IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120815

Docket: 86187

Registry:
Kelowna

Between:

Cameron James
Small

Plaintiff

And

David Dustin
Upshaw and Leonard Terence Teeple

Defendants

– and –

Docket: 94993

Registry:
Kelowna

Between:

Cameron James
Small

Plaintiff

And

Dustin Robin
Galley

Defendant

Before:
The Honourable Mr. Justice Rogers

Reasons for Judgment

Introduction

[1]          
The plaintiff in this matter was injured in three motor vehicle
accidents. He was 17 years old at the first accident, 19 at the second, and 20
at the third. He sustained soft tissue injuries in all three collisions. The
defendants have admitted liability for the collisions. They do not require that
damages be allocated in accord with the harm done by each accident.

[2]          
The main issue in this case is to what degree, if any, the plaintiff’s
injuries have affected his ability to work as a journeyman auto mechanic. The
plaintiff maintains that he has suffered a significant loss; the defendants say
that the plaintiff’s good record of post-accident attendance and performance at
work indicate that he has sustained little or no reduction of his capacity to
earn income.

The Facts

Pre-MVA History

[3]          
The plaintiff was born on September 28, 1989. He is four years younger
than his only other sibling, Lindsay. The plaintiff’s mother passed away when
he was 18 months old. After that sad event, the plaintiff, his sister and
their father lived together in West Kelowna for about 10 years. When the
plaintiff was 12 years old and entering Grade 7, his father had the good
fortune to meet and eventually marry a new romantic partner. The new family moved
to the city of Kelowna where the plaintiff enrolled in a new school.

[4]          
The plaintiff had an active and wholly normal childhood. He played
soccer on school teams, snow skied in the winter, and water skied in the
summer. He took up snowboarding and enjoyed that activity most weekends during
the season. The plaintiff was reasonably popular at school, had plenty of
mates, and managed passing or better grades in his classes.

[5]          
By the time the plaintiff entered Grade 9, he had developed an interest
in automotive mechanics. By the time he entered Grade 12 in September 2006, he
was determined to become a journeyman automotive mechanic. He was well suited
to that career. He had an aptitude for mechanics, he was eager and able to
learn the technical skills an auto mechanic requires, and he was willing to put
in the time needed to earn a journeyman’s certificate.

[6]          
All in all, before October 12, 2006, the plaintiff was in good health,
he suffered from no physical restrictions or limitations, he was popular, and he
was happy.

Motor Vehicle Accident: October 12, 2006

[7]          
On October 12, 2006, the plaintiff was taking driver training and was at
the wheel of his instructor’s vehicle. The defendant, Mr. Upshaw, failed
to keep his car in its proper lane and struck the plaintiff’s vehicle on the
driver’s door. The impact caused the plaintiff’s head to hit and break the
driver’s side window. His car wound up pressed against a tree at the roadside.
The plaintiff was extracted from the vehicle and taken to the Kelowna General
Hospital. He was examined and released.

[8]          
As a consequence of the October2006 collision, the plaintiff sustained
whiplash injuries to his neck and back. The plaintiff’s left shoulder, neck and
back were sore. He missed approximately two weeks of school. The plaintiff
attended three to four months of physiotherapy treatments.

[9]          
By the end of the school year, the plaintiff’s symptoms had settled
considerably. He had returned to his normal activities, but his neck and back
were still somewhat sore.

[10]       
In the fall of 2007, the plaintiff enrolled in an auto mechanics course
at the Okanagan College. He completed his courses successfully in the spring of
2008. The plaintiff had earlier made a good impression on Mr. Siddon, his
high school shop teacher. In the fall of 2007, Mr. Siddon left teaching
and purchased an auto repair shop called Tops Automotive. Shortly after the
plaintiff finished his college courses, Mr. Siddon recruited the plaintiff
to work as an apprentice mechanic at his shop. Between the spring and August of
2008, the plaintiff experienced minor difficulties performing his job at Tops,
although it has to be said that as a beginning mechanic, he was not assigned
very difficult or demanding tasks. He mostly helped with tire changes, oil
changes and cleaning. The minor problems he had at work were caused by
intermittent pains in his neck and upper to mid-back.

