IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120827

Docket: 0916475

Registry:
Williams Lake

Between:

Chad Jeffery Anderson

Plaintiff

And

Leann Mary Shepherd
and Robert Alan Rucker

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice Davies

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff, Chad Anderson, was injured in a motor vehicle accident on
January 6, 2009, in Williams Lake, British Columbia.

[2]            
While Mr. Anderson was helping his son out of a car seat in the back of
the family vehicle, the defendant Leann Shepherd backed her vehicle into the
rear door of the Anderson’s vehicle. Mr Anderson‘s left knee was crushed
between the car door and the frame of the vehicle, causing the major injury
that is the subject of these proceedings. Although he also suffered some injury
to his left hip, that resolved within one week.

[3]            
Mr. Anderson has suffered from pain in his left knee since the accident
and continues to suffer, although now to a much lesser degree. He has had knee
surgery which improved his condition but remains partially disabled.

[4]            
At the time of the accident Mr. Anderson was suspended from his
work as a crusher operator at the Mount Polley mine operation near Williams
Lake. Because of his claims for income loss, Mr. Anderson’s employment
status when the accident occurred and the reasons for the suspension are the
most controversial aspects of this litigation.

[5]            
Mr. Anderson has never returned to work at Mount Polley. However,
starting in late 2010, he has worked sporadically at other far less
remunerative employment.

[6]            
Employment prospects in his chosen field as a mine equipment operator
are significantly diminished.

ISSUES

[7]            
The defendants did not appear at trial, and the third party has admitted
responsibility for the damages suffered by Mr. Anderson in the accident.

[8]            
At issue is the assessment of Mr. Anderson’s claims for:

1)    Non-pecuniary
damages for his loss of enjoyment of life;

2)    Damages for past
income loss;

3)    Damages for
impaired income earning capacity;

4)    Damages for loss
of homemaking and child rearing capacity;

5)    Costs of future
care; and

6)    Special damages.

BACKGROUND

[9]            
Mr Anderson is now 30 years old and is married with three young
children. He lives in Williams Lake. He has not finished high school, but is
now very slowly working towards obtaining high school equivalency through
correspondence courses.

[10]        
Mr. Anderson was 27 at the time he suffered the injury to his knee in
the accident. He had been working at the Mount Polley Mine from September 14,
2006, but had been suspended from that employment in October 2008. At the time
of the accident in January 2009, his employment remained suspended.

Pre-accident Medical and Work History

[11]        
Before going to work for Mount Polley in September 2006, Mr. Anderson
had worked at a number of minimum wage jobs. Those jobs included working as an
automobile detailer, cook, and delivery person. Generally speaking, none of
those jobs lasted more than one year.

[12]        
Mr. Anderson had a difficult childhood. He suffered from ADHD which
impacted his academic performance at school. His family physician, Dr. Glenn
Fedor, testified that ADHD was not an issue in adulthood.

[13]        
Mr. Anderson’s mother suffered from alcoholism and schizophrenia, both
of which contributed to an unstable home life for Mr. Anderson and further
difficulties with school. Mr. Anderson has also suffered and continues to
suffer from asthma, for which he requires medication.

[14]        
Also, in October 2004, Mr. Anderson had been in a single vehicle
collision in which he suffered a fracture of his lumbar vertebrae. He has since
then suffered from chronic low back pain which had primarily been treated with
Emtec, a narcotic analgesic similar to Tylenol 3, which is prescribed by
Dr. Fedor.

[15]        
Dr. Fedor explained that it was necessary to prescribe a narcotic-based
analgesic because Mr. Anderson’s asthma precluded the use of
anti-inflammatory medication. Before the collision which is the subject of this
action, Mr. Anderson was taking up to three Emtec pills per day as needed
for pain. That level of usage was acceptable to Dr. Fedor.

[16]        
Although much was made by the third party of Mr. Anderson’s
pre-existing medical condition arising from his 2004 lower back injury and the
extent to which it required pain treatment with narcotic medication, it is
noteworthy that notwithstanding that back condition, Mr. Anderson was able
to obtain employment at Mount Polley. He was also able to cope with the
physical demands of the work associated with the various jobs he performed at
the mine.

[17]        
That work included work with a shovel as a labourer at the commencement
of his employment. That did cause some increase in back spasms but did not
result in Mr. Anderson requiring time off work. He also lost a significant
amount of weight during the labourer phase of his employment which improved his
overall fitness. He eventually advanced to less labour-intensive work.

[18]        
While working at Mount Polley, Mr. Anderson worked alternating
weeks of seven days on, followed by seven days off. Each work week consisted of
seven shifts of 12 hours, either on a day or night shift. That shift work
also entailed long, uncomfortable daily bus rides over rough terrain to and
from the mine, which caused some exacerbation of his low back pain but did not
result in him taking time off for that reason alone

[19]        
Mr. Anderson’s work history at Mount Polley was, however, less than
ideal.

[20]        
Although he advanced from his initial job as a labourer after three
months to a position as a crusher helper and eventually became a crusher
operator, as well as a grinder operator, his performance reviews were not
stellar.

[21]        
Notwithstanding his advancement and the hours worked, his work records
show that after some relatively favourable early reviews, Mr. Anderson
began to have difficulty with some of Mount Polley’s more senior supervisors
who were critical of his attitude.

[22]        
It is, however, also noteworthy that his immediate supervisor, Wayne
Walsh, who testified at the trial, was not critical of Mr. Anderson’s work
performance. He was also not concerned with Mr. Anderson’s physical
ability to complete assigned tasks and had no safety concerns with
Mr. Anderson’s work.

[23]        
 Although Mr. Anderson eventually worked over 2,000 hours as a
crusher operator, the evidence establishes that he was often absent from work
due to various circumstances which I will later discuss in some detail.

[24]        
Examination of the records of employment kept by Mount Polley, as well
as Dr. Fedor’s clinical records and my consideration of all the testimony
at trial, leads me to conclude that from the beginning of his employment in
September 2006 until early April 2007, Mr. Anderson’s work performance and
progression at Mount Polley was satisfactory and relatively unremarkable.

[25]        
In about April 2007, however, Mr. Anderson’s best friend committed
suicide. That calamitous event resulted not only in Mr. Anderson becoming
grief-stricken, but also in him beginning to heavily consume alcohol.

[26]        
After his friend’s suicide, Mr. Anderson missed work for at least
11 days in May and early June 2007.

