IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120907

Docket: NA S55575

Registry:
Nanaimo

Between:

Michael Samson

Plaintiff

And:

Steven Aubin, Jim
Pattison Industries Ltd. and

Hayes Forest
Services Limited

Defendants

Before:
The Honourable G.R.J. Gaul

Reasons for Judgment

Introduction

[1]            
Mr. Manson is a single, 31-year old lifelong resident of Port
Alberni. He is also the father of a 13-year old son who resides with his
biological mother.

[2]            
On 2 April 2007, Mr. Samson was involved in a two-car motor
vehicle accident in Port Alberni (the “Accident”). The owner and the driver of
the second vehicle have admitted liability for the Accident and therefore the
principle issue to resolve in this litigation is the quantum of Mr. Samson’s
damages.

The Plaintiff’s Pre Accident
Condition

  Employment

[3]            
In 1997 Mr. Samson left high school before completing his grade 11
and began working at a local pizzeria. Mr. Samson worked at that job for
about 2 years. He then found work as a cook at the Westwind Restaurant & Bar
in Port Alberni (the “Westwind”). Mr. Samson is unsure how long his
employment at the Westwind lasted and guesses it was approximately 3 years.

[4]            
Mr. Samson quit his job at the Westwind and returned to school to
earn his Class 1 driver’s licence. His hope was to find work as a heavy
machinery operator.

[5]            
Upon obtaining his Class 1 driver’s licence, Mr. Samson was
unable to find employment operating heavy machinery. Consequently, he began looking
for work as a general labourer in the Port Alberni area.

[6]            
At some point between 2004 and 2006, on the evidence adduced at trial the
exact year is unclear, George Manson, the owner of Manson Renovating and
Construction Ltd. in Port Alberni (“Manson Ltd.’”) hired Mr. Samson as a
labourer and carpenter’s helper.

[7]            
Mr. Samson’s duties with Manson Ltd. varied on a daily basis but
generally entailed physical work on the jobsite, including lifting and moving
heavy objects. According to Mr. Manson, Mr. Samson’s work was labour
intensive and included packing lumber and digging drains. Mr. Manson described
Mr. Samson as a very good employee and a hard worker.

[8]            
Kevin Gray, a long-time friend and a co-worker with Mr. Samson at
Mason Ltd., described Mr. Samson as “one of the best” at Manson Ltd. and
someone who specialized in tiling and finishing work.

[9]            
Mr. Samson says that when he started with Manson Ltd. he worked
full time, 40 hours per week, at a rate of $15 per hour. He also says, with
certainty, that overtime work was always available at Manson Ltd. Ms. Samson
claims that his hourly rate increased to $17 per hour; however he could not say
when that occurred. Mr. Samson further asserts that in April 2007 his
hourly rate was $18 per hour.

[10]        
As a general observation, I found Mr. Samson to be a poor historian
of the facts. That is, he often could not recall dates or events and was
regularly vague with respect to specifics. As a tiler or finisher Mr. Samson
may be “one of the best”; however as a witness he is not one for details.
Although I do not find that Mr. Samson was attempting to mislead the court,
his often vague or unresponsive answers did little to assist his case. On the
issue of overtime, Mr. Manson’s evidence conflicted with that of Mr. Samson,
as Mr. Manson asserted there was very little overtime available for his
employees. If anyone would know about overtime it would be Mr. Manson as
he would be the one paying it. On this issue of overtime, I accept Mr. Manson’s
evidence over that of Mr. Samson.

[11]        
Mr. Samson says that he does not plan on being a labourer or
tradesperson with Manson Ltd. for the balance of his working life, but is
presently satisfied being so employed as it pays well. According to Mr. Samson,
his career objective is to become a heavy-duty machinery operator or truck
driver and it is for that reason that he has turned down Mr. Manson’s
offers that he become an apprentice tradesman.

