IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120420

Docket: M114304

Registry:
New Westminster

Between:

Peter Ryhs Morgan

Plaintiff

And

Kelly Galbraith

Defendant

Before:
The Honourable Mr. Justice McKinnon

Reasons for Judgment

[1]            
The plaintiff seeks damages for injuries and loss alleged to have been
sustained in a motor vehicle collision that occurred on September 14, 2006, at
the intersection of Riverwood Gate and Robertson Avenue in the City of Port
Coquitlam, BC.

[2]            
Liability for the collision is admitted.

[3]            
The issues are causation and mitigation. The defendant claims the
plaintiff had pre-collision medical issues that would inevitably have caused
him difficulty for which she has no responsibility. It is further alleged that
his insistence on playing professional lacrosse following the collision
substantially contributed to his present complaints. The defendant also alleges
that the plaintiff failed to take reasonable steps to ensure a return to work
at the Royal Bank of Canada (“RBC”), where he had been employed.

Background

[4]            
Mr. Morgan is now 34 years of age. He resides with his wife Tina
Whiting in Beaverton Oregon, U.S.A. She has two children from another
relationship.

[5]            
The plaintiff was raised in Port Coquitlam, BC where his parents still
reside. He graduated from high school in 1995 then attended Simon Fraser
University (“SFU”) where, in 2003, he obtained a degree in business. 

[6]            
During his high school years he worked at several part time jobs,
including RBC. He was a casual part-time clerk at RBC commencing in 2000 and
continued part-time while attending SFU, eventually electing a full-time career
with RBC after graduation in 2003. He received several transfers and promotions
and in May of 2006 was promoted to senior account manager, the position he held
at the time of the collision. He was in a contract position, which was to end
on December 31, 2006. However, my sense of the evidence is that he was a valued
employee with RBC and would have secured another position at some other branch
if he desired to do so.

[7]            
Mr. Morgan was a highly regarded lacrosse player and enjoyed both
an amateur and professional career. He and his two brothers played
professionally in the National Lacrosse League (“NLL”) which had teams in
Canada and the U.S. I had no difficulty accepting that lacrosse is his first
love, to which he devoted much time and energy. When his wife, Ms. Whiting, was
cross-examined with a suggestion that the absence of lacrosse in his life had
left “a big hole”, she said, ”No, he doesn’t miss it”. That flies in the face
of the plaintiff’s testimony which was replete with assertions as to how much
he loved the game. One example was an exchange with defence counsel on cross-examination
when Mr. Morgan was asked why he played in the Western Lacrosse
Association summer season when he might instead have opted to rest for the NLL
season. He replied, “Well, lacrosse is something I am passionate about”.

[8]            
Between 2002 and 2011 Mr. Morgan played professionally for the
Vancouver Ravens, the Anaheim Storm, the Portland Lumberjax and the Washington
Stealth, all in the NLL. In the summer (off-season for the NLL) from 2004 to
2009 (save for 2003), he played amateur lacrosse for the New Westminster Salmonbellies.
His career seems to have come to an end after he suffered a concussion on
January 8, 2011, while playing for the Washington Stealth. He has been in
receipt of monthly payments from the State of Washington Labour Industry for
this injury and believes it will continue until he is medically declared fully
recovered which he anticipates will occur in the near future.

[9]            
Presently Mr. Morgan has part-time employment at two schools in the
Beaverton, Oregon area, coaching basketball and lacrosse. In 2007 he considered
attending SFU to obtain teaching qualifications but withdrew his application,
partly because he thought it might be too painful and partly because it would
interfere with his lacrosse career. There does not seem to be much doubt that
if he cannot/will not perform the duties required of a bank accounts manager,
then a career change to coach/teacher is probably his best option. Certainly it
is something he has been able to do and it is a career that interests him.

Mr. Morgan’s Pre-Collision Health

[10]        
Apart from some hamstring issues, the occasional sore back, and some
fractures from his lacrosse playing days, Mr. Morgan was in relatively
good health until about August of 2002 when he told his general practitioner, Dr. Hedges,
that he was getting “pretty bad pain in my lower back down to my calf in the
left leg”. Dr. Hedges ordered a CT scan and suggested anti-inflammatory
medication and stretching exercises, which suggestions Mr. Morgan followed.

