IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20130201

Docket: M096354

Registry:
Vancouver

Between:

Nicholas Williams

Plaintiff

And

Brian S. Loverock

Defendant

Before:
The Honourable Mr. Justice Goepel

Reasons for Judgment

INTRODUCTION

[1]            
This action arises out of a motor vehicle accident that took place on
January 22, 2008, when a truck driven by the defendant, Brian Loverock,
rear ended a vehicle driven by the plaintiff, Nicholas Williams. As a result of
the collision, Mr. Williams has suffered injuries. Liability is admitted.
Mr. Williams seeks non-pecuniary and special damages, and awards for loss
of past and future earning capacity. The trial was limited to assessment of
those heads of damages.

BACKGROUND

A. The Accident and
Immediate Aftermath

[2]            
The accident occurred on January 22, 2008. Mr. Williams was driving
a 1999 Honda Accord. His vehicle was stopped at a red light and was rear ended
by a truck driven by Mr. Loverock.

[3]            
The collision pushed Mr. Williams’ car forward about a car length. His
vehicle suffered extensive damage and had to be written off. He was able to
exit his vehicle without assistance. At the scene of the accident, he was
checked over by a paramedic. Mr. Williams did not require further medical
attention and did not attend the hospital for care at any point following the
accident. After exchanging information with Mr. Loverock, Mr. Williams
called a taxi to arrange transportation home.

[4]            
Mr. Williams did not lose consciousness as a result of the accident.
He sustained bruising on his chest from where his seat belt was located but did
not sustain any other cuts or bruises. He recalls hitting his hand on the gear
shifter of his vehicle.

[5]            
Immediately after the accident, Mr. Williams experienced a painful
stabbing pain that lasted a half a second in his neck. Although he recalls that
he may have hit his hand on the gear shift, he does not recall any specific
pain in his right hand. In the days immediately following the accident, Mr. Williams’
symptoms were not disabling or severe. He did feel pain in his neck and
shoulders. This pain felt more like a tightness and dull soreness. At home, Mr. Williams
did not require assistance and was able to fulfill his basic needs.

B. Medical Treatments and Diagnosis

[6]            
Mr. Williams went to a medical clinic the day following the
accident but could not recall specifically what symptoms he reported. He
assumes he would have told the attending doctor his neck was sore and his back
was tight. He does not believe he was prescribed any medication and recalled
the attending doctor looked him over in a rushed manner and basically indicated
to him that he was fine to go back to work.

[7]            
On February 1, 2008, on the recommendation of his mother, he began
chiropractic treatments. He continued those treatments through to December 2008.
Mr. Williams gave evidence that his symptoms were relieved in the days following
the chiropractic treatments but they only gave him temporary relief. He says
that his upper back and neck areas were the subject of those treatments.

[8]            
On February 21, 2008, he commenced seeing Dr. Hu. At the time of
his initial visit, Dr. Hu noted that Mr. Williams’ complaint was of a
sore right shoulder, right wrist, neck and upper back. At the time of this
visit his lateral neck range of motion was restricted by 25%. Dr. Hu
recommended physiotherapy.

[9]            
Mr. Williams attended physiotherapy from February 26, 2008 until
May 6, 2008. Mr. Williams testified that the physiotherapy was not
particularly helpful.

[10]        
Mr. Williams continues to see Dr. Hu. His last visit was on
August 8, 2012. Dr. Hu prepared a medical/legal report and his clinical
records were also in evidence. The clinical notes indicate that Mr. Williams
constantly complained of ongoing neck and upper back pain. It would often be
worse after work. In June 2010, Dr. Hu prescribed a pain medication,
Tramacet, to assist with his pain. Mr. Williams continues to take Tramacet
on a daily basis.

[11]        
Dr. Hu opined that as a result of the accident Mr. Williams suffered
a neck sprain, upper back sprain, right shoulder sprain and right wrist sprain.
He has fully recovered from his shoulder and wrist injuries. Dr. Hu
believes that his prognosis in relation to the neck and back pain is guarded
although he believes the symptoms will improve with time. He does indicate that
the neck and back pain in the future may be exacerbated by lifting, bending or
prolonged sitting or standing.