  Activities

[12]        
In the spring of 2007, Mr. Samson was a healthy and fit 28-year old.
He was an outdoorsman who rode his all-terrain vehicle off-road regularly, and
was involved in boating and racket sports with his son.

[13]        
Mr. Gray confirmed that prior to April 2007, he and Mr. Samson
would “hang-out” and ride their all-terrain vehicles on the weekends. According
to Mr. Gray, Mr. Samson was always able to keep up with the group.

[14]        
In 2005 or 2006, Mr. Samson was not certain, he purchased a
residential property from Mr. Manson. The house needed cosmetic
renovations and according to Mr. Samson, over the course of the next year
or two, he performed much of this work himself with the intention of eventually
selling the property.

The Accident

[15]        
There is little dispute with respect to the facts surrounding the motor
vehicle Accident of 2 April 2007.

[16]        
At approximately 4:30 pm on 2 April 2007, Mr. Samson had
stopped his vehicle at the controlled intersection of Gertrude Street and
Lathom Avenue in Port Alberni. Just as he began to proceed through the
intersection, the defendant’s vehicle proceeded through the intersection
without stopping. Mr. Samson was unable to stop his vehicle and it
collided with the driver’s side of the defendant’s vehicle.

[17]        
Mr. Samson was transported by ambulance to the West Coast General
Hospital in Port Alberni. He was examined by the medical staff at the hospital
and discharge later that day.

The Plaintiff’s Post Accident
Condition & Treatment

[18]        
Mr. Samson maintains that as a result of the Accident he suffered a
number of physical injuries, including:

a)    sore neck

b)    sore right
shoulder

c)     sore right
wrist

d)    sore lower back

e)    sore right hip

f)      sore
right knee

g)    sore right ankle

[19]        
The day after the Accident, Mr. Samson saw his family doctor, Dr. James
Grant. Between 3 April and 11 June 2007, Mr. Samson saw Dr. Grant
an additional eight times. The clinical records of Dr. Grant indicate that
there was a marked improvement in Mr. Samson’s condition during this
period and that by 7 May 2007, Mr. Samson’s condition was “much
improved”.

[20]        
On the advice of Dr. Grant in the spring of 2007, Mr. Samson
embarked upon a course of physiotherapy and exercise therapy to address his
injuries.

[21]        
In late May 2007, Mr. Samson reported to his occupational therapist,
Ms. Alana Thorpe, that he continued to have varying degrees of lower back
pain and some mild stiffness to his neck. He also sensed mild ankle pain
following prolonged walks. The headaches he had suffered from were no longer
present.

[22]        
From May until early June 2007, Mr. Samson attended 13
physiotherapy sessions with Ms. Jane Cruttenden. In a report dated 4 June
2007, Ms. Cruttenden noted that there was an overall reduction in the
severity of Mr. Samson’s injuries, although there was some residual pain
in his lower back and ankle, especially after lifting heavy objects or standing
for extended periods of time.

[23]        
Between 31 July and 7 October 2007, Mr. Samson participated
in a Gradual Return to Work Program with Manson Ltd. (the “GRWP”). Mr. Manson
was involved in the creation and monitoring of Mr. Samson’s GRWP. During
this period of time, Mr. Manson observed that Mr. Samson had problems
completing his work, especially lifting heavy items. As a result, Mr. Manson
assigned Mr. Samson to light duties whenever he could.

[24]        
Mr. Samson completed his course of physiotherapy with Ms. Cruttenden
in September 2007. A month later, in October 2007, Mr. Samson completed
his occupational therapy with Mr. Thorpe. Both Ms. Cruttenden and Ms. Thorpe
recommended that Mr. Samson continue with his exercise and stretching
routines in order to manage any residual pain or stiffness.

[25]        
Between October 2007 and September 2010, Mr. Samson saw Dr. Grant
on seven occasions. On only three of these occasions did Mr. Samson refer
to suffering from any pain relating to the Accident. Mr. Samson’s last
visit to Dr. Grant on account of his Accident injuries was on 23 September
2009 when Mr. Samson complained of ongoing back pain. Dr. Grant’s
clinical record for 23 September 2009 makes no reference to any complaint from
Mr. Samson of pain or discomfort in his knees or ankles.