[11]        
I acknowledge that his former wife, Erica Morgan, testifying for the
plaintiff, said in cross-examination that “he had back problems as long as I
knew him. I would say since 1993”. The plaintiff disputed that claim, saying
his problems commenced about 1998 while Dr. Hedges made reference to 1996.
I accept that Ms. Morgan was wrong in her reference to 1993 and that she was
simply trying to convey the fact that Mr. Morgan had long-standing low
back problems. That is not disputed.

[12]        
In August of 2002 he was playing for the Vancouver Ravens and had the
assistance of the team’s trainer to try and reduce the low back pain. However,
the problem persisted. He saw Dr. Hedges on September 3, 2002, complaining
of shooting pain in his left leg that had persisted for about three weeks, made
worse with sitting and driving. Dr. Hedges ordered a CT scan which
revealed a disc herniation at L5/S1. Dr. Hedges referred the plaintiff to
an orthopaedic surgeon, Dr. Dommisse who recommended stretching exercises
which the plaintiff performed but no measureable relief was obtained.

[13]        
In February of 2003 Dr. Hedges noted that he saw the plaintiff
several times that month and variously described his low back pain as “acute”,
“increasing” and by February 26, “markedly increased back pain during (lacrosse)
practices”. Mr. Morgan told Dr. Hedges that he could not sit to study
for his university courses, was having trouble sleeping, could not run well and
could not sit for long periods due to pain. Dr. Hedges recommended that Mr. Morgan
stop playing lacrosse for 8 to 12 months and to focus on his rehabilitation. Mr. Morgan
took that advice and experienced some relief.

[14]        
However, he did not obtain complete recovery and so an MRI was ordered
which revealed degenerative changes at L4-5 and a disc herniation at L5-S1. Dr. Dommisse
was again consulted and he ultimately recommended discectomy surgery which was
done on July 14, 2003. He took a leave of absence without pay from RBC
following this surgery, returning to work on September 22, 2003.

[15]        
Mr. Morgan followed medical advice in respect to refraining from
active sports and engaging in specified exercises such that by late October
2003 he was feeling “great”. He returned to lacrosse with the Vancouver Ravens
in December of 2003. He said that he did not experience any back problems in
that period. However by May or June of 2005 he told Dr. Hedges that his
back was hurting again due to summer lacrosse and that it was worse with work
and sitting. He said that it didn’t hurt so much when playing lacrosse but that
“it’s worse the next day, or if I don’t play.” He also commented to Dr. Hedges
that “every day at work it’s worse, I can’t handle it any more”. Dr. Hedges
recommended a medical leave from his work at RBC until the symptoms improved.
He was off work at RBC from August 30 to October of 2005 and then on November 1
of that year he negotiated a one-year leave of absence from RBC to play with
the Portland Lumberjax. Mr. Morgan called this a “once in a lifetime
opportunity”.

[16]        
Notwithstanding he had negotiated a one-year leave from RBC, he returned
to RBC after the conclusion of the Lumberjax season in May of 2006. He worked
as a Senior Account Manager and also played with the New Westminster
Salmonbellies during the summer season of 2006. The plaintiff testified that
between August of 2005 and the collision date of September 14, 2006, he never
had need to consult with Dr. Hedges as his back was just fine.

The Collision

[17]        
On September 14, 2006, at about 6:30 p.m., Mr. Morgan left his
parent’s home in Port Coquitlam driving his 1998 Ford Explorer intending to go
to a gym for a workout. He was properly belted and driving at about 50 k.p.h. south
on Coast Meridian. He was in the curb lane as he approached the intersection at
Robertson Avenue when the defendant suddenly turned left in front of him. The
front driver’s side of the Explorer struck the left front of the defendant’s
vehicle, a Reliant, then bounced onto the curb and through a fence. The damage
indicated to the Explorer in Exhibit 8 does not appear to be nearly as
extensive as the damage to the Reliant which appears in Exhibit 9 to be a
“write-off”. However there was $8,000 damage to the Explorer, which suggests a
fairly violent impact.