[27]        
Concerning those events and the consequent work absences, Dr. Fedor
reported to Mount Polley that Mr. Anderson was suffering from insomnia,
fatigue and lack of concentration.

[28]        
Although at that time he also reported that Mr. Anderson was
suffering increased back pain, in his testimony Dr. Fedor attributed that
increase in back pain to the stress Mr. Anderson was then under, not to
work-related causes.

[29]        
In January 2008, Mr. Anderson began a common law relationship with Ms. Lisa
Mann who had a young son from a prior relationship. Mr. Anderson had known
Ms. Mann for some time before that relationship began.

[30]        
Commencement of that common law relationship and becoming involved in a family
situation was an important turning point in Mr. Anderson’s life. He became
a far more responsible individual. With Ms. Mann’s help in organizing his
finances and putting restraints on his pre-relationship alcohol use, his life
became far more stable than it had previously been. Although after beginning to
live with Ms. Mann he still suffered from stress arising from his
difficult childhood, teen, and early adult years, he was, with Ms. Mann’s
assistance, far better able to cope with those stresses.

[31]        
Ms. Mann and Mr. Anderson eventually had two more children, and they were
formally married in July 2010. For ease of reference I will now refer to her as
Ms. Anderson.

[32]        
After the spate of 11 days of missed work in the late spring of
2007, Mr. Anderson worked fairly regularly until mid-May 2008. He did,
however, miss a total of 12 days of work.

[33]        
More specifically, in that period he was:

1)    absent from work
for five days due to sickness, three of which days related to a single vehicle
motor vehicle collision after an argument with Ms. Anderson, in which
collision he struck his head on the dashboard of his truck;

2)    absent from work
without authorization four times;

3)    allowed one day
of leave without pay (in February 2008); and

4)    given two “family
days” off in early April 2008 after Ms. Anderson became pregnant with
their first child together.

[34]        
In mid-May 2008, however, Mr. Anderson again began to miss
significant periods of time at work.

[35]        
From then until he was suspended from his employment with Mount Polley
on September 24, 2008 (for four days), followed by a final suspension on
October 9, 2008, he missed a total of 27 days of work. Those absences
consisted of:

1)    fifteen days
of sickness without pay;

2)    three one-day
absences without authorization;

3)    three “family
days”; and

4)    six approved
personal leave days.

[36]        
Many of those absences emanated primarily from difficulties that Ms. Anderson
had in her pregnancy. She initially had to quit her child daycare work and stay
at home for “bed rest.” Subsequently, she was hospitalized in Vancouver for
five weeks. She was then transferred to Prince George for one week before being
returned to Williams Lake where her son was born on September 9, 2008.

[37]        
Although Ms. Anderson’s mother helped Mr. Anderson care for Ms. Anderson’s
older son when Ms. Anderson was not in Williams Lake, I find that Mr. Anderson’s
concerns about the serious risks Ms. Anderson and their unborn child
faced, the financial stress caused by her inability to continue to work, and
her lengthy absences from Williams Lake were at the root of Mr. Anderson’s
many days of missed work.

[38]        
In mid-May 2008, Dr. Fedor wrote to Mount Polley and its disability
insurer to explain the reasons for Mr. Anderson’s protracted absences from
work. In doing so, Dr. Fedor adverted to Ms. Anderson’s difficult
pregnancy and also advised that Mr. Anderson was under his medical care
for mental health problems.

[39]        
Dr. Fedor reported that Mr. Anderson’s difficulties in coping arose
from adjustment disorder anxiety. He stated that Mr. Anderson needed eight
weeks off from work.

Pre-accident Suspension of Employment

[40]        
Faced with Mr. Anderson’s persistent absenteeism, his employer suspended
him from his employment on October 9, 2008.

[41]        
That suspension arose in the following circumstances:

1)        
In late 2007, Paul Allan, Mount Polley’s Superintendent of Human Resources
department, became concerned about Mr. Anderson’s “excessive absenteeism.”
Mr. Allan then eventually directed Judith Gagnon, the Assistant Manager of
Human Resources at Mount Polley, to direct Mr. Anderson to see Dr. Ian
Connell for an independent medical examination. Mr. Allan testified that
his concern was to determine whether Mr. Anderson was “physically or
mentally fit to do the job.”

2)        
Before determining to require Mr. Anderson to attend upon
Dr. Connell, no member of Mount Polley’s Human Resources department made
any inquiries into the reason for any of Mr. Anderson’s specific absences
or group of absences from work. They also did not review Mr. Anderson’s employment
records which contained notes from Dr. Fedor concerning some absences,
including his note related to Ms. Anderson’s difficult pregnancy, and the stress
and anxiety being experienced by Mr. Anderson because of that. Also, no
one at Mount Polley asked Mr. Anderson to provide further information
about his absences and did not seek further information from Dr. Fedor
before directing Mr. Anderson to attend upon Dr. Connell.

3)        
On July 2, 2008, Doug Ablett, Mr. Anderson’s operations supervisor,
sent Mr. Anderson a letter authored by Mr. Allan that stated:

This discussion is being held to
bring to your attention my serious concern regarding your high rate of
absenteeism for the past twelve months dating back to June 07, 2008. Reviewing
the attendance records for the department, I was alarmed to find the amount of
time you have missed from work since securing employment at Mount Polley Mining
Corporation. For the twelve month period previously mentioned, your absentee
rate is currently 19%.

One of the more troubling aspects
of your absences is six unauthorized leaves that occurred during this period
that were not noted in a timely fashion due to changes in your direct
supervisor. Unauthorized absences of this amount more normally lead to serious
disciplinary action and a minimal stage 3 corrective action. In addition, the
Human Resources Superintendent reported to me that you called him on or about
May 24^th, 2008 to inform him you would be returning to work on June
4^th, 2008. This did not occur as you are well aware, and, if after
re-confirming with him that this is indeed the case, your unauthorized leaves for
the year will total thirteen. Conservative cost born to the employer for
coverage during the absentee periods would be in and about the amount of
$11,655.00 using the lowest wage earner in the department at time and one half
wages to cover your absence’s.

I did take approved personal leave
into consideration during the twelve-month period and still have serious
concerns regarding attendance when nineteen sick days are also part of the
documentation and record. My obligation is to ensure the health and safety of
the employee’s under my direction in the department and need to be sure that
you are fit to meet the demands and rigors of your job in this hazardous
environment. It is not only your health and safety that I have to be concerned
about, but also that of your co-workers which need to team up with you for
certain policies and procedures to comply with the safety aspect involved.

