IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121213

Docket: 62202

Registry:
Nanaimo

Between:

Brian Geoffrey
Rayner

Plaintiff

And

Jeffrey David and
F & M Installations Ltd.

Defendants

Before:
The Honourable Mr. Justice Kelleher

Oral Reasons for Judgment

[1]            
This is a claim for damages for injuries suffered by the plaintiff in a
motor vehicle accident that occurred on April 25, 2009.

[2]            
The accident occurred near the intersection of Aulds Road and Highway
19A at the north end of Nanaimo.  Mr. Rayner testified he turned from
Aulds Road left, or north, onto Highway19A.  After he completed his turn, he
noticed that there was a vehicle ahead of him that had stopped while attempting
to change lanes into the curb or right lane.  He slowed his truck down, almost
to a stop, and was struck behind by a Ford F350 pickup truck driven by Mr. David
and owned by F & M Installations Ltd.

[3]            
Liability is not in issue.  There is no allegation of contributory
negligence on the part of Mr. Rayner.  The issues to be decided are the
quantum of non‑pecuniary damages, future loss of capacity to earn income,
if any, and future cost of care.  The parties have agreed on special damages
and past wage loss, in the amount of $2,000.

[4]            
I have the benefit of medical‑legal reports from Dr. Jonathan
Bland, his family doctor, Dr. Lynne MacKean, a specialist in physical
medicine and rehabilitation, and Dr. Timothy Deutscher, also a
physiatrist.  Dr. MacKean was cross-examined on her report.

[5]            
Mr. Rayner is 28 years old.  He was 25 at the time of the accident. 
He is married to Cherene Rayner and they have twin 22‑month‑old
daughters.  Mr. Rayner graduated from high school in Campbell River in
2002.  About a year later, he obtained employment with Noort Investments, a
company that does commercial construction.  He became an apprentice carpenter,
and at the time of the accident he was completing his apprenticeship.  He
remains employed with Noort as a journeyman carpenter foreman.

[6]            
Mr. Rayner and his family have lived in Nanaimo since 2003.  They
purchased a home there just before the accident.  They spend a great deal of
time in Campbell River seeing friends and family, and engaging in outdoor
activities.

[7]            
Mr. Rayner was very active with outdoor activities before the
accident.  In particular, he enjoyed fishing, salmon, halibut, prawn, crab
fishing, hunting both for Island deer in the Campbell River area and annually
for moose in the area north of Prince George.  He also is interested in and
participated in trap shooting and riding all‑terrain vehicles (“ATVs”).

[8]            
Mr. Rayner enjoyed good health prior to the accident.  He injured
his right collarbone while digging a hole in June 2008.  The pain from that
injury recurs from time to time, although he testified that he can tell when the
pain is about to happen, so he avoids the activity, at that time.

[9]            
Mr. Rayner’s injuries from this accident are: first, neck pain and
restricted range of motion; second, shoulder pain; and third, headaches.

[10]        
Mr. Rayner saw a general practitioner on April 26, 2009, and Dr. Bland
on April 30, 2009.  His complaints have been consistent: neck pain, stiffness,
reduced range of motion.  There has been very little improvement.  He has seen
his physician only once in 2011 and once in 2012.

[11]        
He was prescribed Tylenol 3 and naproxen.  He only takes these
medications when needed.  He will take Tylenol 3 for a headache if he is not at
work, and he will take over‑the‑counter Tylenol if he is working
and has a headache.

[12]        
He had six physiotherapy sessions, which ICBC covered.  He has not
proceeded further since he did not see any improvement.  He had massage therapy
twice a month when ICBC was paying for it.  Since then, he has had massage
therapy once a month continuously, except for the period of time when his
children were born.  He testified that the massage therapy gives him one or two
days of relief.

[13]        
Mr. Rayner missed three days of work in the week following the
accident.  After that, he began his final session of school for his
apprenticeship.  Thus, he was able to begin his recovery during the period he
was at school.  He continues to work for Noort Development as a journeyman
carpenter foreman and earns $31 an hour.

[14]        
When he returned to work after apprenticeship school, he avoided heavy
tasks such as jackhammering.  He said his range of motion is still inhibited. 
He said the pain in his neck is always there.  On a scale of one to 10, one
being no pain and 10 being boiling in oil, he said it was a four or five, and
worse than that later in the day.  He said that the shoulder pain depended on
what he was doing.