Motor Vehicle Accident: August 18, 2008

[11]       
On August 18, 2008, the plaintiff was driving his full-sized utility
vehicle when it was struck from behind by the defendant, Mr. Teeple. The
impact was reasonably severe: the frame of the plaintiff’s vehicle was bent and
the car was written off. For several weeks after this accident, the plaintiff
experienced excruciating pain in his neck, upper and mid-back, and left
shoulder. He had pain radiating into his left arm, and he had two or three
headaches per week.

[12]       
The plaintiff’s physician referred him to physiotherapy. He attended at
physiotherapy 20 times between September and December 2008. He missed a total
of two weeks of work at Tops. When he returned to his job, his duties were
reduced to light work only. The plaintiff took Naproxen for pain and a muscle
relaxant daily.

[13]       
By April 2009, the plaintiff’s symptoms had reached a plateau. He was
stiff and sore in his neck and back and left shoulder upon rising in the
morning. He felt intermittent numbness and tingling in his left arm. His left
arm symptoms were triggered by reaching forward with his arm. He began
attending Dr. Scheffler’s family medicine practice. Dr. Scheffler
referred him to a physiotherapist for intramuscular stimulation treatments. The
plaintiff took approximately eight of those treatments but found they afforded
him no relief from his symptoms. Dr. Scheffler then suggested that the
plaintiff take massage treatments. He did, but after about five deep tissue
massages, he found that they, like the physiotherapy sessions, did not give him
any lasting relief. Finally, in the fall of 2009, Dr. Scheffler suggested
that the plaintiff see a chiropractor. The plaintiff did take treatments from a
chiropractor. He found that those treatments relieved his symptoms for several
days, but that the symptoms of pain in his neck, left shoulder, and upper and
mid-back always returned.

[14]       
By approximately two years after the August 2008 accident, the
plaintiff’s pains were present when he awoke in the morning. His neck, back and
left shoulder were stiff and sore. He would stretch, have his breakfast and go
to work. As the workday progressed so did his symptoms. His neck and back pain
would gradually build through the working day. By 2 p.m. his symptoms would
reach a peak. By the time he finished work at 5 p.m., he would be very tired
and sore. He had little energy left to socialize or do recreational activities
in the evening.

Motor Vehicle Accident: August 6, 2010

[15]       
On August 6, 2010, the plaintiff was driving his vehicle and was stopped
at an intersection. The defendant, Mr. Galley, rear ended the plaintiff’s
vehicle. The impact was of moderate intensity. This third collision caused the
plaintiff considerable emotional upset. For two weeks, the symptoms he was
still feeling from the second accident were aggravated by the third collision.
His level of function then settled back to its previous and relatively
unchanging state.

Current Status

[16]       
Presently, the plaintiff’s sleep is occasionally disturbed by pain in
his neck, back and left shoulder. Those areas are stiff and sore when he gets
up in the morning. He usually, but not always, takes a pill for pain relief
before going to work in the morning.

[17]       
The plaintiff starts work at the Tops shop at 8 a.m. His neck, upper and
mid‑back, and left shoulder are sore when he starts work, and they become
worse as the day progresses. The plaintiff finds that it is especially
difficult to work in awkward positions, such as with his hands over his head,
while bending over an engine compartment or under a dashboard. He must take
more frequent and longer breaks from working in those positions than do his two
co-workers. The plaintiff’s co-workers accommodate his limitations by giving
him help when necessary. Their help is most often in the form of assisting the
plaintiff to lift heavy objects or to position a cumbersome thing like a
transmission in order to mate it with an engine. When the mechanics have to
push a vehicle from one spot to another, they allow the plaintiff to sit in the
car and steer it while they do the heavy work of pushing the car around. The
plaintiff’s boss, Mr. Siddon, is likewise accommodating to the plaintiff.
He steers jobs he knows will cause the plaintiff increased pain to one of the
other mechanics on his staff. Despite these accommodations, the plaintiff’s
productivity at the shop is less than it should be. He is slower to do many
tasks required of a journeyman auto mechanic. For example, the plaintiff took
approximately 20 hours, rather than the expected eight to ten hours, to
complete an engine change.