I will be recommending to the
Human Resources department that they seek out the medical opinion of another
doctor to ascertain that indeed you are fit and capable of performing the
duties required of a mill operator given your high absenteeism rate. There will
be no cost born to you for taking this medical.

This discussion serves to notify
you that it is a real possibility in the very near future that the Human
Resources department will be arranging a company medical for you to satisfy my
obligation to the HSRC code and ensure I have taken all reasonable measures
regarding your fitness and ultimately your safety to perform the duties and
obligations of a mill operator.

I want to make it clear that if it is determined after
taking the arranged medical, that you are found fit and able to perform the
duties as required of a mill operator, any further unauthorized leaves or a
continued rate of absenteeism can and will lead to disciplinary action, up to
and including dismissal.

4)        
An appointment was then arranged with Dr. Connell, who Mr. Anderson
saw on July 14, 2008.

5)        
After he saw Mr. Anderson, Dr. Connell referred him to Dr. Ray
Baker for further assessment due to Dr. Connell’s concerns about Mr. Anderson’s
history of drug use as a teenager, as well as his previous issues with alcohol.

6)        
Mr. Anderson then attended upon Dr. Baker in September 2008. After
that attendance, Dr. Baker reported to Dr. Connell that:

Discussion and
Treatment Recommendations

I suspect that
Mr. Anderson’s job would be rated as safety sensitive as he works in the mill
around large equipment and many stairs. I do not know the layout of  this
mine but it would not surprise me if he was expected to cross dangerous areas
to get to the mill. His job classification with respect to safety sensitivity
is very important since this man could not be cleared to return to work if he
were classified as safety sensitive. He has untreated alcohol dependence.
Although he denies using marijuana in the past several years there are
documents from the hospital that suggest that within 2007 he was a marijuana
user. He continues to use daily opioids without a clear indication and with a great
deal of risk because of his addiction mostly as a stress management medication.
The least that I would require of this man prior to clearing him to resume
safety sensitive responsibility would be an outpatient psychoeducational
treatment program for addiction and a period of documented monitoring of his
abstinence from all drugs, including codeine. I suspect that he will have
difficulty weaning and discontinuing his codeine completely. He should be
attending mutual support group meetings where he can learn many non-chemical
coping skills and establish a network of support and accountability. Because of
employer liability and in order to benefit Mr. Anderson, he should enter into
formal monitoring. This would entail an individual or agency taking responsibility
to monitor his relapse prevention activities, including his initial treatment
followed by mutual support group activities and verifying his ongoing
abstinence from all addictive drugs. Tylenol #3 is relatively contra-indicated
in a substance dependent person because of the risk of relapse to their
original drugs or of developing opioid dependence, is large enough to outweigh
the only moderate analgesic benefit of the codeine. If an opioid must be used
in a person with a history of past or present substance dependence then it must
be prescribed using very strict protocols, including a behavioural contract,
drug testing, a single prescriber and a fixed dose schedule using a sustained
release preparation. As I stated, l do not believe this man’s historic and
healed back injury warrants ongoing opioid treatment.

It is very likely
that this man, when he attempts to become truly abstinent from opioids and marijuana will find he is
unable to do so and will require a period of intensive residential treatment in
a good quality addiction treatment centre such as Comox Valley Treatment
Centre, Sage Treatment Centre in Kamloops (previously Kiwanis House), The
Cedars at Cobble Hill or Edgewood.

If you would like assistance in arranging
monitoring for this man, HealthQuest can provide this service on behalf of
Medisys or directly for the employer.

7)        
On September 24, 2008, Mr. Anderson was temporarily suspended from work
for four days because of his absence on September 13, 2008. He had missed
work that day because Ms. Anderson and their new son were released from hospital
that day, but he had not obtained authorization for that absence.

8)        
Mr. Anderson served that suspension and then worked until October 8,
2008, without incident.

9)        
On October 9, 2008, Dr. Connell telephoned Ms. Gagnon and advised
her of his and Dr. Baker’s concerns about Mr. Anderson’s previous
drug and alcohol use and his present use of narcotic analgesics for pain
relief. Ms. Gagnon reported that advice to Mr. Allan, who decided to
immediately suspend Mr. Anderson for “safety concerns.”

10)      When
Mr. Anderson reported for the evening shift on October 9, 2008, Ms. Gagnon
told him he would not be allowed to work. She then, together with another
employee, drove Mr. Anderson from the mine to his home in Williams Lake.

11)      On
September 24, 2008, Mr. Ablett wrote the following letter (authored by
Mr. Allan) to Mr. Anderson:

A review of your
employment record with the Company has shown that since September13, 2006 until
December 31, 2007 you have been absent from work 15.23 percent of the time. You
have been counselled about this on a number of occasions for your previous
absenteeism however, since January 1, 2008 to August 31,2008 of this year
you have been absent 38.43 percent of the time, a substantial increase.

Even though some
of this absenteeism may be excusable, an employer is entitled to some degree of
normal attendance at work from an employee. We can appreciate that in the
course of things some time will be missed for illness and other unforeseen
reasons, however, your combined absence record is excessive.

If an employee
has an inordinate amount of absenteeism, and I must advise you that yours is,
then an employer has the right to terminate his employment for non-culpable
absenteeism especially if it appears that there is little likelihood that an
employee will be able to maintain regular attendance in the future.

As an alternative
to termination and upon reinstatement to your employment you are required to
meet and accept the following conditions:

1. Anything you do that would normally
result in the corrective action due to your absenteeism will result in you
being deemed to have quit.

2. You are restricted to pre-approved
leaves which only your Foreman or Superintendent can approve, or illness
confirmed by a doctor’s note stating that you are under his/her direct care and
unable to report for your regularly scheduled shift.

3. The requirements and conditions set out
on items 1, 2 and 3 above are in full effect for 2 years. Time away from work
for acceptable absences (as in 2 above) or for recovery from work related
injuries will be added to the 2 years.

You will be closely monitored and no
leeway will be given for error, substandard or unacceptable performance. You
will have to earn all privileges you previously enjoyed. You are hereby advised
that we expect your attendance record to improve immediately. Further
absenteeism will result in more severe disciplinary action being taken up to
and including termination.

12)      As a
pre-condition to a return to work, Mount Polley required that Mr. Anderson
participate in a psychiatric educational treatment program for addictions, have
a documented period of monitoring of compliance and abstain from the use of
narcotic pain medication.

13)      Dr.
Connell eventually provided a report to Mount Polley, a copy of which was
provided to Dr. Fedor.

