IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130304

Docket: M092046

Registry:
Vancouver

Between:

Glenn Murphy

Plaintiff

And

Silas Obrien

Defendant

Before:
The Honourable Mr. Justice Steeves

Reasons for Judgment

[1]            
The plaintiff seeks damages for personal injuries arising from a motor
vehicle accident that occurred on May 17, 2007. Liability is admitted by the
defendant.

Agreed Statement of Facts

[2]            
The following facts are agreed between the parties following the
exchange of Notice to Admit from the Defendant and the plaintiff’s Reply to
Notice to Admit (reproduced as written),

1.     The Plaintiff
was driving a 2006 Chevrolet Malibu at the time of the subject accident, which occurred
on May 17, 2007. The Plaintiffs vehicle sustained approximately $5,700 worth of damage
to the rear end in the subject accident.

2.     The
Defendant was driving a 2003 Dodge Ram at the time of the subject accident.

Head Checking
Work

3.     The Plaintiff trained as a head checker in the fall of
2010.

4.     The Plaintiff was trained by Steve Stroup who is a Head
Checker Trainer.

5.     The Plaintiff took the Head Checker’s Data Entry Test as
part of his training and obtained the following average
scores:

(a)    Complete: 70% of test
completed;

(b)    Accuracy:
91.5% accuracy;

(c)     Typing Speed: 7.5 words
per minute;

(d)    Errors:
8; and

(e)     
Adjusted
Speed: 7 words per minute.

6.     The
Plaintiff took the Head Checker’s Mathematics Test as part of his training and obtained
a score of 16/20.

7.     The
Plaintiff took the Head Checker’s Reading Test as part of his training and
obtained a score of 56/65 or 86%.

GP Clinical
Records

8.     On
May 14, 2009 the Plaintiff reported to Dr. Hershler that he was having daily
headaches that were constant as well as persistent neck pain. He was distracted
from the pain while working and the symptoms were more apparent while he was
driving home from work or while resting.

9.     On
October 27, 2009 the Plaintiff reported to Dr. Waiz that yesterday he fell down
the stairs at his home and had struck his knee on a cabinet. He was tender over
his patella and there was also swelling.

10. On
November 30, 2009 the Plaintiff reported to Dr. Waiz that he would need to
climb at work.

11. On
January 6, 2010 the Plaintiffs left knee gave way and he fell down 3-4 steps
and twisted his left knee. He was leaving HealthX Physiotherapy at the time. He
reported increased left knee pain following this incident.

12. On January 12, 2010 the Plaintiff reported to Dr. Waiz
that he fell down 3 steps after his knee clicked.

13. On April 20, 2010 the Plaintiff reported that codeine contin
was working well.

14. On June
8, 2010 the Plaintiff advised Dr. Waiz that he had gone back to work as of yesterday and his left knee was swollen and sore,
especially on the medial aspect.

15. On August
6, 2010 the Plaintiff advised Dr. Waiz that 2 days prior his knee clicked and
he almost fell. The Plaintiff also advised Dr. Waiz that he was going to be
starting a new job on the waterfront as a checker and that it does seem to
involve stairs and ladders.

16. On
September 28, 2010 the Plaintiff was examined by Dr. Waiz and was observed to
have mild reduced neck range of motion with pain at extremes.

17. On October 14, 2010 the Plaintiff advised Dr. Waiz that
he did not think he could manage the checker job which
involved a lot of computer work, and he was not skilled on computer as well.
The Plaintiff also advised that his headaches were worsening over the past week and that he continued to have left knee
problems with clicking.

Botox
Treatment up to August 4, 2011

18. On May 2, 2011 the Plaintiff saw Dr. Tsui for his first
botox injection.

19. On August
4, 2011 the Plaintiff saw Dr. Tsui and reported no response to the first botox
injection. However, Dr. Tsui and the Plaintiff decided to try the procedure
again and Dr. Tsui injected 100 units of botox into the Plaintiffs suboccipital
region. The Plaintiff was to return in 3 months only if it was helpful.