[12]        
At the request of Dr. Hu, Mr. Williams saw Dr. Jaworski,
a specialist in physical medicine and rehabilitation. Dr. Jaworski saw Mr. Williams
twice in 2010 and again in August 2011. The latter visit was at the request of Mr. Williams’
counsel for the purpose of obtaining a medical/legal report. Dr. Jaworski
opined that Mr. Williams is suffering from chronic non-specific
musculoskeletal aches and pains. He says there is no evidence of neurological
deficit and no indication of significant bone or joint abnormalities. He notes
that Mr. Williams’ pains are affecting multiple body parts and are of
considerable intensity. He notes that Mr. Williams has been able to
continue employment in a physically demanding job as a metal fabricator. He
does not believe any formal ongoing treatments will be of assistance.

[13]        
At the request of the defendant, Mr. Williams was seen by Dr. Badii.
Dr. Badii is a specialist in rheumatology, with a special interest in
spine medicine. Dr. Badii opined that Mr. Williams sustained soft
tissue injuries to his neck and upper back. He does not believe that the
injuries are going to deteriorate further in the foreseeable future and that Mr. Williams
should be able to continue his current work until the age of retirement. He
does note, however, that he believes that Mr. Williams has now reached the
point of maximal medical improvement and he does not foresee full resolution of
his symptoms with the passage of more time. His overall impression is that Mr. Williams
has sustained soft tissue injuries to his neck and upper back which are now
causing minimal disruption of his functional activities. He does not recommend
any specific treatments.

B. Employment History

[14]        
Mr. Williams is 32 years old. He left school at the beginning of
Grade 9. In the years immediately following his departure from school, he had
various jobs including work as a labourer in a wood shop, a farmhand, a
warehouse worker, a rail loader and a yard worker. In 2004, he commenced work
as a metal fabricator. He considered that to be his dream job and has been
employed as a metal fabricator ever since.

[15]        
In 2005, he commenced an apprenticeship program and in 2009 he received
his journeyman certificate as a metal fabricator.

[16]        
Metal fabrication is labour intensive. The job demands include reaching,
handling and gripping, stooping/bending, kneeling and crouching, lifting,
carrying, standing, and pushing and pulling parts together for assembly
purposes. A metal fabricator is required to lift items weighing up to 100
pounds and is frequently handling items ranging from nominal weight to 50
pounds. Other job requirements include handling heavy bearing plates, lifting
and handling large and awkward items such as gutters that are more than 20 feet
long, and having to stabilize parts for other workers while an item is being
attacked or welded.

[17]        
Mr. Williams commenced his career as a metal fabricator at Sonic
Enclosures Ltd. (“Sonic”). He was introduced to that job by his then girlfriend
whose father owned the plant. He indicated that while his relationship helped
him get the job, he had to prove himself both to his employer and other
workers.

[18]        
Over time, Mr. Williams’ relationship with his then girlfriend
deteriorated. On January 20, 2008, two days before the accident, he went
on stress leave.

[19]        
Mr. Williams returned to work from his stress leave on February 20,
2008. He found that he was stiff and not as nimble or agile as he had been
prior to the accident. He initially tried to perform all of his job duties but
found it too painful. Over the next few months he was on light duties and reduced
work hours. While on light duties, he completed certain course work related to
his apprenticeship. Because of his physical limitations, he was not able to
return to work fulltime until November 2008

[20]        
When Mr. Williams returned to work his employer accommodated his
physical limitations and assigned him to a quality control position. This
position primarily involved completing paper work, taking measurements and
preparing blueprints. He performed minimal hands on physical work. In January
2009, he became a welding supervisor. In June 2009, he finished all necessary
course work for his apprenticeship and obtained his red seal.

[21]        
On July 30, 2009, Mr. Williams’ employment at Sonic was terminated.
On August 22, 2009, he commenced work at another metal fabrication company, Marcon
Metalfab (“Marcon”). He was initially hired to do metal fabrication. When he
commenced his new employment, he found the work physically demanding and had
difficulty carrying out all of physical requirements of the job.

[22]        
In the spring of 2010, Mr. Williams became a welding supervisor at
Marcon. As a welding supervisor, he had fewer physical demands. His main work
obligations were to check on the work of others.

[23]        
In May 2011, he was promoted to lead hand. This relieved him of further
physical work. As lead hand he supervises the work of 10 to 20 employees. His
present intention is to stay at Marcon for the foreseeable future.

