexion
to the right.

With palpation over the spine he described most discomfort
over the right lower cervical spine and upper thoracic spine and less so on the
left side. He did not describe pain in the upper cervical spine. He complained
of discomfort over the mid thoracic spine at the T6 level. He also complained
of more pain in the muscle groups along the right scapular region and in the
right upper trapezius as compared to the left side.

An MRI of the cervical spine that
was done on August 19^th, 2009 showed multilevel degenerative changes
involving the cervical spine with disc/osteophyte complexes at the C4-5, C5-6,
C6-7 and C7-T1 levels. This is consistent with degenerative changes involving
the cervical spine. These are normal findings in someone who is 51 years of
age.

[16]        
Dr. MacKean’s opinion was that Mr. Courtney had suffered a
Grade two whiplash associated disorder to the cervical spine and upper back
with persistent daily neck pain greater on the right than left side, and
headaches. She is of the opinion that the ongoing persistent neck pain and
headaches is due to injuries sustained in the accident.

[17]        
Of significance Dr. MacKean noted that:

He has most likely reached the
point of maximal medical improvement. It has been almost 3 years following the
date of motor vehicle accident and he has not seen significant improvement over
the past two years with regards to improvement in his neck pain symptoms.

[18]        
Dr. MacKean in her report and in her evidence noted that the disc
degeneration seen in the MRI was less likely the cause of the ongoing pain he
was experiencing since it was asymptomatic prior to the accident.

Dr. Manson and Christine Thompson

[19]        
Dr. Manson was a chiropractor that Mr. Courtney went to see
for six sessions as a result of the accident between November 25, 2008 and
December 24, 2008. Dr. Manson had previously treated Mr. Courtney for
some minor complaints to his lower back which were resolved prior to the
accident.

[20]        
Mr. Courtney discontinued the chiropractic sessions when he came to
the view that the manipulations were making the pain worse. Dr. Manson testified
that an individual who has suffered soft-tissue injuries will become more
symptomatic in the short term as the injuries heal. Dr. Manson’s evidence
and clinical records provide both objective and subjective evidence of Mr. Courtney’s
injury.

[21]        
Christine Thompson is a physiotherapist that Mr. Courtney saw
between January 6, and June 1, 2009. Again, her evidence provides both
objective and subjective evidence of Mr. Courtney’s injury including
decreased range of motion in his neck more to the right than the left and
decreased side flexion of his neck to the left more than the right. Throughout
his sessions with Ms. Thompson it is clear that Mr. Courtney was
suffering from headaches, neck pain particularly as it related to neck
extension. She testified that it was reasonable for Mr. Courtney to
discontinue treatment when his condition particularly as it related to neck
extension was not improving with treatment and he was being sent for an MRI.

Mr. Courtney

[22]        
Mr. Courtney testified at trial and provided evidence relating to
the accident, his actions after the accident, and the impact of the accident
both on his personal life and recreational activities and on his work life. His
wife, Betty Anne Courtney and his brother-in-law provided further evidence in
some of these areas.

[23]        
Mr. Courtney came across in his evidence as a quiet man who was
committed to his personal health and fitness and who was conscientious and
proactive about pursuing his treatment options. He did not appear to exaggerate
or overstate his evidence. When he made errors in his evidence for example with
respect to his work history, he acknowledged them and any errors appear to be
reasonable based on the passage of time, and Mr. Courtney’s knowledge. He
is clearly a hardworking man who has worked through pain caused by the accident
in order to provide for his family. The ongoing pain is primarily neck pain
which is aggravated by activities which require neck extension and occasional
headaches. I do not have any difficulty in accepting the evidence of Mr. Courtney.
Based on the evidence I would characterize Mr. Courtney as a stoic
individual.