[18]        
The two engineers called for each side both agreed that the speed
change, which was defined as the speed at the moment of impact and separation,
was between 15 and 20 k.p.h. The significance of this was never explained. It
appeared they disagreed as to lateral movement by the Explorer, which if
present could result in a tortional load to the spine. However, at the end of
the day they both agreed that there would have been some lateral movement. Dr. Siegmund
felt it would have been more significant than Mr. Gough. Neither was able
to view and analyze the vehicles, rather they prepared their reports from
photographs of the vehicles but conceded that opinions sought by counsel, such
as rotation and tortional loads, were impossible to calculate given the paucity
of information. A physical examination of the vehicles would have been required
in order to make conclusions respecting rotation and tortional loads.

[19]        
There was some reference to the force and direction of force necessary
to cause disc herniation although it was conceded that there was no disc
herniation resulting from this collision. As I understand counsel for the
plaintiff, the evidence was led, not to show a herniation, but to suggest a
force of sufficient impact to cause serious soft tissue injury. Defence has
conceded soft tissue injury of “moderate” severity.

[20]        
The reports were not of much assistance. Mr. Morgan’s description
of the collision, and that of the defendant given in answers at her discovery,
suggest a relatively severe impact. She said that she suffered pain in the left
knee and hip and even five years post-collision continues to have neck pain.
She also confirmed that her vehicle was a “total loss”. I accept that this was
a severe impact that clearly caused injury on a scale greater than “moderate”.

[21]        
The plaintiff said that he hit his left elbow against the driver’s side
window and felt pain immediately in his neck, mid and lower back. Although paramedics
attended the scene, Mr. Morgan declined to go to hospital, opting to walk
to his parent’s nearby home.

Post-Collision

[22]        
Mr. Morgan described his condition that night as “feeling very sore
in the back, really shaken up and still in shock”. Next morning the pain was
worse, extending to his left “glute” so he did not go into work at RBC. On
Saturday he had pain into his left calf. He went to a walk-in clinic, saw a
doctor who prescribed Tylenol 3 and who suggested he see his general
practitioner.

[23]        
The collision occurred on a Thursday. By Monday the plaintiff said he
was in so much pain that he saw Dr. Hedges who gave him a full
examination. He continued to see Dr. Hedges about every two weeks and also
received physiotherapy from the Salmonbellies’ physiotherapist, Steve Mah.

[24]        
Mr. Morgan followed Dr. Hedges’ advice which included taking
time off work. This involved Manulife, the provider of short-term disability
benefits (“STD”) for RBC. He said that the pain he experienced was similar to what
he suffered immediately prior to his 2003 surgery.

[25]        
Manulife recommended a gradual return to work which the plaintiff tried
on October 3, 2006. He found that he could not obtain any relief from pain,
notwithstanding some accommodations. On October 10th he was told by Dr. Hedges
to take more time off work and he did so, returning on November 27. During his
time off, he had an ergonomic assessment by a Manulife representative which
recommended things such as posture, chair and monitor positioning. RBC also
offered him some flexibility in respect to his client load and schedule to
allow him to get up and move about, which offered some relief. He had obtained
a special chair prior to the collision when at the Coquitlam Centre Branch but
could not find it post-collision.

[26]        
Mr. Morgan testified that he lasted only two weeks at RBC. He said
that by December 7, 2006, his pain was so intense, he could not carry on and
again stopped working at RBC. His STD ended on December 13.

[27]        
He never returned to RBC. He testified that the pain in his back was so
debilitating that he could not function as a senior account manager. It was not
a convincing assertion.

[28]        
I have concluded that Mr. Morgan did not particularly want to
return to RBC, notwithstanding his claim to the contrary. It became clear to me
that he preferred to concentrate on a lacrosse career in the NLL because that
was his first love. I have also concluded that he rejected a banking career
because he believed his back problems were such that he could not do both
banking and lacrosse. He elected lacrosse without ever giving the banking
option a reasonable try.

[29]        
The evidence is replete with offers and assurances by RBC that it would
be willing to offer reasonable accommodation to the plaintiff to ensure that he
would not lose his banking career. Indeed, RBC had accommodated his needs
consequent to his back surgery in 2003.

