IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120416

Docket: M61620

Registry:
Nanaimo

Between:

James Noon

Plaintiff

And

Gordon James
Lawlor

Defendant

Before:
The Honourable Mr. Justice D. Halfyard

Reasons for Judgment

The action

[1]            
This has been the trial of an action for damages for personal injuries.
The plaintiff, James Noon, alleged that he was injured in a motor vehicle
accident which occurred on January 22, 2009, in Nanaimo and alleges that the
accident was caused solely by the negligent driving of the defendant, Gordon
James Lawlor.

The accident

[2]            
The plaintiff alleges that he had been travelling south on Highway 19,
that he stopped for a traffic light at the intersection of Northfield Road, and
that while he was stopped, his vehicle was rear-ended by the defendant’s
vehicle.

[3]            
The defendant admits that the accident occurred as described by the
plaintiff, and admits that his negligence was the cause of the collision. It is
also agreed that the plaintiff was driving a 2002 Ford F-250 pickup truck, and
the defendant was driving a 2008 Pontiac G5 two-door coupe.

The claims

[4]            
The plaintiff alleges that he sustained soft tissue injuries to his
head, neck and back as a result of the whiplash forces exerted on his body by
the force of the collision. He claims damages under the categories of
non-pecuniary loss, past loss of earnings, loss of future earning capacity,
special damages and the cost of future care.

The position of the defence

[5]            
The defence admits that the plaintiff is entitled to awards for non-pecuniary
loss, past loss of earnings and special damages, although the amounts are in
dispute. The defence denies that the plaintiff is entitled to any damages for
loss of future earning capacity, and in the alternative submits that only a
minimal award would be justified. I understood that the claim for the cost of
future care is denied.

Overview of the trial

[6]            
The plaintiff testified himself, and called nine additional witnesses.
Those witnesses included his wife, his mother, his cousin, a former co-worker,
a representative of his former employer, a representative of his present
employer, his family physician, an expert physiatrist and an expert functional
capacity evaluator. The physiatrist (Dr. Adrian) and the functional
capacity evaluator (Andrew Hosking) testified by video conference.

[7]            
The plaintiff presented numerous documentary exhibits. The exhibits
included hospital records, the clinical records of the plaintiff’s family
physician, the clinical records of a physiotherapist, and the medical reports
of the physiatrist and the functional capacity evaluator. The expert reports of
Dr. Daniel R. Gouws and Darren Benning, economist, were filed, but those
experts were not called to testify.

[8]            
The defendant elected not to call evidence.

The Evidence

The plaintiff, James Noon

[9]            
I will first summarize the testimony given by the plaintiff in direct
examination.

[10]        
The plaintiff was 34 years of age at the time of trial (and he turned 35
on March 14, 2012). He grew up and went through school in Ladysmith. After graduating
in 1995, he took a two-year plumbing course at Camosun College. After that, he
began an apprenticeship with Van-Isle Fire Protection Services. He obtained
journeyman certification in 2000.

[11]        
The plaintiff and his wife Anita were married on July 5, 2002. They live
in Ladysmith. They now have three children aged eight, six and ten months.

[12]        
The plaintiff worked for Van-Isle until September 2005. It was a small
company, having about four employees. The plaintiff was certified as a
sprinkler fitter, and much of the work done by Van-Isle consisted of installing
sprinkler systems for fire protection, in buildings of various kinds. The
plaintiff enjoyed the work he was doing.

[13]        
In April 2002, the plaintiff was diagnosed with testicular cancer.
Surgery was performed almost immediately, and one of his testicles was removed.
He was off work for about six weeks, after the surgery. Considerable testing
was done to determine whether the cancer would return, which naturally worried
the plaintiff. He appears to have made a full recovery, but was not back to his
normal level of functioning (although he worked full-time) for more than two
years.

[14]        
In October 2005, the plaintiff went to work for Alliance Mechanical Fire
Protection Specialists (“Alliance”). He was employed as a working foreman.
Again, the work consisted of installing and maintaining water sprinkler fire
protection systems.

[15]        
The work that a sprinkler-fitter is required to do includes fabricating
the water pipes (some of which are quite heavy), drilling holes for, and
installing pipe hangers, lifting the pipes from the floor to the hangers (by
carrying the pipes up a ladder), and connecting the pipes together. The
connecting work usually requires the worker to wield two fairly heavy pipe
wrenches overhead, while standing on a ladder. Much of the work (perhaps most)
is done with the arms raised above shoulder level. A journeyman often works
alone.

[16]        
The plaintiff handled the heavy physical work, without difficulty. The
plaintiff was also quite active in soccer, floor hockey, snowboarding, and
water-skiing, ATV driving and working out in the gym.

[17]        
On January 22, 2009, the plaintiff and a co-worker Jeremy Miller were on
their way home from working at a job in Tofino. The plaintiff was driving their
employer’s pickup truck south on Highway 19 and had stopped for a red light at
the intersection of Northfield Road. It was around 7:00 p.m., and dark. The
plaintiff was wearing a lap and shoulder strap seatbelt. He turned his head to
the right, and was talking to Mr. Miller, when a “horrible” rear end
impact occurred, without warning.

[18]        
The plaintiff’s body was thrown forward, and the left side of his
forehead struck the steering wheel. The truck he was driving was pushed
forward, into the rear end of a vehicle stopped ahead of them, but the
plaintiff was unaware of this until later. The plaintiff stayed inside the
truck until the ambulance came. The paramedics attended to him. He was
trembling, and his head hurt. The paramedics did not find it necessary to take
the plaintiff or his passenger to the hospital.

[19]        
The plaintiff viewed the damage to the back of the pickup, and the
front-end of the car that had rear-ended the pickup. He saw that the damage was
extensive, particularly to the car. It later turned out that the truck frame
was bent, and that this was the largest labour item for the repairs. The total
repairs cost $4,658.44. The plaintiff believes that the car was damaged too
badly to be repaired.

[20]        
There was more than $2,000 damage to the car that the pickup truck had
been pushed into by the force of the impact.

[21]        
Jeremy Miller’s mother came from Ladysmith and drove them home. The
plaintiff was not feeling well.

[22]        
The next morning (Friday, January 23, 2009), he was not feeling any
better, and he had a headache. He went to see Dr. Kennedy (his physician Dr. Lisinski
was not available). The doctor advised him to ice his neck, to take Advil, and
to see Dr. Lisinski when he returned to the office.

[23]        
On Sunday, January 25, 2009, the plaintiff found it necessary to go to
the emergency ward of the hospital due to severe low back pain that he was
experiencing. His wife took him there. The doctor who attended on him
prescribed an X-Ray, told the plaintiff to rest and to take muscle relaxants,
and discharged him.

[24]        
The plaintiff saw Dr. Lisinski on January 27, 2009. The doctor
recorded his complaints, examined him and recommended treatment. He prescribed
physiotherapy treatment for the plaintiff, which commenced on February 02,
2009. The plaintiff was unable to return to work until the week of March 09,
2009, and only worked 16 hours in that first week, all of it consisting of
paper work.

[25]        
The plaintiff gradually progressed to doing physical aspects of his job,
but did not do any overhead installing of pipe. He received 23 physiotherapy treatments
up until the time he was discharged on April 29, 2009. The physiotherapist
advised the plaintiff to do stretching exercises and to attend at a gym exercise
program. The plaintiff had a personal trainer to assist him with his gym exercise
program for about two months, from about late May until late July 2009.

[26]        
The plaintiff received three more physiotherapy treatments in early
June, after twisting his lower back at work. He was discharged again on June 9,
2009.

[27]        
The plaintiff believes that, as a result of the motor vehicle accident,
he sustained injuries to his head, neck, upper back and lower back. These
injuries caused him to feel pain. He also had numbness in his hands, and
experienced headaches.

[28]        
The plaintiff’s head injury healed in about three weeks. His lower back
injury took about six months to get better. The numbness in his hands lasted
for about six months.

[29]        
The plaintiff still experiences pain, on a daily basis, at the back of
his neck and between his shoulder blades (mostly on the right side). He takes
Ibuprofen and rests as necessary, and his wife often massages him (she has had
some physiotherapy training). There are a number of things which will increase
the pain in his neck and upper back, which include:

a)    Sitting in one
place for a long time, either at a desk or while driving a motor vehicle for a
long distance;

b)    Yard work, of
all kinds;

c)     Looking
down, or looking up, for any extended period of time.

[30]        
As to the headaches, the plaintiff was experiencing them every day for a
period of time after the accident. The headaches decreased to three or four
times a week, and now trouble him two or three times per week. He takes Advil
or Tylenol as a remedy. The headaches get worse if he does any heavy work.

[31]        
The plaintiff resumed working full-time with Alliance, commencing on June 9, 2009.
But although he worked full time, he did not return to doing full duties. He
had a hard time doing the physical aspects of the work that he was able to do.

[32]        
The plaintiff worked for Alliance until late July 2009. On July 26,
2009, he and his family departed Canada and travelled to Norway. This trip had
been planned the previous year, and they had intended to live and work in
Norway for a period of one year. His wife was from Norway and for the first few
months they lived with her parents in the city where she grew up. On a previous
trip to Norway in the summer of 2008, the plaintiff had lined up a job in
Norway with a firm that did sprinkler system installations, maintenance and
other plumbing work.

[33]        
The plaintiff’s condition had improved considerably before he and his
family left for Norway. But up to that point, although he had returned to
full-time work with Alliance, he never resumed any of his previous recreational
activities. After his January 27, 2009, visit to Dr. Lisinski, he visited Dr. Lisinski
eight more times up to June 23, 2009, before leaving for Norway.

[34]        
As to his claim for past loss of income for the period from January 23,
2009, to June 7, 2009, the plaintiff did not keep records himself, but relies
on evidence prepared by his former employer. Although he stated that full-time
work was available to him, the plaintiff later testified that he had “some
setbacks” after returning to work and said that there were some “slow” weeks
also.

[35]        
From August 3, 2009, until January 29, 2010, the plaintiff worked in
Norway for Simex A/S, doing mainly plumbing work. Only one-third of his
work was sprinkler work, and he also did some refrigeration work. He worked
seven and one-half hours per day, five days a week, and earned a wage that was
comparable to what he had been earning with Alliance.

[36]        
While in Norway, the plaintiff did not seek any medical treatment and
said that he never needed it. The only major problem he had was caused by a day
of digging out a trench in gravel, in order to replace a pipe. He did send two
emails to Dr. Lisinski, which he says reflected how he was feeling at the
time. His email of September 2, 2009, included a statement that his neck felt
weak and sore starting August 28, 2009, (from the digging work) and
he also said he was having the occasional headache. He did not make any
requests for advice.