[26]        
Notwithstanding the recommendation of the healthcare professionals who
have examined and treated him, Mr. Samson has not been following any form
of therapy or rehabilitation exercise program for his injuries since September
2007. Moreover, since the fall of 2009, Mr. Samson has not had any further
investigation of his injuries, except for the medical assessments performed in
2010 and 2011 in preparation for this litigation.

[27]        
Mr. Samson described that at present he continues to feel pain and
discomfort principally in his lower back, right knee and right ankle. This pain
is generally noticeable when the weather is cold and according to Mr. Samson,
it continues to affect his work as well as his social activities.

Expert Evidence

[28]        
The expert evidence adduced at trial consists of the written
medical-legal reports prepared by Dr. Lynne MacKean for the plaintiff and
Dr. Ian Dommisse for the defendants.

  Dr. Lynne MacKean

[29]        
Dr. MacKean is a medical specialist in the area of physical
medicine and rehabilitation. She was retained by the plaintiff to conduct an
independent medical evaluation of Mr. Samson. In a letter to Dr. MacKean
dated 16 November 2009, counsel for Mr. Samson specifically asked Dr. MacKean
to answer a number of questions, including :

·       
Are there any physical activities that he [Mr. Samson] should
avoid in the future?

·       
Is it reasonable for him to avoid certain types of occupation?

·       
Is it reasonable for him to consider changing occupations? If so,
what parameters would you place on any type of future employment?

[30]        
Dr. McKean examined Mr. Samson on 25 February 2010 and in
her medical-legal report dated the same day she noted under the heading
“Physical Examination”:

…He had terrible alignment of
his knees with genu varu, tibial varum and squinting patellae. He had flat
feet. He had normal gait pattern. He was able to do a full squat with no
complaint of discomfort.

[31]        
Under the heading “Recommendations”, Dr. MacKean concluded:

In my opinion, the ongoing
problems he describes with neck and back discomfort and right knee and ankle
discomfort are related to injuries sustained in the motor vehicle Accident of
April 2^nd, 2007.

These are not serious injuries
but they do cause him ongoing discomfort particularly with being on his feet
all day and doing the physical work that he does.

He should be able to continue
working in the construction industry although he may continue to have some
discomfort related to his work activities. I do not think he will be at
increased risk of developing degenerative changes in these areas as a result of
the injuries sustained in this Accident.

He should be able to continue
with activities as tolerated but he may find that if he is doing heavier
physical work and a lot of lifting his lower back will bother him more. He may
also find if he is on his feet for long periods of time that his right ankle
and his right knee will bother him more.

I expect he will continue to see
some improvement over time but I would not expect to see complete resolution of
his pain symptoms…

[32]        
Dr. MacKean conducted a further medical-legal assessment of Mr. Samson
on 16 June 2011. In her report of the same date, Dr. MacKean
confirmed the conclusions articulated in her earlier report and added the
following observations under the heading “Impression”:

He has most likely reached the
point of maximal medical improvement and I expect he will continue to have
problems with pain involving these areas.

He has been able to continue
working in the construction industry although he continues to have discomfort
with prolonged standing and going up and down ladders as well as heavier
lifting. I think he will be able to continue working in the construction
industry although with ongoing discomfort involving these areas.

I would recommend an active
rehabilitation program for general strengthening and also use of a stationary
bike for his right ankle and knee pain.

…I do not think he is at
increased risk of developing degenerative changes in these areas as a result of
injuries sustained in this Accident.

…

I disagree with Dr. Dommisse
and I do think these ongoing symptoms that he [Mr. Samson] describes are
due to injuries sustained in the motor vehicle Accident. The poor alignment of
his lower extremities probably contributes to his pain symptoms but I do not
think they are the cause of his knee and ankle pain problems. If that were the
case, I would expect him to have pain involving his left knee and ankle and he
does not complain of pain involving these areas.