Treatment
with Dr. Horlick

20. The
Plaintiff saw Dr. Horlick (orthopedic surgeon) on the following dates with
respect to his left knee injury: January 24, March 28, May 2, October 31, 2006;
May 8, 2007; June 9, 2008; April 21, May 13, December 8, December 21, 2009; May
18, June 17, 2010.

21. On June 9, 2008 the Plaintiff reported the following to
Dr. Horlick:

(a)    Constant pain in the left
knee that wakes him from his sleep at night;

(b)    Significant flares of discomfort
at least five to six times a year which really set him back;

(c)      Significant pain
despite taking four to five Emtec tablets daily;

(d)    The knee brace prescribed
by Dr. Horlick is useful for support but does not significantly relieve his
discomfort;

(e)    The discomfort is now
throughout the knee; and

(f)       
 That
he would like to proceed with either a unicompartmental knee or total knee
arthroplasty as suggest by Dr. Horlick.

22. On December 8, 2009 the Plaintiff saw Dr. Horlick
because of a recent fall down 10 steps when his
left knee clicked out on him. His knee was observed to be swollen. The Plaintiff reported that he felt the work
conditioning program had been disadvantageous to his knee.

23. On or about December 11, 2009 Dr. Horlick withdrew the
Plaintiff from his WCB rehab program at HealthX Physiotherapy.

24. On June
17, 2010 the Plaintiff saw Dr. Horlick for a Durlane injection into his left
knee. The Plaintiff reported that the same
injection done approximately 6 months previous had been beneficial. The
Plaintiff reported that he attempted to return to work but was not successful
as he had to walk for prolonged periods back and forth all day. Dr. Horlick
advised that the Plaintiff needs to be in a situation where he can get load
relief off his knee and avoid prolonged weight bearing on the left lower
extremity, stair climbing, kneeling or squatting.

Treatment
with Dr. Hershler (Physiatrist)

25. On April 7, 2008 the Plaintiff reported to Dr. Hershler
that since the May 2007 accident:

(a)    He has had persistent neck pain (mainly left-sided)
and daily headaches;

(b)    Fortunately the accident did not affect his
low back or legs;

(c)      He made the decision to go back to
work and has lost no time from work since May 2007;

(d)    He pushes himself to work through his neck
symptoms;

(e)    He did not find physiotherapy treatment to
be helpful; and

(f)       
 His
pain has not changed since the accident.

26. On
October 6, 2008 the Plaintiff saw Dr. Hershler and reported that massage and physiotherapy
were not helpful except for providing a few hours of pain relief. Dr. Hershler suggested that the Plaintiff forego
physiotherapy and massage treatments.

WCB Records

27. Carlo Fortugno is a Vocational Rehab Consultant for WCB.

28. On June
7, 2010 Carlo Fortugno completed a "WCB Provider Referral – Return to Work
Support Services" Form indicating that:

(a)    A Job Site Visit was to be arranged with
the site to be determined with the assistance of the BCMEA employer
representative;

(b)    The Job Site Visit
was to look at the job description of the Head Checker position;

(c)     
 The position was
noted to possibly require stair climbing, change of positions between standing
and sitting.

29. On June
14, 2010 Jennilee Epp of HealthX Physiotherapy completed a Return to Work Support
Services Referral Confirmation, confirming that Carlo Fortugno (WCB Vocational Rehab Consultant) authorized the
following with respect to the Plaintiff:

(a)   
Job Demands Analysis;

(b)   
Graduated Return to Work Plan (GRTW); and

(c)     GRTW monitoring.

Physiotherapy
Treatment: Knee

30. On August
17, 2009 the Plaintiff was assessed by Karen Cooke (physiotherapist) in
relation to a WCB treatment program for his left knee injury, and Ms. Cooke
prepared a report for WCB of the same date. The Plaintiffs walking tolerance
was measured at 15 minutes, and his standing tolerance at 10 minutes.

31. On
October 9, 2009 the Plaintiff was assessed by Karen Cooke (physiotherapist) in
relation to a WCB treatment program for his left knee injury, and Ms. Cooke
prepared a report for WCB of the same date. The Plaintiffs walking tolerance
was measured at 45 minutes, and his standing tolerance at 45 minutes.