[24]        
Business at Marcon is booming. Over the last few years its revenue has
increased from $1 Million to $15 Million. Its workforce has grown from five
employees to fifty.

[25]        
As a result of the increase in Marcon’s business, its employees have the
opportunity to work unlimited overtime. Most of the overtime work requires work
as a fabricator, not as a supervisor. While Mr. Williams does some limited
overtime, he testified he does not do more overtime because fabrication work is
too painful. A major component of his claim is for loss of his opportunity to
work overtime.

[26]        
Ms. Fisher, a Occupational Therapist, prepared a Functional/Work
Capacity Evaluation. Her report was intended to provide guidelines to assist
with determining Mr. Williams’ suitability for work and functional
activity. She concluded that Mr. Williams could meet the physical demands
of a metal fabricator, but the test findings suggest that such work is not
performed without pain or some modifications and adjustments.

[27]        
Mr. Williams was on pain medication when Ms. Fisher did her
evaluation. She testified that the pain medication may mask his pain levels.
She could not opine as to whether he could meet the job demands of a metal
fabricator absent pain medication.

IMPACT ON DAILY LIFE

[28]        
Prior to the accident, Mr. Williams was able to handle all the
physical requirements of his job. He can no longer do so without pain. He takes
pain medication on a daily basis.

[29]        
Prior to the accident, Mr. Williams was described as being sharp-witted,
engaging and always happy. Since the accident he has become more withdrawn and
introverted.

[30]        
Mr. Williams married in August 2010 and his son was born in May
2011. Although he is a doting father, he cannot fully engage with his new son. He
finds it difficult to pick him up, carry him, or put him in a car seat. His
wife usually does the grocery shopping and most household chores. While Mr. Williams
testified that he could do household chores if necessary, he finds it often
causes pain, particularly if any reaching or bending is involved.

[31]        
He does not go to the movies because he cannot sit for an extended time.
He finds extended outings difficult.

FINDINGS OF FACT

[32]        
I find that Mr. Williams was injured in the accident of January 22,
2008. He suffered soft tissue injuries to his neck and upper back. He continues
to have pain in the neck and upper back. The physical demands of Mr. Williams’
occupation have exacerbated his injuries. The nature of his work is such that
he cannot carry out all the functions of a metal fabricator. His injuries have
now reached the point of maximal medical improvement and are unlikely to
resolve further.

[33]        
Mr. Williams employers have accommodated his physical limitations. He
has been assigned to less physically demanding positions which have allowed him
to continue his employment. While he is able to work fulltime in his present
supervisory position, he does suffer pain in his neck and back which worsens as
the day goes on. He requires daily doses of pain medication to continue at work.

[34]        
Mr. Williams is a trained metal fabricator with his journeyman’s
certificate. I find that because of the limitations caused by the accident, it
is unlikely he could return to the full physical demands of that job if he was
unable to continue his present position at Marcon.

[35]        
Mr. Williams’ home life has been affected by his injuries. He has
difficulty interacting with his young son and most household duties are then
left to his wife. This is a source of frustration for them both and has caused
strains in their relationship.

NON-PECUNIARY DAMAGES

[36]         
In Simmavong v. Haddock, 2012 BCSC 473 at paras. 65-68,
Greyell J. summarized the purpose of non-pecuniary damages, the principles
underlying such awards and the factors to be considered in making such awards:

[65]      Madam Justice Ker summed up the purpose of
non-pecuniary damages in Trites v. Penner, 2010 BCSC 882 as follows:

[188]   Non-pecuniary damages are awarded to
compensate the plaintiff for pain, suffering, loss of enjoyment of life and
loss of amenities. The compensation awarded should be fair and reasonable to
both parties ...

[189]   For the purposes of assessing
non-pecuniary damages, fairness is measured against awards made in comparable
cases. Such cases, though helpful, serve only as a rough guide. Each case depends
on its own unique facts ...

[Citations omitted.]

[66]      The principles underlying an award of
non-pecuniary damages were discussed by Madam Justice Gray in Dikey v.
Samieian, 2008 BCSC 604:

[139]    Non-pecuniary damages are those that have not
and will not require an actual out-lay of money. The purpose of such an award
is to compensate Mr. Dikey for such things as pain, suffering, disability,
inconvenience, disfigurement, and loss of enjoyment of life. The award is to
compensate him for losses suffered up to the date of trial and that he will
suffer in the future.