14)      Neither
Dr. Connell’s report nor Dr. Baker’s report was tendered in evidence and they
did not testify.

[42]        
After Mount Polley suspended Mr. Anderson’s employment, Dr. Fedor
assisted him in obtaining disability benefits.

[43]        
In a report to Mount Polley’s insurers dated October 21, 2008, he
advised that it was his opinion that Mr. Anderson then suffered primarily
from adjustment disorder with anxiety and mild to moderate cognitive
impairment.

[44]        
Mr. Anderson did not return to work at Mount Polley after October 9,
2008.

[45]        
He did not do so because:

1)    Although Dr.
Fedor was prepared to assist Mr. Anderson in complying with Mount Polley’s
demands, he disagreed with Dr. Connell’s assessment and considered that Mr. Anderson
did not require the counselling or treatment that had been directed as a pre-condition
to the lifting of the suspension.

2)    Ms. Anderson did
not agree that Mr. Anderson should undertake the drug and alcohol treatment
program required by Mount Polley because she knew that Mr. Anderson had
not abused alcohol since at least January 2008, and was taking only prescribed
medications for pain relief and never took them while at work.

3)    Mr. Anderson
considered that the pre-conditions to a return to work were unfair and
unreasonable, given that the reasons for his absences were all medically
substantiated and otherwise verified.

4)    Notwithstanding
those objections, however, due to his family’s then precarious financial
position, Mr. Anderson was prepared to do what was required in order to regain
employment at Mount Polley, once specific arrangements were made by Mount
Polley.

5)    Mount Polley never
made any specific arrangements to initiate or facilitate the treatment program
it required Mr. Anderson to complete.

6)    The accident
which is the subject of this proceeding occurred three months after his
suspension.

7)    The injuries Mr.
Anderson sustained when his left knee was crushed prevented him from
immediately returning to do the work he had previously done at Mount Polley as
a crusher or grinder operator.

The Grievance Process

[46]        
Through his union, Mr. Andersen eventually grieved Mount Polley’s
suspension and subsequent termination of his employment.

[47]        
By the time that grievance process was completed, however, Mr. Anderson
had been absent from work for more than one year due to the injuries suffered
in the collision. That absence from work, due to a non-work related cause, gave
Mount Polley the right to terminate his employment, which it did on
November 3, 2009.

[48]        
On that date Mount Polley terminated Mr. Anderson’s employment. In
doing so it stated:

You have been absent from your
position as Mill Operator at Mount Polley Mining Corporation due to a
non-occupational illness since October 10, 2008. Article 8.03(g) of the
collective agreement between Mount Polley and the United Steelworkers of
America, Local 1-425 states that if an employee is absent in excess of 1 year
due to a non-occupational illness or injury, his seniority shall be lost and his
employment deemed terminated. Accordingly, as you have been absent for more
than one year, your employment with Mount Polley Mining Corporation has been
terminated.

Mount Polley has attempted to accommodate your illness. You
underwent an Occupation Health Assessment on July 14, 2008, as well as a
follow-up complex biopsychosocial assessment on September 19, 2008. The doctors
found that you could not be cleared to return to your safety sensitive position
at the mine until, at a minimum, you participated in an out-patient treatment
program and had a documented period of monitored compliance. To our knowledge,
you have chosen not to attend any such program or undertake any counselling or
treatment. In addition, Mount Polley’s suggestion that you attend a further
medical review to determine your fitness for work was rejected by your Union.

[49]        
After the grievance process was completed, Mr. Anderson was paid
$15,000 for the time he lost at work due to the suspension from October 9,
2008, until the time of the accident on January 6, 2009. The Arbitrator
also ordered Mount Polley to change the date of the termination of Mr. Anderson’s
employment from November 3, 2009, to January 26, 2010, to reflect the
basis upon which it was entitled to terminate Mr. Anderson’s employment.

[50]        
That letter of termination stated:

This letter will confirm that Mr. C Anderson commenced
employment with Mount Polley Mining Corporation September 13, 2006 and his
employment was terminated January 26, 2010. Mr Anderson was a Mill Operator 4
and worked primarily in the primary crusher.

Mr Anderson was terminated as per Article 8.03 (g) of the CBA

“The seniority of an employee shall be completely lost and
his employment shall be deemed to be terminated if he:

g.         is absent due to
non-occupational injury or illness for a period in excess of one (1) year, and
cannot be returned to work pursuant to the duty to accommodate”.

Post-accident Medical and Work History

[51]        
When the defendant backed into Mr. Anderson, her vehicle first struck
his hip. He testified that his hip “popped out.” He tried to pull himself into
the car but could not move quickly enough. When the defendant stopped her car
and “threw it into park,” his knee was caught against the door jamb with
“nowhere to go,” until she pulled her vehicle forward.

[52]        
Mr. Anderson testified that he heard a grinding and popping sound. When the
defendant eventually pulled forward, he sat on the floor of the car. The police
eventually came and immediately after they left, Ms. Anderson drove Mr. Anderson
to the Cariboo Memorial Hospital.

[53]        
At the hospital, Mr. Anderson’s left hip and left knee were X-rayed. He
testified that he felt pain in his left hip. He testified that his knee was
“puffed up,” and he still felt popping and grinding in it. He was not kept
overnight.

[54]        
Mr. Anderson attended on Dr. Fedor three days after the accident.
He felt pain in his hip but his main concern was the pain and swelling in his
left knee. He testified that the pain in his left hip did not persist for more
than a week but that his left knee remained painful and swollen.

[55]        
Dr. Fedor’s clinical records of the first visit on January 9, 2009,
and thereafter generally affirm Mr. Anderson’s evidence concerning the
injury to his left knee and the pain he was suffering from it. There are some
minor inconsistencies with respect to the extent to which the knee may have
been swollen at various visits, but I am satisfied that I can safely rely on
Mr. Anderson’s evidence about the extent of the pain and swelling in his
knee, the effects of the injury upon his mobility, and his general well-being
since his knee was injured.

[56]        
I reach that conclusion notwithstanding the fact that the initial X-rays
taken at the hospital and subsequent MRI scans do not disclose evidence of
acute injury. The expert evidence of Dr. Andrew Porter, who operated upon
Mr. Anderson’s left knee on March 10, 2010, and was thus in the best
position to opine as to the condition of the knee pre-surgery, convinces me
that there is objective evidence to support Mr. Anderson’s subjective
complaints.