[37]        
In his email of November 19, 2009, the plaintiff informed Dr. Lisinski
that his neck was still about the same, that his upper back was beginning to
act up and that he was thinking about getting back to the exercises recommended
by the physiotherapist in Ladysmith. He then asked Dr. Lisinski whether,
if these symptoms persisted, he should see a physiotherapist or doctor. But he
never received any reply from Dr. Lisinski to either of his emails.

[38]        
The plaintiff said that, while in Norway, he took Ibuprophen as needed,
iced his neck and his wife sometimes massaged his neck, after work. During the
Norway trip, the plaintiff played indoor soccer about six times. He and his
family did some hiking out of doors.

[39]        
In December 2009, the plaintiff and his wife decided they would cut the
Norway trip short, because the plaintiff’s wife missed Canada. They left Norway
and returned home on January 31, 2010.

[40]        
Before returning home from Norway, the plaintiff had three job options
available to him. He could return to his job as sprinkler-fitter foreman with
Alliance; he could go to work as a plumber for Archie Johnstone Plumbing and
Heating; or he could go to work for his labour union, Local 324 (as proposed by
Dale Dhillon, the union ’s Business Manager for Local 324).

[41]        
The plaintiff and his wife discussed his employment options. The
plaintiff believed that he could not do the physical work required of a
sprinkler fitter. He had been doing some recruiting work for the union, about ten
hours per month, beginning in 2006, and he was interested in the union job.
Another fact they considered was that “the economy was down.” In the end, the
plaintiff decided to accept the union job offered by Dale Dhillon. He accepted
that job offer, before returning to Canada.

[42]        
He started working at the new union job on or about February 15, 2010.
This was a new position (assistant business agent) to which he was appointed
(not elected). He receives journeyman’s rate of pay plus 10%, which is the same
wage that he was earning at Alliance as a sprinkler-fitter foreman. He and his
family continue to live in Ladysmith, and he is required to work out of the
main office in Victoria for three days a week and out of the Nanaimo office for
two days per week. He visits numerous projects in those areas and also travels
to Courtenay about once a week and occasionally to Campbell River. Much driving
is involved and he works long hours, which include a considerable number of
evening meetings. He has taken on numerous duties involving union business. It
is a demanding job, although not physically demanding. He has been doing this
work steadily, for just over two years.

[43]        
The plaintiff does not have an employment contract. The term of his
present employment will expire at the end of Mr. Dhillon’s term as
Business Manager (he was last elected in 2010, for a five-year term). The
plaintiff can be dismissed on very short notice. He believes Mr. Dhillon
will retire at or before the end of his present term of office.

[44]        
When Mr. Dhillon retires, there will be an election held to elect a
new business manager. The plaintiff could run for that office, but does not
want to do so. He believes there is too much travel out of town for a man with
a young family and says “it’s not for me.” If the new business manager who is
eventually elected doesn’t want to keep the plaintiff as his assistant business
agent, then the plaintiff will be terminated. The plaintiff considers his
future employment to be quite uncertain.

[45]        
After his return from Norway, the plaintiff saw Dr. Lisinski on
March 15, 2010, and March 22, 2010. An x-ray was taken which showed no
structural problems. Dr. Lisinski advised him to do exercises and to keep
active, and the plaintiff followed that advice. He did not visit Dr. Lisinski
again until February 2011 (but not for the motor vehicle accident). After that,
he did not see Dr. Lisinski until June 6, 2011, and September 2011, in
respect of the motor vehicle accident of January 22, 2009. He explained these
gaps in visits to his doctor on the basis that he was being told just to do
exercises. He says that he has been doing daily stretching exercises, and does
not go to the doctor unless he needs to.

[46]        
As to his present activities, the plaintiff plays soccer once a week;
runs occasionally (on a track, not on pavement); and goes to the gym and works
out when he has time. But because of his long work hours and spending time with
his family (which includes boating and hiking), he does not have much time for
a regimented exercise program.

[47]        
The plaintiff says he has reduced his former recreational activities and
stopped doing ATV driving altogether. I understood him to say that he has had
to reduce the amount of strenuous yard work he used to do. The plaintiff cannot
perform his previous activities at the same level of intensity, due to his
injury. He says he cannot rough house with his children, the way he used to do
and cannot hold his youngest child in his arms, for very long. He says he has
had a “bitchy” attitude toward his wife when his neck is sore.

[48]        
The plaintiff was involved in a motor vehicle accident in February 2010,
when another vehicle rear ended the vehicle which he was driving. He was not
injured in this accident, which caused about $1,700 damage to his vehicle.

[49]        
In November 2011, the plaintiff injured his knee, but it has been
getting much better. That injury also interfered with his recreational
activities for an unstated period of time.

[50]        
The plaintiff still cannot do the heavy aspects of yard work, such as
pruning, digging and snow shoveling. He also finds it very difficult to paint,
overhead.

[51]        
The plaintiff says he believes he cannot return to working as a
sprinkler fitter because he cannot do all of the work tasks associated with
that job. He says he cannot do the heavy work that would be required to start
up his own sprinkler fitter business which has been a dream of his for several
years. In order to get such a contracting business going, it would be necessary
for him to do the work of a sprinkler fitter for several years because of the extremely
competitive nature of the business.

[52]        
The plaintiff says that he could retrain to be a building inspector, to
inspect plumbing and sprinkling installations, and would have an interest in
that kind of work. He believes it would take two courses of six months each at
BCIT, in order to get the necessary certification. He would then have to find a
job with a municipality, and would then likely earn $55,000 to $65,000 per
year.

[53]        
The plaintiff says there is a bright, working future for journeymen
sprinkler fitters in that new construction projects and the upcoming
shipbuilding work for the Federal Government will likely cause a shortage of
journeymen. This also appears to be the case for plumbers and pipefitters,
having regard to the $8 billion worth of shipbuilding projects that will be
carried out at shipyards in Vancouver and Victoria in the coming years.

[54]        
The plaintiff confirmed that, in 2010 he earned $75,295, and in 2011, he
earned $79,967.12.

[55]        
The plaintiff confirmed the items that comprise his claim for special
damages, which add up to $857.99. He says that he incurred these expenses as a
result of his injury.

[56]        
That is a summary of the plaintiff’s testimony on direct examination.

[57]        
The plaintiff was cross-examined on numerous aspects of his direct
evidence.

[58]        
The plaintiff confirmed that he saw Dr. Lisinski on June 23, 2009,
(more than a month before he left for Norway) and did not see him again until
March 15, 2010, (more than a month after returning from Norway).

[59]        
The plaintiff agreed with defence counsel’s suggestion that the
physiotherapy treatments for his low back had been terminated by about
mid-March 2009.

[60]        
Counsel for the defendant pointed out that physiotherapist Sally Steeves
had written in her report dated June 9, 2009, statements which included the
following: “Feels he is working 80% of normal duties.” And “Still restricted
with heavier lifting – now lifting 60 – 70 – 80 lb. – But heavier pipe can
weigh an estimated 120 – 130 lb.”

[61]        
In answer to counsel’s questioning, the plaintiff said that he had not
been lifting any pipes that weighed 80 pounds at work, but he allowed that he
might have told the physiotherapist that he had done so. He did not explain why
he may have made such a statement.

[62]        
The plaintiff admitted, in substance, that he had made significant
progress in his recovery before departing for Norway.

[63]        
Counsel referred the plaintiff to his statement to his physiotherapist
on April 29, 2009 (the day he was first discharged from physiotherapy)
which was to the effect that he was “working not quite full level” and his
statement to the physiotherapist on June 9, 2009, that he was “working full
time.” Counsel was suggesting that the plaintiff was pretty much doing the work
of a sprinkler fitter before he left for Norway. The plaintiff denied this, and
stated that he was not installing pipe.

[64]        
The plaintiff admitted that he had not missed any work while in Norway
during the period from August 3, 2009, to January 29, 2010, and that he had not
sought any medical treatment while he was there. The plaintiff stated that he
had no significant problems with the work in Norway, until the trench-digging
gave him a sore neck on or about August 28, 2009. He added that he was having
headaches three to four times a week. He confirmed that he did not receive any
response from Dr. Lisinski to either of his two emails.

[65]        
When asked about Dr. Lisinski’s clinical record of March 9, 2009,
the plaintiff confirmed that the doctor gave him a needle in the injured area
which was called a “trigger-point injection,” in the notes.

[66]        
The plaintiff stated that he was in contact with Mr. Miller of
Alliance, and with Archie Johnstone Plumbing and Heating, while he was in
Norway. The plaintiff repeated that he decided to take the union job because he
felt he could not do the physical work required of a sprinkler fitter.

[67]        
On being questioned about his union job, the plaintiff stated that Mr. Dhillon,
two secretaries and himself were the only full-time employees of Local 324. He
said that he has significant duties relating to the finances of the union,
among his several other duties.

[68]        
Under questioning about future prospects for journeymen in Local 324,
the plaintiff said that a training program would begin on March 1, 2012, which
was designed to prepare union members for the extensive shipyard work that will
be done in Victoria. He said the future also looks good for work on other
upcoming projects in British Columbia, Alberta and Saskatchewan. He said the
demand for pipefitters will increase, in the next few years.

Anita Noon

[69]        
Anita Noon, the plaintiff’s wife, is now 33. She was born in Norway and
is now a permanent resident of Canada. She has lived here since June 2001,
(after meeting the plaintiff on a trip in August 2000).

[70]        
She described the joint recreational activities that the plaintiff engaged
in with her and the children, as well as the plaintiff’s activities on his own,
before the motor vehicle accident of January 22, 2009. She further described
the adverse effect that the plaintiff’s injury had, on his previous activities.
She said that they bought a new house in 2006, and that the plaintiff was
having much difficulty with doing the work required for landscaping, gardening
and other yard work chores.

[71]        
Ms. Noon testified that her husband liked his work as a sprinkler
fitter and had no problems with the physical aspect of the work. She spoke of
his desire to start up his own business.

[72]        
She described four trips that she and the plaintiff had made to Norway,
before the trip in the summer of 2009.

[73]        
Ms. Noon gave a description of the plaintiff’s post-accident
condition that was consistent with the plaintiff’s evidence on that subject.
She said that the plaintiff did not do any recreational activities or yard work
during the time that he was off work until March 2009. She said he got better gradually
but did not resume all of his former activities.

[74]        
While in Norway, she worked full time at the bank. She said that the
plaintiff would be stiff after work, and would take Ibuprofen and Tylenol to
combat any significant pain he was feeling.

