IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130201

Docket: M59207

Registry:
Nanaimo

Between:

Dale Jorgensen

Plaintiff

And

Trevor M. Coonce

Defendant

Before:
The Honourable Mr. Justice R.A.M. Baird

Reasons for Judgment

Introduction

[1]            
This is an assessment of the plaintiff’s damages arising from a motor
vehicle accident on May 22, 2009. Liability has been admitted. The parties have
agreed on the quantum of special damages ($8,086.00) but have been unable to
agree on the quantum of general damages, loss of income-earning capacity, and
future care costs.

Issues to be decided

a)    General
damages:  Under this heading the plaintiff claimed that damages within a
range of $85,000 to $100,000. The defendant submitted that the case fell more
within the $40,000 to $45,000 range.

b)    Loss of
income earning capacity: Under this heading the plaintiff claimed damages
of approximately $150,000. The defendant submitted that this part of the claim
should be dismissed.

c)     Cost of
future care: Under this heading the plaintiff claimed $30,000. The
defendant suggested no alternative evaluation for quantum, but submitted,
essentially, that this part of the plaintiff’s claim was exaggerated and should
be limited to a few thousand dollars for future massage therapy sessions.

[2]            
A complicating feature in this assessment of damages is that the
plaintiff was involved in a previous accident in April of 2006. The plaintiff urged
me to conclude that the injuries he suffered in that accident had completely
healed by the time of the May 22, 2009 accident. However the defendant
submitted that pre-existing injuries or limitations were manifest and disabling
at the time of the second accident and that damages should be reduced
accordingly: Pryor v. Bains (1986) 69 BCLR 395 (C.A.). While
the burden is on the plaintiff to establish the injuries were caused by the
defendant’s negligence, the defendant, of course, takes the plaintiff as he
finds him: Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d) 318 (C.A.), at
paras. 104-107, 115.

The Accident

[3]            
The defendant, who is apparently a close friend of the plaintiff, was
driving a small sport utility vehicle along a rural driveway near Errington,
British Columbia.

[4]            
The plaintiff testified that the defendant was “fooling around”, by
which I inferred that he was driving with intentional recklessness.

[5]            
The defendant’s vehicle fishtailed off the surface of the driveway and
collided with some trees. The plaintiff braced himself by holding his right arm
out against the dashboard. In this posture he was rather violently jarred on
impact. The defendant’s vehicle was damaged to such an extent that repairs were
not undertaken.

Medical Evidence

[6]            
The plaintiff’s medical case is more or less limited to the expert
opinion evidence of Dr. Steven Noble, the plaintiff’s family physician.

[7]            
During his convalescence the plaintiff was referred to an orthopaedic
surgeon, Dr. Regan, but he merely concluded that surgical intervention was not
indicated and that a labral tear revealed by an MRI was clinically irrelevant
and not the source of the plaintiff’s pain and suffering.

[8]            
The plaintiff was also referred to a physiatrist to see whether trigger-point
injections were a therapeutic option, but no focal points were identified and
he was referred back to Dr. Noble without treatment.

[9]            
The plaintiff consulted with Dr. Noble on many occasions after the
accident. Dr. Noble created a report on March 16, 2012, detailing the progress
of these consultations on March 16, 2012. He concluded:

In summary, it is my opinion that Mr. Jorgensen suffered
significant injuries in the motor vehicle accident of May 9 [sic] 2009. He
suffered a strain of his right arm which has now resolved. He also suffered a
strain of his neck, his upper back and lower back. He suffered a significant
injury to his right shoulder which appears to be a soft-tissue injury and has
evolved into a chronic pain syndrome mostly involving the soft tissues of the
posterior aspect of the right shoulder. The injuries to the neck and low back
have for the most part resolved. At this stage the ongoing problems relates to
the right shoulder. He has chronic pain, on a daily basis, which has interfered
significantly with his work and personal activities. He has undergone extensive
investigation of treatment of this injury. He has been assessed by two specialists,
Dr. Regan, a well-respected orthopaedic surgeon and Dr. Deutscher, a physical
medicine specialist. There is no surgical solution to his problem and he has
undergone extensive physical and massage therapy with no resolution either. He
did obtain significant but temporary relief from corticosteroid injections but
it is unwise to continue these on an indefinite basis due to the severe side
effects of chronic corticosteroid use including but not limited to
osteoporosis, osteonecrosis of the hips, cataract formation in the eyes,
diabetes mellitus, and suppression of the body’s natural corticosteroid
production. He also has received significant benefit from regular massage
therapy and I would certainly recommend that he continue with these treatments as
long as they are affording him some benefit.

I would suggest the long-term
prognosis for a complete resolution of his right shoulder pain is poor at this
stage. It has now been almost three years since his injury and the pain level
appears to have plateaued and I suspect that he is going to have chronic
difficulties with his right shoulder. In my opinion, the sole cause of this
chronic right shoulder pain is the accident in question . . . it is quite
possible that as he ages this pain may become worse and more disabling for him.
It is somewhat remarkable that he has been able to continue with his work
activities for the most part despite this chronic pain.

[10]        
In his testimony at trial, Dr. Noble confirmed that Dr. Deutscher, the
physiatrist to whom he referred the plaintiff, had been unable to locate any
pain trigger points to be treated by means of injection, but he went on to say
that, at the direction of the plaintiff, he had found such a trigger point
himself and had administered corticosteroid injections thereto which had
afforded the plaintiff some relief. He discontinued those injections because of
the probable side effects, especially in such a young man.

[11]        
He also confirmed that the only therapeutic treatment that would have
beneficial effects in the future would be massage therapy, which he said would
allay only to a degree the chronic pain that he apprehended the plaintiff would
endure for the rest of his life.