[140]    As stated by the Supreme Court of Canada in Lindal
v. Lindal (No. 2), [1981] 2 S.C.R. 629 at 637:

Thus the amount of an award for non-pecuniary damage
should not depend alone upon the seriousness of the injury but upon its ability
to ameliorate the condition of the victim considering his or her particular
situation. It therefore will not follow that in considering what part of the
maximum should be awarded the gravity of the injury alone will be
determinative. An appreciation of the individual’s loss is the key and the
"need for solace will not necessarily correlate with the seriousness of
the injury" (Cooper-Stephenson and Saunders, Personal Injury Damages in
Canada (1981), at p. 373). In dealing with an award of this nature it
will be impossible to develop a "tariff". An award will vary in each
case "to meet the specific circumstances of the individual case" (Thornton
at p. 284 of S.C.R.).

[141]    Prior to the accident, Mr. Dikey was a
social and athletic young man with the ambition to work in the hotel industry
and the courage to come to Canada to pursue his education. He was independent
and showed initiative.

[142]    Mr. Dikey’s life has changed profoundly
as a consequence of the accident. He is unlikely to work, and has lost the
self-esteem, enjoyment and income that is available from work. …

[67]      In Stapley v. Hejslet, 2006 BCCA 34,
the Court of Appeal outlined the factors to be considered when assessing
non-pecuniary damages, at para. 46:

The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary
damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of life;

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

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

(h)        impairment of physical and mental
abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s stoicism (as a factor that
should not, generally speaking, penalize the plaintiff:  Giang v.
Clayton, … 2005 BCCA 54).

[68]      The assessment of non-pecuniary damages is
necessarily “influenced by the individual plaintiff’s personal experiences in
dealing with his or her injuries and their consequences, as well as the
plaintiff’s ability to articulate that experience”:  Dilello v.
Montgomery, 2005 BCCA 56 at para. 25.

[37]        
Mr. Williams suggests an award of non-pecuniary damages in the area
of $60,000 to $80,000. In support of that award, he cites Buttar v. Brennan,
2012 BCSC 531; Helgason v. Bosa, 2010 BCSC 1756; Ibbitson v. Cooper,
2010 BCSC 1916; Kardum v. Asadi-Moghadam, 2011 BCSC 1566; Loveys v.
Fleetham, 2012 BCSC 358; Vershinin v. Hayward, 2010 BCSC 1315 and Wahl
v. Sidhu, 2010 BCSC 1466.

[38]        
The defendant submits that Mr. Williams is not debilitated to the
extent that he claims. He notes that he works at a very physical and heavy job
and he has been able to perform his duties since he returned full-time in November
2008. The defendant suggests that the cases relied upon by the plaintiff
involve more significant injuries than the plaintiff has suffered and should
not be followed as they do not provide a useful guide for determining a fair
and equitable award in this case.

[39]        
The defendant submits that an appropriate award would be in the range of
$10,000 to $20,000. He notes that the plaintiff has failed to provide
corroborative evidence that he continued to experience pain longer than a
reasonable period of time. There is no objective evidence of continuing injury
that is causally related to the accident and the medical reports do not support
the contention the pain suffered by the plaintiff is real and continuing. The
defendant relies on the following cases: Robinson v. Anderson, 2009
BCSC 1450; Aulakh v. Poirier, 2006 BCSC 2027; Olianka v. Spagnol,
2011 BCSC 1013; Ryan v. Klakowich, 2011 BCSC 835; Hoang v. Smith
Industries Ltd. et al, 2009 BCSC 275; Kain v. Kirkman et al.,
2006 BCSC 1770; Vela v. MacKenzie, 2012 BCSC 438.

[40]        
Each case must of course be decided on its own facts and the various
authorities as cited by the parties, while of interest, are not determinative. I
find that Mr. Williams continues to suffer as a result of the accident. While
he has managed to remain employed, he does so at a cost. He can no longer do
the most physically demanding tasks of his work. He takes pain medication on a
daily basis. He is able to maintain his employment because his employer has
accommodated his condition and placed him in a supervisory role.

[41]        
His injuries have reduced his quality of life. He cannot enjoy normal
activities with his young son. His relationship with his wife is strained on
account of his limitations. I should note that there is little evidence Mr. Williams
has given up any activities which he previously enjoyed because of the
injuries.