[75]        
Ms. Noon stated that, since he has been working at his new union
job, her husband has been doing better. She says he still complains of pain in
his neck and upper back, from time to time, from too much sitting at his desk
or driving. She still massages his neck from time to time, and he takes pain
killers (Ibuprofen and Tylenol) “once in a while.” She says he still has some
restrictions in his recreational activities and yard work, and that he is
“quite moody” due to his inability to do some of the things that he used to do.

[76]        
On cross-examination, Ms. Noon was first questioned about the
frequency and duration of her gym workouts with the plaintiff, during the first
years of their marriage. She described them as being extensive for the first
two or three years, and then gradually decreasing to twice a week, after their
second child was born. Not long after that, she began attending Vancouver
Island University, and so her time was limited.

[77]        
On being asked the reason for the plaintiff’s trip to the emergency ward
on January 25, 2009, Ms. Noon said he was experiencing severe neck pain.
On being shown the hospital records, she accepted that the main reason for this
visit was the plaintiff’s low back pain.

[78]        
She confirmed that her husband did not do any regular exercise program while
they were in Norway, but only did stretching exercises at home. She said that
she and the plaintiff engaged in outdoor activities with the children, in
Norway.

[79]        
Ms. Noon said that she started working on a part-time basis after
returning from the Norway trip, in July 2010. She is presently on maternity
leave following the birth of their third child, until mid-April 2012.

[80]        
Counsel questioned Ms. Noon about the reasons why the plaintiff
decided to accept the union job offered by Mr. Dhillon. In substance, she
answered that she wanted the plaintiff to accept the union job, that the only
reason that she wanted him to do so (and the only reason that he did decide to
take it) was because the union job required far less physical work than the
other job options. She also stated that, if the plaintiff took the job with
Archie Johnstone, he would have to take some upgrading or training in order to
prepare him for the plumbing work involved in that job.

[81]        
Ms. Noon said that, in his union job, the plaintiff was away from
home approximately 12 hours each working day, and therefore had no time for
much recreational activity except on the weekends. She said that they planned
to go boating with the children and planned to take them skiing.

Carol Noon

[82]        
Carol Noon is the plaintiff’s mother. She and her husband of 38 years
live in or near Ladysmith. She confirmed that the plaintiff was born and raised
in Ladysmith.

[83]        
Mrs. Noon testified that her husband’s cousin was the owner of
Van-Isle, which implied that this facilitated the plaintiff’s getting an
apprenticeship with that company.

[84]        
She said that the plaintiff had often talked about wanting to start up
his own business.

[85]        
Mrs. Noon testified that, after the motor vehicle accident of
January 22, 2009, she could see that her son was in pain, and she believes
(from what she observed at Sunday dinners and from what the plaintiff has told
her) that the plaintiff’s capacity for physical activity and heavy work is
still considerable below what it was before the accident. She said that the plaintiff
still talks about wanting to start up his own business, but he has stated that
he cannot do the heavy work that it would require.

[86]        
In cross-examination, Mrs. Noon said that she did not know what
things a sprinkler-fitter has to do, to perform his job.

Mark Stuart

[87]        
Mark Stuart is the plaintiff’s cousin, and is one year older than the
plaintiff. He has been a longshoreman for about 3 ½ years, is married with one
child, and lives in Ladysmith. He said he and the plaintiff grew up together,
and did things together. He said he doesn’t see the plaintiff very much,
anymore.

[88]        
Mr. Stuart described a few activities that he and the plaintiff had
done together since the motor vehicle accident of January 22, 2009. He said
that he himself has had health problems caused by two hernias, which have
prevented him from doing strenuous activities.

[89]        
Mr. Stuart said that he and the plaintiff had often talked about
each of them starting up their own business.

[90]        
In cross-examination, Mr. Stuart said that his hernia problems
began in August 2011.

Patrick Brown

[91]        
Patrick Brown, aged 53, has been a journeyman sprinkler-fitter since
1990. He worked for Van-Isle and the plaintiff was his apprentice. He has
worked for other employers, and started work with Alliance in 2007. The
plaintiff was his foreman, until he (the plaintiff) went to Norway. Mr. Brown
is now foreman for Alliance.

[92]        
Mr. Brown stated that the plaintiff was a very good worker, was
good at this job, and had no trouble doing the physical work required of a
sprinkler-fitter. He said the plaintiff was a good foreman.

[93]        
Mr. Brown described the work that must be done by a
sprinkler-fitter, and said that the job required very hard work, including
lifting heavy pipe, climbing up ladders and working overhead with a heavy drill
to drill pipe hanger holes, and working overhead with heavy pipe wrenches.

[94]        
Mr. Brown said that he had injured his neck in a fall from a ladder
in 1994, and was off work for a year. He said he made a long gradual return to
full duties, and that he had a hard time getting back to the point where he
could do the overhead work.

[95]        
Mr. Brown testified that a steel pipe that was three inches in
diameter and 21 feet long weighed about 150 lbs. (which differed from the
plaintiff’s evidence that a pipe four inches in diameter and 21 feet long
weighed about 80 lbs.).

[96]        
Mr. Brown stated that he had supervised 20 apprentices in his time,
and that the plaintiff was the best apprentice he ever had.

[97]        
Mr. Brown stated that the years 2009 and 2010 were a “slow time”
for work with Alliance, and so he volunteered to take lay-offs so that the
younger men with families could keep working.

[98]        
Mr. Brown testified that, after his injury in the motor vehicle
accident of January 22, 2009, the plaintiff was not able to do the heavy
lifting, or the heavy overhead work required of a sprinkler-fitter. He said
that the plaintiff never got back to full duties, before he went to Norway.

[99]        
Mr. Brown said that Alliance now has six employees, and that he
himself only takes 60% to 70% of the work that is available.

[100]     In
cross-examination, Mr. Brown said that he became foreman only long after
the plaintiff went to Norway. He said that Mr. Miller assumed the
foreman’s role for a period of time and that business dropped off later in
2009. He said that in March 2010, Alliance had only three employees, and he had
not yet become foreman. Mr. Brown said that the summer of 2011 was “very
slow”, and everyone was off work for a few months. He said that the work picked
up in the fall of 2011, and they are back to six employees (four journeymen and
two apprentices). He is now working full-time. He had worked at the shipyards
in Victoria, during the times when he was off work with Alliance.

[101]     Mr. Brown
said that between the time of the accident and the time he left for Norway, the
plaintiff never helped him with any heavy work.

William Miller

[102]     William
Miller is the owner of Alliance. He and Jack Maxwell started the business in
2005, as partners. Mr Miller is now 70 years of age.

[103]     Mr. Miller
testified that he met the plaintiff when he hired the plaintiff as a foreman
sprinkler fitter (on Jack Maxwell’s recommendation). He said that the plaintiff
turned out to be a competent, good worker and a valuable employee as a working
foreman. He said the plaintiff had no problem doing the physical work, which he
described as being very heavy work. He said that a working foreman would do
less of the physical work as the number of work projects in progress,
increased.

[104]     Mr. Miller
said that he and his wife drove to the scene of the accident on January 22, 2009.
He described the damage to the pickup truck and the cost of repairs.

[105]     Mr. Miller
said that his wife was the bookkeeper for the Company, and that she prepared
the wage-loss letter for the plaintiff (Exhibit 1, Tab 21). He believed that
the letter was correct, but had no knowledge of the details of the plaintiff’s
absences from work.

[106]     Mr. Miller
said that there was “pretty well” full-time work available for the plaintiff
from March 9, to June 7, 2009. He said that if there were layoffs, the
plaintiff would be the last worker to be laid off. He said that, by the time
the plaintiff returned from Norway, “the industry was in tough shape.” He added
that there have been slow times, for the past couple of years.

[107]     Mr. Miller
testified that the plaintiff never returned to full duty at work, before he
left for Norway. He said he told the plaintiff that he would like to have him
come back to work for Alliance, when he returned from Norway. Mr. Miller
had hopes that the plaintiff might eventually take over the management of
Alliance, from him. He said that the plaintiff decided to take the union job,
but he never told Mr. Miller why he had chosen that job.

[108]     Mr. Miller
said that the plaintiff never talked about his injuries very much. The
plaintiff had told him (Mr. Miller), in substance, that he hadn’t really
been tested to see if he could do the heavy work of a sprinkler fitter.

[109]     In
cross-examination, Mr. Miller confirmed that he had hopes that the
plaintiff would join him as a partner, and manage the business of Alliance, so
that he himself could “slow down.” He said that the competition was tough in
the business, and that there was not enough work in this geographical area. He
said that he had not been paying himself a regular salary (but did not say how
long that state of affairs had continued).

[110]     Mr. Miller
said that there was a slowdown in Alliance’s work in 2009, and that the Company
lost $120,000 that year. He said that in 2010, there were some periods of time
when there was no work at all and that the Company made only $7,000 in 2010. He
said that the Company “made a little money” in 2011, and implied that it was
because Jack Maxwell was no longer his partner.

Dale Dhillon

[111]     Dale
Dhillon is the Business Manager for Local 324. His jurisdiction includes all union
plumbers, pipefitters and sprinkler fitters who work on Vancouver Island,
except for those who work on “industrial” work projects that are north of
Ladysmith (which projects fall within the jurisdiction of Local 170). Mr. Dhillon
has been Business Manager since 1998. He is now 59 years of age. He says he
expects to retire by the time he is 61.

[112]     Mr. Dhillon
was uncertain, but thought he had discussed the union job with the plaintiff by
telephone, while the plaintiff was in Norway. He said that the plaintiff did not
accept the job, until after they discussed it at a meeting a week or ten days
after he returned from Norway.

[113]     Mr. Dhillon
described the subsidy paid by the head office of the International Union, to
cover part of the wages paid to the plaintiff as the new assistant business
agent. The subsidy begins at $4,000 per month (for two years) and then declines
to $3,000 per month, $2,000 per month and $1,000 per month, in succeeding
years. Mr. Dhillon said that the plaintiff’s job term will end, when his (Mr. Dhillon’s)
term as business manager ends. The union pays the plaintiff the same wage as a
foreman would receive, together with all the same fringe benefits.

[114]     Mr. Dhillon
said that the plaintiff could be laid off on one hours’ notice, like all union workers.
But he said that the union is in good financial condition, and that the
plaintiff was doing a very good job, with many duties, and that he has a good
reputation with the union, with contractors and with working union members.

[115]     Mr. Dhillon
testified that, when he retires, there will be an election. He said that the
new business manager will be free to choose whether he wants to keep the
plaintiff as assistant business agent, or whether he wants to dismiss the
plaintiff and hire a person of his own choosing, or whether he will just cancel
the position of assistant business agent.