[57]        
I also prefer the evidence of Dr. Porter over that of the defence
expert Dr. John Oliver, to the extent that he disagrees with Dr. Porter’s
opinion and prognosis. I do so because Dr. Porter not only performed the
surgery that allowed him to examine the knee’s pre-surgery anatomical condition,
but also regularly attended upon Mr. Anderson as a treating specialist up
to 10 times, beginning on February 10, 2009, approximately one month
after the collision.

[58]        
Although the medical opinions differ with respect to whether Mr. Anderson
may suffer from complex regional pain syndrome because of the injuries to his
knee, and also whether patellar maltracking was caused by or made symptomatic
by the collision, I am satisfied by the totality of the evidence that the knee
pain Mr. Anderson has suffered and continues to suffer, as well as the
mobility issues he has experienced and continues to experience, are genuine and
were all caused by the collision.

[59]        
I am also satisfied on a balance of probabilities that the negative
effects upon Mr. Anderson’s life arising from the left knee injury were
caused by the collision and the defendant’s negligence, and would not have
occurred but for that negligence.

[60]        
I reach that conclusion based not only upon the evidence of Dr. Fedor
and Dr. Porter, but also upon Mr. Anderson’s testimony. Although Mr. Anderson
was from time to time inexact in his recall of dates and did offer a more
positive view of his work performance at Mount Polley than is objectively
warranted, I find that he was a generally credible witness on issues relating
to his pain and suffering from his knee injury and the effects of that injury
on his general well-being, his mobility and his work capacity.

[61]        
Also, the evidence of both Ms. Anderson and her mother Zena Lawrence,
both of whom I find to be credible and reliable witnesses, confirmed much of
Mr. Anderson’s evidence about the effects of the injury upon him.

[62]        
Ms. Anderson’s evidence confirms the extent to which Mr. Anderson’s
symptoms immediately after the collision restricted his activities around the
home, as well as generally when he was able to do little but rest and could
help little with the children or household tasks. Her evidence also confirms
that his condition improved gradually over time to the point where he became
more active, but was still restricted in his abilities around the house. She testified
that after initial recovery from knee surgery in March 2010, his knee was
considerably better but that he still favours his leg, still takes two naps a
day, is “cranky” with the children and occasionally wears a knee brace.

[63]        
Mr. Anderson’s activities outside the home are also still restricted in
that he no longer skis, hikes, rides a dirt bike or plays with his children as
he previously did. Financial issues related to his inability to work as he
previously did have also caused friction with Ms. Anderson.

[64]        
Ms. Lawrence also observed that Mr. Anderson experienced knee pain
and restricted use of his left leg after the accident, which has persisted. She
also confirmed that he favours his left leg, frequently has to rest it, and
still walks with a limp.

[65]        
Consideration of Mr. Anderson’s medical condition arising from the left
knee injury is complicated by his ongoing disputes with Mount Polley over the
suspension and the eventual termination of his employment, as well as the
financial difficulties which he faced as a consequence of being unable to
return to work at Mount Polley.

[66]        
I find that although he was reluctant to agree to the reinstatement
conditions imposed by Mount Polley as recommended by Dr. Connell, he would
have done so to the extent possible if arrangements for treatment had been made
by Mount Polley, and more significantly, had he not suffered the injury to his
knee on January 9, 2009.

[67]        
In result, Mr. Anderson was regularly attending upon Dr. Fedor, Dr. Porter
and other medical professionals related to the injury to his knee, but was also
attending upon Dr. Fedor for issues related to his continuing anxiety and
depression arising from suspension-related issues which continued until his
grievance was finally resolved by arbitration in early 2010.

[68]        
In addition to the knee and suspension-related issues, Mr. Anderson
also saw Dr. Fedor on occasion because of the chronic low back pain
arising from his 2004 back injury from which he still suffers and which still
requires treatment with Emtec or Tylenol 3.

[69]        
Also, in December 2010, Mr. Armstrong was involved in a single vehicle
accident in which the vehicle he was driving began to slide on an icy road, so
that he had to leave the vehicle before it went over a cliff. He landed on his
“bum,” which was sore for a few days. He testified that the jump from the
vehicle did not aggravate his ongoing knee injury, and I find no reliable
evidence to refute his testimony on that issue.

[70]        
Mr. Anderson was unable to work because of the knee injury until after
his surgery. However, in late 2010 he began to do seasonal “call out” work for
Les’ Backhoe and later for Any Season Plowing, driving a snowplough truck.

[71]        
Mr. Anderson was able to do that work notwithstanding his knee injury,
although he had to take Tylenol 1’s from time to time while working to
alleviate pain. He had to work or be available for work for long hours and his
knee would “seize up” from time to time. Also, driving a standard plough truck
was more difficult than one with an automatic transmission.

[72]        
During the winter of 2011, Mr. Anderson also worked for Downtown
Towing as a tow truck operator for four days when there was no snow. He was, however,
“let go” because his employer was concerned about his limp and possibly being
injured on the job.

[73]        
After the winter of 2011 when his seasonal snowplough work ended, Mr. Anderson
began to work for Domino’s Pizza. He worked primarily as a delivery driver but
also swept floors, cut pizza, took orders and helped customers. He quit that
job about three weeks before this trial, when he was robbed.

[74]        
Mr. Anderson is now unemployed but is trying to upgrade his education
and also obtain a Class 1 driver’s licence. He has a friend in Alberta who
will offer him employment if he can pass the Class 1 test to get that
licence. He has, however, now failed that test five times to date and is
becoming “self-conscious” about the test, but intends to keep trying.

[75]        
My consideration of the totality of the evidence in this case leads me
to conclude that:

1)    Mr. Anderson
will have ongoing symptoms with his knee indefinitely which will remain
relatively constant at their present level with a tendency to improve over time,
rather than worsen.

2)    Mr. Anderson is
likely to have difficulties with activities requiring a great deal of knee
flexion such as kneeling, squatting, climbing stairs and walking up hills.

3)    No further
surgical intervention will assist in alleviating Mr. Anderson’s existing
knee symptoms.

4)    Mr. Anderson
will not likely develop accelerated osteoarthritis because of the injury to his
knee.

5)    Mr. Anderson is
not disabled from work as a driver if he obtains a Class 1 licence, but
will be required to take breaks to rest his knee if he drives for long periods
of time.

6)    The injury to
his left knee will likely require Mr. Anderson to take more pain medication
to relieve his pain than he was taking to alleviate the chronic pain associated
with his low back pain caused by the 2004 motor vehicle accident.