[12]        
Dr. Noble also testified that he had treated the plaintiff after his
April 2006 accident, which involved soft tissue injuries to the neck, back, and
left shoulder.

[13]        
Dr. Noble testified that he had an “impression” that the injuries from
the 2006 accident had “mostly” resolved by the time of the 2009 accident, though
there was no entry in his notes or clinical records to this effect. The
“impression” was based, he thought, on the fact that the plaintiff stopped
coming to see him between August 2008 and the accident in May 2009.

[14]        
Alternatively, he thought he remembered the plaintiff telling him at
some point that his injuries from the 2006 accident had resolved.

Civilian Witnesses

[15]        
The plaintiff called three witnesses as follows:

1. Dale Jorgensen

[16]        
The plaintiff is a 42-year-old father of two young children. He lives in
Errington, British Columbia.

[17]        
He graduated high school at the age of 21. He had problems with reading
and math. He was held back a year after kindergarten and grade two due to
developmental difficulties. He testified that he would not have got through
school without the constant assistance of his mother. He still has difficulty
reading and his reading comprehension is poor.

[18]        
He comes from a family that values hard work. He started working at age
11 and held a number of jobs before settling into a career in the paving
business. He worked for Haylock Brothers Paving Limited for 23 years before
being fired on October 1, 2012, roughly a month before this trial began. I will
touch on this aspect of things in greater detail below.

[19]        
Mr. Jorgensen had a successful career in the paving business. He enjoyed
and took pride in his work. He started off as a labourer and worked his way up
to a machine operator. Before his recent dismissal he was being paid $32 an
hour. Paving is a physical occupation. He estimated that 30 to 40 per cent of
his workday involved hard physical labour.

[20]        
Until his recent difficulties he was a vigorous and robust person who
enjoyed hiking, coaching soccer, quad riding, playing hockey, fishing, and cycling.
He was accustomed to enjoying most of these activities with his children.

[21]        
He described his injuries from the 2006 accident as having been to his
shoulders, back and neck. Over two years or so these injuries improved such that,
by the beginning of 2009, before the second accident, he was “pretty well back
to where I was.” He had some residual pain in his left shoulder but he could
work all day and only needed “a little Motrin” at the end of the day to put
himself right. He had returned to all his normal recreational activities. He
had also bought a John Deere Skid Steer because he was thinking of getting his
own paving, excavation, and snow removal business up and running.

[22]        
However he conceded in cross examination that in August 2008, (two years
after the April 2006, accident) he continued to have problems with pain in his
upper body and neck. He was functioning at work but was experiencing difficulties.
He had to take Ibuprophen and Motrin to manage his pain. He said that he
carried on taking these medications to relax and sleep right up to the time of
the second motor vehicle accident in 2009. The plaintiff agreed, as well, that
he had been taking chiropractic treatment right up until the 2009 accident to
ease his pain, and that, as long as a year and a half after the 2006 accident,
he complained to Dr. Noble of back and neck pain that that was worsening rather
than improving and was aggravated by physical activity and standing.

[23]        
Nevertheless the plaintiff maintained that most of these problems had
cleared up by the time of the 2009 accident.

[24]        
After the 2009 accident, he returned to work immediately. He did not
miss a day. He was in pain but worked through it. He consulted his physician,
Dr. Noble, within five days of the accident and continued doing so on a regular
basis over the next three years. During this interval his physical problems mostly
resolved, but the pain endures to this day in his right chest and shoulder area,
both posterior and anterior.

[25]        
He confirmed that Dr. Noble gave him three corticosteroid injections,
and these relieved the pain but only briefly. This was in 2011, by which point he
said that things had become very bad at work. He wanted to continue with the
injections but Dr. Noble would not have it. On Dr. Noble’s recommendation he
resorted to massage therapy which he said brought him a good deal of relief.

[26]        
He testified that he was never the same after the 2009 accident. He
described being in a great deal of pain after the end of every working day, and
said that he was more or less incapacitated after a day’s labour. Sometimes, he
didn’t even want to drive home.

[27]        
By his own estimation he has only returned to about 60 per cent of
functional capacity since the 2009 accident.

[28]        
On the other hand, the plaintiff agreed in cross-examination that, after
the 2009 accident, Dr. Noble prescribed Tylenol 3, but he did not take these
for any length of time.

[29]        
He also conceded that, in the midst of over three years of reported chronic
pain, he had incurred less than $100 in special costs on such things as pain
medications, a heating pad, and anti-inflammatory pills.

[30]        
He also acknowledged that he did not attend massage therapy until six
months after Dr. Noble had recommended it to him, and that there had been a
number of significant gaps over the years in which he had failed to attend for
any massage therapy for no apparent reason.

[31]        
He claimed that his 2009 injuries have affected his relationship with
his children. He has been too sore to engage in his usual activities with them.
He has had to drop his sporting interests and outdoor pursuits. He has had to
quit coaching soccer.

[32]        
He described himself as being very limited in what he is able to do, and
his day-to-day condition as being “sore, cranky and hurt”. When he is not at
work, he takes pills and lies on the couch. He cannot muster up the energy or
enthusiasm to go out after work. The pain forces him to stay home. His social
life has been affected. He has not been on a date in ages. He continues to have
difficulty sleeping. He is on anti-anxiety medication.

[33]        
Sometime in 2011 he attempted to do some excavating work for his former
spouse with his Skid Steer but could only operate the machine for an hour or
hour-and-a-half before having to quit because of the pain.

[34]        
He said he could no longer render assistance to his elderly parents,
helping with repairs and improvements, chopping wood, and the like.