[116]     Mr. Dhillon
said that the plaintiff could run for election as business manager, but would
have to resign his present job to do so. He said he has asked the plaintiff to
think about running for election.

[117]     Mr. Dhillon
said that being a business manager for the union is a demanding job, which
often requires 60 hours work per week, including lots of evening meetings. He
said that considerable travel out of town was required, often to distant points
in North America.

[118]     Mr. Dhillon
said that the future looks good for the union, because lots of union work would
be coming up in the shipyards at Victoria and on other large construction
projects either in progress or expected, in British Columbia, Alberta and
Saskatchewan.

[119]     In
cross-examination, Mr. Dhillon retracted his statement that the plaintiff
could be laid off on one hour’s notice, and said that he would have to be given
“a few weeks’ notice.”

[120]     Mr. Dhillon
confirmed that he had offered the plaintiff a recruiting type job with the union
, in 2007, and that the plaintiff did about ten hours’ work per month as
necessary. He said that the plaintiff was paid wages for this work by his
employer, and then his employer was reimbursed by the union, to cover the hours
of his union work.

[121]     Mr. Dhillon
said that he had met with the plaintiff before he went on the Norway trip, to
ask the plaintiff if he would be interested in taking a job with the union. Mr. Dhillon
said that the plaintiff told him he would think about it. Mr. Dhillon did
not hire another union member to do the recruiting work that the plaintiff had
been doing, before he went to Norway. Mr. Dhillon denied that he initiated
any contact with the plaintiff, while the plaintiff was in Norway (which
implies that he did not make any job offer to the plaintiff while he was in
Norway).

[122]     Mr. Dhillon
seemed to agree that an application could be made to the union head office to
continue (or renew) the subsidy for the plaintiff’s job position, but said that
such procedure would take six months or so. He was unable to say whether such
an application would be successful.

[123]     Mr. Dhillon
confirmed that the work for union members looks good for the future. He said
that Local 170 has jurisdiction over the British Columbia mainland (and a
limited jurisdiction on Vancouver Island), but said that Local 324 members can
get clearance from Local 170 to obtain work on projects on the mainland.

Dr. Julian Lisinski

[124]     Dr. Lisinski
is a doctor of medicine who has been engaged in the general practice of
medicine for 26 years in Ladysmith. He has been the plaintiff’s physician since
1986. He was not called as an expert witness.

[125]     Dr. Lisinski
confirmed his attendances on the plaintiff after the motor vehicle accident of
January 22, 2009 up to June 23, 2009, and then after the plaintiff returned
from Norway. He identified his clinical records and said that they accurately
set out the complaints made by the plaintiff, his findings and the treatment
and tests that he recommended.

[126]     Dr. Lisinski
testified that he gave the plaintiff his email address before the plaintiff
left for Norway, and that he received two emails from the plaintiff while he
was in Norway. Dr. Lisinski believed that he replied to the plaintiff’s
emails promptly. But he said that, due to a change in the computer system, he
has not been able to find the replies that he believes he sent to the
plaintiff.

[127]     When asked
about his clinical note relating to the plaintiff’s visit on June 06, 2011, Dr. Lisinski
stated that he detected muscle spasm in the scapular area of the plaintiff’s
right shoulder.

[128]     Dr. Lisinski
was cross-examined at some length. He said that the plaintiff complained about
dizziness for several months after the accident of January 22, 2009, and he was
uncertain about how long the plaintiff had complained about having numbness in
his figures. Counsel then reviewed a number of the clinical notes made by Dr. Lisinski,
between January 27, 2009 and November 29, 2011.

[129]     Dr. Lisinski
said that the visits on February 13, 2009, February 25, 2011 and November 29,
2011 were not related to the accident of January 22, 2009. He said the
plaintiff had not told him about the motor vehicle accident in which he had
been involved, on February 29, 2010.

[130]     In
referring to numerous of the clinical notes, counsel for the defendant sought
to establish that the plaintiff had not made any complaints of numbness in his
fingers after January 27, 2009, and had not made any complaints of dizziness
after that date either. Dr. Lisinski seemed to agree that his clinical
notes did not contain any complaint about either of these symptoms, after his
note of January 27, 2009.

[131]     Dr. Lisinski
confirmed that, on his visit of April 2009, the plaintiff had told him, in
substance: “lower back good”; “upper back – improving”; and “now discomfort in
right (?) shoulder.”

[132]     Dr. Lisinski
agreed that he had not prescribed physiotherapy or massage therapy for the
plaintiff since he returned from Norway, but pointed out that the plaintiff’s
wife still gives him massages.

Dr. Mark Adrian

[133]     Dr. Mark
Adrian is a physiatrist (a medical specialist in physical medicine and
rehabilitation). He is well qualified and experienced in the assessment and treatment
of soft tissue injuries to the neck, upper back and lower back.

[134]     Dr. Adrian
examined the plaintiff at his office in Vancouver, on January 24, 2011, and
wrote a report bearing the same date. He had reviewed the hospital records, Dr. Lisinski’s
clinical records, the physiotherapist’s clinical records and other documents
relating to the plaintiff’s medical history.

[135]     The
complaints made by the plaintiff to Dr. Adrian may be summarized as
follows:

a)    He was
experiencing pain in his neck and the upper part of his mid-back between the
shoulder blades. This pain occurred every day, but would vary in intensity. The
pain was triggered by almost any vigorous activity or by sitting too long in
one place. It disturbed his sleep.

b)    He was having
headaches once or twice per week, at the back of his neck and the back of his
head. The headaches were triggered by neck pain and by lifting.

c)     He was
experiencing dizzy sensations, on an intermittent basis. He felt lightheaded
when he was feeling increased neck pain.

[136]     The
findings made by Dr. Adrian on his examination of the plaintiff included
the following:

a)    Dr. Adrian
identified tenderness on palpation “over the mid-cervical spinal segments” and
“involving the upper thoracic spinal segments.”

b)    Dr. Adrian
noted restricted range of motion in the plaintiff’s neck in that the plaintiff
could only extend his neck 75% of its range, and could only rotate his head to
the left to 75% of its range.

c)     Dr. Adrian
found neck flexion and rotation to the right were not restricted in range of
motion, and there was full range of motion in the plaintiff’s thoracic spine
and shoulders. The plaintiff complained of some pain on reaching the full range
of motion with his neck and thoracic spine.

[137]     The
plaintiff told Dr. Adrian that his low-back injury had resolved at a point
in time about six to eight months before his visit to Dr. Adrian.

[138]     The
diagnosis given by Dr. Adrian was (my paraphrasing):

a)    The accident
caused injury to the musculoskeletal structures of the plaintiff’s neck and mid
back.

b)    The damage to the
musculoskeletal structures of the plaintiff’s spinal column has caused, and
continues to cause him pain.

c)     The
plaintiff sustained a minor injury to his low back as a result of the motor
vehicle accident of January 22, 2009, which had resolved.

d)    The plaintiff is
experiencing headaches and these are related to his neck injury.

e)    The plaintiff’s
pain in his neck and mid back (thoracic area) is mechanical in nature, and it
has persisted so long that it has become chronic.

f)      The
plaintiff’s pain symptoms have improved to some degree.

g)    Dr. Adrian
offered no opinion about the plaintiff’s complaints of periodic dizziness and
light headedness, saying it was beyond his expertise.

[139]     Dr. Adrian
expressed the opinion that his findings provide support for the plaintiff’s complaints
of pain in his neck and mid back.

[140]     As to
treatment, Dr. Adrian said that no further treatment and no further
investigations should be undertaken. He did recommend that the plaintiff should
do exercises but said that it is unlikely that exercising would cure his
symptoms. Dr. Adrian added that the plaintiff “may benefit from . . . a
personal trainer.”

[141]    
As to the prognosis, Dr. Adrian stated:

The prognosis for further recovery
. . . is poor.

[142]     The
reasons underlying this opinion appear to be the following:

a)    Most persons who
suffer an injury similar to the plaintiff’s injury will improve over time, but
not all persons fully recover.

b)    Persons who
continue to experience pain symptoms for more than two years “are unlikely to
experience significant improvement” in the future.

c)     The
plaintiff has been experiencing pain symptoms for about two years.

[143]     With
respect to the plaintiff’s lower back, Dr. Adrian said that “it is
probably vulnerable to re-injury at this time,” for the reason that it had only
recently resolved.

[144]     Dr. Adrian
also expressed the opinion that the plaintiff will probably continue to
experience difficulty in performing the activities that he presently has
difficulty with.

[145]     Dr. Adrian
was cross-examined about his opinions and the reasons underlying his opinions.

[146]     Dr. Adrian
confirmed what he stated in his report, and said that he understood the
plaintiff to say that his low-back pain had only resolved about six to eight
months before the examination date of January 24, 2011.

[147]     Dr. Adrian
said that the plaintiff told him, in effect, that he could do the work of a
pipefitter except for the heavy lifting. He said he did not explore what the
plaintiff meant by heavy lifting.

[148]     Dr. Adrian
stated that he “relies on” what the plaintiff told him about his symptoms of
pain and about the impairment of his physical capacities. He said further that
he assumed the plaintiff’s pain symptoms had improved to some extent, since the
accident. He said he also assumed that the plaintiff had not sustained any
injury since the motor vehicle accident, which could cause his present
symptoms. He agreed that the treatment taken for an injury of this kind can be
quite important.

[149]     Counsel
referred Dr. Adrian to the following two statements that appear in his
report:

a)    “Mr. Noon
does not recall experiencing pre-accident regularly occurring or physically
limiting pain involving his head, neck, upper back or lower back regions.”
(page 2)

b)    “He does not
recall injuries to his head, neck, or mid back since the motor vehicle accident
that permanently worsened his condition.” (page 3)

[150]     Counsel
asked Dr. Adrian what he meant by saying that the plaintiff “does not
recall” any such post-accident conditions. He answered that he meant to convey
that, to the best of the plaintiff’s recollection, the plaintiff does not
recall any subsequent injury which permanently worsened his condition.

[151]     Dr. Adrian
testified that his finding of restricted range of motion in the neck (i.e.
restricted due to pain) is partly a subjective finding.

[152]     Dr. Adrian
said he assumed that the plaintiff had been doing “general exercise” in the 10
months before he examined the plaintiff.

[153]     In
re-examination, Dr. Adrian said that findings of tenderness on palpation
of the plaintiff’s neck and mid back are partly objective and partly
subjective.

Andrew Hosking

[154]     Andrew
Hosking is a qualified physiotherapist of extensive experience, since 1986. He
has taken post-graduate studies in the specialties of sports medicine, manual
therapy and functional capacity evaluation. He was qualified to give expert
opinion evidence in the field of functional capacity evaluation.