[18]       
Tops Automotive pays its mechanics an hourly wage. It bills its clients
based upon the time that a job ought to take according to a reference text of
automotive repair tasks. If the mechanics take longer than the book time to do
the job, the mechanics suffer no loss but the shop does. Many if not most auto
repair shops, including auto dealerships, pay their mechanics according to the
book rate for the tasks they do. These are called flat-rate shops, and in
flat-rate shops, the mechanics have little economic incentive to take time out
of their work to help a struggling colleague. That is because taking time out
of their work affects their productivity which, in turn, affects their
paycheque.

[19]       
The plaintiff no longer snowboards or plays golf. He has tried running
and cycling, but found that those activities aggravated his pain. In the summer
months when the weather is fine, he often goes fly-fishing at remote lakes. He
occasionally goes camping with one or two of his small circle of friends. The
plaintiff does very little socializing.

[20]       
At this point, I will make a personal observation. The plaintiff is
clearly dispirited by the limitations that his situation has imposed upon him.
I noted the plaintiff’s relatively flat aspect as he gave his testimony. Even
when he was challenged under cross-examination – a circumstance that at some
point in the process usually provokes a flare of lively response from a
plaintiff – this plaintiff’s affect was muted. He was, at times, morose. I
accept the plaintiff’s evidence that as a result of his limited capacity to
participate in and enjoy the wide range of activities open to young men of his
age, he has become frustrated and somewhat depressed. He is also, reasonably,
worried about his ability to continue to work competitively as an auto
mechanic. The evidence of the plaintiff’s sister and father was helpful in that
it affirmed my impression of the negative impact that these accidents and these
injuries have visited upon the plaintiff.

Expert Opinion and Prognosis

[21]       
The three medical professionals who testified at the trial, Drs.
Scheffler, Vallentyne and Coghlan, all opined that the plaintiff’s present
symptoms arise from and were caused by the accidents. They all felt that the
plaintiff’s symptoms are likely to be permanent.

[22]       
The only significant area of disagreement between the doctors lay in the
question of whether the second accident caused the plaintiff to suffer from
left-sided myogenic thoracic outlet syndrome. Dr. Vallentyne felt that
there was a causal link because the plaintiff complained of left arm pain
shortly after the second accident. Dr. Coghlan was sceptical of the link
because, according to the clinical records, the plaintiff’s first complaint of
left arm numbness was to Dr. Scheffler in April 2009 – a full eight months
after the second accident. For his part, the plaintiff testified that the
numbness and tingling in his left arm appeared shortly after the second
accident and that it continued to bother him from then until now.

[23]       
I was impressed by the plaintiff. I found him to be a credible and
reliable witness. The few discrepancies between his evidence at trial and in
discovery were not, in my view, significant and did not impair his testimony. I
accept that the plaintiff’s left arm was intermittently symptomatic shortly
after the accident. I find that his main complaints then, though, had to do
with his neck and back. Those pains were constant and debilitating. His arm
symptoms appeared from time to time and were never genuinely disabling. For
those reasons, the plaintiff’s left arm complaints merited and received less
attention during the months following the second accident.

[24]       
It follows that I find that the second accident did cause the plaintiff
to suffer left-sided myogenic thoracic outlet syndrome. This condition is self-limiting
– if the plaintiff keeps the amount of reaching he does to a minimum, the less
he will be bothered by its symptoms. He is bothered by the symptoms once or
twice a week.

[25]       
Dr. Vallentyne recommended that the plaintiff attend with an
exercise therapist in order to find and follow a regime of strengthening,
stretching and cardiovascular improvement. The plaintiff has followed that
advice, but he has implemented only the strengthening and stretching exercises
recommended for him.