[30]        
Gloria Cooper was the branch manager in Coquitlam to whom Mr. Morgan
reported at that time. She testified that RBC is “flexible” in its approach to
employees with disabilities, reaching out to “persons with disabilities”. She
spoke of offering the plaintiff some flexibility in his work day to accommodate
his back problems.

[31]        
Sharon Harris was manager at the RBC branch where Mr. Morgan had
his contract employment to the end of 2006. She understood that once his
contract expired, the plaintiff would go on call as a teller until other
positions opened up. Ms. Harris had a sketchy memory of events, although she
did testify that the plaintiff was a “good employee”.

[32]        
Ms. Harris was the author of a letter sent to Mr. Morgan on
December 21, 2006, which noted that Manulife had denied him extended disability
benefits and he was thus now (at the date of the letter) on “unauthorized
leave”. Ms. Harris provided information about an appeal from Manulife’s
decision. Mr. Morgan did write to Manulife, appealing the decision to
terminate his disability payments but that was denied.

[33]        
I was at first puzzled by Mr. Morgan’s seeming indifference to
benefits that might be available to him through Manulife and his complete lack
of interest in meeting with bank personnel and work rehab specialists to
develop a plan to return to work.

[34]        
Manulife offered him the right to apply for long-term disability
benefits which he did not pursue, explaining that he considered it a waste of
time, given they had terminated his short-term disability benefits. This
explanation was not very convincing.

[35]        
He also made no effort to give the banking work a reasonable try by
utilizing professional assistance that was offered and employing the various
accommodations offered by RBC. My conclusion was that by this time he preferred
to play lacrosse in Portland where he would be making a new life.

[36]        
In the letter to Mr. Morgan from Sharon Harris dated December 21,
2006, she requested that he contact her “immediately”. He did not respond,
explaining that he was in contact with a friend who also worked at RBC and to
whom he conveyed his situation. That response made no sense unless Mr. Morgan
had lost interest in working for RBC.

[37]        
On May 31, 2007, Ms. Harris again wrote Mr. Morgan asking
whether he was available to work, to which again he offered no response. In
cross-examination he said he had told his friend at RBC, Scott, that he was
unable to return to work and he believed Scott would have conveyed that to RBC and
therefore it was unnecessary for him to respond to Ms. Harris.

[38]        
When counsel suggested that the letter was clearly a “we are closing our
Peter Morgan file” notice and was thus a last appeal to him to respond if he
had any further interest in employment with RBC, he again relied on what he had
conveyed to his friend Scott, believing that it always remained open for him to
return to RBC. If he truly believed that then this had to be the height of self-delusion.
The only reasonable interpretation that a disinterested viewer could place on
this letter was precisely as described by defence counsel: “Peter we are
closing our file unless we hear from you, your career at the Bank will be
over”.

[39]        
The plaintiff’s assertion that he could manage to play lacrosse at the
professional level, but not work in banking is simply not credible. I
understand and accept that different forces are involved in those two
activities but common sense suggests that being bounced about in a vigorous
game of lacrosse cannot be very good for the recovery of soft tissue injury to
the low back.

[40]        
The plaintiff said that none of his medical advisors suggested he stop
playing. It seems to me that someone with Mr. Morgan’s obvious
intelligence and experience might pause to consider whether playing a sport as
vigorous as lacrosse would be a good idea, especially when in 2010 he had to
have injections of Toradol before each game. Toradol is a non-steroidal drug,
first used by Mr. Morgan in 2003 when he experienced low back pain. In
2010, given the pain he was experiencing when playing lacrosse he asked Dr. Hedges
to try it again.

[41]        
Dr. Hedges did not consider the use of Toradol before each game to
be excessive and that may be so, but the point is that by 2010, Mr. Morgan
could not play lacrosse without injections of Toradol. It seems to me that should
have been a signal that playing lacrosse in that situation was not conducive to
recovery.

[42]        
The medical evidence in respect to the effect of the collision on the
plaintiff’s continued pain complaints is divergent. Dr. Fisher felt the
collision-related injuries would resolve within three months of the collision. He
also placed a 10% disability guesstimate attributable to the collision. However,
Dr. Fisher also believed that once Mr. Morgan retired from lacrosse his
symptoms would improve. Mr. Morgan did retire from lacrosse but has not
experienced the suggested improvement.