[155]     Mr. Hosking
conducted an assessment of the plaintiff on September 15, 2011, and prepared a
report dated September 19, 2011.

[156]     Mr. Hosking
reviewed counsel’s instruction letter, hospital records, the clinical records
and reports of Dr. Lisinski and physiotherapist Sally Steeves, and the
report of Dr. Adrian. He stated (at page 7) that the information in these
documents, and “The examinee’s reported medical history,” were “facts and
assumptions” on which his report is based, together with his own “Functional
and physical examination of the Examinee.”

[157]     Based on the
described facts and assumptions, and on the plaintiff’s performance in the
battery of tests conducted by Mr. Hosking, he expressed the following
opinions (my paraphrasing):

a)    The plaintiff is
not capable of doing all of the work tasks required of a pipefitter because he
has a limited capacity for lifting above shoulder level, carrying, stooping,
working with hands over head and working with prolonged looking down.

b)    The plaintiff
has “poor endurance capacity” for repeated performance of those activities.

c)     The
plaintiff is not competitively employable as a pipefitter.

[158]     Mr. Hosking
testified that the plaintiff gave good effort, in performing the tests. He said
that the plaintiff’s performance in the tests supported Dr. Adrian’s
findings and opinions and supported the plaintiff’s reports (to Mr. Hosking)
of problems and incapacity related to work and household chores.

[159]    
Mr. Hosking made the following statement at page 4, paragraph 7 of
his report:

Mr. Noon’s self-reports of
function and pain are consistent with objective observations of function and
are therefore considered reliable.

[160]     Mr. Hosking
recommended that the plaintiff should return to take a series of physiotherapy
treatments and instruction sessions with a view to planning a proper exercise
program for him to undertake. He said that the plaintiff would benefit from the
services of kinesiologist, when he had the time to exercise. He seems to say
that the plaintiff’s muscles in his neck, upper back and shoulder girdles are
weak (see paragraph 8 of page 4 of his report).

[161]     Mr. Hosking
was cross-examined extensively.

[162]     Defence
counsel first established that Mr. Hosking did not have detailed knowledge
about the specific job duties of a sprinkler fitter, except for what the
plaintiff had told him (and from counsel’s description of the plaintiff’s job
at paragraph 5 of his letter of instruction dated September 2, 2011).

[163]     Counsel for
the defendant suggested to Mr. Hosking that, if the plaintiff was out of
condition for doing heavy work when he was tested, then that could affect the
test results. Mr. Hosking agreed with that suggestion.

[164]     Defence
counsel referred to the physiotherapist’s report of June 9, 2009, which
indicated that the plaintiff was lifting up to 80 lbs at work by that time, and
implied that Mr. Hosking had not pushed the plaintiff to anywhere near his
limit by testing him with only 35 lbs. Mr. Hosking seemed to acknowledge the
truth of what was said in the physiotherapist’s report, but did not concede
that he had failed to sufficiently press the plaintiff in the lifting tests. Mr. Hosking
described how the several lifting tests were performed, including the shape of
the objects that were lifted, the motion range of the lifting and the
repetitions involved. (The manner in which the plaintiff had apparently lifted
80 lbs at work was not known, and so no meaningful comparison could be made.)

[165]     Mr. Hosking
confirmed his statement (at paragraph 18, page 9 of his report) that the
plaintiff told him “that currently his work provides a significant time
restriction for attending the gym.”

[166]    
Counsel referred Mr. Hosking to paragraph 23 (page 9) of his report
where he states the plaintiff told him: “He recommenced full-time work at 13.5
weeks.” Counsel asked Mr. Hosking what he understood the plaintiff to be
telling him. Mr. Hosking said he thought the plaintiff was telling him
that he returned to full duties at work (although he had written “full-time
work”).

[167]    
Mr. Hosking testified in substance that the plaintiff reported a
fairly low level of pain during his performance of the tests.

Dr. Daniel R. Gouws

[168]     Dr. Gouws
is an expert in “the medical assessment, rehabilitation and diagnostic
clarification of individuals in terms of fitness for work.” His expertise
includes assessing a person’s physical and mental abilities to perform work. He
has been a doctor of medicine since 1985.

[169]     Dr. Gouws
assessed the plaintiff on September 14, 2011, and prepared a report dated
October 19, 2011, (Exhibit 1, Tab 34). He was not called as a witness.

[170]     In forming
his opinions, Dr. Gouws assumed that the medical records and other
documents and information supplied to him about the plaintiff were correct, and
assumed that the plaintiff had no pre-existing conditions of pain or disability
before the accident of January 22, 2009.

[171]    
At page 5 of his report, Dr. Gouws states, in part, that his
report:

. . . . is based on the
occupational health history of the examinee, the results of the functional
capacity testing, the information gathered verbally and in writing from the
examinee, the physical examination carried out by the author and a review of
the documents provided.

[172]     Dr. Gouws
reports that the plaintiff told him that the numbness in his hands had resolved
by the end of 2009 (paragraph 31). The plaintiff told Dr. Gouws that his
headaches “almost resolved as soon as he started his union job” (paragraph 32).

[173]     On his
physical examination of the plaintiff, Dr. Gouws found tenderness on
palpation over the lower cervical vertebra and over the bases of the scalene
muscles (page 35). He measured the range of motion of the plaintiff’s neck, but
he calibrated the motion in terms of degrees, rather than the percentage of
normal range of motion, and did not expressly state that there was restriction
in the range of motion. He did say the plaintiff complained of increased pain
at the end of the range of motion. (see report, page 35)

[174]     Dr. Gouws
has given the following opinions:

a)    The plaintiff’s
ongoing complaints of pain in his upper back and neck and his complaints of
associated functional limitations “are a consequence of the motor vehicle
accident that occurred on January 22, 2009.”

b)    The plaintiff “has
pain-limited tolerance for sustained, above shoulder reaching and handling
activities,” is capable of doing work requiring medium strength, could do some
lifting in the heavy strength range, but should avoid occupations requiring the
exertion of heavy strength (paragraph 61).

c)     The
plaintiff is impaired in his ability to do “heavier lifting and carrying
activities, above shoulder height lifting and handling activities as well as
sustained body position activities” (paragraph 62).

d)    “Mr. Noon’s
physical capacity is at a medium level with a reduced tolerance for sustained
static body positioning activities and overhead work” (paragraph 64).

e)    Mr. Noon’s
ongoing pain and reduced physical capacity affects his ability to perform heavy
physical work and specifically sustained overhead work. . . .” (paragraph 74).

f)      “. .
. it is unlikely that Mr. Noon will be able to sustain this type of work
(as a journeyman sprinkler system installer) in the longer term. He would be
better suited to pursue lighter work, with less physical demands, specifically
for overhead work in the long term, to ensure that his work is sustainable. . .
.” (paragraph 75).

[175]     In
expressing the opinions contained in paragraphs 74 and 75 of his report, Dr. Gouws
relied on the assumptions that a sprinkler fitter must perform sustained
above-shoulder reaching and handling activities as a very integral part of his
work (paragraph 65) and that the plaintiff would not be able to avoid doing the
work usually required of a sprinkler fitter even if he was employed as a
foreman (paragraph 66). (These assumptions seem to be well founded in the
evidence.)

[176]     As to
recommendations for treatment, Dr. Gouws opined that “the plaintiff has
reached a point of maximum medical improvement and that further medical
assessment, investigations and treatment are unlikely to improve his
situation.” (paragraph 77) Dr. Gouws went on to say that “Maximum physical
rehabilitation has not been reached,” and so the plaintiff “would benefit from
further active rehabilitation” of the kind suggested by Dr. Adrian and Mr. Hosking
(paragraph 78). He agreed with Dr. Adrian that exercise would be unlikely
to cure the plaintiff’s symptoms but would help him to manage those symptoms in
the future (paragraph 79). As to prognosis, Dr. Gouws says that the
plaintiff’s “prognosis for any significant improvement in his symptoms and
functions is guarded.” He agrees with Dr. Adrian’s opinion that: “the
prognosis for further recovery of the injuries suffered in the accident is
poor.” (paragraph 67)

[177]     It is
apparent that, in giving his prognosis, Dr. Gouws has assumed that the
plaintiff’s “symptoms have plateaued over the last six months” (paragraph 67).

[178]     Dr. Gouws
expressed the further opinion that the plaintiff “now has less employment
options as a result of his ongoing physical impairment” (paragraph 73). He said
that the plaintiff could reasonably pursue a career as a building inspector
(paragraph 76).

Darren Benning

[179]     Darren
Benning is an economist who is employed by PETA Consultants Ltd. Based on
material provided by counsel for the plaintiff, Mr. Benning prepared a
report dated October 14, 2011. He was not called as a witness.

[180]     Mr. Benning
was asked by counsel to give an opinion as to the amount of the plaintiff’s
past loss of income. Counsel for the plaintiff did not rely on this opinion,
and I did not find it of assistance, having regard to the evidence presented.

[181]     The main
opinion expressed by Mr. Benning was as to the present value of the amount
of money that the plaintiff would have earned in the future if he had been
steadily employed as a sprinkler fitter foreman, in the period from
January 16, 2012, to March 14, 2042, (the plaintiff’s 65^th
birthday). Using figures supplied by counsel, Mr. Benning calculated that
a sprinkler fitter foreman was presently earning about $97,000 per year,
working at the union rate of pay for 37 hours per week and with the added
fringe benefits of holiday pay and pension plan. The amount of wages was
$83,000 and the amount of fringe benefits was $14,000. The time period in
question is 30 years and 2 months. In keeping with the rules of his profession,
Mr. Benning made reductions for labour market contingencies and mortality
contingencies. It was his opinion that based on these assumed facts and
applying these contingencies, the lump-sum present value of the plaintiff’s
future earning capacity for the time period in question is $1,721,430.

[182]     Mr. Benning
gave an example designed to assist the court in determining the amount of any
potential loss in the plaintiff’s future earning capacity. The example
demonstrates that, if the plaintiff was only able to do work which would earn
him $80,000 per year (as opposed to $97,000 per year) then his future earnings
from employment would only be $1,420,480, which is $300,950 less than the
$1,721,430 he would have earned as a sprinkler fitter foreman.

[183]     Mr. Benning
supplied tables in his report designed to further assist with the calculations
of any projected potential loss of future earning capacity.

[184]     The
methodology employed by Mr. Benning, and the opinions he expressed, are
not contentious. Nor was it suggested that Mr. Benning’s calculations were
in any way defective, by reason of the apparent fact that the plaintiff will
not sustain any loss of earning capacity in the next two years, for which the
defendant might be held liable.