Also it is well documented in the
clinical records, both his family doctor’s and the therapists records that he
was having problems with pain involving these areas initially following the
motor vehicle Accident and afterwards.

[33]        
In a final report, dated 2 August 2011, Dr. MacKean provided a
supplemental opinion addressing Dr. Dommisse’s concerns regarding the lack
of any documentation by Dr. Grant between 11 June 2007 and 12 February
2008 of Mr. Sampson’s ongoing lower back, knee and ankle pain. Dr. MacKean
noted:

In the therapist’s records
between May 2007 and October 4^th, 2007…and between June 2007 and
September 2007…it is well documented that Mr. Sampson (sic) was having
ongoing problems with pain in his ankle, knee, shoulder, and back although he
had seen some improvement over time.

In my report of June 16^th,
2011…I stated that it was well documented in the clinical records that he was
having problems with pain involving these areas initially following the motor vehicle
accident and afterwards. It is my opinion that the ongoing symptoms that he
described involving his right ankle, right knee, neck and low back were related
to injuries sustained in the motor vehicle accident that occurred on April 2^nd,
2007. My opinion stays the same with regards to that.

  Dr. Iain
Dommisse

[34]        
Dr. Dommisse is an orthopaedic surgeon who was retained by the
defendants to conduct an independent medical examination of Mr. Samson.

[35]        
Dr. Dommisse examined Mr. Samson on 6 April 2011. In his medical-legal
report dated 5 May 2011, Dr. Dommisse concludes under the heading
“Opinion”:

·       
Mr. Samson sustained a strain of his cervical spine with a
strain to both knees and a strain injury to the lateral aspect of his right
foot as a result of the Accident.

·       
I expect Mr. Samson’s condition to stay about the same.

·       
…it is unlikely that Mr. Samson will require future
treatment as a result of the Accident.

·       
…the injuries from the Accident will not affect his ability to
carry on with his employment and also his ability to pursue other types of
employment which he could have performed but for the injuries he suffered in
the Accident.

·       
…Mr. Samson’s injuries from the Accident will not affect
his ability to carry out housework, yard work, and house maintenance.

·       
…the injuries from the Accident will not affect his ability to
pursue recreational activities which he could have pursued but for the injuries
he suffered in the Accident.

[36]        
Dr. Dommisse was not convinced that Mr. Samson’s ongoing pain
in his lower back, right knee and right ankle were related to the Accident and
consequently he disagreed with Dr. MacKean’s conclusion in this regard. In
support of his opinion, Dr. Dommisse noted that these pain symptoms were
recorded by Dr. Grant only until June 2007 and therefter there is no
mention of them in his records until February 2008. Dr. Dommisse also
relies upon the fact that Mr. Samson has a congenital condition that
predisposes him to anterior knee and leg pain that would radiate towards his
ankles.

[37]        
In response to Dr. MacKean’s follow-up reports dated 16 June
and 2 August 2011, Dr. Dommisse re-examined the records of Ms. Thorpe
and Ms. Cruttenden, including some that were previously unseen by him. In
a supplemental report dated 2 November 2011, Dr. Dommisse maintained
his disagreement with Dr. MacKean’s opinion, observing:

In my opinion, it is inconsistent
that Dr. MacKean has documented an entirely normal musculoskeletal
examination (except for malaignment of the lower extremities) but continues to
state that, based on this man’s complaints, he has ongoing symptoms as a result
of the Accident.

Clinical assessments are made on
the basis of the history and physical examination findings. There are no
physical examination findings either in Dr. MacKean’s assessment nor in
the physiotherapist Ms. Cruttenden’s assessment nor in my assessment that
this man has any objective signs of injury as a result of the Accident.