DAMAGES

[76]        
I now proceed to my assessment of the damages suffered by Mr. Anderson,
for which he is entitled to compensation.

Non-pecuniary Damages

[77]        
The purpose of non-pecuniary damages in personal injury cases is to
compensate the injured party for their pain and suffering, loss of enjoyment of
life and loss of enjoyment of amenities caused by the fault of a tortfeasor.

[78]        
In Stapley v. Hejslet, 2006 BCCA 34 [Stapley] at para. 46,
Kirkpatrick J.A. set out a useful, non-exhaustive list of factors that
offer guidance as to what may influence an award of non-pecuniary damages. The
list included the:

(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.

[79]        
Kirkpatrick J.A. went on to say:

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).

[80]        
With those considerations in mind I will now assess the compensation to
which I consider Mr. Anderson is entitled for his pain, suffering, and
loss of enjoyment of life for the injuries he suffered as a consequence of the
defendant’s negligence.

[81]        
On behalf of Mr. Anderson, his counsel Mr. Oliver asserted that an
appropriate award of non-pecuniary damages in this case would be from $70,000
to $100,000. In support of that submission he referred me to the following
decisions which assessed damages for similar injuries: Penner v. Silk (December
7, 2009), Vancouver M071786 (S.C.); Penner v. Silk (March 15, 2011),
Vancouver CA037733 (B.C.C.A.); Poulton v. Inderbosch (May 19, 2010),
Vancouver M080383 (S.C.); Daitol v. Chan (February 10, 2012), Vancouver
M093060 (S.C.); Haley v. Gust (May 31, 2010), Port Alberni M20802
(S.C.); Fortin v. Cousins (May 29, 2009), New Westminster M97782 (S.C.);
Ng v. Sarkaria (November 30, 2011), Vancouver M090697 (S.C.); and Garcha
v. Duenas (March 25, 2011), Vancouver M081331 (S.C.).

[82]        
Mr. Lindsay, on behalf of the third party, suggested that an award in
the range of $40,000 to $50,000 would adequately compensate Mr. Anderson
for his injuries. In making that submission he referred me to: Ivanoff v.
Bensmiller, 2000 BCSC 1741; Dudley v. Orca Bay Arena Corp., 2002
BCSC 889; Ible v. Chirag, 2006 BCSC 1624; Atkinson v. Niles, 2009
BCSC 442; Rindero v. Nicholson, 2009 BCSC 1018; Brock v. King,
2009 BCSC 1179; Michal v. Begg, 2010 BCSC 138; Valuck v. Challandes,
2012 BCSC 324; Bhadlawala v. Baxter, 2012 BCSC 366.

[83]        
Other cases are of some, but limited, assistance in assessing an award
of non-pecuniary damages. Each person who endures a debilitating injury is
unique and the nature of the injuries suffered by plaintiffs and their life
circumstances will rarely be identical. The cases cited by counsel do, however,
establish that for a serious left knee injury such as that suffered by Mr. Anderson,
a substantial award will be necessary and appropriate to compensate for his
non-pecuniary losses.

[84]        
Mr. Anderson has suffered a serious and debilitating left knee injury.
It was acutely debilitating for approximately six weeks when he could do almost
nothing other than rest. While his condition improved thereafter, that
improvement was not sufficient to allow him to resume all of his previous activities
either at home or outside the home, his home life and relationships with his
wife and children suffered badly, and he was unable to work because of his
injuries.

[85]        
Surgery on his knee in March 2010, more than a year after he was injured,
helped to alleviate his difficulties to the extent that by his own assessment
his improvement has now approached 70%. The evidence establishes that it is
likely that his symptoms have stabilized at that level and are not likely to
worsen over time.

[86]        
Even at their present recovery level, Mr. Anderson’s injuries
require him to endure pain that must be treated with increased levels of
medication beyond that which previously alleviated his chronic low back pain
that arose from the 2004 motor vehicle accident. His ability to enjoy life
because of his compromised physical abilities is seriously diminished. He has
now suffered and endured his losses for more than three years. As a young man
who is now only 30, Mr. Anderson will suffer them for most of his adult
life.

[87]        
After considering the totality of the evidence and the principles
enunciated in Stapley, and the authorities to which I was referred by
both counsel, I have determined that an award of $85,000 is necessary to
appropriately compensate Mr. Anderson for his non-pecuniary losses.

[88]        
I have included in that award compensation for his loss of housekeeping
capacity. Counsel for Mr. Anderson advanced a separate claim for that loss
in which he sought compensation in the range of $2,500 to $5,000.

[89]        
Due to the relatively short period for which Mr. Anderson was
totally disabled from assisting with household duties and the fact that since
the surgery he has been able to do almost all household tasks that he did
before his knee was injured, I have concluded that his claim for loss of
housekeeping capacity can be appropriately compensated as a part of his claim
for non-pecuniary damages.

Damages for Past Income Loss

[90]        
The extent of the past wage loss suffered by Mr. Anderson that was
caused by the defendant’s negligence is obviously complicated by the fact that when
he suffered the injury to his knee on January 6, 2009, he had been
suspended from his employment with Mount Polley since October 9, 2008.

[91]        
On behalf of Mr. Anderson, Mr. Oliver submits that I should assess
Mr. Anderson’s past wage loss based upon an annual salary from Mount
Polley of approximately $50,000, as supported by his 2007 and 2008 tax returns.
He says that based on that salary, Mr. Anderson could have earned $165,000
between the date he suffered the knee injury and the date of trial.

[92]        
Mr. Oliver further submits that from those potential earnings I should
deduct monies that Mr. Anderson received while working at the various jobs
he had with Les’ Backhoe, Any Season Plowing, Downtown Towing, and Domino’s
Pizza, so that an award of approximately $151,000 would result. That award
would be subject to deduction for income tax at the rate agreed upon by the
parties of 17.5%, and would result in a net award for past income loss of
approximately $125,000.

[93]        
In recognition of difficulties arising from the suspension by Mount
Polley, including the chance that Mr. Anderson would not have been reinstated,
as well as the fact that he might not have been able to obtain similar
employment at Gibraltar Mines, Mr. Oliver suggested that a 20% negative
contingency should be applied to that amount which would result in an award for
past income loss in the amount of $100,000.

[94]        
Counsel for the third party submits that Dr. Fedor’s diagnosis of
adjustment disorder continued past the date of Mr. Anderson’s knee injury,
and that is unclear whether it ever resolved. Mr. Lindsay also submits
that because he never fulfilled the conditions to allow reinstatement as an
employee at Mount Polley, he was never in a position to return to that
employment and that in any event his less-than-ideal work history at Mount
Polley should lead to a finding that he did not have a future there.