[35]        
As far as his abilities at work were concerned, the plaintiff testified
that he was usually reasonably fit at the start of the day, but halfway through
the day he would start to feel pain, and by the end of the day, in his own
words, “I was done”.

[36]        
To aggravate matters, 18 months prior to his dismissal from work, his
employer bought a Bobcat machine that the plaintiff found extremely difficult
to operate. To do so caused him pain and stiffness. He said that he made his
employer aware of this. He said that he often had to leave work early, and that
when he did so he always got the permission of his job foreman, Chris Joslin,
who had to clear it with his boss, Rennie Haylock.

[37]        
The plaintiff testified that both of these men were aware of his daily
pain and distress and had witnessed his diminished work capacities first-hand
on many occasions.

[38]        
The plaintiff claimed that there has been no improvement to his shoulder
injury since the 2009 accident; in fact this condition has worsened with time.
He kept working because it’s the only job he knows and because he has child
support obligations and a mortgage to pay.

[39]        
The plaintiff claimed, furthermore, that this chronic pain led to his
dismissal from his employment. Rennie Haylock asked him to operate the Bobcat
on October 1, 2012, but he refused because of the pain it caused him. He was fired
on the spot. The ostensible justification for dismissal was insubordination, but
the plaintiff believed that this was a pretext. In his mind, his employer was
fed up with having to accommodate his injuries on the job site and dismissed him
because, in his counsel’s expression, he was “damaged goods”.

[40]        
As evidence of this animus, the plaintiff referred to a “waiver” letter dated
April 20, 2010 written by Rennie Haylock and given to the plaintiff to sign.
The letter purported to exclude Haylock Brothers from any liability for injury
sustained on the job, and was proof, according to the plaintiff, that Haylock
Brothers had concluded that continuing to employ him in his injured state was a
liability risk from which the company had to protect itself.

[41]        
According to the plaintiff’s theory, there was no other plausible
rationale for his firing. He had an unblemished work record. He had never been
disciplined during his 23 years at Haylock Brothers and had given good and
loyal service throughout. Most of Haylock’s employees stay on for years. There
is not much attrition. The company takes pride, apparently, in the loyalty and
stability of its workforce. The plaintiff planned to work for Haylock Brothers
until retirement.

[42]        
Although the plaintiff expressed the opinion, during his examination in
chief, that he would likely be incapable of returning to the paving business
because of its physical demands, on cross-examination he acknowledged and
adopted his testimony from a September 22, 2011, examination for discovery in
which he said that if Haylock Brothers ever went out of business, he would find
it easy to get other work in the local paving business.

[43]        
The plaintiff confirmed, furthermore, that he was offered employment
with another local paving company, Tayco Paving, after his October 1, 2012,
dismissal from Haylock Brothers. I was told that Tayco often works closely with
Haylock Brothers on paving projects. The plaintiff is a well-known commodity to
Tayco. The plaintiff agreed that he had turned down this work, not because of
his injuries, but because he was immersed in preparations for court. The
plaintiff was quick to specify, however, that he had not told his contacts at
Tayco about his chronic physical limitations, and he did not know if they will
continue to be interested in hiring him once they become aware of them.

[44]        
The plaintiff’s 2007 to 2011 tax returns show income ranging from $50,000
and $60,000.

2. Tamara Hide

[45]        
Ms. Hide is the former wife of the plaintiff. She met him at the age of
16. They were married in 1995 and separated in 2002. Since their divorce she
has maintained a cordial relationship with the plaintiff that centres on the
children. She testified that she speaks to the plaintiff once per day.

[46]        
During their marriage she said that the plaintiff’s health was good. He
was always strong, fit and active. He did lots of things for friends and
parents of a physical nature. He always worked at Haylock Paving and took pride
in having such a good job.

[47]        
She said the plaintiff was not “academic.” While they lived together she
did all the taxes because the plaintiff did not like to read. She never knew him
to read a book. He also had problems with basic math.

[48]        
They have two young children together. She said that the plaintiff had a
good relationship with his children and that he was “a good dad.”

[49]        
She testified that she was aware of the 2006 accident and its aftermath,
but specified that before the May 2009 accident the plaintiff seemed to have
recovered from his injuries. She said that he was “back to his old activities,”
including playing hockey, and doing the full range of his customary activities
with the children.

[50]        
After the May 2009, accident, she said the plaintiff changed
dramatically. He has seemed to be in constant pain, and this has had a marked
affect on his mood. It has negatively affected his relationship with his children.
She has had to do a lot more with the children because the plaintiff cannot manage.
The children are less interested in seeing the plaintiff because, to their way
of thinking, he is no longer particularly interesting or fun. He has not only cut
back on his activities with the children, but often cancels at the last minute
because he is in pain and cannot follow through with his plans.

[51]        
She said that the plaintiff was normally happy and fit but now he is downcast
and afflicted with constant pain.

[52]        
She noticed his diminished capacity to perform work in November 2011,
when she asked him to bring his Skid Steer to her property to do some
excavation work. She said that he had to return on four separate occasions to
do a job that she believed he would have been able to do in one visit before
the 2009 accident.

3. Chris Joslin

[53]        
Chris Joslin was the plaintiff’s foreman at Haylock Brothers for twelve
years until the latter’s dismissal on October 1, 2012. Like the plaintiff, he
is an “operating engineer”, meaning that he is ticketed to run heavy equipment.
He specified that operators also do labouring on paving jobs.

[54]        
Mr. Joslin has known the plaintiff since grade nine, and they have
worked and socialized together during over the years. Laterally it has been mostly
a working relationship. He described the plaintiff as a hard-worker, “one of
the hardest on the crew”.