The issue of credibility

[185]     Defence
counsel challenges the credibility of the plaintiff on his assertions that he
continues to suffer significant pain on a daily basis, and that the pain
continues to impair his physical capacities to a significant degree.

[186]     The
defence also challenges the plaintiff’s claim that the reason he decided to
accept the union job (over two other job prospects) was because he was not
physically capable of doing all of the work required of a sprinkler fitter.

[187]     No
challenge was made to the credibility of Anita Noon, Carol Noon, Mark Stuart,
Patrick Brown, William Miller or Dale Dhillon. This does not mean that the
defence accepts the evidence of these witnesses, only that their honesty was
not called into question.

[188]     Counsel
for the defendant challenges the reliability of the opinions given by Dr. Adrian,
Andrew Hosking and Dr. Gouws, to the extent that their opinions rely on
the truth of the plaintiff’s complaints of significant ongoing pain and
disability.

The credibility of the plaintiff

[189]     There are
a number of matters that have the potential to adversely affect the credibility
of the plaintiff.

[190]     In her
report dated June 9, 2009, physiotherapist Sally Steeves stated that the
plaintiff told her he was “now lifting 60 – 70- 80 lbs” at work. The plaintiff
testified that he was not lifting 80 lbs at work. But he allowed that he might
have made the alleged statement to Sally Steeves. He gave no explanation for
why he might have made a false statement to the physiotherapist.

[191]     In his
email to Dr. Lisinski of September 2, 2009, the plaintiff stated that his
headaches were “occasional.” The plaintiff told Dr. Gouws on September 14,
2011, that his headaches had almost resolved by the time he started his new job
with the union (which was in February 2010). He told Dr. Adrian on January
24, 2011, that he was getting headaches once or twice a week. But he testified
at trial that he was still experiencing headaches two or three times per week.
It seems to me that the plaintiff’s pre-trial statements are inconsistent with
his trial testimony on the subject of the frequency of his headaches.

[192]     Mr. Miller
testified that the plaintiff told him, in effect, that he had not really been
tested yet, to see if he could do the work required of a sprinkler fitter. I
see no reason to reject Mr. Miller’s evidence on this point and I accept
it. It is uncertain whether the plaintiff made this statement before he went to
Norway or soon after returning, when he informed Mr. Miller that he had
decided to take the union job. I can accept that the plaintiff was worried that
he might not be able to regain his ability to do the heavy overhead work
required of a sprinkler fitter. But this admission by the plaintiff tends to weaken
the belief that he advanced at trial, namely, that he is not capable of doing
the work of a sprinkler fitter. The plaintiff’s professed belief conveys the
implication that his injury has permanently prevented him from ever being able
to return to that work, but he acknowledges in his statement to Mr. Miller
that he remains untried.

[193]     There was
a large time gap in which the plaintiff did not seek any medical treatment or
physiotherapy. He was discharged from physiotherapy for the second time on June
9, 2009. He saw Dr. Lisinski on June 23, 2009, a month before leaving for
Norway. He did not seek any medical treatment or physiotherapy while in Norway
for six months. He next visited Dr. Lisinski on March 15, 2010, about six
weeks after returning from Norway, and again a week later on March 22, 2010.
The plaintiff saw Dr. Lisinski twice in February 2011, but for reasons
unrelated to the motor vehicle accident. The plaintiff’s next visits to Dr. Lisinski
relating to the accident were on June 6, 2011, and September 7, 2011. The gap
between March 22, 2010, and June 6, 2011, is about 14.5 months.

[194]     A
plaintiff’s failure to seek medical attention for relatively long periods of
time cannot, by itself, justify the inference that the plaintiff was not
experiencing the symptoms which he or she describes at trial. This is
particularly so where exercise is the only “treatment” being advised by the
plaintiff’s doctor. However, the circumstances in a particular case may warrant
the inference that any pain symptoms that were experienced by the plaintiff
during these time gaps were not continuous or frequent or alternatively, if
they were, then such symptoms of pain were at a low level of intensity, perhaps
not much more than discomfort. If one or other of these inferences is drawn,
and if that inference is inconsistent with the plaintiff’s description of his
or her symptoms at trial, then such inconsistency may adversely affect the
plaintiff’s credibility.

[195]     In my
opinion, the evidence in this case does support the second of the two possible
inferences I have just described. I find that this inference is inconsistent to
some extent with the plaintiff’s trial description of the degree of pain that
he was experiencing on an ongoing basis and with the extent to which his pain
impaired his physical capacities, during the period from February 2010, until
trial (when he was not doing any strenuous work). In making this conclusion, I
have found some guidance in the reasoning found in the cases of Bancroft-Wilson
v. Murphy, 2009 BCCA 195 (at paragraphs 7 and 11) and Edmonson v. Payer,
2011 BCSC 118 (at paragraphs 36 and 37).

[196]     There were
other features of the plaintiff’s trial testimony which have caused me some
concern. The plaintiff testified that he had three job options available to
him, when he returned from Norway. He said he could not do the work of a
sprinkler fitter, and so he decided to take the union job. The plaintiff at no
time stated that he could not do the work of a plumber, which would be required
if he accepted the job with Archie Johnstone. He said only that some upgrade
training would be required if he had taken that job. As I understood the
evidence, the journeyman’s rate for sprinkler fitters and plumbers is the same.
Of course, the plaintiff would not start work with Archie Johnstone as a
foreman, and so would earn less than he would earn working for Alliance.

[197]     But the
plaintiff would also earn considerably more if he worked for the union, than if
he took the job with Archie Johnstone. Yet in the face of this obvious fact,
the plaintiff insisted that the essential reason he accepted the union job was
because no significant physical work would be required. The plaintiff’s
evidence tended to convey the implication that money had nothing to do with his
acceptance of the union job. While the plaintiff’s choice of the union job was
entirely reasonable, I find it difficult to accept his simplistic explanation
for doing so.

[198]     It also
seemed to me that the plaintiff was “side stepping” the issue of whether he
would be able to obtain and perform work as a plumber in the event that he
loses his union job in the future. He had done plumbing work in Norway for six
months, without missing a day of work and there was evidence to the effect that
the working future for union plumbers on Vancouver Island looks very good. On
the other hand, counsel for defendant did not press the plaintiff on this point
and did not suggest in argument that he was concealing his capacity to do the
work of a plumber. Moreover, the plaintiff’s failure to give a more
comprehensive account of this subject may have been due to his counsel’s
presentation of the case. In the result, I place no weight on this suspected side
stepping on the issue of the plaintiff’s credibility.

[199]     Defence
counsel established that the plaintiff made a statement to Dr. Adrian on
January 24, 2011, which was understood by Dr. Adrian to mean that the
plaintiff’s low back pain had only resolved at a point in time about six to
eight months before he examined the plaintiff (on January 24, 2011). In his
trial testimony, the plaintiff did not suggest that his low back pain extended
beyond six months after the accident, and he agreed that physiotherapy treatment
for his low back ended (for the second time) in June 2009. I am uncertain
whether Dr. Adrian correctly interpreted what the plaintiff told him about
his recovery from the low back injury. I do not find that the plaintiff made a
statement to Dr. Adrian that was inconsistent with his trial testimony in
this respect.

[200]     Dr. Adrian’s
report indicates that the plaintiff told him that he (the plaintiff) “could not
recall” having any significant pre-accident or post-accident injury or
condition. Defence counsel cross-examined Dr. Adrian on this point, and he
gave a somewhat elaborate interpretation of what he understood the plaintiff to
mean by that statement. I was at first troubled by the apparent uncertainty
that seems to be implied by the plaintiff’s statement respecting a matter that
a person would not likely forget. But I do not know what question or questions
were asked by Dr. Adrian and it is unclear to me whether it is his usual
practice to describe a plaintiff’s account of his medical history in these
terms. Accordingly, I do not find the plaintiff’s statements to Dr. Adrian
on this subject have any bearing on his credibility.

[201]     I find no
significance in the inconsistency between the plaintiff and Mr. Dhillon as
to when and where the plaintiff accepted Mr. Dhillon’s job offer.

[202]     As a
consequence of the credibility concerns which I have described, I am not
prepared to accept all of the evidence given by the plaintiff on the disputed
issues. I will be hesitant to accept the challenged parts of his evidence,
unless it is confirmed by other evidence, or is consistent with the
probabilities arising from the surrounding circumstances.

The reliability of the evidence of the lay witnesses

[203]     Except to
the extent that I expressly state otherwise, or I make a finding that is
inconsistent with some part of their testimony, I accept generally the evidence
given by Anita Noon, Carol Noon, Mark Stuart, Patrick Brown, William Miller and
Dale Dhillon.

The reliability of the expert “medical” opinion evidence

[204]     Except to
the extent that the “findings” made by Dr. Adrian, Andrew Hosking and Dr. Gouws
depend entirely on the truth of the plaintiff’s complaints, I accept their
evidence as to the findings they made. I am not yet in a position to decide the
extent to which I will accept the opinions they have expressed on the main
issues because, to a significant degree, those opinions are dependent on their
assumptions that the plaintiff’s complaints of ongoing, significant pain and disability,
are true. I must first decide how much of the plaintiff’s disputed evidence I
will accept.

What injuries were sustained by the plaintiff in the motor vehicle
accident?

[205]     I find
that the plaintiff sustained injury to the soft tissues of his neck and upper
back, as a result of the collision of January 22, 2009. The plaintiff also
sustained minor injuries to his forehead and to his low back. The head injury
resolved in about three weeks and the plaintiff had recovered from his low back
injury, within six months. The plaintiff continued to experience headaches
associated with his neck injury, but the headaches had diminished in about a
year to the point where they occurred only occasionally, and were not
disabling.

[206]     The
medical experts did not offer an opinion as to the severity of the whiplash
injury to the plaintiff. I find that the impact of the collision was violent
and that the forces exerted on the plaintiff’s body were capable of causing
significant injury. On all of the evidence, I find that the injury was at least
moderate in severity.

[207]     There is
some medical evidence which I accept and which, tends to confirm the
plaintiff’s assertion that he has been experiencing ongoing symptoms of pain.
The findings of tenderness on palpation and restricted range of motion in the
plaintiff’s neck are partly objective and partly subjective. But they do
provide some support for the plaintiff’s trial testimony on this issue. But, in
my view, the medical evidence does not confirm the plaintiff’s trial testimony
as to the degree of the pain that he has been experiencing, and only partly
confirms his evidence as to the extent to which his pain has impaired his
physical capacities. In a case of this kind, I doubt whether any medical expert
could express any conclusive opinion on these issues. To a considerable extent,
medical experts must accept and rely on the plaintiff’s complaints as being
true.