Chiropractic
Treatment: Neck

32. The Plaintiff attended Dr. Kanwischer (chiropractor) for
treatment of neck symptoms and headaches on approximately 9
occasions between May 15, 2009 and July 18, 2009. This was the total extent of
the Plaintiffs chiropractic treatment relating to his neck injury.

Massage Therapy: Neck

33. The Plaintiff attended
Glover Road Massage Therapy Clinic for treatment of his neck symptoms on about
13 occasions between April 14, 2008 and September 27, 2008. This was the total
extent of the Plaintiffs massage therapy treatment relating to his neck injury.

Other Evidence

[3]            
The plaintiff is Glenn Murphy. He is 59 years old and he lives with his
wife in Langley, British Columbia. They have seven children and thirteen
grandchildren.

[4]            
The plaintiff had six previous motor vehicle accidents. All of them
involved lost time at work, from three months to one year. He testified that
the last one before the accident in this litigation was in 2005. He also
testified that he could not remember the particulars of these accidents but
there were no “lasting injuries” from them.

[5]            
As above, the plaintiff also had a left knee injury at work in November 2005.
This has been accepted by the Workers’ Compensation Board (WCB) as work related
but disputes about various issues continue. He was off work until July 2006 for
this problem, he was taking pain medication for knee problems up to the 2007 accident
in this case (and afterwards) and he had knee surgery in July 2009. Since the
2007 motor vehicle accident, the plaintiff has had two falls related to his
left knee, one in October 2009 and the other in January 2010. These occurred
when his knee “clicked” or gave out, as he described it in his evidence. In
both cases he fell down some stairs. The knee still clicks from time to time.

[6]            
As above, on May 17, 2007, the plaintiff was driving his vehicle in
Surrey, British Columbia. He was in traffic, he slowed down, he stopped and he
was rear-ended by the defendant’s vehicle. The impact pushed the plaintiff’s
vehicle one car length and the repair estimate for the plaintiff’s vehicle was
$5,718.63. This is the accident that the plaintiff claims damages for in this
action.

[7]            
The plaintiff testified that it was not until two weeks after the motor
vehicle accident that he noticed any pain. He described this as “bad” headaches
as well as pain in his neck and lower back. He explained that he believed he
noticed the pain when he ran out of pain medication for his knee problem.

[8]            
In his evidence the plaintiff described the lower back problems
continuing after the accident but resolving after about one year. They are no
longer a problem.

[9]            
The neck pain was and is “very excruciating” and it moves from the left
shoulder to the right side. He has obtained some relief from physiotherapy,
massage therapy, chiropractic treatment, acupuncture, pulse therapy and, most
recently, from Botox injections. He testified that simply reading will bring on
the neck pain because he is looking down at the reading material. As well, he
has not been able to be active with his grandchildren and he can no longer do
home repairs or gardening. Relations with his wife have been affected. He had
no neck pain prior to the May 2007 accident.

[10]        
The plaintiff also described in his evidence his headaches. These could
be very severe at times, causing him to vomit. They are “constant, day after
day”. However, since taking Botox injections they are “controlled” and he has
felt better. He described this relief as being relief from his “migraines” but
he still gets what he describes as headaches. Prior to the May 2007 accident, the
plaintiff had headaches which he described as “like everybody else[‘s]”.

[11]        
The plaintiff takes medications for his pain including the left knee. The
main medications include 400 mg of a codeine medication a day (Codeine Contin) and
four to five a day of another codeine pain medication (Ratio Emtec 30). He also
takes medication for high blood pressure and acid reflux. As will be seen, some
physicians have concerns about the amount of medication being taken by the
plaintiff and the evidence includes comments about his behaviour.

Employment

[12]        
The plaintiff has a grade 10 education and he has worked as a
longshoreman on the waterfront in Vancouver since 1980.

[13]        
For a number of years he worked in a local of the International
Longshore and Warehouse Union (ILWU) that represented testers and samplers. About
2005 this local was dissolved and he became a member of another local of the
ILWU, Local 500. He testified that he was placed on a specific board for
dispatch. This meant that he did not have the same access to work as other
members of Local 500, some work was unavailable to him. Seniority plays a
significant role for the amount of work and the kinds of work available. He
testified that the waterfront was “close-knit” and everyone “helps each other.”
The plaintiff explained that, prior to the 2007 accident, he expected to work
on the waterfront until age 70.