[55]        
Mr. Joslin knew that the plaintiff had been in an accident in 2006,
after which he said the plaintiff had problems with stiffness and soreness in
his shoulders. He knew, as well, that the plaintiff had been in a motor vehicle
accident in May 2009.

[56]        
Before the May 2009 accident, Mr. Joslin offered the opinion that the
plaintiff had returned to 85 per cent working capacity from the injuries
suffered in the 2006 accident.

[57]        
After the 2009 accident he said that the plaintiff was not able to work
as fast as before. He said that the plaintiff could do a whole day’s labour,
but would have to stop and stretch regularly. People on the crew had to pitch
in and help him. He noticed, as well, that the plaintiff appeared to be
uncomfortable at and unhappy at work. He specified, however, that the plaintiff
never talked about quitting and throughout remained a valuable and contributing
member of his crew.

[58]        
Concerning the Bobcat that the plaintiff was required to operate, Mr.
Joslin agreed that it was a difficult piece of machinery to run, and said that
he did not like using it either. He, too, experiences stiffness and soreness
after he uses it. He tried to ensure that the plaintiff used it as infrequently
as possible.

[59]        
In cross-examination he confirmed that, after the 2009 accident, the
plaintiff sometimes asked to leave work early to go to massage therapy or doctor’s
appointments. Any such early departures were approved by Rennie Haylock.

[60]        
He said he never heard the plaintiff and Rennie Haylock discussing the
plaintiff’s physical problems.

[61]        
The defence called one witness as follows:

4. Rennie Haylock

[62]        
Mr. Haylock is the top operational man at Haylock Brothers Paving
Limited. He testified that the plaintiff started working for the company in 1991.
At first he was a labourer but later became an “operating engineer” qualified
to operate heavy equipment.

[63]        
He testified that the plaintiff was a good worker and operator. He
performed the full range of paving jobs with skill and application. There had
never been any problems with the plaintiff’s work performance.

[64]        
He was aware of the plaintiff’s involvement in the May 2009 accident. He
thought the plaintiff may have mentioned it to him the following day. The plaintiff
said that he was hurting but could still work.

[65]        
Mr. Haylock confirmed the evidence of the plaintiff and Mr. Joslin that
he is a “hands on manager” who visits all Haylock job sites once or twice a
day.

[66]        
He said that he did not notice much difference in the plaintiff’s job
performance after the May 2009 accident. He was not concerned about the
plaintiff, although he was aware that he was often “sore”.

[67]        
Mr Haylock’s explanation for the “waiver” letter of April 20, 2010 was as
follows: the plaintiff had told him that he was to undergo an operation on his
shoulder and his doctor had told him to stop working beforehand. Mr. Haylock had
not previously heard of any shoulder injury. Later the plaintiff told Mr.
Haylock that his doctor had reconsidered and permitted him to continue working.
In light of this inconsistent advice, the “waiver” letter was an attempt, Mr.
Haylock said, to protect the company from claims for compensation for any injury
that might occur before the operation. The surgery was never discussed again,
and, as it happened, the plaintiff never underwent surgery.

[68]        
Between the 2009 accident and the plaintiff’s dismissal, Mr. Haylock saw
the plaintiff at work on a regular, almost daily basis. At no time did he see
any evidence of the plaintiff having difficulties. He didn’t seem to be working
slower or with any limitations. He knew that the plaintiff did not like to
operate the new Bobcat, but no one else did, either, including his best
operator, Mr. Joslin.

[69]        
Mr. Haylock confirmed that between May 2009 and October 2011 the
plaintiff sometimes asked to be allowed to go home early, but not for medical
reasons. He said it was usually because the plaintiff had lined up work on the
side with his Skid Steer, or because he wanted to go camping or do things with
his children.

[70]        
Mr. Haylock flatly denied that he fired the plaintiff from the company because
he was no longer prepared to accommodate his injuries. He said, essentially,
that he had dismissed the plaintiff for cause because he had been insubordinate.
He had refused to operate a piece of equipment that was in his job description.
His behaviour had been profane. He had said, referring to the Bobcat, that he
was “not going to run that piece of shit”. Mr. Haylock called this a “bad
attitude” which he would not tolerate, even though he agreed that the plaintiff
had spoken to him later and apologized. He said that the plaintiff’s behaviour was
unacceptable and he would not stand for it.

Findings of fact

[71]        
I was encouraged to approach the plaintiff’s evidence with caution
because the nature and extent of his injuries are a matter of subjective
self-assessment or reporting and are not verified by any objective clinical
testing or assessment. I have done this, and am mindful of the
caution expressed by the court in Maslen v. Rubenstein (1993), 83
B.C.L.R. (2d) 131, at para. 16 as follows:

16 With respect to the evidence
required in order to meet the onus lying on a plaintiff in such cases, Chief
Justice McEachern (then sitting as a trial judge) in Price v. Kostryba (1982), 70 B.C.L.R. 397
(S.C.), repeating his observations in Butler v. Blaylock, [1981] B.C.J. No. 31
(October 7, 1981, Vancouver B781505 (B.C.S.C.)), put it thus:

I am not stating any new principle
when I say that the court should be exceedingly careful when there is little or
no objective evidence of continuing injury and when complaints of pain persist
for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be
fully and properly compensated for any injury or disability caused by a
wrong-doer. But no one can expect his fellow citizen or citizens to compensate
him in the absence of convincing evidence–which could be just his own evidence
if the surrounding circumstances are consistent that his complaints of pain are
true reflections of a continuing injury.

So there must be evidence of a
"convincing" nature to overcome the improbability that pain will
continue, in the absence of objective symptoms, well beyond the normal recovery
period, but the plaintiff’s own evidence, if consistent with the surrounding
circumstances, may nevertheless suffice for the purpose.