[15]        
He testified that his headaches occur once or twice a month.  He said
that tasks that cause pain include any physical work that is over his head, as
well as heavier tasks and computer work.  He said his injuries affect his sleep
to some degree.  Around the house, he testified that garden work aggravates his
pain.  He said that he works through it.  He has a drywalling and insulation
project at home that is a work in progress, and again he has worked more slowly
because of the pain involved in drywalling.

[16]        
As far as his leisure activities, he has been able to maintain them, but
they have changed.  Riding ATVs is limited to going for firewood when camping. 
He goes a lot slower, because jerking is very painful.  The helmet’s weight
causes him pain.  He travels on roads rather than trails.  He has done no
actual trap shooting since the accident, and has limited himself to being a
spectator.

[17]        
He has continued to engage in hunting trips, but they have been somewhat
less extensive.  He still engages in fishing, but he said if there is a swell,
the bouncing of the boat jars his neck.

[18]        
Michael Jenkins is the plaintiff’s best friend.  He was best man at Mr. Rayner’s
wedding.  He corroborated Mr. Rayner’s evidence as to his active lifestyle
before the accident; ATVing, fishing, trapshooting were all activities they did
together.  Mr. Jenkins is not a hunter.  Since the accident, Mr. Jenkins
said the plaintiff is still active, but in a less aggressive manner.  The ATV
riding is on logging roads, not trails, it is at a lower speed, and he said the
helmet causes soreness to Mr. Rayner.

[19]        
They both still fish together.  Mr. Jenkins notices that Mr. Rayner
sits differently to steer the boat, so he has no need to turn his head.  When
the water is rough, they now stay inside; that is, in protected waters.

[20]        
Brent Rayner is the plaintiff’s brother.  He works with him at Noort. 
He observed that the plaintiff is in obvious pain when working overhead, and he
confirmed as well that turkey shoots or trap shooting is now a social event for
Mr. Rayner.

[21]        
The plaintiff’s wife, Cherene, also testified.  She described the
plaintiff’s various active leisure pursuits before the accident: ATVing,
fishing, hunting, trap shooting. She confirmed that during the hunting season,
early September to early December, he was away every weekend.  He was, she said,
very active.  She said he was helpful with household chores and happy to assist
with mechanical repairs to her mother’s car.

[22]        
Ms. Rayner has noticed a profound difference in her husband
post-accident.  He constantly complains of soreness in his shoulders and neck. 
He suffers fromheadaches.  He is stiff when he walks.  He still uses the ATV,
but in a different manner.  She said that travelling at high speed causes jerks
and therefore pain.  He has maintained his hunting activities.  She said he
fishes less, because any swell causes the boat to slam on the water and causes
him pain.  He maintains an interest in trap shooting, but just watches.

[23]        
She testified that he does less around the house, and that he finds the
drywalling painful.  Ms. Rayner especially noticed his inability to
physically engage with their daughters.  Putting either on his shoulders is impossible. 
This clearly saddens her.

[24]        
As far as his prognosis is concerned, Dr. MacKean said this:

I do not think he is going to see
significant further improvement and he has most likely plateaued with regard to
his recovery from these injuries.  He will probably always be left with neck pain
and decreased range of motion as a result of the injuries sustained in the
motor vehicle accident that occurred on April 25, 2009.

[25]        
The defendant argues that the plaintiff’s condition improved between
2011 and 2012.  That argument is based on Dr. MacKean’s examination in
August 2011 and Dr. Deutscher’s examination 11 months later in July 2012. 
These two physiatrists’ description of the plaintiff’s symptoms show, the
defendant argues, that in the 11‑month interval, Mr. Rayner’s
condition improved.

[26]        
In 2011, Dr. MacKean wrote that there was significant decreased
rotation of the neck to either side with "less than 50 percent of normal
rotation to the left and right side."  She also said that with palpation
over the spine, he complained of pain over the cervical spine in the midline
from the upper aspect down to about T2.

[27]        
In Dr. Deutscher’s examination, he reported left and right rotation
of approximately 60 percent.  He also noted spinal tenderness over the C2 and
C3 levels in the middle, and no other tenderness, including the occipital area.

[28]        
I am not prepared to conclude from these facts that there was an
improvement in the plaintiff’s condition.  First and obviously, the
observations are made by two different people, and they are observations, not
physical measurements.  Second, the plaintiff’s symptoms change from day to day. 
He testified, for example, that they are worse when he is tired and that they
are worse at the end of the day.  Third, the plaintiff testified that his
condition had not improved, and he was not challenged in this regard on
cross-examination.  Fourth, the plaintiff saw Dr. MacKean in Langford, which
is about an hour and a half drive from Nanaimo.  The plaintiff saw Dr. Deutscher
at his office in Nanaimo.  That, too, could account for different observations.