[208]     I accept
the plaintiff’s evidence that he is still experiencing pain from his injury.
But I do not automatically accept his evidence as to the frequency of the pain
episodes, their intensity, their duration or their disabling effects.

[209]     If
accepted, the evidence of the lay witnesses Anita Noon, Mark Stewart and Carol
Noon would confirm, to some extent, the plaintiff’s trial testimony concerning
the impairment of his physical capacities for athletic and recreational
activities. I accept the evidence of these witnesses, and I find that their
evidence does confirm the plaintiff’s evidence on this issue, to some extent.

[210]     The
evidence of Patrick Brown and William Miller, if accepted, would confirm the
plaintiff’s trial testimony to the effect that he was unable to do the overhead
work required by the job of sprinkler fitter. I accept their evidence and I
find that it does confirm the plaintiff’s evidence on that point.

[211]     As to the
plaintiff’s alleged incapacity to do heavy work, the opinions of Andrew Hosking
and Dr. Gouws, if accepted, can provide significant confirmation for the
plaintiff’s assertion that he cannot perform the heavy and sustained overhead
work required of a sprinkler fitter. Both of these experts conducted
comprehensive testing of the plaintiff’s physical capacities.

[212]    
Andrew Hosking stated this opinion (at paragraph 7 of his report):

7. Reliability of
Client Reports: Assessment findings and clinical observations generally
support Mr. Noon’s subjective reports of pain and his perceived ability. Mr. Noon’s
self-reports of function and pain are consistent with objective observations of
function and are therefore considered reliable.

[213]     Mr. Hosking
comes very close to saying: “I believe that the plaintiff’s complaints of
ongoing pain and disability, are true.” If this was a jury trial, a careful
instruction to the jury would be required as to the limited use that could be
made of Mr. Hosking’s opinion on this point. But “validity testing” by
functional capacity evaluators seems to be an accepted practice, and the
results of such testing can influence the weight which the trier of fact will
attach to the expert’s opinion as to functional incapacity. See Mr. Justice
Tysoe’s discussion of this issue in Knauf v. Chao 2009 BCCA 605 at
paragraphs 22 – 29.

[214]     I accept
the opinions of Mr. Hosking and Dr. Gouws that the plaintiff is
presently incapable of doing the heavy and sustained overhead work required of
a sprinkler fitter. I find that their opinions confirm the plaintiff’s trial
testimony to the effect that, up to the end of July 2009, he was unable to
“install pipe.”

[215]     The
concerns I have expressed about the plaintiff’s credibility are neutralized to
a considerable extent by the confirmatory evidence I have described, with
respect to some issues. However, that does not mean that I accept the evidence
given by the plaintiff on all of the material issues. I will state my findings
on the remaining issues, as I deal with each of them.

What have been the effects of the injury up to the time of trial?

[216]     I find
that, as a result of the pain caused by the injury, the plaintiff was disabled
from working until on or about March 9, 2009. Thereafter, until June 9, 2009,
he was restricted to part-time work and work which did not involve full duties.
The plaintiff recommenced working full time after June 9, 2009, and worked at
his job of sprinkler fitter foreman until on or about July 26, 2009, when he
quit his job and moved to Norway with his wife and family. At that time, the
plaintiff was still unable to do the heavy, sustained overhead work required of
a sprinkler fitter.

[217]     I find
that, from the date of the accident until in or about March 2009, the pain from
the injury prevented the plaintiff from engaging in the recreational and
athletic activities that he had done before the accident. Thereafter, the
plaintiff gradually resumed most of his former activities but was not able to
do them with his previous intensity. His ability to do the heavier yard work
was also impaired, and he still finds it difficult to do some aspects of it.

[218]     The
plaintiff continued to experience intermittent episodes of pain while living
and working in Norway. But these symptoms of pain did not significantly
interfere with his capacity to work as a plumber, or with the recreational
activities that he engaged in.

[219]     Since
returning from Norway at the end of January 2010, the plaintiff has not
attempted to do heavy, sustained work of any kind. Nor has he engaged in a
program of exercising that has been recommended by medical experts. His failure
to do this has been partly due to the limitations on his time outside work and
family responsibilities. Since November 2011, his activities were restricted by
a knee injury (sustained while playing soccer) for some uncertain period of
time.

[220]     Since
commencing work for the union in February 2010, the plaintiff has continued to
experience intermittent episodes of pain on a fairly frequent basis. His neck
bothers him if he sits too long in one position, such as at his office desk or
while driving long distances. But I do not accept that these pain episodes
occur on a daily basis and I am not satisfied that the degree of this pain
rises above the level of mild discomfort. The plaintiff does not suggest that
these symptoms interfere with his ability to do his work.

[221]     I am not
persuaded that the plaintiff’s ongoing intermittent pain symptoms continue to
impair his ability to engage in his former recreational activities to any
significant extent. The effect of these symptoms on the plaintiff’s ability to
engage in his former activities has diminished to the point where it is now
minimal.

Will the plaintiff continue to experience pain from the injury, with
associated physical incapacity, long into the future?

[222]     I accept
that the plaintiff is still experiencing intermittent episodes of pain from his
injury which are generally triggered by fairly vigourous physical activity, or
by lengthy static positioning. These episodes do not interfere with the
plaintiff’s ability to perform his present job, and only minimally impair his
capacity to engage in his former recreational and athletic activities. I find
that these episodes, with minimal associated impairment, will continue for an
indefinite time into the future.

[223]     Dr. Adrian
and Dr. Gouws have given opinions which come close to saying that the
effects from the plaintiff’s injury will be permanent. However, these doctors
do not actually say that the injury or its effects, will be permanent. The
prognosis is poor. But Dr. Gouws says that maximum physical rehabilitation
has not been reached, and that the plaintiff would benefit from further active
rehabilitation by way of a proper exercise program. Dr. Adrian’s opinion
is similar in this respect.

[224]     Insofar as
the experts have given the opinion that the plaintiff is (and will remain)
unsuited to doing any heavy physical work, I do not accept that opinion.
It must be remembered that the plaintiff did not make a lengthy effort to
resume the full duties of a sprinkler fitter, and so he has never been fully
tested “on the job.” Second, he performed the work of a plumber in Norway for
six months, which requires some heavy work. Third, the plaintiff was not in
condition for doing hard physical work (and had not even been doing any regular
exercise program) when he was examined and tested by the experts. Finally, the
plaintiff did not testify that he believed he would be forever incapable of
doing heavy work of all kinds. (Even if such belief could be implied from his
testimony, I would not accept it as having a substantial possibility of truth.)
In my opinion, these facts considerably diminish the weight that should be
given to the expert opinions.

[225]     I find
that there is a substantial possibility that the plaintiff will continue to
experience his present symptoms and their associated effects, indefinitely.
There is no suggestion that the plaintiff’s condition will deteriorate in the
future. The plaintiff is still a young man, and in my opinion, the evidence
establishes a substantial possibility that he will achieve significant
improvement over time. But there is also a substantial possibility that the
plaintiff will never again be able to do the heavy overhead work required of a
sprinkler fitter, on a regular basis.

What amount of damages should be awarded to the plaintiff for non-pecuniary
loss?

[226]     Counsel
for the plaintiff submits that damages for pain and suffering and loss of
enjoyment of life should be awarded in the range of $70,000 to $100,000. Counsel
for the defendant argues that a fit award would be $25,000 to $30,000. Both
counsel have referred me to previously decided cases which, they say, support
their respective positions.

[227]    
I do not consider it necessary to review the cases cited by counsel. I accept
that most (perhaps all) of the factors that a trial judge should consider in
assessing damages under this head of loss are set out in Stapley v. Hejslet 2006
BCCA 34 at paragraph 46. In addition, I repeat what I said in the case of Anderson
v. Cejka 2010 BCSC 772, at paragraph 84:

[84]      In my opinion,
previously-decided cases, even where there are some similarities with the case
at bar, can only assist in establishing a general range of damages which may
apply to a particular case. This is because no two plaintiffs will ever be the
same in age, previous state of strength and health, occupation and other
activities. Moreover, the injuries (or combination of injuries) sustained by
one plaintiff will never be the same as those incurred by another, in kind or
severity. Additionally, the reaction of any two persons to the pain of a
similar injury or to particular treatments will rarely if ever be the same.
Other differentiating features may be the apparent length of the recovery
period and, if the plaintiff has not recovered, the kind and extent of residual
effects remaining from the injury at the time of trial, and whether any of the
effects will be permanent.

[228]     The
plaintiff must be compensated for the amount of pain and suffering and loss of
enjoyment of life that he has incurred to date, as well as the amount that he
will experience in the future, as the result of the injury caused by the
defendant’s negligence. Having regard to the findings of fact that I have made,
it is my opinion that the plaintiff should be awarded $60,000 as damages for
non-pecuniary loss, and I so order.

What amount of damages should be awarded for past wage loss?

[229]     The
plaintiff claims $15,979.10 for past loss of income, but states that the court
must deduct 25% to arrive at a net award, in accordance with the governing
statute. The defence submits that the net award under this head should be
$8,000 (which I understood to mean the net amount, after the statutory
deduction of 25%).

[230]     This claim
is founded on the letter from the plaintiff’s employer (Exhibit 1, Tab 21)
coupled with the evidence of the plaintiff and Mr. Miller. There is no
serious dispute that the plaintiff was unable to work from January 23, 2009,
until about March 9, 2009, (notwithstanding that the plaintiff apparently told Dr. Lisinski
on March 9, 2009, that he had worked half a day “last Monday”). The plaintiff
stated his belief that “full-time work was available to me.” Mr. Miller
testified to the effect that there was “pretty well” full-time work available
for Mr. Noon from March 9, 2009, to June 7, 2009. But the plaintiff also
testified that, although he had “some setbacks” in getting back to work, there
were some “slow” weeks also.

[231]     I note
that the evidence indicates that the plaintiff worked 16 hours during the first
week he returned to work, and that he did not work at all during the following
week. That absence of work during the second week could have been due to a “setback”
referred to by the plaintiff. But the plaintiff did not work at all during the
week of April 13 to 19, 2009, and there does not appear to be any explanation
for this in the evidence. Nor does the employer directly state that full-time
work was available to the plaintiff, for that week of April 13 – 19.

[232]     I accept
the calculation offered by counsel for the plaintiff for past wage loss, except
for the week of April 13 to 19, 2009. The evidence is unsatisfactory, and I am
not persuaded that the plaintiff missed work that week by reason of being
disabled by his injury.