[72]        
Generally speaking the plaintiff struck me as an honest and sincere
witness. Having sized him up carefully over a couple of days of testimony, I concluded
that he was a not a person given to guile, exaggeration or prevarication.

[73]        
I find, furthermore, that he is not a malingerer. To the contrary, I
believe that he is a reasonably stoical person who has carried on as best he could
for the past three years despite enduring persistent shoulder pain.

[74]        
I was also enjoined to look with scepticism at the opinion of Dr. Noble.
It was suggested that he was merely taking his long-time patient at his word,
and that his testimony was more in the nature of advocacy than expert opinion.

[75]        
I reject this contention. Dr. Noble struck me as a dispassionate, no-nonsense
professional whose expert medical opinion is entitled to significant weight,
all the more because it was completely uncontradicted during this trial.

[76]        
It was suggested, furthermore, that I might draw an adverse inference
from the plaintiff’s failure to adduce any other medical, functional capacity, or
occupational therapy evidence to substantiate his rather large claim for
damages.

[77]        
While it may be that such evidence is common in motor vehicle accident
cases, and I find its absence from this one to be somewhat curious, I also
wondered at the want of activity on the defendant’s side of the inquiry. I was
told that in over three years the plaintiff was never required to submit to any
kind of independent examination.

[78]        
Focussing, as I must, on the evidence that was adduced, even while I might
wonder about that which was not, I find that the plaintiff’s injuries from the
2006 were substantially but not completely resolved by the time of the 2009
accident.

[79]        
The plaintiff himself, though he claimed early in his testimony that he
had enjoyed a full recovery, later conceded that this was not so. His evidence
on this point was confirmed by Mr. Joslin, who said that the plaintiff was
functioning satisfactorily at work but only to 85 per cent of his previous capacity.

[80]        
 I find, however, that immediately before the 2009 accident, the
plaintiff’s work capacity was satisfactory and improving, and that his personal
life was more or less back to normal. He had returned to his various
recreational pursuits, was enjoying the full spectrum of his customary
activities with his children, and was pulling his weight concerning access,
support, and so on.

[81]        
This changed rather drastically after the 2009 accident. On this point,
I accept without reservation the evidence of Tamara Hide, who impressed me as a
straightforward and credible witness. She obviously wished the plaintiff no
ill, but on the other hand, she had re-married and started another family, and
overall gave the impression that her ongoing obligation to have personal dealings
with the plaintiff about the children was something to be tolerated rather than
celebrated.

[82]        
There was nothing in her presentation that made me think she was overly partisan
or gilding the lily. She struck me as a busy woman who could use the
plaintiff’s help looking after their kids and was genuinely struggling with and
let down by his inability to do so.

[83]        
I find it inconceivable that over three years and more the plaintiff
would, for the oblique purpose of falsely enriching this lawsuit, feign an
inability to properly care for his children, in whose life he has obviously
occupied a central role and to whom he is clearly devoted.

[84]        
I accept Ms. Hide’s evidence that, since the May 2009 accident, matters
have deteriorated in the plaintiff’s relationship with his son and daughter to
the stage where they no longer wish to spend much time with him because of his
physical limitations, which prevent him from engaging in the activities they
enjoy and to which they have become accustomed.

[85]        
In my view this is compelling evidence of a reasonably serious and ongoing
incapacity for which I have heard no explanation other than the injury suffered
in the 2009 accident.

[86]        
I also accept that the plaintiff’s testimony that his working capacity
was diminished after the second accident. This was confirmed by the testimony
of Mr. Joslin, whose evidence on this point I prefer to that of Mr. Haylock for
the simple reason that Mr. Joslin was the plaintiff’s immediate supervisor and worked
alongside him all day, every day.

[87]        
On the subject of Mr. Haylock, I have to say that I find it more than a
little strange that the plaintiff should have been dismissed so precipitously
from his employment over a minor spat about the Bobcat. The plaintiff had been
a hard-working and valued employee of Haylock Paving for 23 years, apparently one
of their best workers and operators, about whose work performance and attitude
there had never been any complaint.

[88]        
I am surprised that Mr. Haylock did not accept the plaintiff’s apology,
or, since it was the first time ever in the plaintiff’s long history with the
company that he had ever acted out, decide to discipline the plaintiff in some manner
short of abruptly firing him. I was told, after all, that the Haylock Brothers
company culture was to attract and retain good people and that turnover was
unusual.

[89]        
While I keep firmly in mind that this is not a wrongful dismissal lawsuit
or a labour arbitration, in all the circumstances I find that there had to have
been more to the plaintiff’s dismissal from his employment than a minor contretemps
with Mr. Haylock. I am prepared to accept the possibility that the plaintiff’s
theory on this point is accurate, namely, that his physical limitations on the
job site may have entered into the decision.

[90]        
In short, I conclude that the plaintiff suffers from chronic pain from a
soft tissue injury in the area of his right shoulder sustained in the May 2009
accident. This injury is not related to the physical or functional deficits
that the plaintiff continued to experience as a result of the April 2006
accident for which, as I have noted, the present defendant is not liable.

[91]        
The May 2009 injury has impacted the quality of the plaintiff’s life in
material measure. He has been unable to pursue his sporting and recreational
activities. Worse still, his relationship with his children has suffered
because of his physical limitations. He has also been affected, not only in his
enjoyment of work, but in his capacity to perform his work adequately, and on
all of the evidence I consider it possible that this reduced capacity played a
role in his dismissal from long-term, secure, well-paying employment in the
paving business.