  Conclusion
Regarding the Medical Evidence

[38]        
The evidence of Dr. MacKean conflicts with that of Dr. Dommisse
on the question of the cause of Mr. Samson’s ongoing pain and discomfort
in his lower back, right knee and right ankle. Dr. MacKean attributes that
pain and discomfort to the Accident; Dr. Dommisse is unconvinced of that
fact and opines that any pain and discomfort Mr. Samson feels is as a
result of his congenital condition and or the physically demanding nature of
his work.

[39]        
Although both doctors have very strong credentials, I find the evidence
of Dr. MacKean more persuasive. In my view, her conclusions are more consistent
with the documentary evidence, including the clinical records of Dr. Grant,
and the records of Ms. Thorpe and Ms. Cruttenden, as well as the testimony
of Mr. Gray and Mr. Manson.

[40]        
I therefore accept as a fact that Mr. Samson’s ongoing pain and
discomfort in his lower back, right knee and right ankle are as a result of the
Accident.

Analysis

[41]        
The plaintiff’s claim for damages falls under a four particular
headings:

a)    Non Pecuniary
Damages

b)    Loss of Past
Income

c)     Loss of
Future Earning Capacity

d)   
Special Damages

[42]        
I will address each heading individually.

  Non-Pecuniary Damages

[43]        
Mr. Samson argues that the Accident has left him with permanent
injuries that continue to cause him pain and suffering and continue to impact
his enjoyment of life. Mr. Samson maintains that he is no longer the
person he was before the Accident and is therefore entitled to an award of non-pecuniary
damages in recognition of that fact.

[44]        
According to Mr. Samson he continues to suffer pain and discomfort
in his right knee, right ankle and especially his lower back on account of the
Accident. As a result, he has been forced to reduce his efforts at work and has
had to retain and pay others to complete the renovation work on his home. He
has also had to reduce his recreational activities, including those he engages
in with his son.

[45]        
In the result, Mr. Samson asserts that an award in the range of
$70,000 to $80,000 would be appropriate for the pain, suffering and loss of
enjoyment of life that he has suffered on account of the Accident. In support
of this position, counsel for Mr. Samson has relied upon a number of case
authorities, including: Kaleta v. MacDougall, 2011 BCSC 1259 ($80,000);
Garcha v. Duenas, 2011 BCSC 365 ($70,000); Raun v Suran, 2010
BCSC 793 ($75,000); Ashmore v. Banicevic, 2009 BCSC 211 ($80,000); Deglow
v. Uffelman, 2001 BCCA 652 ($75,000); and Szymanski v. Morin, 2010
BCSC 1 ($75,000).

[46]        
The defence accepts that Mr. Samson suffered compensable injuries
as a result of the Accident, however it maintains that Mr. Samson’s
injuries were not and are not as serious as he contends and consequently the
award for non-pecuniary damages should be in the range of $30,000. In support
of this position, counsel for the defendants has relied upon the following case
authorities: Densch v. Kirkpatrick, 2007 BCSC 277 ($20,000); Rattenbury
v. Samra, 2009 BCSC 207 ($30,000); O’Leary v. Rupert, 2010 BCSC 240
($25,000).

[47]        
While I found Mr. Samson to be a poor historian of events, I do not
find that he has inflated the magnitude of his injuries in an effort to obtain
a greater award of non-pecuniary damages. The evidence of Mr. Samson’s
father, Gerald, coupled with that of Mr. Gray, Mr. Manson and the
medical evidence, satisfies me that the injuries Mr. Samson suffered as a
result of the Accident and the consequential pain, discomfort and loss of
enjoyment of life from those injuries, are more severe than those found in the
cases cited by the defence.

[48]        
I find Mr. Samson will likely continue to have some pain and
discomfort in his lower back, right knee and right ankle for the foreseeable
future. However, I also find that Mr. Samson has not actively pursued his
rehabilitation to the degree expected of him. Since the fall of 2007, Mr. Samson
has not participated in any exercise program designed to address his injuries,
notwithstanding the advice and recommendations he received from the various
healthcare professionals who had treated him following his accident.