[43]        
Dr. Hedges opined that 50% of Mr. Morgan’s complaints today
relate to the collision and that these complaints are likely “permanent”. Dr. Adrian
considered the prognosis as “poor” and that the plaintiff will probably continue
to experience difficulty performing employment, recreational or household
activities that require prolonged sitting, stooping, heavy or repetitive
lifting and prolonged static or awkward positioning involving his spinal column.

[44]        
Dr. Dommisse believed that the lumbosacral pain and stiffness is
permanent and that the plaintiff will be limited in activities of daily living,
recreation, social and household activities.

[45]        
Dr. Fisher opined that Mr. Morgan’s insistence on playing
lacrosse has “had a far more significant impact on current functional status of
his lower back, when compared to the motor vehicle accident …”. Dr. Dommisse
conceded on cross-examination that the continued playing of lacrosse at a high
competitive level may well have “made his situation worse”.

[46]        
His father John Morgan was concerned enough about the situation that he
asked his son whether continuing to play was a good idea. Ms. Quastel, the
occupational rehabilitation witness commented that, “If he was my son he would
not be playing lacrosse”.

[47]        
I accept that the pain and disability experienced by the plaintiff from
his 2003 surgery was “episodic”, not continuous. Given the mechanical and
medical evidence and the evidence of the plaintiff, it is clear to me that the
effect of the collision at bar was to cause the plaintiff constant back and
intermittent leg pain that is likely permanent. The questions then to answer
are:

1.       What is the
appropriate method to measure future income loss?

2.       What
is a reasonable sum for the non-pecuniary damages flowing from this collision?

3.       What is the
appropriate method to measure past income loss?

4.       What
is the effect of the plaintiff’s failure to take reasonable steps to ensure a
return to his employment at RBC?

5.       What is the effect of
the plaintiff’s insistence on playing lacrosse?

Loss of Future Earning
Capacity

[48]        
The plaintiff has taken a mathematical approach to both past and future
loss of income. He proffered the opinion of Darren Benning, an economist who
used Mr. Morgan’s past income stream from all sources to arrive at a
figure of $61,483.00 for loss of income to trial.

[49]        
In assessing future income loss, Mr. Benning took a “without the
collision approach”, assuming continued employment with RBC to age 65 and
factored in promotions to branch manager level. He then took a “with the
collision approach”, using average-age earnings for Oregon workers, adjusted
for negative labour market contingencies. The occupations chosen tracked those
suggested by the occupational expert, Mr. Lawless. The plaintiff suggested
that of the four occupations, only coaching reflected his interest and ability.

[50]        
According to this approach, the collision has resulted in a future loss
to the plaintiff of between $1.3 million and $1.7 million, depending upon
whether he actually did achieve branch manager status. The plaintiff suggests $1.5
million.

[51]        
I find this amount very speculative. It is contingent upon Mr. Morgan
staying in a career at RBC. I have already concluded that Mr. Morgan
preferred to concentrate on his lacrosse career, and I am not convinced he
would have stayed with RBC for the rest of his working life. In my mind, his
lacklustre efforts to return to RBC reinforce this conclusion.

[52]        
As for assessing his loss by assuming a career in coaching, the
plaintiff’s own expert, Mr. Lawless, stated in his report that there were
many other occupations the plaintiff could consider in business, education and
healthcare.

[53]        
I also find the Court of Appeal’s comments in Rosvold v. Dunlop, 2001
BCCA 1, at para. 11 germane: “The task of the court is to assess damages,
not to calculate them according to some mathematical formula”.

[54]        
As stated in Perren v. Lalari, 2010 BCCA 140, at para. 12,
there are two possible correct approaches to use when measuring loss of future
earning capacity:

[12]      These cases, Steenblok, Brown, and Kwei,
illustrate the two (both correct) approaches to the assessment of future loss
of earning capacity. One is what was later called by Finch J.A. in Pallos
the ‘real possibility’ approach. Such an approach may be appropriate where a
demonstrated pecuniary loss is quantifiable in a measurable way; however, even
where the loss is assessable in a measurable way (as it was in Steenblok),
it remains a loss of capacity that is being compensated. The other approach is
more appropriate where the loss, though proven, is not measurable in a
pecuniary way. An obvious example of the Brown approach is a young
person whose career path is uncertain. In my view, the cases that follow do
not alter these basic propositions I have mentioned. Nor do I consider that
these cases illustrate an inconsistency in the jurisprudence on the question of
proof of future loss of earning capacity.