General Damages

[92]        
In arguing for the quantum of damages of $85,000 to $100,000 referred to
above, the plaintiff relies on the following motor vehicle cases:

[93]        
Pett v. Pett 2008 BCSC 602: in this case the plaintiff was 18
years old at the time of loss. The trial took place four and a half years after
the accident. The plaintiff had persistent chronic low back pain. His
limitations caused him to quit his job in the concrete business. Heavy
repetitive work was no longer an option for him. His injuries had significantly
impacted his recreational activities. General damages were set at $85,000

[94]        
MacKenzie v. Rogalsky 2011 BCSC 54: this case involved a 41 year
old plaintiff whose injuries were such that he had had to abandon his life-long
ambition of working as a chef, and to quit a second job at a motorcycle shop.
He had experienced much reduced enjoyment of social and physical activities. At
the time of trial he was working in an unrelated field, albeit for the same
sort of pay as he had received as a chef. He had no physical limitations prior
to the accident. In this case general damages were set at $100,000.

[95]        
Kardum v. Asadi-Moghadam 2011 BCSC 1566: this case involved a 37
year old architect who suffered chronic soft tissue injury to his shoulders,
upper back and neck. He experienced constant headaches, and his pain was
aggravated by sitting, standing and when he took exercise. He had problems
sleeping. His future prognosis was guarded. The plaintiff was a motivated
person who undertook physiotherapy and regular exercise in an effort to get
better. The medical evidence suggested that he was unlikely to become symptom
free. General damages were set at $70,000.

[96]        
Milliken v. Rowe 2011 BCSC 1458: in this case the plaintiff was a
fast-food restaurant manager who had a limited education and career prospects.
She was involved in a motor vehicle accident after which she had missed one
month of work. Her injuries were to her neck and right side of her body with
the most serious injury being to her right shoulder. She could not perform the
physical aspects of her job as before, although she continued working at her
old job for the same salary. She was able to do so, however, only because of
significant accommodations made by her employer, of whom she had known for many
years. General damages were set at $85,000.

[97]        
In arguing for the quantum of $40,000 to $45,000 he defendant relies on
the following cases:

[98]        
Demidas v. Poinen 2012 BCSC 41: the plaintiff worked in
renovation and construction. He was involved in a series of accidents. He suffered
soft tissue injuries that gave him daily pain. His recreational activities were
much curtailed. He was slower at work and needed assistance from co-workers
with certain tasks. However, he continued in his previous employment. General
damages were set at $45,000.

[99]        
Parker v. Lemmon 2012 BCSC 27: this case involved two motor
vehicle accidents in which the plaintiff suffered injuries to the back, neck
and shoulders. The plaintiff experienced pain that affected his work and
recreational activities. There was ongoing chronic back pain almost three years
after the accident. It was thought that the plaintiff would be able to continue
in her present employment as a home care attendant, although only on a
part-time basis and at a “sustainable pace”. The court found that her ability
to compete for work was “significantly reduced”. General damages were set at
$45,000.

[100]     MacLaren
v. Kucharek 2008 BCSC 366: in this case the plaintiff was a cyclist who had
been struck by a motor vehicle resulting injury to his neck, right hand, arm
and shoulder. Most of the injuries resolved very quickly due to the plaintiff’s
excellent physical conditioning. The back pain took one and half years to clear
up. At the time of trial the major complaint was a persistent right shoulder
soft tissue injury that had not resolved three years after the accident. The
prevailing medical opinion was that his chronic pain and discomfort was not
likely to resolve. In this case, general damages were fixed at $35,000.

[101]     Hauer
v. Clendenning 2010 BCSC 366: in this case, three years after the accident the
plaintiff continued to experience lower back and shoulder pain. She had been
able to continue in her previous employment as a home care service provider for
two disabled persons, and had sustained her pre-accident income. She missed a
couple of months work after the accident. There was medical opinion indicating
that the plaintiff’s physical condition would probably improve over the next
“two to three years”. In this case general damages were set at $50,000.

[102]     Krogh
v. Swann 2005 BCSC 761: in this case the plaintiff was a young exchange
student from Norway involved in a rear-end accident. He continued to experience
neck pain five years after the accident. He had taken pain killers and anti-inflammatories
and involved himself in a rigorous exercise regime. The plaintiff had been
directed by his physician to take physiotherapy, but had failed to do so for
approximately five and a half months after receiving that advice and had done
so only sporadically thereafter. General damages were set at $30,000.

[103]     These
cases are, of course, merely illustrative of a general range of damages in circumstances
that are roughly analogous but by no means identical. My task is to determine
where, within this general range, the facts of the present case fit, with the
overall goal of fashioning an award that is reasonable and just.

[104]     It seems
to me that in Pett v. Pett, Mackenzie v. Rogalsky, and Milliken v.
Rowe, supra, the injuries described are more serious and their impact on
the respective plaintiffs more profound than in the present case.

[105]     On the
other hand, the defendant’s authorities include Hauer v. Clendenning, in
which the injuries suffered and their impact upon the plaintiff were arguably
less serious than in the case at bar, and in which general damages of $50,000
were nevertheless awarded. This award not only exceeds the lower end of the
range suggested by the defendant in this case, but is also higher than the
quantum of general damages awarded in any of the other cases to which the
defendant referred me, all of which, in my view, referred to injuries and
outcomes graver than those described in Hauer v. Clendenning.