[95]        
The third party submits that given those circumstances I should award
damages for past wage loss on the basis of Mr. Anderson being off work for
three months after the collision and perhaps a further three months after the
surgery for a damage award of approximately $15,000.

[96]        
I have concluded that the third party’s submissions fail to recognize
that Mr. Anderson might have been reinstated at Mount Polley or might have
received a compensatory award from the arbitrator for his lost wages due to an
unfounded suspension but for the knee injury he suffered in the collision. They
also fail to consider that even if not reinstated, Mr. Anderson might have
been able to obtain employment at Gibraltar Mines, had he not been physically
disabled from doing the work which would have been required of him there as a
crusher operator.

[97]        
The result of the grievance arbitration was the payment by Mount Polley
to Mr. Anderson of $15,000, which Mr. Allan agreed in
cross-examination was effectively payment for three months of lost work between
the date of the suspension and the date when Mr. Anderson became disabled
from working due to non-work related causes.

[98]        
It was only the fact of the knee injury and the inability of Mr. Anderson
to return to work for 12 months that gave Mount Polley the right to
terminate Mr. Anderson’s employment, which it recognized when it reissued
the termination notice after the grievance arbitration.

[99]        
I appreciate that it is unlikely that Mount Polley would ever have
voluntarily reinstated Mr. Anderson as an employee because of his refusal
to comply with its pre-conditions to a lifting of the suspension of October 8,
2008. That does not, however, mean that Mr. Anderson could not have been
entitled to compensation for an unfounded suspension and unreasonable
pre-conditions to reinstatement if the defendant’s negligence had not created a
new basis for termination and loss of wages.

[100]     In saying
that Mr. Anderson might have been entitled to compensation by Mount Polley for
an unfounded suspension, I have looked not only to the effect of the
arbitrator’s orders but also considered the totality of the evidence before me
related to the basis upon which Mount Polley determined to suspend Mr. Anderson’s
employment.

[101]     I find it,
at best, surprising that before requiring Mr. Anderson to be assessed by
Dr. Connell and subsequently by Dr. Baker, Mount Polley’s Human Resources
department did not review their own personnel files which were replete with
information as to why Mr. Anderson was missing work for medical, personal
and family reasons.

[102]     I also
find it surprising that Mount Polley suspended Mr. Anderson’s employment
over alleged untreated drug abuse issues that had occurred when he was a
teenager, and linked those issues to his use of prescribed narcotic analgesics
when his employment application had disclosed the existence of his prior
injuries, when he had been subject to drug testing before he was hired, and when
he was obligated to submit to further testing while he was employed.

[103]     The
evidence also establishes to my satisfaction that:

1)    Mr. Anderson’s
use of prescribed medication never posed a safety issue at work because he
never used narcotic medication while at work;

2)    Mr. Anderson did
not lose more than one day of work because of his chronic back pain; and

3)    Mr. Anderson’s
asthma did not cause him to lose any time at work.

[104]     While I
recognize that it is difficult to assess what might have occurred but for the
collision, I am satisfied that some compensation for lost earnings, based upon
a loss of opportunity to regain his employment of $50,000 per year, is
appropriate. I also find that if Mr. Anderson had not been physically
disabled by his knee operation, he would have at least had an opportunity to be
employed at Gibraltar Mines, although at a slightly lower hourly rate than the
$27.00 per hour rate he was receiving at Mount Polley.

[105]     In all of
the circumstances I have concluded that but for the defendant’s negligence, Mr. Anderson
could have earned $165,000 at Mount Polley between the time of the collision
and the date of trial. I have, however, reduced that award by 50% to account
for the negative contingencies of his prior absenteeism, his ongoing adjustment
disorder, as well as his anxiety and depression (even though exacerbated by the
suspension), his past difficulties with management at Mount Polley, the fact
that those difficulties might have negatively impacted his ability to find
similar employment at Gibraltar Mines, as well as the monies he earned while
working at the various jobs he undertook between late 2010 and the date of
trial.

[106]     In result,
I find that Mr. Anderson is entitled to damages in the amount of $87,500 for
his past income loss, less 17.5% of that amount ($15,312.50), being the agreed-upon
income tax deduction that should be applied to that award, resulting in a net
damage award for past income loss of $72,187.50.

Damages for Impaired Future Income Earning Capacity

[107]    
In Perren v. Lalari, 2010 BCCA 140, our Court of Appeal settled
the question of how claims for lost impaired earning capacity can be addressed.
After a long discussion and review of different approaches that had been
applied in past cases, Garson J.A. stated for the court 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.

[108]     Counsel
for Mr. Anderson submits that an award of from $350,000 to $450,000 is
necessary to compensate Mr. Anderson for his impaired earning capacity.

[109]     The range
of damages suggested by Mr. Oliver is for the most part founded on an earnings
approach. He submits that based upon an annual average salary at Mount Polley
in the range of $50,000 per year (based on $27.00 per hour), reduced by one
third to reflect the reality of the earning level attainable by Mr. Anderson
as a part-time snowplough driver or as an entry level delivery person, over a
period of 35 years (to age 65), with the applicable discount multiplier of
23.1542 per $1,000, the result is an award of $385,000. He thus submits that
considering negative and positive contingencies, an award in the range of
$350,000 to $450,000 is supportable and appropriate.

[110]     The third
party submits that an award in the range of only $25,000 to $40,000 will
appropriately compensate Mr. Anderson for his impaired earning capacity.

[111]     In making
that submission, Mr. Lindsay submits that an earnings approach is inappropriate
because even if he had not suffered the knee injury, Mr. Anderson was not
going to continue to be employed at Mount Polley due to the absenteeism that
had led to his suspension and his refusal to comply with Mount Polley’s
pre-conditions to the lifting of that suspension. He says that a capital asset
approach with an award in the range of $25,000 to $40,000 more appropriately
compensates Mr. Anderson for his real loss of earning capacity caused by
the knee injury.

[112]     I agree
with the third party that the capital asset approach is necessary in this case.

[113]     For the
many reasons I addressed in considering Mr. Anderson’s past income loss
claim, the determination of the effect of the knee injury upon Mr. Anderson’s
earning capacity is inextricably interwoven with the issues arising from his
past, less-than-stellar performance at Mount Polley. The suspension of his
employment, and the reasons for that suspension, are factors that must be
considered when assessing the damages that should be awarded for his impaired
earning capacity caused by the defendant’s negligence.