[14]        
The evidence is that the plaintiff’s annual incomes from 2002 to 2011
were as follows (including employment, Employment Insurance (EI), workers’
compensation (WCB), wage indemnity (WI) and Canada Pension Plan disability
(CPP)),

[15]        
Information from the plaintiff’s employer indicates that he had ratings
of labourer (ship) and labourer (dock) in May 2003 and checker (dock) in
September 2006. He is also restricted to “light duty-extended.” His last work
was as a checker and he stopped work in July 2009 when he had the knee surgery.
He has not worked in a full-time capacity since then, except for a short
training period in 2010. As above, his doctor withdrew him from a WCB
rehabilitation program in December 2009.

[16]        
The plaintiff testified that he has attended some dispatches at the ILWU
hall but he could not go to work because he was not able to perform the duties
required. For example, his knee disability prevents him from performing ladder
work or walking rail lines. In some cases he was dispatched but was sent back
to the dispatch hall because he was unable to do the specific work asked of him.
He described in his evidence that the clicking in the knee was the biggest
problem. He estimates that he has lost 561 days of work and he has attempted
without success to have the WCB take responsibility for this time (he continues
with these efforts with the assistance of his union).

[17]        
By late 2009 the plaintiff believed he was “not being taken care of” by
his union and was not treated like other members were being treated. He
testified that he was “mad with them and mad with [him]self.” In a letter dated
October 15, 2009, the plaintiff said he was being “shamefully treated by WCB,
the BCMEA [the employer] and [his] union.” He also said that he has “virtually
lost [his] livelihood.”

[18]        
In September 2010 the WCB established a rehabilitation plan for the
plaintiff. A meeting with him and others was held on April 13, 2010. At this
meeting the plaintiff is recorded as describing his “limitations as the frequent
climbing of stairs and ladders”. There was discussion about training for the
position of head checker. A representative of the employer arranged for a two
week job shadow to watch another head checker. It was considered to be
important to see if the stair climbing involved would be tolerable. However,
the representative of the employer advised the WCB that the plaintiff had
worked for only about an hour before he reported pain and swelling in his knee
that made it difficult for him to continue. The work was at ground level and
the plaintiff had the opportunity to move between sitting and standing. The
plaintiff also said that he was concerned about his knee popping out when he
climbs stairs at work. In his evidence the plaintiff said that he did not
remember this meeting or these events.

[19]        
Another job shadow for the head checker position took place in mid
August 2010 for a two week period, and the plaintiff successfully completed
written and other tests for that position on August 27, 2010. Training started
on October 4, 2010, but the plaintiff stopped participating on October 8, 2010.
According to a letter from the WCB to the plaintiff, dated October 26, 2010,
the plaintiff told WCB that he was having issues with his neck from the 2007
motor vehicle accident. The WCB suspended any vocational rehabilitation assistance
as of October 15, 2010 because the plaintiff was having problems related to
non-compensable issues.

[20]        
In his evidence the plaintiff provided more details about his training
in the head checker position.

[21]        
According to the plaintiff the training lasted four days but he had to
stop because his headaches were “super bad.” On the fourth day there was a
meeting, and the plaintiff, in his words, was “told to sign off on the program
until [he was] better.” The plaintiff signed a form titled “Final Evaluation.” The
form was also signed by Steve Stroup, a trainer. Mr. Stroup wrote on the form,
“Trainee doesn’t have adequate computer skills to continue further training.”
In his evidence the plaintiff said that he was not sure “if [they] discussed
that.” He recalled discussing his headaches and he confirmed his signature on
the form.

[22]        
In an email dated October 12, 2010 to the WCB the plaintiff explained
the head checker training as follows,

On Friday, October 8, 2010, I signed off of the Head Checker
training. Steve, the trainer, and Matt, from BCMEA, advise that they could see
that I was having trouble managing work on the computer and asked me to think
about signing off the training.