[106]     Having due
regard to the often cited factors articulated in Stapley v. Hejslet,
2006 BCCA 34 at paragraph 46 and the observations of the Supreme Court of
Canada in the Lindal v. Lindal, [1981] 2 SCR 629 at p. 637, and
employing a discount in light of my findings respecting the plaintiffs
pre-existing injury or condition for which the present defendant is not
responsible, I have decided that an appropriate award for general damages in
this case is $60,000

Loss of Income Earning Capacity

[107]    
In Rosvold v. Dunlop, 2001 BCCA 1, [2001] B.C.J. No. 4, the Court
of Appeal summarized the approach that a trial judge should take in assessing
damages for loss of income earning capacity:

[8] The most basic of those principles is that a plaintiff is
entitled to be put into the position he would have been in but for the accident
so far as money can do that. An award for loss of earning capacity is based on
the recognition that a plaintiff’s capacity to earn income is an asset which
has been taken away: Andrews v. Grand & Toy Alberta Ltd., [1978] 2
S.C.R. 229; Parypa v. Wickware (1999), 65 B.C.L.R. (3d) 155 (C.A.).
Where a plaintiff’s permanent injury limits him in his capacity to perform
certain activities and consequently impairs his income earning capacity, he is
entitled to compensation. What is being compensated is not lost projected
future earnings but the loss or impairment of earning capacity as a capital
asset. In some cases, projections from past earnings may be a useful factor to
consider in valuing the loss but past earnings are not the only factor to
consider.

[9] Because damage awards are made as lump sums, an award for
loss of future earning capacity must deal to some extent with the unknowable.
The standard of proof to be applied when evaluating hypothetical events that
may affect an award is simple probability, not the balance of probabilities: Athey
v. Leonati, [1996] 3 S.C.R. 458. Possibilities and probabilities, chances,
opportunities, and risks must all be considered, so long as they are a real and
substantial possibility and not mere speculation. These possibilities are to be
given weight according to the percentage chance they would have happened or
will happen.

[10] The trial judge’s task is to assess the loss on a
judgmental basis, taking into consideration all the relevant factors arising
from the evidence: Mazzuca v. Alexakis, [1994] B.C.J. No. 2128 (S.C.) at
para. 121, aff’d [1997] B.C.J. No. 2178 (C.A.). Guidance as to what factors may
be relevant can be found in Parypa v. Wickware, supra, at para. 31; Kwei
v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.); and Brown v. Golaiy
(1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J. They include:

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

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

3. whether 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. whether the plaintiff is less
valuable to himself as a person capable of earning income in a competitive
labour market.

[11] The task of the court is to
assess damages, not to calculate them according to some mathematical formula: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.).
Once impairment of a plaintiff’s earning capacity as a capital asset has been
established, that impairment must be valued. The valuation may involve a
comparison of the likely future of the plaintiff if the accident had not
happened with the plaintiff’s likely future after the accident has happened. As
a starting point, a trial judge may determine the present value of the
difference between the amounts earned under those two scenarios. But if this is
done, it is not to be the end of the inquiry: Ryder (Guardian ad litem of)
v. Jubbal, [1995] B.C.J. No. 644 (C.A.); Parypa v. Wickware, supra.
The overall fairness and reasonableness of the award must be considered taking
into account all the evidence.

[108]    
In Perren v. Lalari, 2010 BCCA 140, the court considered a number
of cases, and summarized the basic principles that a court should consider in
assessing damages under this head:

[30] Having reviewed all of these cases, I conclude that none
of them are inconsistent with the basic principles articulated in Athey v.
Leonati, [1996] 3 S.C.R. 458, and Andrews v. Grand & Toy Alberta
Ltd., [1978] 2 S.C.R. 229. These principles are:

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 [Athey at para. 27],
and

2. It is not loss of earnings but,
rather, loss of earning capacity for which compensation must be made [Andrews
at 251].

[31] Furthermore, I conclude that there is no conflict
between Steward and the earlier judgment in Pallos. As mentioned
earlier, Pallos is not authority for the proposition that mere
speculation of future loss of earning capacity is sufficient to justify an
award for damages for loss of future earning capacity.

[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.

[109]    
The approach to be taken in the assessment of claims for loss of income
was helpfully summarized by Savage J. in Parker v. Lemmon, supra, as
follows:

(1) A plaintiff must first prove there is a real and
substantial possibility of a future event leading to an income loss before the
Court will embark on an assessment of the loss; 

(2) A future or hypothetical possibility will be taken into
consideration as long as it is a real and substantial possibility and not mere
speculation;

(3) A plaintiff may be able to prove that there is a
substantial possibility of a future income loss despite having returned to his
or her employment;

(4) An inability to perform an occupation that is not a
realistic alternative occupation is not proof of a future loss;

(5) It is not the loss of earnings but rather the loss of
earning capacity for which compensation must be made;

(6) If the plaintiff discharges the burden of proof,
then there must be quantification of that loss;

(7) Two available methods of quantifying the loss are (a) an
earnings approach or (b) a capital asset approach;

(8) An earnings approach will be more useful when the loss is
more easily measurable;

(9) The capital asset approach
will be more useful when the loss is not easily measurable.

[110]     Respecting
the threshold question, whether there is a real and substantial possibility of
a future event leading to an income loss, I conclude that there is such a
possibility in this case.

[111]     It is
clear that the plaintiff suffered a soft tissue injury as a result of this
motor vehicle accident, and the uncontradicted medical evidence is that this
injury is likely permanent.

[112]     The injury
has compromised the plaintiff in his abilities to function at work. While he
has been able to continue in the employment that he had prior to the accident,
he has been in constant pain and has relied to some extent on the goodwill and
cooperation of his co-workers.

[113]     He has now
been dismissed from his employment, and, as I said above, this may have had
something to do with his physical limitations. If it is possible that he was
dismissed from his employment with Haylock for this reason, it is similarly
possible that he will not be hired by another paving company for similar work
because of it, or, if he is hired, that he might later be dismissed for the
same reason.