[49]        
In my view, having considered all of the evidence, a fair and reasonable
award of general damages for Mr. Samson’s pain and suffering and loss of
enjoyment of life is $60,000.

  Loss of Past Income

[50]        
Mr. Samson argues he is entitled to an award of $32,000 as
compensation for his loss of past income. He argues that between the date of
the Accident (2 April 2007) and the completion of his GRWP (8 October
2007), he missed 1,125.5 hours of work. Although he says he was earning $18 per
hour around the time of the Accident, Mr. Samson contends that he was
given a raise at some point afterwards and therefore the hourly rate for the
calculation of his lost income should be $19. At that hourly rate, plus 4%
holiday pay, Mr. Samson asserts he is entitled to $22,238.88 in wages for
this period of time.

[51]        
Mr. Samson further claims that after he returned to full-time work
in October 2007, he regularly missed work on account of his injuries. While he cannot
provide any exact number, Mr. Samson estimates that working 51 weeks per
year over the past 3 years he has lost approximately $9,639.00 in wages.

[52]        
The defendants accept that Mr. Samson is entitled to be compensated
for the wages he lost during the 4 months following the Accident when he could
not work as well as the 2 month period thereafter when he worked reduced hours
under his GRWP. However the defendants say the evidence of Mr. Samson’s
hourly wage is unsubstantiated and unreliable. According to the defence an
hourly rate of $18.50 is more appropriate as it reflects Mr. Samson’s
hourly rate at the time of the Accident and the fact that at some point he
received a raise to $19 per hour. Consequently, the defendants say Mr. Samson’s
loss of past income for this period is $21,654.62.

[53]        
In my view, counsel for the defendants is correct when he argues that
the evidence supporting Mr. Samson’s claim under this heading is lacking
and at times inconsistent. A letter dated 7 July 2009 and authored by Mr. Manson
indicates that Mr. Samson was earning $20 per hour at the time of the Accident.
However a “Certificate of Earnings” signed by Mr. Manson on 28 April
2007, indicates that Mr. Samson was only earning $18 per hour at the time
of the Accident. This latter figure seems to be correct and is corroborated by
the fact that Mr. Samson himself told one of his therapists in the summer
of 2007 that he was anticipating a raise in pay from $18 to 19 per hour.

[54]        
The evidence of Mr. Samson’s hourly rate is unsatisfactory and I
accept the submission of counsel for the defendants that a fair and appropriate
hourly rate to use in these circumstances would be $18.50. Mr. Samson is therefore
entitled to $22,000 for lost wages between 2 April and 8 October
2007.

[55]        
The financial and employment records Mr. Samson adduced into
evidence were far from complete and in my opinion they failed to support his
position regarding any further loss of past income. A review of these records
suggests that Mr. Samson worked at least 40 hours per week for the balance
of 2007 and consequently did not suffer any loss of past wages for that year. While
some of the records for the years 2008 to 2011 inclusive indicate Mr. Samson
occasionally worked less than 40-hours a week, I agree with counsel for the
defendants that calculating an average loss of 3 hours per week based upon
these incomplete records would be speculative at best. Moreover, it is clear to
me that some of the hours of work missed were on account of holidays taken by
Mr. Samson, including statutory holidays as well as appointments he had
with his doctors. Mr. Samson acknowledged that not all of the hours he
missed from work during these years were on account of the Accident and quite candidly
agreed that he could not say with any degree of certainty how many of the missed
work hours could be attributed to his Accident injuries.

[56]        
On the whole of the evidence, I find Mr. Samson has failed to prove
that he suffered any past wage losses after 8 October 2007. Consequently,
his award for loss of past income will be $22,000.

  Loss of Future Earning
Capacity

[57]        
Mr. Samson is a man in his thirties who has not completed his high
school education. He does, however, hold a Class 1 driver’s licence that
permits him to operate heavy machinery. Mr. Samson’s work history is
minimal and his career aspirations include becoming a heavy-duty machinery
operator or truck driver.