[26]       
Ms. Kennedy, an occupational therapist, put the plaintiff through a
functional capacity evaluation. She compared the plaintiff’s performance in
various physical exercises against the performance requirements of an
automotive mechanic as set out in one of her reference texts. Ms. Kennedy
concluded that the plaintiff’s neck, back and shoulder pain limited his ability
to carry out all of those requirements. In particular, she opined that the
plaintiff’s pain compromised his ability to lift heavy objects, work overhead,
and work in bending or stooping postures. Ms. Kennedy’s opinions provided
empirical confirmation of the direct evidence that the plaintiff, his employer
and his co-worker gave about his limitations in the shop.

[27]       
Ms. Kennedy went on to opine that when the plaintiff becomes a homeowner
(he rents his accommodation at present), his pains will limit his ability to
perform a variety of home management tasks. She recommended that the plaintiff
have assistance with one-half of the outdoor maintenance chores that a homeowner
will typically do in a year, and that he have assistance doing painting, wall
and window washing, and snow removal.

[28]       
Finally, Ms. Kennedy confirmed Dr. Vallentyne’s recommendation
that the plaintiff have the benefit of twice weekly chiropractic treatments for
six weeks followed by as many as 20 chiropractic treatments per year for the
indefinite future. She also adopted Dr. Vallentyne’s recommendation that
the plaintiff attend on an exercise therapist. Of her own volition, Ms. Kennedy
felt that the plaintiff should continue to take the medications prescribed for
him by his physician; that if he finds that he cannot continue to work as an
auto mechanic, he would benefit from the services of a vocational consultant;
and that he could also benefit from 10 to 12 sessions with a psychologist to
deal with his depressed mood.

[29]       
The present value of all of these services over the plaintiff’s lifetime
was calculated by the economist Mr. Turnbull. His calculations produced a
figure of $120,000 (rounded). The figure does not include the cost of
medications prescribed for the plaintiff by his physician. Those medications
cost on the order of $1,100 per year.

[30]       
The parties have agreed that the plaintiff’s past income loss is $1,048
and that his special damages for medication and various treatments is $6,759.

Parties’ Positions

Plaintiff

[31]       
The plaintiff argues that his condition is debilitating and permanent.
He says that it negatively affects his ability to work in his chosen field and
that because of it, he is generally less able to participate in the job market.
The plaintiff seeks damages as follows:

Defendant

[32]       
The defendant points to the plaintiff’s good record of attendance at his
work, and to the physical nature of that work, and submits that the plaintiff’s
capacity to obtain and keep competitive employment cannot be seriously
impaired. The defendant says that it is not surprising that the plaintiff does
not now do the recreational activities he did before the accidents: the
defendant says that then he was a school-attending, live-at-home teenager and
that his circumstances now are very different – there is no school team for him
to play soccer with, he works 40 hours per week, and he goes camping and
fishing rather than golfing and snowboarding. The defendant maintains that the
future care items that Ms. Kennedy recommended depend in large part on the
plaintiff becoming a homeowner. The defendant points out that whether the
plaintiff ever buys a house is an entirely speculative proposition and that any
future care award must be heavily discounted to account for that uncertainty.
In any event, the defendant says that historically the plaintiff has consumed
his medications at a slower rate than prescribed and that if he is entitled to
cost of future care for those medications, that cost should reflect his actual
expense in recent years. That expense, according to the records, is on the
order of $30 per month, or $360 per year.

[33]       
The defendant’s position on damages is:

Discussion

Non-Pecuniary Loss

[34]       
As noted above, the plaintiff impressed me as a credible and reliable
witness. I find that the plaintiff is plagued daily by pains in his neck, left
shoulder, and upper and mid-back, and that from time to time his left arm
develops a feeling of numbness and tingling. When those arm symptoms occur, they
last until the following morning. All of these symptoms were caused by the
motor vehicle accidents for which the defendants have admitted liability. Of
the three accidents, the second caused the plaintiff the most harm.