[114]     He may not
be able to rely on future co-workers to the same extent as those with whom he worked
for 20 years at Haylock Brothers. This is a serious matter to consider, as
paving is the only employment for which the plaintiff is qualified and in which
he has any experience.

[115]     Furthermore,
I think it possible, because of the plaintiff’s injuries, and in light of Dr.
Noble’s opinion that they may worsen over time, that his career in paving,
which is a strenuous, physical job, will be abbreviated.

[116]     Because of
the uncertainty in the plaintiff’s economic future, his loss is not easily
measurable on an earnings approach and, with the encouragement and agreement of
both counsel, I have chosen instead to use the capital asset approach.

[117]    
The Supreme Court of Canada in Andrews et al v. Grand & Toy
Alberta Ltd. et al, (1978), 83 D.L.R. (3d) 452 said the following about
assessing a claim for loss ability to earn income at p. 469:

We must now gaze more deeply into
the crystal ball. What sort of a career would the accident victim have had?
What were his prospects and potential prior to the accident? It is not loss of
earnings but, rather, loss of earning capacity for which compensation must be
made: . . . A capital asset has been lost: what was its value?

[118]    
Some of the considerations that go into an assessment of such a claim
are set out in the judgment of Finch J.A. (as he then was) in Brown v.
Golaiy 1985 26 B.C.L.R. (3d) 353, supra, at para. 8, which I would apply to
the present case as follows:

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

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

c. 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

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

[119]     There is
no precise mathematical formula to use in evaluating a claim for loss of future
income earning capacity using the capital asset approach. Any amount awarded
under this head must take into account contingencies, and, above all, be fair
and reasonable.

[120]     In this
case the positive contingencies include the possibility, perhaps remote, that
the plaintiff’s condition will improve. There is also a reasonable possibility
that he will be taken on by Tayco Paving and will continue working in the
paving business as before. It seems to me that his future working life will be
rendered more secure, or less impaired, if he diligently seeks the massage
treatment that, according to Dr. Noble, affords him a significant measure of
relief from his pain. Even if he is not employed in the paving business, there
is the possibility that he could find other employment.

[121]     On the
other hand, the likelihood appears to be that the plaintiff will continue to
experience chronic pain, require the assistance of co-workers, and occasionally
have to take time off for massage therapy and doctor’s appointments. As already
noted, there is a substantial possibility that his paving career will be cut
short because of his shoulder injury, or that he will experience difficulty,
because of his physical limitations, in securing and maintaining employment in
the paving business or any physical employment.

[122]     There are
other contingencies that must be considered. The plaintiff might be put out of
work for reasons unrelated to his injuries. He could be made redundant by
downturns in the general economy. He could fall ill. He could be injured in a
future accident or calamity. He could die prematurely.

[123]     Of course,
I also bear firmly in mind that the plaintiff’s income earning capacity as
capital asset had already been diminished by injuries from the previous
accident in 2006, and that the present defendant is not responsible to
compensate him for that loss.

[124]     Given the
totality of the evidence, I conclude that the plaintiff’s capacity to earn
income in the future has been reduced by injuries sustained in the May 2009
accident, even though he has not missed any significant period of work as a
result of the accident up to this point.

[125]     Having
considered all of the evidence, it is my view that a total award of $50,000.00 for
loss of future earning capacity would be fair and reasonable.

Cost of Future Care

[126]     The
plaintiff claims $30,000.00 under this head of damages.

[127]    
The goal of a cost of future care award is to put the plaintiff in the
position he would have been in had he not sustained injury in the accident. In Andrews
v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, Dickson J. (as he
then was) stated at para. 25:

[25] In theory a claim for the
cost of future care is a pecuniary claim for the amount which may reasonably be
expected to be expended in putting the injured party in the position he would
have been in if he had not sustained the injury. Obviously, a plaintiff who has
been gravely and permanently impaired can never be put in the position he would
have been in if the tort had not been committed. To this extent, restitutio
in integrum is not possible. Money is a barren substitute for health and
personal happiness, but to the extent within reason that money can be used to
sustain or improve the mental or physical health of the injured person it may
properly form part of a claim.

[128]    
As noted by Bennett J.A. in Gignac v. Rozylo, 2012 BCCA 351, at
paras. 29 and 30:

[29] The purpose of the award for costs of future care is to
restore, as best as possible with a monetary award, the injured person to the
position he would have been in had the accident not occurred.

[30] The award is “based on what
is reasonably necessary on the medical evidence to promote the mental and
physical health of the plaintiff”: (Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (B.C.S.C.) and adopted in Aberdeen v. Zanatta, 2008
BCCA 420 at para. 41).

[129]     When
considering damages under this heading, there must be some evidentiary link
between the physician’s assessment of pain, disability and recommended
treatment: Gignac, para. 32.

[130]     In this
case, Dr. Noble has identified only one course of future treatment that may
alleviate the plaintiff’s suffering: massage therapy. In my view, it is vital
that the plaintiff should attend for and diligently pursue this course of
therapy in order to function to his highest capacity, both in his employment
and in his personal life.

[131]     According
to the plaintiff’s materials, the cost of massage therapy is approximately $90.00
per visit. I am satisfied that the plaintiff should be attending for massage
therapy a minimum of once per week, which would amount to annual expenditure of
$4,680.00. When considered in this way, the plaintiff’s claim of $30,000.00 for
cost of future care would cover his weekly massage therapy costs for a period
of just under 6.5 years. I consider such an award to be fair and reasonable.

[132]     In
summary, I make the following awards:

[133]    
Costs may be spoken to if they are not agreed to by the parties.

 “Mr.
Justice R.A.M. Baird”