[24]        
The accident has had a significant impact on Mr. Courtney’s life,
particularly his personal and recreational life. As I have indicated, he has
worked through his ongoing neck pain and is currently working approximately 10
hour days, operating heavy machinery in the woods. Depending on the site, the
work may require him to extend his neck in a manner that causes him pain and
yet he works through that pain. Due to the uncertainty of the logging industry,
it is clear from Mr. Courtney’s evidence that he wants to pursue all
employment that arises, and that he does so at the expense of his personal and
recreational life. Whereas, before the accident he could pursue his high level
of intensity with respect to all aspects of his life, after the accident he has
to limit his personal and recreational activities in order not to aggravate the
pain (for example he has given up squash which was one of his main recreational
pursuits). He is understandably concerned about whether or not he will be able
to fulfill his long range life goals which included retiring at approximately
age 60, and then renovating houses in order to supplement his retirement income
which will likely come from his rental houses. He can no longer install gyprock
or drywall in the same manner that he did before since it requires a degree of
neck extension that he cannot sustain in order to perform that task.

[25]        
Mr. Courtney continues to be proactive about his personal health. Although
he has not returned to physiotherapy which was a possible option coming out of Dr. MacKean’s
report, he continues to do recommended stretching and exercises in order to
alleviate his symptoms. He has also purchased a treadmill as a substitute for
squash and the Bowflex machine which he used prior to the accident.

The defence position

[26]        
The defence did not call any evidence in this case and takes the
position that the injury was a minor injury that did not result in any income
loss that has been proven. The defence suggests that any ongoing pain is
attributable to the pre-existing condition and not to the accident.

[27]        
I am not persuaded by the defence that the plaintiff’s ongoing neck pain
would have occurred notwithstanding the accident based on a pre-existing
degenerative condition. Mr. Courtney had not previously experienced neck
pain and problems with his neck. As noted in the evidence of Dr. MacKean,
50% of individuals Mr. Courtney’s age can have degenerative changes such
as Mr. Courtney has and be asymptomatic and never develop any symptoms. Significantly,
Mr. Courtney was asymptomatic prior to the accident based on the evidence
of Dr. MacKean and Dr. Lund and his self-report which I accept. The
minor back problem that Mr. Courtney experienced prior to the accident had
resolved and in any event Mr. Courtney is not claiming for any ongoing
back pain.

[28]        
Accordingly, I am satisfied that the ongoing neck pain and intermittent
headaches which Mr. Courtney experiences are consequences of the accident
for which he should be fully compensated.

Quantum

Non pecuniary damages

[29]        
It is argued on behalf of Mr. Courtney that he should receive an
award in the range of $70,000. The defence argues that he should receive an
award in the range $30,000.

[30]        
For comparison, the plaintiff cites Gignac v. Rozylo, 2010 BCSC
595, [2010] B.C.J. No. 779; Garcha v. Duenas, 2011 BCSC 365, [2011]
B.C.J. No. 506; Fredheim v. Woods,1992 CarswellBC 1143, [1996]
B.C.W.L.D. 2174; and Szymanski v. Morin, 2010 BCSC 1, [2010] B.C.J. No. 5.

[31]        
The defendant cites Kartz v. Carlson [2006] B.C.J. No. 1018;
Majewska v. Partyka and Obelikphya, 2009 BCSC 175 (CanLII); Rattenbury
v. Samra [2009] B.C.J. No. 294; Smith v. Wirachowsky, 2009 BCSC
1434 (CanLII); Olianka v. Spagnol [2011] B.C.J. No. 1435.

[32]        
In considering non-pecuniary damages, I have considered the purpose of
non-pecuniary damages as set out by the Supreme Court of Canada in Lindal v.
Lindal, [1981] 2 S.C.R. 629 at p. 637:

Thus the amount of an award for
non-pecuniary damage should not depend alone upon the seriousness of the injury
but upon its ability to ameliorate the condition of the victim considering his
or her particular situation. It therefore will not follow that in considering
what part of the maximum should be awarded the gravity of the injury alone will
be determinative. An appreciation of the individual’s loss is the key and the
“need for solace will not necessarily correlate with the seriousness of the
injury” (Cooper-Stephenson and Saunders, Personal Injury Damages in Canada (1981),
at p. 373). In dealing with an award of this nature it will be impossible
to develop a “tariff”. An award will vary in each case “to meet the specific
circumstances of the individual case” (Thornton at p. 284 of
S.C.R.).