[Emphasis added.]

[55]        
In Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 (C.A.) the
Court was able to easily quantify the pecuniary loss by comparing the
plaintiff’s earnings and his earnings as a security guard, or a raker working
one-quarter of his usual time. I do not believe that such an approach is
workable at bar, given my conclusions in respect to Mr. Morgan’s
commitment to a banking career. It is too speculative.

[56]        
Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), cited above,
and cited elsewhere by our Courts many times, provides the approach to use for
a person whose path is unclear. The plaintiff’s injury is treated as the loss
of an asset. Finch J., as he then was, listed the following as
considerations in Brown for awarding loss of future income:

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

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

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

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

[57]        
The question arises as to what threshold to use to prove the foregoing.
The test to use is stated in Perren, at para. 30 as follows:

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

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

[58]        
On that same note, Perren emphasizes the following at para. 32:

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

[Emphasis
in original.]

[59]        
I do not accept that the approach taken by the plaintiff in respect to
future wage loss is the correct method. Insofar as past wage loss is concerned,
it must be balanced by my finding that the plaintiff has failed to mitigate by
failing to take reasonable steps to return to RBC and by continuing to play
professional lacrosse that aggravated his condition.

[60]        
Although the plaintiff did not address this alternate method of
measuring future loss, I assume that the figures proposed by him would be the
same, regardless of the approach. I propose to follow the process set out in Brown.

[61]        
In Loveys v. Fleetham, 2012 BCSC 358, the plaintiff was 44 years
old when a large truck struck her van. The plaintiff suffered soft tissue
injuries to her neck, back and shoulder and experienced chronic pain. She was a
real estate agent. The judge found her historical earnings pattern useful but
not determinative and used a capital asset approach. Loss of future earning
capacity was assessed at $100,000.

[62]        
In Majer v. Beaudry et al, 2002 BCSC 746, the plaintiff at the time
of trial was 44 years old. He was a sous-chef at the Pan Pacific Hotel until
roughly two years before the accident and earned $44,150 before his
termination. The plaintiff was injured when he was forced off his motorcycle by
a truck that cut in front of him. He continued to suffer from hip and back
problems. He was now teaching chefs but said his passion was cooking. The judge
found that the plaintiff was less employable but was unwilling to award the
postulated wage loss of between $350,000 and $880,000. Loss of future earning
capacity was assessed at $125,000.

[63]        
In Fox v. Danis, 2005 BCSC 102, aff’d 2006 BCCA 324, a 28-year-old
female was awarded $750,000 for loss of future earning capacity. She was
employed at a credit union and the Court found that she would likely have
become a manager.

[64]        
Employing the methodology for assessing loss of future earning capacity
set out in Brown, the trial judge in Fox relied upon the
following figures:

[108]    Using as a guideline the method suggested in Rosvold,
without the accident, as a manager the Plaintiff was likely to earn $1,935,987
(being $1,639,067 in earnings and $296,927 in pension benefits).  Now with
the injuries the Plaintiff is likely to earn, as a part-time personal account
associate, $763,740 (being $659,998 in earnings and $103,742 in pension
benefits).  The difference between these two incomes is $1,172 247.

[109]    The figures for the likely incomes are drawn from
the Report of Mr. Taunton.  They include a modest adjustment for such
contingencies as unemployment and premature death.  They do not include
any type of adjustment for various other contingencies such as permanent
lay-offs, strikes, voluntary early retirement etc.  Also, given the high
regard that the Plaintiff’s employer has for her, another contingency to be
considered is the possibility that her employer will devise some alternative
more lucrative part-time employment for her, albeit the possibility of such a
contingency occurring is admittedly small.