I am unfamiliar with computers; however, that was not the
main concern. Since my neck was injured in a rear-end motor vehicle accident in
May 2007, I suffer from neck pain and constant headaches. Reading the computer
screen for a considerable length of time aggravates these. I am also unable to
concentrate and retain information from one day to the next. In my opinion this
is due not only to the constant headaches but also to the amount of codeine
medication that I take to try and manage my pain.

Not only do I suffer pain from the headaches but also from a
left knee injury sustained in a workplace accident in November 2005. I take
Emtec for the knee pain. This medication also contains codeine, it is the same
as Tylenol 3 but without the caffeine. My knee injury is the reason I can no
longer do labouring work. I am limited in climbing, standing, lifting, walking.
I found that climbing up the stairs of the gantry that doesn’t have an elevator
difficult and painful. I am unable to climb up and down railcars for any length
of time.

I’m disappointed that I cannot do
the Head Checker job. I hope that the Union and BCMEA will be able to offer me
training/work that I can do successfully with my physical limitations.

[23]        
Mr. Stroup, the trainer, also testified. He explained the
responsibilities and duties of a head checker which are, generally, to monitor
the flow of containers in and out of the Port of Vancouver. There are different
head checking positions with different physical requirements. For example, a
tower checker works around cranes and is required to climb stairs while working
as a gate checker at one of the gates involves less movement and more sitting. According
to Mr. Stroup, “on paper” a person has to be able to perform all the duties of
all the different head checking positions. However, “in reality” the employer
permits some people to work in specific positions and does not require them to
work or be qualified in all positions. In the past there have been individuals
who have had difficulty adjusting to the computer training needed for a head
checker position, but they all were able to adapt with some extra time. Some of
the requirements on the evaluation form were unrealistic or not applicable,
according to Mr. Stroup.

[24]        
Mr. Stroup recalled training the plaintiff and described him as a “nice
guy” but “very docile.” The plaintiff would “stare into space when I sat him at
a desk” and not do anything. The plaintiff complained of pain and Mr. Stroup
discovered that he was on medications. He thought that the plaintiff had been
“dealt a bad hand” but Mr. Stroup “did not have time for it.” The only other
time that Mr. Stroup had seen someone like the plaintiff was when the person
was “drugged out.” Mr. Stroup explained that they were being audited at the
time and he was concerned about the credibility of the training program. He did
not want to train someone for twenty days with the risk that the training would
not work out; in his words, he knew “what it takes to be a head checker, [he
was] not putting [his] name on [a failure] because it would be embarrassing.” He
concluded it was going to be “tough or impossible” for the plaintiff. Mr.
Stroup was going to write something about the plaintiff’s medication but “it
was not the right time, he was out in space and [they] had never failed anyone
before.”

[25]        
Mr. Stroup confirmed his signature on the final evaluation of the
plaintiff and Mr. Stroup also confirmed that he made the reference to the
plaintiff not having adequate computer skills. This developed when he and a
supervisor sat down to discuss what they would write on the form. The plaintiff
had no computer skills “as such” and Mr. Stroup was concerned that the
plaintiff could not focus. But, on the other hand, they had never failed anyone
before in seven years. They decided to “keep it simple” and refer to the
plaintiff’s lack of computer skills. Mr. Stroup testified that he took the
plaintiff aside to explain to him the decision not to continue training. According
to Mr. Stroup, the plaintiff said he did not feel well, and he looked like he
didn’t. Mr. Stroup said to the plaintiff that it probably would not work out
and the plaintiff agreed.

[26]        
Mr. Stroup did not know the plaintiff prior to the training and he did
not know about the 2005 knee injury or the 2007 motor vehicle accident. Mr.
Stroup also said that he was prepared to train the plaintiff again.