[42]        
Mr. Williams works at an occupation that imposes harsh physical
demands. The demands of his work exacerbate the injuries suffered in the
accident. If otherwise employed, Mr. Williams might well be less affected
by his injuries. Others less determined than Mr. Williams may have chosen
to give up their career rather than suffer ongoing pain. Mr. Williams did
not choose such a path. If Mr. Williams had chosen to abandon his career, it
might well have reduced his non-pecuniary damages while increasing his award
for loss of earnings.

[43]        
Mr. Williams’ injuries are chronic and continuing. He is concerned
about his continued use of pain medication, and the possibility that he will in
the future not be able to continue his employment. These concerns also impact
on his quality of life.

[44]        
 Taking all of the above factors into account, I award $50,000 for
non-pecuniary damages.

PAST LOSS OF EARNINGS

[45]        
There are two components to this part of Mr. Williams’ claim. The
first concerns lost wages while he was employed at Sonic. The second is in
regard to overtime he has been unable to work at Marcon.

[46]        
Mr. Williams returned to work at Sonic from stress leave on
February 20, 2008. He soon found he was unable to work fulltime hours. He did
not return to fulltime work until November 2008.

[47]        
Mr. Williams counsel advises that if Mr. Williams had worked a
regular 40-hour week throughout that period, his loss is $9,973 plus 4%
vacation pay for a total of $10,371.93.

[48]        
The defendant accepts that Mr. Williams has suffered a loss during
this period. He suggests, however, that the claim should be based on a
calculation of Mr. Williams working 34 hours per week. The basis of this
submission is that in the year prior to the accident Mr. Williams did not
regularly work 40 hours per week.

[49]        
Given the hard, physical nature of Mr. Williams’ work and his prior
work history, it is unlikely, absent the accident, he would have worked a 40-hour
work weeks on a regular and continual basis. To accommodate that contingency, I
would reduce the plaintiff’s claim by 10% and would award Mr. Williams the
sum of $9,335 for lost wages at Sonic.

[50]        
With regard to the overtime claim at Marcon, the evidence indicates that
Marcon offered its employees unlimited overtime. In other words, employees
could work as much overtime as they wished because of the company’s expanding
business opportunities.

[51]        
Mr. Williams testified that absent the injuries he would have
ideally worked 21 hours of overtime per week, or 42 hours per pay period. Over
the three years preceding the trial there have been 69 pay periods. If Mr. Williams
had worked 42 hours of overtime in each pay period, he would have worked 2,898
hours of overtime. He actually worked 897 hours of overtime leaving a shortfall
of 2,001 hours. Mr. Williams’ average pay was $25.66 per hour. As overtime
was paid at time and one-half his average overtime rate would be $38.50 per
hour. Mr. Williams’ potential loss of overtime hours (2,001) at $38.50 per
hour would lead to a loss of $77,038.50. He seeks to recover that sum.

[52]        
While I recognize the basis of the calculation put forward on behalf of Mr. Williams,
I do not accept that he would have worked that amount of overtime. As noted,
metal fabrication is hard, physical work. There are realistic limits to the
amount of overtime anyone can work. Although the evidence indicates that
overtime at Marcon was unlimited, there was no evidence of the actual overtime
hours worked by any specific employee or, more particularly, that any employees
were working 21 hours of overtime each week.

[53]        
Mr. Williams is now married with a young child. He has other priorities
in his life in addition to work. His wife indicated that even the limited
overtime that Mr. Williams now works causes stress in their relationship.

[54]        
I find that absent his injuries, Mr. Williams would have worked
more overtime than he does at present. I cannot find, however, that he would
have worked on a regular basis the amount of overtime he suggests. I cannot
determine with precision how much overtime he would have worked. I award
$25,000 for loss of opportunity to work overtime in the years prior to trial.

[55]        
The two components of the past loss of earnings award are gross
calculations. If the parties cannot agree on the tax consequences of this
portion of the award they are at liberty to make further submissions.