[29]        
So the two opinions, for those reasons, do not establish that there has
been an improvement between 2011 and 2012.

[30]        
I turn to non‑pecuniary damages.  I conclude that Mr. Rayner
suffered injuries in the motor vehicle accident and that significant symptoms
persist and are entirely likely to persist into the future.  I found Mr. Rayner’s
account of his symptoms to be credible.  His evidence is consistent with the
medical evidence from the experts.  He was not cross-examined on the
authenticity of his symptoms.  The pain has lasted longer than one might
expect.  On the other hand, he has been able to maintain full employment and,
though he has restricted his leisure activities, he continues to participate in
these activities somewhat.

[31]        
The plaintiff is seeking non‑pecuniary damages in the range of $65,000
to $90,000.  The defendant argues that the appropriate range is $35,000 to
$45,000.

[32]        
In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal provided
what it called an inexhaustive list of factors influencing an award of non‑pecuniary
damages.  I will comment on the application of each factor to this case.

1.     Age:  Mr. Rayner
is now 28; 25 at the time of the accident.

2.     Nature of
the injury:  The plaintiff suffered a moderate whiplash; pain, restricted range
of motion, and associated headaches persist.

3.     Severity
and duration of the pain:  The pain is constant, four to five on a scale of one
to 10, and aggravated by physical activity.  It affects his sleep.

4.     Disability: 
Mr. Rayner has been able to continue to work and to continue to engage in
leisure activities; however, he avoids aspects of his work or works with pain. 
He has substantially adjusted his leisure activities.

5.     Emotional
suffering:  It is reasonable to assume he misses his leisure activities and
regrets his inability to interact more physically with his daughters.

6.     Loss or
impairment of life:  His life has been affected in the manner described.

7.     Impairment
of family, marital, and social relationships:  It affects his relationship with
his spouse and, importantly, his daughters.

8.     Impairment
of physical and mental abilities:  There is no loss of mental abilities.  The
physical limitations have already been described.

9.     Loss of
lifestyle:  Mr. Rayner loves the outdoors.  The accident has had an impact
on his ability to enjoy outdoor activities.

[33]        
The tenth factor mentioned by the Court of Appeal is that stoicism
should not penalize the plaintiff.  This is a plaintiff who does show stoicism
and should not be penalized for it.

[34]        
How can these factors be quantified?  Although every case turns on its
facts, counsel referred me to a number of decisions: Miller v. Lawlor;
2012 BCSC 387; Pett v. Pett, 2008 BCSC 602; Hill v. Durham, 2009
BCSC 1480; Peck v. Peck, 2012 BCSC 1617; Schulmeister v. Furmnak,
2004 BCSC 1484; Mariano v. Campbell; Cryderman v. Giesbrecht,
20006 BCSC 798.

[35]        
The plaintiff argues that the cases decided before Stapley v. Hejslet
should be given less weight, since non‑pecuniary awards are generally
higher because of that decision.  That is not, with respect, evident to me. 
Madam Justice Kirkpatrick relied on a number of B.C. Supreme Court decisions
prior to the case, of course, and concluded that the range that emerged from
similar cases was $66,000 to $100,000.  In that case, there was an additional
important factor, the loss of his lifestyle living on a ranch.  Madam Justice
Kirkpatrick was reviewing a jury award, and on that basis came up with a
reasonable award "at the highest level":  see para. 112.

[36]        
Two decisions seem similar to the case at bar. Miller v. Lawlor
is a recent decision involving a 21‑year‑old whose soft tissue
injuries persisted.  There was a finding that the symptoms were likely to
persist. Mr. Justice McKenzie awarded $65,000 in non-pecuniary damages.

[37]        
Pett v. Pett is also somewhat similar.  The plaintiff there was
left with chronic low back pain.  The injuries were somewhat more severe. 
Williamson J. found that the plaintiff could not realistically continue with a
labouring job, which is not the case here.  The plaintiff in Pett v. Pett
was awarded $85,000 in non-pecuniary damages.

[38]        
Also similar is Cryderman v. Giesbrecht, but in that case there
was found to be a good chance of improvement in the future, and that is not
present here.