[33]        
The British Columbia Court of Appeal reviewed the factors generally
considered in awarding non-pecuniary damages in Stapley v. Hejslet, 2006
BCCA 34, and noted at paragraph 46:

The inexhaustive list of common
factors cited in Boyd 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. 163,
2005 BCCA 54).

[34]        
With respect to the factors outlined in Stapley v. Hejslet,
[2006] B.C.J. No. 128, I accept most aspects of the plaintiff’s argument and
find the following:

Age of the plaintiff

[35]        
Mr. Courtney was 48 years old when the collision occurred. He is
now 51 years old. He has many active years ahead of him that will now be
negatively affected by his injuries.

Nature of the injury

[36]        
Mr. Courtney suffered and continues to suffer the consequences of
injuries in the accident particularly the injury to his neck. He has reached
the point of maximal medical improvement and his prospects for any recovery in
the future are low. The type, location and symptoms of his primary injury
affect many aspects of his life.

Severity and duration of pain

[37]        
Mr. Courtney continues to experience pain in his neck, particular
with movements associated with tasks that require neck extension such as shoulder
checking using the Bowflex and drywalling. Such pain is expected to be ongoing
and permanent.

Disability

[38]        
As a result of his injuries and, Mr. Courtney is limited in his
ability to perform a variety of simple tasks involving extension of his neck without
pain.

Emotional suffering

[39]        
The impact of Mr. Courtney’s ongoing symptoms on his ability to
engage in various work-related activities and those recreational pursuits that
he enjoyed prior to the collision clearly upsets him. Despite presenting as a
quiet and stoic individual, Mr. Courtney was visibly emotional when asked
about the effects his injuries and ongoing symptoms on his family. I conclude
from his reaction that the impact of this loss has been significant.

Loss or impairment of life

[40]        
Mr. Courtney no longer leads the life that he did prior to the
collision. Before, he was an active individual capable of doing various
work-related, home renovation or maintenance and recreational activities. The
evidence satisfies me that not only could he perform them, but he took pleasure
in them as well. His ongoing injuries prevent him from engaging in many of
these activities at all or at the same level he did prior to the collision.

Impairment of family, marital and social relationships

[41]        
It is clear from Mr. Courtney’s emotional response when asked about
changes to his relationships with his family post-collision that there has been
an impact on his relationships.

Impairment of physical and mental abilities

[42]        
Mr. Courtney’s ability to engage in a variety of physical tasks
without pain has been compromised owing to his persistent neck symptoms. These
range from various duties associated with the maintenance and repair of his
rental properties to his current employment as a log loader to his recreational
pursuits.

Loss of lifestyle

[43]        
Prior to the collision, Mr. Courtney was an active, hard-working
and physical person. As a result of his injuries and ongoing symptoms resulting
from the collision, he has had to reduce his participation in or avoid
altogether many of the physical tasks and activities that he previously
performed and enjoyed.

Stoicism

[44]        
I have already found Mr. Courtney to be a stoic individual who does
not complain and indeed his return to work post-collision is consistent with
the behaviour of a hardworking, stoic individual. As noted, he should not be
penalized as a result of his stoicism.

[45]        
In all of the circumstances, I conclude that an appropriate sum under
this head is $70,000.

Wage Loss

[46]        
In Sandher v. Hogg 2010 BCSC 1152, Dardi, J. provided a helpful
summary of the current state of the law relating to loss of income and earning
capacity commencing at paragraph 87:

[87]      The legal principle that governs this assessment
for loss of earning capacity is that, insofar as is possible, the plaintiff
should be put in the position he or she would have been in but for the injuries
caused by the defendant’s negligence: Lines v. W & D Logging Co. Ltd.,
2009 BCCA 106 at para. 185. Compensation must be made for the loss of
earning capacity and not for the loss of earnings: Andrews v. Grand &
Toy Alberta Ltd., [1978] 2 S.C.R. 229.