[27]        
The defendant called evidence about the evaluation of the plaintiff for
the head checker position. Matthew Campbell is a field supervisor with the
BCMEA with, among others, responsibility over the training of head checkers; he
was the supervisor referred to by Mr. Stroup. Mr. Campbell disputed that he
told Mr. Stroup to put down lack of computer skills for the reason that the
plaintiff failed his final evaluation. According to Mr. Campbell, he and Mr.
Stroup decided this together. The difficulty for the plaintiff was that he did
not have the general knowledge to be a head checker and he had trouble with the
typing and other skills required. He also had trouble with the software and
sitting for long periods of time. Mr. Campbell was asked about the seniority of
the plaintiff and his ability to hold a position as a head checker. To this,
Mr. Campbell said that the plaintiff did not have regular workforce seniority
and he was not sure that the plaintiff could hold that position.

Expert Evidence

[28]        
The plaintiff tendered reports from six experts and the defendants tendered
one expert report. I summarize their reports and opinions as follows.

Dr. Richard Waiz (report dated October 13, 2010)

[29]        
Dr. Waiz is the plaintiff’s family physician and an expert in family
medicine for the plaintiff. He described the plaintiff’s previous medical
history including previous neck injuries. Dr. Waiz opined as follows,

. . . Although the motor vehicle
accident [2007] is the cause of his present concerns, the fact that he had at
least several previous motor vehicle accidents affecting his neck and that he
had evidence of osteoarthritis and degenerative disc disease in his neck meant
that he was predisposed to having a more severe injury after his last motor
vehicle accident. . . .

Dr. Cecil Hershler (September 13, 2012)

[30]        
Dr. Hershler is an expert in physical medicine and rehabilitation, for
the plaintiff. He saw the plaintiff on a number of occasions in 2008, 2009,
2010 and 2012, at the request of the plaintiff’s family physician.

[31]        
Dr. Hershler stated in his report that the history and physical findings
of the plaintiff were consistent with a soft tissue injury to the neck. There
was also evidence of degenerative change in the cervical spine and these
changes probably predated the 2007 accident. However the pain with the soft
tissue injury has been compounded by the effects of trauma on the pre-existing
changes and this trauma is most likely rendered the changes symptomatic. The
neck pain is a combination of these two factors.

[32]        
Dr. Hershler also stated,

Based on the history, physical
examination, review of documentation and description of the accident, it is my
opinion that the motor vehicle accident on May 17, 2007 caused the soft tissue
injury to the neck and led to a symptomatic aggravation of pre-existing
degenerative changes in the cervical spine. Although Mr. Murphy had been
involved in prior motor vehicle accidents and had subsequently experienced
pains in the neck and back, he had inevitably recovered and returned to his
full work capacity without pain. He had a high work ethic and continued to push
himself to work despite the neck pain, but this necessitated the use of
significant amount of analgesics (Emtec 30 – six daily) to manage the pain. The
various injuries to Mr. Murphy’s knees are unrelated to the accident.

Dr. Dean Powers (September 30, 2011; July 31, 2012)

[33]        
Dr. Powers is an expert for the plaintiff in vocational rehabilitation
including the psychological aspects of that subject. He saw the plaintiff on
September 23, 2011, and arranged aptitude and achievement testing. There was a
follow-up assessment on July 6, 2012. Standard effort testing indicated that
the plaintiff performed above conventional cut-offs for the detection of
inadequate effort resulting. This tested whether, consciously or unconsciously,
the plaintiff was attempting to betray himself as falsely intellectually
impaired. Dr. Powers concluded he was not.

[34]        
I reproduce a portion of Dr. Power’s report of September 30, 2011 as
follows,

34. From the tests data rendered on September 23, 2011, I
determined that Mr. Murphy scored in the average range for his age, however was
below average scholastically compared to his peers in a number of areas. Additionally
Mr. Murphy is likely to be limited for any educational upgrade pursuits
inhibited by cognitive difficulties, chronic headaches and pain and
psychological problems that have accompanied his unresolved medical condition. He
would not in my opinion be a suitable candidate for new learning and likely for
the balance of his working life. His age is also a significant consideration
and adults at this age find new skill training difficult, particularly didactic
learning and classroom environments. Educational upgrading is contraindicated
for this gentleman in my opinion.