[65]        
I found this case to be helpful in terms of assessing what Mr. Morgan
has lost in respect to future earning capacity. He claims he would have
remained with RBC and likely would have become a manager. Relying upon that
projection, he claims $1.5 million as his loss. As indicated earlier, although
the plaintiff did not make submissions in respect to loss of future earning
capacity, I assume he would seek this same amount under that heading.

[66]        
Given my conclusions that the plaintiff had lost interest in the RBC job
quite apart from his injury and given my conclusion that he planned a future in
Oregon, I am not prepared to accept his projections of income loss. However, he
has clearly lost a substantial asset in respect to his future earning capacity.

[67]        
The medical opinions vary as to the extent to which the collision
impacted upon his disability. Dr. Fisher placed it as low as 10% while Dr.
Hedges considered it at 50%.

[68]        
In my view Mr. Morgan’s prior low back problems left him vulnerable to
further injury such as that which occurred in the collision at bar. It was not
inevitable. His pain and disability were episodic pre-collision but constant
post-collision. His was a “thin skull” situation, not a “crumbling skull”.

[69]        
I set the sum of $700,000 as his loss of future earning capacity which
sum will be reduced by 30% for his failure to mitigate. The net award is
therefore $490,000.

Non-Pecuniary Damages

[70]        
Counsel for the plaintiff submits that an award of $90,000 to $110,000
is appropriate for non-pecuniary damages. The following cases were cited in
support: Slocombe v. Wowchuk, 2009 BCSC 967; Bouchard v. Brown Bros.
Motor Lease Canada Ltd., 2011 BCSC 762; Crane v. Lee, 2011 BCSC 898
and Smaill v. Williams, 2010 BCSC 73. These cases ranged in awards from $96,000
in Bouchard (reduced originally from $160,000 due to a “crumbling
skull”) to $125,000 in Slocombe.

[71]        
Counsel for the defendant submits that an award in the range of $45,000
to $60,000 would be more appropriate. The cases of Gilmour v. Machibroda, 2008
BCSC 260 ($45,000 awarded) and Papineau v. Dorman, 2008 BCSC 1443 ($60,000
awarded) were cited in support.

[72]        
I am mindful of the factors to be considered, as set out in Stapley
v. Hejslet, 2006 BCCA 34, at para. 46:

[46]      The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes: 

(a)        age of the
plaintiff; 

(b)        nature of the
injury; 

(c)        severity and duration of
pain; 

(d)        disability; 

(e)        emotional suffering;
and 

(f)         loss or impairment of
life; 

I would add the following factors, although they may arguably
be subsumed in the above list:

(g)        impairment of family,
marital and social relationships;

(h)        impairment of physical
and mental abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s
stoicism (as a factor that should not, generally speaking, penalize the
plaintiff:  Giang v. Clayton, [2005] B.C.J. No. 163 (QL), 2005
BCCA 54).

[73]        
I accept that Mr. Morgan sustained serious injury in this collision
which has considerably affected his ability to enjoy life’s amenities. I set
the sum of $110,000 for non-pecuniary damages reduced by 30% for his failure to
mitigate. The net award for non-pecuniary damages is $77,000.

Past Wage Loss

[74]        
Insofar as past wage loss is concerned, considering the plaintiff’s
insistence upon playing lacrosse as his only option, and given his failure to
mitigate I reduce his claim for $61,483 by 30% for a total award of $43,038.10.

Special Damages

[75]        
Special damages were agreed at $1,079.80.

Future Care Costs

[76]        
The plaintiff claims a total of $74,701 for everything from using a
chronic pain clinic to counselling. Some of the recommendations relate to
easing the work situation at a banking type job which he clearly will not be
doing. Other claims such as psychological counselling have little support in
the evidence. Dr. Fisher opined that there was no need for a pain clinic
referral, given the plaintiff’s ability to function as a professional athlete.

[77]        
In my view the sum of $32,000 will provide sufficient physiotherapy and
other professional assistance to meet the plaintiff’s needs. This figure also
incorporates the plaintiff’s failures noted above.

Summary

[78]        
In conclusion, I make the following awards:

[79]        
Judgment accordingly.

[80]        
The parties have leave to speak to the issue of costs, should that be
necessary, otherwise, costs follow the event.

“The
Honourable Mr. Justice McKinnon”