[58]        
Mr. Gray described how, after the motor vehicle Accident, Mr. Manson’s
work performance was not what it had been. In particular, Mr. Gray noted
that often Mr. Samson could not stay on the job for a full day and had to
leave early. Mr. Manson testified that it was not uncommon for Mr. Samson
to leave work early once a week.

[59]        
Mr. Samson argues that because of his injuries, he may get tired of
working as a construction labourer or he may have his employment with Manson
Ltd. terminated. If he remains with Manson Ltd., then he will likely have to
continue to take time off on a weekly basis. He also says that if he leaves
Manson Ltd., then his employment prospects will be dim because of his lack of
education, his inability to do strenuous physical work and his inability to
remain seated for extended periods of time.

[60]        
Although the evidence of Mr. Gray and Mr. Manson indicates
that Mr. Samson continues to exhibit difficulties with the more physically
demanding aspects of his work, I am not persuaded that he cannot continue to
work as a labourer in the construction trade. Moreover there is no suggestion that
Mr. Samson’s injuries have affected his ability to perform the more
technical or skilled aspects of his work, such as tiling or finishing. Mr. Manson
testified that he continues to have regular work for Mr. Samson and that Mr. Samson
remains a valued employee, notwithstanding his physical limitations. Mr. Samson’s
employment and income records confirm that he has worked full time and more or
less a 40-hour work week since the end of his GRWP in October 2007. There is also
no indication from Mr. Manson that there is any risk that Mr. Samson’s
employment will be terminated because of any job performance deficiencies. On
the contrary, Mr. Manson is prepared to keep Mr. Samson as an
employee and has offered him the opportunity to train as an apprentice
tradesperson, even knowing that Mr. Samson may have to take time off of
work because of his injuries.

[61]        
I also find the medical evidence to be unsupportive of Mr. Samson’s
position. Both Dr. MacKean and Dr. Dommisse opine that Mr. Samson
should be able to continue with his job in the construction field. Moreover,
when asked directly by counsel for Mr. Samson, Dr. MacKean made no recommendation
that Mr. Samson should avoid certain kinds of work or consider changing
his type of employment. I should note with respect to this last point that
I have considered Mr. Samson’s career ambition of becoming a
heavy-equipment operator or truck driver and find there no persuasive evidence
to support the contention that his ability to pursue and secure employment in
either of these fields has been lessened by his Accident injuries.

[62]        
In Moore v. Cabral et al., 2006BCSC 920, at para. 78, Madam
Justice MacKenzie (as she then was) opined that “Ongoing symptoms alone do not
mandate an award for loss of earning capacity”. I find this observation is
equally applicable to the case at bar.

[63]        
Having reviewed the factors to be considered when assessing a claim for
loss of future earning capacity as articulated in Brown v. Golaiy
(1985), 26 B.C.L.R. (3d) 353 (S.C.), I am not satisfied that Mr. Samson has
established that he has been rendered less capable of earning income in the
future, that he is less attractive as an employee, that he has lost the
capacity to take advantage of all job opportunities which might, absent the Accident,
have been open to him, or that he has been rendered less valuable to himself.

[64]        
For these reasons, I dismiss Mr. Samson’s claim for loss of future
earning capacity.

  Special damages

[65]        
Mr. Samson claims $1,780 in special damages. The defence did not
take any vigorous opposition to these damages and I am satisfied that they have
been proven.

[66]        
I will award Mr. Samson the amount he has claimed.

Conclusion

[67]        
For the foregoing reasons, Mr. Samson is entitled to the following:

a)    Non-pecuniary
damages:        $60,000

b)    Past loss of
income:               $22,000

c)     Special
Damages: $  1,780

Total:                                     $83,780

[68]        
If either party wishes to make submissions on the issue of costs, they must
notify the court of such a desire within 30 days of the date of this judgment. Otherwise,
the plaintiff is entitled to his costs.

“G.R.J.
Gaul J.”