FUTURE LOSS OF EARNING
CAPACITY

[56]        
The principles that govern awards for future loss of earning capacity
were summarized by Walker J. in Ruscheinski v. Biln, 2011 BCSC 1263 at paras. 114-118:

[114]    For an award under this head of damages to be
made, Ms. Ruscheinski must demonstrate a “substantial possibility that
lost capacity will result in pecuniary loss”: Perren v. Lalari, 2010
BCCA 140, at paras. 4, 7, 21, 31, and 32, 137 D.L.R. (4th) 729; Steward
v. Berezan, 2007 BCCA 150 at para. 17, 64 B.C.L.R. (4th) 152. A future
or hypothetical possibility will be taken into consideration as long as it is a
real and substantial possibility and not mere speculation: Perren at para. 30.

[115]    If the plaintiff discharges the burden of
proof, then he or she may prove quantification of that loss by an earnings
approach or by a capital asset approach: Perren at para. 32; Chang
v. Feng, 2008 BCSC 49 at para. 76, 55 C.C.L.T. (3d) 203.

[116]    Garson J.A. wrote in Perren at para. 11
that where the loss cannot be measured in a pecuniary way, “the correct
approach [is] to consider the factors described by Finch J., as he then was, in
Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353. In Brown, he said
at para. 8:

The means by which the value of the lost, or impaired,
asset is to be assessed varies of course from case to case. Some of the
considerations to take into account in making that assessment include whether:

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

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

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

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

[117]    In para. 12 of Perren, Garson
J.A. said:

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

[118]    A useful summary of the principles governing
the determination and measure of an entitlement of an award for loss of income
earning capacity is set out at para. 32 in Perren:

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 employment.
That was the case in both Pallos and Parypa. But, as Donald J.A.
said in Steward, an inability to perform an occupation that is not a realistic
alternative occupation is not proof of a future loss.

[Emphasis in original]

[57]        
As with the past earnings claim, there are two aspects to Mr. Williams’
claim for loss of future earning capacity. The first concerns the loss of
opportunity to work overtime. The second concerns the possibility Mr. Williams
may not be able to continue indefinitely in his present position and will,
because of the limitations imposed by his injuries, have to find employment
other than as a metal fabricator.

[58]        
For the reasons discussed under the head Past Loss of Earnings I find
that Mr. Williams will suffer a future loss because of his inability to
work as much overtime as he would otherwise have done absent the injury.

[59]        
As a result of his injuries, Mr. Williams has been rendered less
capable overall of earning income from all types of employment. He is less
marketable or attractive as an employee to potential employers. He has lost the
ability to take advantage of all job opportunities which might otherwise have
been open to him had he not been injured, and he is less valuable to himself as
a person. If Mr. Williams’ present position terminates for any reason, his
physical limitations will not allow him to return to work as a full-time journeyman
fabricator.

[60]        
Other than in regard to unworked overtime, Mr. Williams is
suffering no present financial loss. His future employment at Marcon cannot be
guaranteed. There are any number of potential scenarios which could lead to the
end of that employment. By way of example, if his present employer decided to
sell the business, the new owner of the company may not be as willing to
accommodate Mr. Williams. An economic downturn could cause Marcon’s
business to suffer, limiting the amount of supervisory work available. I find
that there is a real and substantial possibility of a future event leading to
an income loss.

[61]        
Plaintiff’s counsel provided various calculations in relation to the
loss of future earning claim. Using his 42-hour per pay period number, he noted
that over five years the loss of overtime claim would translate into $155,000.
Taking into account the potential loss of overtime claim plus other
circumstances such as his loss of the job, he suggested an appropriate manner
of calculating the loss of capacity would be to award the sum of $140,000 which
represents two years of earnings.

[62]        
There is no exact method of determining loss in these circumstances. There
certainly is a potential claim of loss of capacity under both heads which have
been suggested. The loss of overtime claim is real, although the amounts lost
cannot be determined with certainty. The other potential loss is uncertain and,
indeed, it is possible that Mr. Williams could continue indefinitely
through to retirement in his present position.

[63]        
Taking the various scenarios into account, I would award Mr. Williams
$100,000 for loss of future earning capacity.

SPECIAL DAMAGES

[64]        
The parties are agreed that Mr. Williams is entitled to special
damages in the amount of $3,812.

SUMMARY

[65]        
In summary therefore, I award the plaintiff the following sums:

COSTS

[66]        
Unless there are matters of which I am not aware, Mr. Williams is
entitled to his costs. If either party seeks a different cost award, they
should file written submissions within 21 days of the date of these reasons.

“R.B.T. Goepel J.”

________________________________________

The Honourable Mr. Justice
Richard B.T. Goepel