[88]      It emerges from the recent jurisprudence of the
Court of Appeal that the plaintiff must demonstrate impairment to his or her
earning capacity and that there is a real and substantial possibility that the
diminishment in earning capacity will result in a pecuniary loss. If the
plaintiff discharges that requirement, he or she may prove the quantification
of that loss of earning capacity either on an earnings approach or a
"capital asset" approach: Perren v. Lalari, 2010 BCCA 140 at para. 32;
and Pallos v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R.
(2d) 260 at 271 (C.A.). Regardless of the approach, the court must endeavour to
quantify the financial harm accruing to the plaintiff over the course of her
working career: Pett v. Pett, 2009 BCCA 232 at para. 19.

[89]      Factors to consider in the assessment of the value
of the lost capital asset include:  whether 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 that might otherwise have
been open; and is less valuable to herself as a person capable of earning
income in a competitive labour market: Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353 at para. 8 (S.C.); and Kwei v. Boisclair (1991),
60 B.C.L.R. (2d) 393 (C.A.).

[90]      As recently reviewed by the Court in Falati v.
Smith, 2010 BCSC 465 at para. 41, the other principles which inform
the assessment of loss of earning capacity include the following:

1)     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. The standard of proof in relation to hypothetical or future events
is simple probability, not the balance of probabilities: Reilly v. Lynn,
2003 BCCA 49 at para. 101. Hypothetical events are to be given weight
according to their relative likelihood: Athey v. Leonati, [1996] 3
S.C.R. 458 at para. 27.

2)     Allowances
must be made for the contingency that the assumptions upon which an award is
based may prove to be wrong: Milina v. Bartsch (1985), 49 B.C.L.R. (2d)
33 at 79 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.); and Falati at
para. 41. Evidence which supports a contingency must show a “realistic as
opposed to a speculative possibility”: Graham v. Rourke (1990), 75 O.R.
(2d) 622 at 636 (C.A.). Relevant contingencies can include such things as the
potential for improvements in health, opportunities for advancement, decline in
the economy and loss of employment, as well as the usual chances and hazards of
life: Trites v. Penner, 2010 BCSC 882 at para. 228

3)    
The court must assess damages for loss of earning capacity and not
calculate them mathematically; the overall fairness and reasonableness of the
award must be considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11.
The assessment is based on the evidence taking into account all positive and
negative contingencies.

[47]        
I have also considered Perren v. Lalari 2010 BCCA 140 at paras. 30
to 32 where the Court stated:

[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. 

[48]        
In my view there is a real and substantial possibility of a future event
leading to an income loss. It is clear that there are physical limitations
and pain caused by the accident. Because Mr. Courtney is such a hard
working individual, he has worked through the pain and/ or modified his leisure
activity in order to do so. As noted by Dr. McKean:

I expect he will have ongoing neck
pain that will limit his ability to do certain activities such as looking up or
looking down for any length of time. He can expect to have ongoing neck pain
with the type of work that he is doing now but he can continue working in that
job position. I do not think his neck pain will get significantly worse in the
future but I do not think it will get significantly better.

[49]        
As noted in the plaintiff’s argument, in his testimony, Mr. Courtney
stated that he is currently working as a log loader operator and a hoe chucker
at Antler Creek Logging. Mr. Courtney stated he had been working there for
about 1.5 months. He testified that he is currently working 11.5 hours per day
seven days a week and earns $30 per hour. The threat of snow is necessitating
this increased work pace. Indeed, Mr. Courtney testified that the typical
logging season is between 8-10 months every year.

[50]        
Mr. Courtney testified that the hours he is currently required to
work are demanding. Having to perform the duties of his job over more hours has
increased the frequency of his neck pain. In general, this neck pain is caused by
activities requiring him to look up over prolonged periods of time, which is
often required of him when loading logs off embankments. He also testified that
travelling over bumpy gravel roads aggravates his neck symptoms.

[51]        
Mr. Courtney testified as to the opportunity to work on a
particular machine that he feels would aggravate his neck symptoms. This
machine is called a feller-buncher, which Mr. Courtney described as a
mechanical tree faller. According to Mr. Courtney, a feller-buncher is a
track-operated machine with a serrated wheel that cuts down, bunches and piles
trees. As Mr. Courtney explained, the difficulty that he foresees with
operating a feller-buncher is that the cab where the operator sits has windows
on the ceiling through which the operator must look through for long periods of
time.