[39]        
Taking all of these circumstances into account and all of the cases I
have referred to into account, I have concluded that an appropriate award for
non-pecuniary damages is $65,000.

[40]        
I turn to future loss of earning capacity.  The law was recently explained
by the Court of Appeal in Perren v. Lalari, 2010 BCCA 140.  One begins
with the basic principles in Athey v. Leonati, [1996] 3 S.C.R. 458, and
Andrews v. Grand & Toy Alberta, [1978] 2 S.C.R. 229 (Perren v.
Lalari at para. 30):

1.  A future or hypothetical possibility will be taken into
consideration as long as it is a real and substantial possibility and not mere
speculation . . .

2.  It is not loss of earnings
but, rather, loss of earning capacity for which compensation must be made  . . .

[41]        
The plaintiff must always prove that there is a real and substantial
possibility of a future event leading to an income loss.  A plaintiff may be
able to demonstrate substantial possibility, despite having returned to his or
her usual employment, which is the case here.

[42]        
Is there a real and substantial possibility that there will be an income
loss in the future?  Mr. Rayner performs physical work, some of which
causes pain.  As well, he has foreman duties involving computer work which
causes discomfort.

[43]        
Dr. Deutscher expressed this view:

I think it is most likely he will
be able to continue with his work in the long term and that he would not have a
shortened career for carpentry or carpentry foreman activities as a result of
the accident in question.  It is possible that the effects of aging or some
other interim health problems may act along with his pain problems to limit his
work tolerance, but more likely he will be able to continue his career in the
long term.

[44]        
Thus, Dr. Deutscher does not rule out the possibility that because
of the accident, he may have a shortened career with his company.  He is saying
then there is a possibility.  Is it a substantial possibility and more than
speculation?  Dr. Deutscher’s opinion is somewhat ambiguous in that
regard.

[45]        
Dr. MacKean put it this way:

However, when he gets older, he
may find he has more limitations because of the ongoing neck pain and
stiffness, and he may not be able to work as long in the construction industry
as he would have otherwise had he not been involved in this motor vehicle
accident.  I cannot give a specific estimate with regards to the number of
years that he may not be able to work as a result of the effects of the
injuries sustained in this motor vehicle accident.

[46]        
In cross-examination, she described this as a distinct possibility.  I
accept her opinion and that, I am satisfied, is beyond speculation.  I conclude
that there is a real and substantial possibility that as a result of the
accident there will be an income loss in the future.

[47]        
In assessing the future loss, I take the capital asset approach, because
the loss is not easily measured.  In Brechin v. Pickering, 2012 BCSC
1300, Mr. Justice McEwan made remarks that are applicable here.  He said at
para. 99:

The possibility of a future event
is not specifically that Mr. Brechin will be laid off because of his condition,
which is relatively unlikely, given that the medical evidence suggests that his
condition is not disabling, but the more general vagaries of business that have
made employment "for life", once a common expectation, highly
uncertain. Should Mr. Brechin lose his position for such a reason he would be
put back into a competitive environment where a fraction of the heaviest work
would be lost to him.

[48]        
It is by no means certain that there will be a future loss of income. 
It is a real and substantial possibility, but not a probability.  It is the
possibility that is being addressed, since this is the only opportunity to
award damages.  Having regard to the circumstances, I assess damages in this
regard at $85,000.

[49]        
Finally, Mr. Rayner seeks an award for the cost of future care. 
Massage provides temporary relief from his symptoms.  In Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 (S.C.), the Court said that an award for future
care is based on what is reasonably necessary on the medical evidence to
promote the physical and mental health of the plaintiff.  Massage therapy is
something that the plaintiff has engaged in and it does provide him temporary
relief.  He also requires occasional medication.

[50]        
In the circumstances, I assess the cost of future care at $6,500.

[51]        
That concludes my reasons subject to any questions either of you have.

[52]        
THE COURT:  Six thousand, five hundred.

[53]        
MR. FIELD:  Okay, thank you.

[54]        
MR. BROOKS:  I have no questions, My Lord.  Just costs in the
event.

[55]        
THE COURT:  Costs —

[56]        
MR. BROOKS:  There’s no issue as to double costs.  I didn’t make an
offer, so —

[57]        
THE COURT:  Mr. Field, do you have any submissions on costs?

[58]        
MR. FIELD:  No, costs should follow the event.

[59]        
THE COURT:  All right, thank you very much.

“Kelleher J.”