[114]     I do not,
however, agree with the third party’s assertion that Mr. Anderson’s claim
for impaired earning capacity must disregard his employment at Mount Polley,
because as I have already decided, it is not at all clear that he would not
have eventually been reinstated at Mount Polley in the grievance process if he
had not suffered the debilitating injury to his left knee caused by the
defendant’s negligence.

[115]     Although
that possibility must be discounted because of Mr. Anderson’s work history
and Mount Polley’s apparent determination to terminate his employment, I again
refer not only to the objective unreasonableness of Mount Polley’s reinstatement
demands, but also Mr. Anderson’s willingness to comply with those demands
if that was what was necessary to regain employment, and if concrete
arrangements to do so had been made.

[116]     The
intervening knee injury prevented that from occurring and led to the
termination of his employment for a different cause than that upon which the
suspension was based in October 2008.

[117]     I also do
not agree with the third party’s suggested quantification of Mr. Anderson’s
claim for impaired earning capacity, because it fails to consider potential
employment at Gibraltar Mines in jobs similar to those he had performed at
Mount Polley. Mr. Anderson would have been qualified for and able to
perform such jobs if he had not been disabled by the injury to his left knee.

[118]     In support
of his impaired earning capacity claim, Mr. Anderson relied upon the
opinion of Shannon Smith, an occupational therapist who tested Mr. Anderson’s
work capacity and concluded that Mr. Anderson is not suited to work
involving repetitive or fast-paced stair or ladder climbing, kneeling or
crouching.

[119]     That
opinion is consistent with Dr. Porter’s evidence and lends credence to Mr. Anderson’s
evidence that he could not perform the physical work involved in the jobs he
did at Mount Polley or would do at Gibraltar Mines because of the amount of
stair climbing involved.

[120]     Ms. Smith also
opined that Mr. Anderson has a limited sitting tolerance of one to two
hours at a time and is not capable of work requiring full-time standing, fast-paced
walking, or the ability to walk on uneven terrain. She says that he is able to
perform limited light entry level, medium-strength work activities and could
benefit from education on more adaptive symptom management strategies.

[121]     Mr.
Anderson also relied on the report of Richard Carlin, a vocational consultant.
Mr. Carlin offered the opinion that Mr. Anderson is precluded from
returning to his pre-injury work at Mount Polley or any other mining operation
because of his injury, and that his limitations considerably diminish his
overall capacity to compete in a competitive labour market.

[122]     I find
that Mr. Carlin’s opinion is confirmed by Mr. Anderson’s limited
ability to find work after knee surgery and his ability to only find part-time
seasonal work as a snowplough operator and entry level work as a pizza delivery
driver.

[123]     Mr. Carlin
also suggested that Mr. Anderson’s failed attempts to obtain his Class 1
driver’s licence indicate that it may be unrealistic to assume that he will ever
do so and thus gain the opportunity to earn $15.00 to $25.00 per hour as a
qualified driver or maintain such a position due to his knee injury.

[124]     Mr. Carlin
offers the opinion that it is more likely that Mr. Anderson will earn from
$9.00 to $12.00 per hour in the future.

[125]     I am not
as pessimistic as Mr. Carlin about Mr. Anderson’s ability to obtain
his Class 1 licence, but do share his concerns about the limitations that
Mr. Anderson’s knee injury may place on the actual work that may be
required of such a driver, and how that will limit Mr. Anderson’s
employability in a competitive job market.

[126]     Having
regard to the totality of the evidence and including my assessment of Mr. Anderson’s
past employment history at Mount Polley, as well as his work history since the
surgery on his left knee, but considering also his potential to obtain a Class 1
driver’s licence, I am satisfied that the award for impaired income earning
capacity suggested by Mr. Oliver on Mr. Anderson’s behalf is
excessive.

[127]     In part, I
base that conclusion upon the fact that Mr. Anderson’s employment
performance at Mount Polley was less than ideal. Even if that performance did
not warrant his suspension for the reasons given by Mount Polley, it is far
from clear that he would have continued as an employee of the mine for 35 years.
I also note the evidence of Mr. Allan that the present life expectancy of
the mine is only a further 11 years, but recognize also that that is a
moving target.

[128]     In the
totality of the circumstances, I have concluded that the evidence supports an
award for impaired earning capacity of $115,000. That award reflects not only
Mr. Anderson’s past employment performance but also his future prospects. In
making that award I have also considered loss of income that could arise from
unemployment or other causes unrelated to the collision that would not be
compensable, as well as the possible (but unlikely) potential that Mr. Anderson
could receive promotions or other more remunerative opportunities to earn
income.

Damages for Loss of Homemaking and Child Rearing Capacity

[129]     I have
compensated Mr. Anderson under this head of damages in my award of
non-pecuniary damages.

Costs of Future Care

[130]     Mr. Oliver
has submitted that the cost of additional analgesic medication required to help
to alleviate Mr. Anderson’s pain arising from the knee injury is $5.75 per
month, being $500 over his lifetime.

[131]     The third
party does not dispute that submission and I find that the amount sought by Mr. Anderson
is supported by the evidence.

[132]     The third
party will pay Mr. Anderson $500 for the cost of his future care.

Special Damages

[133]     Mr.
Anderson claims $5,318.20 in special damages. That amount includes costs of
physiotherapy in the amount of $1,290.

[134]     The third
party agrees to the payment of all of the special damages sought, with the
exception of $680 in physiotherapy treatments directed to treatment of hip and
low back pain.

[135]     The
physiotherapy treatment received by Mr. Anderson arose from
recommendations made by Drs. Fedor and Porter, but did not commence until
July 13, 2009. By that time, the hip injury Mr. Anderson suffered in
the collision was no longer causing him pain. While I accept Mr. Anderson’s
evidence that he did not direct the physiotherapist’s therapy and simply
accepted that which was offered, I cannot find on a balance of probabilities
that either the treatment related to the hip or the low back were necessitated
by the collision.

[136]     I
accordingly reduce Mr. Anderson’s claim for special damages by $680.

[137]     The third
party will pay Mr. Anderson $4,638.20 for the special damages he has
incurred and proven.

SUMMARY OF AWARDS

[138]     Mr.
Anderson has established entitlement to the following damage awards:

COSTS

[139]    
Unless there are matters of which I am unaware, Mr. Anderson will
have his costs throughout on Scale B.

“Davies
J.”