[52]        
I am satisfied based on this evidence that there is a real and
substantial possibility that the neck pain and association limitations with
range of movement will result in a pecuniary loss to Mr. Courtney
regardless of whether he maintains his job as a log loader or returns to his
work as a carpenter. He may not be able to accept a position as a feller-buncher
if one is offered because of the demands of that position. He may have to hire
out certain constructions activities that require neck extension such as dry
walling and roofing and ceiling work.

[53]        
There are a number of negative contingencies that have to be considered
in respect of the future income loss. The nature of the logging industry
and of the work available have to be considered as reflected in the plaintiff’s
work history. Similarly, there are uncertainties surrounding the work available
for Mr. Courtney’s construction work.

[54]        
The plaintiff has submitted a calculation based on a $4 difference in
wages between a log loader and a feller-buncher which results in a calculation
of $68,390. However, that calculation is generous since the current wage
difference is approximately $2.75 per hour although the plaintiff argues that
based on his experience the plaintiff could negotiate a higher wage.

[55]        
The plaintiff claims a future loss of $50,000 based on a capital asset
approach and provides the calculation simply to provide some guidance to the
court.

[56]        
In my view the evidence and the negative contingencies support a lesser
amount than the one claimed by the plaintiff. In the circumstances, I am of the
view that $30,000 is appropriate award under this head of damage.

Past Wage Loss

[57]        
The plaintiff claims $6,000 because he had to turn down two drywall jobs
after the accident. One was for dry walling a large house in Port Alberni and
$5,000 is the loss of anticipated profit from that job. The second job involved
dry walling a basement room and the plaintiff anticipates that he could have
earned $1,000 from that job. There was a third job that the plaintiff
referenced in his evidence but there was not sufficient detail around it since
the plaintiff did not pursue the job because he wished to pursue his recovery.

[58]        
The evidence around this claim is very uncertain. It is not clear that
the plaintiff was actually offered these positions, and indeed he acknowledged
in his evidence that his estimates of any expected profit was very rough. I am
not satisfied that past wage loss has been established by the plaintiff in the
amount claimed. I am satisfied however; that the claimant did incur some lost
income as a result of the accident. I am awarding $3,000 under this head of
damage. If the parties cannot agree on the amount net of income tax, they have
liberty to apply.

Cost of Future Care

[59]        
In his report Dr. Lund states that Mr. Courtney may require
treatment involving the use of anti-inflammatory medications and physiotherapy
treatment in order to address intermittent pain caused by his injury.

[60]        
Dr. MacKean recommended trying acupuncture for pain management.

[61]        
There is no evidence before the court as to cost of acupuncture or of
any physiotherapy. The plaintiff claims $4,181.01 as the present value of any
cost of future care based on a calculation for acupuncture twice per year at
$55 per treatment and $100 per year for anti inflammatory medications.

[62]        
In Loeppky v. ICBC, 2012 BCSC 7 at paragraph 109 the court
stated:

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.

[63]        
It is my view that based on the recommendations of Dr. Lund and
Dr. MacKean, that some claim for future care costs is appropriate. I am of
the view a claim under this head is reasonable as being medically required and
costs that the plaintiff will likely incur. However, it is difficult to
quantify because of the lack of evidence and because so far Mr. Courtney
has not pursued any further physiotherapy or any acupuncture. Accordingly, I am
awarding $2,000 for future care.

Summary

[64]        
Mr. Courtney is entitled to the following:

a)    $70,000 for non-pecuniary
damages;

b)    $3,000 for past
wage loss;

c)     $30,000
for future wage loss;

d)    $2,000 for cost
of future care; and

e)    $151.73 special
damages agreed to by the parties.

[65]        
Costs may be spoken to if they cannot be agreed to by the parties.

“J.
Power, J.”
The Honourable Madam Justice Power