[233]     The
plaintiff worked 35 hours in the week of April 20 to 26, and 35 hours in the
week of April 27 to May 3. Accordingly, I would deduct 35 hours from the
plaintiff’s claim for the week of April 13. The rate of pay appears to be
$46.28 per hour, and so the amount to be deducted is 35 hours x $46.28 per hour
= $1,619.80. When that amount is deducted from the plaintiff’s claim of
$15,979.10, the remainder is $14,359.30. A further 25% ($3,589.82) must be
deducted from that sum leaving a net award of $10,769.48. I order that the
plaintiff shall recover that amount, on his claim for past loss of income.

Should any award of damages be made for loss of future earning capacity,
and if so, in what amount?

[234]     The
plaintiff claims $225,000 for loss of future earning capacity. The defence
argues that the evidence fails to prove entitlement to any award. In the
alternative, the defence submits that only a modest award should be made.

[235]     In order
to prove entitlement to an award of damages for loss of future earning capacity
(in cases where such incapacity is not obvious from the nature and severity of
the injury), a plaintiff must prove that there is a substantial possibility
that two facts are true, namely:

a)    That a future
event adverse to the plaintiff will occur; and

b)    That if that
event does occur, it will cause a loss of income to the plaintiff (by reason of
the injury caused by the defendant).

[236]     If the
plaintiff proves entitlement, the court must assess the amount of damages that
should be awarded to compensate the plaintiff for the loss. There are two
alternate methods for quantifying the loss. They are sometimes called “the
earnings” method and “the capital asset” method. The method that should be used
will depend on the facts of the particular case.

[237]     If the
evidence permits an arithmetical calculation of the potential loss, then the
loss of earnings method should be used. That method requires the trial judge to
first determine the difference between what income the plaintiff would have
earned if the future event did not occur, and what income the plaintiff will
earn, as a result of the future event occurring. Second, the trial judge must
estimate the chance that the future event will occur, in terms of a percentage.
Finally, the trial judge quantifies the damages that should be awarded, by
multiplying that percentage by the total amount of the difference between the
two income estimates. The damages will be that percentage of that total
difference (which will represent the magnitude of the risk or chance that the
alleged future event will occur).

[238]     If the
evidence does not lend itself to the arithmetical approach, in that no
potential pecuniary loss can be quantified (or not with any appreciable degree
of accuracy), then the amount of damages to be awarded is determined by using the
loss of capital asset method. That requires the trial judge to assess the value
of the extent to which the plaintiff’s capacity to earn income in the future (a
capital asset) has been diminished by the injury. That decision is to be made
by considering and weighing the four factors approved in Kwei v. Boisclair
(1991) 60 B.C.L.R. (2d) 393 (at paragraph 25) and confirmed in Pallos v.
ICBC (1995) 100 B.C.L.R. (2d) 260 (C.A.) and Perren v. Lalari 2010
BCCA 140. Perren v. Lalari is presently the leading case on the subject
of damages for loss of future earning capacity.

[239]    
Those four factors are whether:

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

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

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

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

[240]     In support
of this claim, the plaintiff alleges:

a)    That he is not
now, and never will again be capable of working competitively as a sprinkler
fitter (or sprinkler fitter foreman);

b)    That there is a
substantial possibility that he will lose his present job with the union in
about two years;

c)     That if he
does lose his present job, the plaintiff will not be able to return to his
former employment as a sprinkler fitter (or sprinkler fitter foreman), by
reason of physical incapacity; and

d)    That the
plaintiff will not be able to perform another occupation in which he could earn
as much income as would a sprinkler fitter (or sprinkler fitter foreman) and
therefore he will suffer a loss of income.

[241]     I accept,
in part, the plaintiff’s first allegation. I find there is a substantial
possibility that the plaintiff will never again be able to perform all of the
work required of a sprinkler fitter, because he will not be able to do the
heavy and sustained overhead work required by that job.

[242]     Next, I
find there is a real and substantial possibility that the plaintiff will lose
his present employment with the union at some uncertain time in the future,
perhaps in as little as two years from now. I would estimate the chance of this
future event occurring as being not more than 25%. The evidence shows that the
plaintiff is doing a very good job in his present position, and has been
assuming more and more responsibilities with apparent competence. The union’s
financial position is sound and the future prospects of work for union members “on
the tools” appear to be very good. It seems unlikely to me that the plaintiff’s
position will be terminated. It is possible that he may change his mind and run
for election as business manager. Even if he does not, his performance record indicates
that he would be of considerable value to any new business manager who is
elected.

[243]     If the
plaintiff had testified that the single and only reason why he accepted the union
job over his other two job options was because of his physical incapacity, I
would not have accepted it. But that is not what the plaintiff said. He
testified in addition that working for the union would have less economic
uncertainty than working for a contractor and also conceded that he was
interested in the work he had previously done for the union. However, I accept
the plaintiff’s evidence that he enjoyed his work as a sprinkler fitter (and
foreman) very much. I conclude that, in the event the plaintiff lost his union job,
he would willingly have returned to working as a sprinkler fitter, if he was capable
of doing so. But the plaintiff did not suggest that he wanted to quit his union
job, and I infer that he will likely continue with the union in some capacity,
for as long as he can.

[244]     Assuming
the existence of a significant risk that the plaintiff will lose his union job
in the coming years, the next question is whether that event will cause him a
loss of income. First, I find that there is no substantial possibility that the
plaintiff will lose his union job for at least two years. Second, I note that Mr. Benning’s
calculations are based on the assumption that the plaintiff would not only have
continued to work as a sprinkler fitter until retirement, but would also be a
foreman for his entire working life. That assumption may be overly optimistic.

[245]     Next, I
find that if the plaintiff does lose his job with the union, it is likely that
work as a plumber would be available to him. The plaintiff did not suggest that
he could not do the work required of a plumber, and has already demonstrated
that he could do so, by working mainly as a plumber in Norway for six months.
And he did not say he turned down the job offer from Archie Johnstone, because
he could not do the work of a plumber. As I understood the evidence, the wage
rates for sprinkler fitters and plumbers are identical.

[246]     It is
arguable that the plaintiff would have always worked as a foreman of a
sprinkler fitting crew, and that he would not be able to achieve the position
of foreman of a plumbing crew. If that were true, then there would be some loss
of income. However, having regard to the plaintiff’s competence as a workman,
he might well attain the position of foreman within a few years of changing to
that occupation. That would mean that any loss of income would be relatively
short in duration.

[247]     There was
evidence (I think from both the plaintiff and his wife) to the effect that
before the plaintiff could be certified as a journeyman plumber he would have
to take some training courses to upgrade his qualifications. But this would not
require any lengthy period of time, and would not likely take longer than a few
months. But again, on this scenario of events, the plaintiff might well incur a
loss of income during the training period.

[248]     It will be
apparent that I do not accept the plaintiff’s submission that he would have to
retrain for an occupation such as a building inspector, and that the defendant
should be liable for the potential loss of future income that the plaintiff
would suffer if he pursued that occupation.

[249]     In my
view, the arithmetical approach does not provide a sufficient guide to the
assessment of the plaintiff’s loss. I think significant weight should be
given to the substantial possibility that the plaintiff will never again be
able to work as a sprinkler fitter, which was a job that the plaintiff enjoyed
a great deal, and was good at. In addition, I do not disregard (although I do
not place much weight upon) the plaintiff’s assertion that he has lost the
opportunity to start up his own sprinkler fitting contract business. From
the evidence of Mr. Miller, I infer that it would be very difficult to
break into this competitive field. There was no evidence to show that the
plaintiff had skills at estimating the cost of materials and labour so as to
submit bids to general contractors. Also, it would appear that it would make
more sense for the plaintiff to enter the contracting business with a partner
such as Mr. Miller, who says he would value the plaintiff as a business partner.
Finally, if the plaintiff did attempt to start up his own business, I can see
no reason why he would have to perform the heavy overhead work of a sprinkler
fitter on a regular basis for any significant length of time, while he was
getting the business up and running. Someone else could do that part of the
work, or help him with that part of the work. It appears that the plaintiff
could do the less strenuous tasks required of a sprinkler fitter, without too
much difficulty.

[250]     On
application of the four factors established by the Court of Appeal, which I
have described above, to the facts which I have found, I find that the
plaintiff’s capital asset (i.e. his capacity to earn income in the future) has
been diminished by the injury. The extent to which it has been diminished is,
as usual, difficult to quantify.

[251]     I must
take into account all relevant facts, substantial possibilities and all
positive and negative contingencies. The assumptions upon which an award is
based may prove to be wrong. There may be an improvement in health, an
opportunity for advancement, a decline in the economy and loss of employment,
as well as the usual chances and hazards of life. In the end, the award must be
one that is fair and reasonable in all of the circumstances in the particular
case. See Reilly v. Lynn, 2003 BCCA 49 at paragraph 101; Falati v.
Smith, 2010 BCSC 465 at paragraph 41; and Perren v. Lalari, 2010
BCCA 140 at paragraph 32.

[252]     In my
opinion, the financial harm that will accrue to the plaintiff over the course
of his working career would be fairly compensated by an award of $100,000. It
is so ordered.

What award, if any, should be made for the cost of future care?

[253]     The
plaintiff claims $5,000 for the cost of future care. I understood this amount
was intended to cover the cost of using gym facilities and the services of a
personal trainer for some uncertain period of time. The defence made no
submission with respect to this claim.

[254]     A
comprehensive exercise program, supervised for at least part of the time, was
recommended by Dr. Adrian and Dr. Gouws. The plaintiff has indicated
that he has not had much time to engage in a meaningful exercise program, due
mainly to the long hours of work required by his job. He did not say much about
this in his trial testimony, and I do not recall him giving any undertaking or
promise to pursue such an exercise program. Nevertheless, two medical
specialists have recommended that he do so. There is no evidence about how much
a session would cost, or how frequent such sessions should be, or how long such
a supervised program should continue.

[255]     I award
$2,500 for the cost of future care.

What award should be made for special damages?

[256]     The
plaintiff claims special damages of $857.99. The defence did not take issue
with this claim. The plaintiff testified to the necessary facts.

[257]     I award
the plaintiff $857.99 for special damages.

Summary

[258]     I will
summarize the damages which are awarded to the plaintiff:

a)    Non-pecuniary
loss                      $ 60,000.00

b)    Past loss of
earnings                     10,769.48

c)     Loss of
future earning capacity    100,000.00

d)    Cost of future
care                         2,500.00

e)    Special damages $ 
857.99

Total                                           $174,127.47

Costs

[259]     Unless
there are facts unknown to me which could reasonably affect the issue of costs,
I would award costs to the plaintiff at the usual scale. If costs need to be
spoken to, counsel should contact the trial scheduling manager within 10 days,
to arrange a date for hearing.

“D.A.
Halfyard, J.”
The Honourable Mr. Justice Halfyard