[35]       
The plaintiff’s pain symptoms are not intermittent. He does not have
“good days and bad days”. His symptoms are aggravated by activity,
particularly by working with his hands and arms over his head, while stooping
over an engine bay, or pretzeled beneath a dashboard. By the end of a typical
workday, the plaintiff is stiff and sore. He has little or no energy for
recreation or socializing. He takes pain relief and muscle relaxing medication
daily. These facts distinguish the plaintiff’s case from the circumstances of
the cases cited by the defendant and in which the court made general damage
awards of less than $50,000.

[36]       
In my view, the plaintiff’s circumstances merit an award for
non-pecuniary loss of $80,000.

Past Income Loss

[37]       
The parties agree that the plaintiff’s past income loss is $1,048. He
may have judgment for that sum.

Special Damages

[38]       
The parties agree that the plaintiff’s special damages are $6,759. He
may have judgment for that sum.

Reduction of Earning Capacity

[39]       
The plaintiff earns on the order of $45,000 per year, and when he
completes his apprenticeship and becomes a journeyman mechanic, he will earn on
the order of $52,000 per year.

[40]       
The evidence left no doubt that the plaintiff is, by reason of the
injuries caused by the accident, not able to do all of the things that an auto
mechanic does, and that he requires more help in the shop from co-workers than
would otherwise be the case. The plaintiff is also slower at many tasks than a
fully able-bodied mechanic. His employer and co-workers are sympathetic to the
plaintiff. They provide help and adjust the shop’s work load to partially
accommodate the plaintiff’s limitations. While the plaintiff’s employment is
secure for the present, what the future may hold for him is quite unknown. If
the plaintiff decides to move to another town, or he decides to work at a
different shop, or his present employer retires and the shop closes down, the
plaintiff will have to compete for work with other able-bodied auto mechanics.
Those events and that eventuality are reasonably possible. Should they come to
pass, the plaintiff’s accident-caused limitations will render him less
attractive to a potential employer. When he does find employment, the
plaintiff’s limitations will negatively affect his productivity in the shop,
making him less competitive, less likely to earn as much as other mechanics,
and less likely to be promoted.

[41]       
In my view, the plaintiff’s situation is one that merits a significant
award for loss of earning capacity. That said, the plaintiff reaches too far
when he seeks $200,000 to $300,000 under this head of loss. Those sums go to
plaintiffs for whom a change of career due to injury looks pretty likely. In
the present case, I find that the plaintiff is likely to continue on working as
an auto mechanic. I say that because he has an aptitude for the work, he is
ambitious, and he has a very good work ethic. I believe the plaintiff is
likely to develop an area of expertise in which he can practice his trade
notwithstanding his physical limitations.

[42]       
The proper award for loss of earning capacity in this case is $150,000.

Future Care and Yard/Maintenance Capacity

[43]       
For the reasons noted immediately above, I would make no award to the
plaintiff for vocational counseling. The plaintiff has already consulted an
exercise therapist, and presumably the cost of that service is included in the
agreed upon special damages award. I see no need to duplicate that award. The
plaintiff gets temporary relief from chiropractic treatments and medications –
those are future care items for which he should receive an award.

[44]       
The plaintiff does not yet own a home. Only a guess could produce a time
frame for his buying a home. Until he does own a house, his landlord will be
responsible to do most of the house and yard maintenance chores Ms. Kennedy
has identified in her report. That said, I find that the plaintiff wants to own
a house at some point in the future. A house, particularly one with a garage
and some land around it, would be useful to the plaintiff so that he can work
on his own vehicles. When he does become a homeowner, I find that the plaintiff
will likely be able to do most but not all of the household and yard
maintenance tasks noted in Ms. Kennedy’s report. Those tasks that he does,
he will likely do more slowly and over a longer period of time than an
able-bodied homeowner.

[45]       
For those losses and for the cost of future chiropractic treatment and
medication, I award the plaintiff $60,000.

Conclusion

[46]       
The plaintiff is entitled to judgment as follows:

[47]       
The plaintiff will be entitled to court order interest on those items of
the award that attract interest. Subject to any application the parties may
wish to bring concerning costs, the plaintiff shall have his costs of both
proceedings on Scale B.

“P.J.
Rogers, J.”

The
Honourable Mr. Justice Rogers