35. In my opinion, Mr. Murphy is likely only part-time
employable in entry-level minimum wage environments and likely limited in terms
of duration for most of the work demand postures assessed and presented in the
Mary Richardson report of March 2011 [see below]. In my experience of
conducting situational assessments on Longshore (men and women), there are no
duties I can think of that he would qualify for or be considered suitable for
full-time employment based on the limitations presented in Ms. Richardson’s FCE
report. His medical condition has not improved to the degree that he can even
undertake light duties as a dockworker which he has attempted with assistance
from his union. Furthermore, given the vocational test results and Mr. Murphy’s
tenure with his union, I believe Mr. Murphy should continue to seek treatment
and remain as an ILWU employee to protect his pension and benefits and, if his
medical condition improves, be available to return in some capacity to his
pre-morbid occupation until he is eligible for retirement. . . .

36. Given Mr. Murphy’s limited
education, age 58, and limited transferable skills for less physically
demanding occupations, is likely only employable for entry-level jobs and wages
in the $10.00 per hour range substantially less than what he was capable of
earning as a Longshoreman. However, I appreciate that Mr. Murphy wants to
return to some kind of work activity as soon as possible despite his unresolved
physical limitations and chronic pain condition. I recommend vocational rehabilitation
therapy in the form of securing a volunteer position for quality of life
purposes. …

[35]        
Dr. Powers saw the plaintiff again on July 6, 2012 and produced a
supplementary report dated July 31, 2012. Some improvement in the plaintiff’s
condition was noted, including weight loss, reduced frequency of migraine
headaches due to Botox treatments and improvement in his right knee function
and stability. Although he was “heartened with his progress and amenable to
vocational therapy”, “many of his cognitive physical limitations remain
unresolved.” With regards to employment, the recommendation of a volunteer
position was repeated.

Dr. Gordon Robinson (February 24, 2009; September 2, 2011)

[36]        
Dr. Robinson is an expert in neurology and headache disorders for the
plaintiff.

[37]        
In his report of February 24, 2009, Dr. Robinson opined that the
plaintiff had sustained a soft tissue injury to his neck as a result of the May
2007 accident. There was no damage to the nervous system. Headaches related to
the neck injury were noted as being present from the outset and a diagnosis of
chronic headache related to neck injury was given.

[38]        
Dr. Robinson also said,

I do not believe that there is any further investigation that
will be helpful. CT and MRI scanning of the head and neck would undoubtedly be
normal, although degenerative changes in the cervical spine may be reported. However
these changes would be pre-existing and not responsible for headache.

The treatment of headache rated to head and neck trauma is
usually difficult. As yet there is no physical therapy that has been found to
be curative. At most patients will experience temporary benefit and on occasion
the headaches may be more severe following such therapy. I do not believe that
there is any further advice to be given other than to maintain an active
lifestyle. Regular exercise directed to improving general fitness may increase
the sense of well-being and ability to cope with pain.

. . .

Despite his accident related symptoms he was able to continue
working as a longshoreman. However, prior to the motor vehicle accident he
injured his left knee, which has gradually deteriorated to the point that he
requires surgery. His knee symptoms have had a substantial impact on the type
of work that he is able to perform. The neck pain is increased with neck
movement, and this has been a further challenge to certain types of work on the
docks.

It is nearly 2 years since the motor vehicle accident. I
believe that he will probably have headache and neck pain for many years to come.
It is possible that there will be improvement over the next 3-5 years, however
I doubt that he will be pain-free during this time period. He is at risk for
chronic headache and neck pain indefinitely. This would have an impact on the
type of work he is able to do, mainly related to neck movement.

From his description I believe
that he will be capable of training and securing employment as a gantry crane
operator if his knee pain is resolved. His persisting headache and neck pain
were probably not preclude him from this task.

[39]        
A subsequent report dated September 2, 2011 noted some improvement in
headaches related to the use of Botox injections. Dr. Robinson thought that
further injections would probably continue to be effective. Otherwise Dr.
Robinson’s prognosis remained the same. In answer to a question from me, Dr.
Robinson opined that the plaintiff would not have the headaches but for the May
2007 accident.

Ms. Mary Richardson Carman (March 21, 2011; September 7, 2012)

[40]        
Ms. Richardson Carman is an expert in occupational therapy for the
plaintiff. A physical capacity evaluation assessment was performed on February
2, 2011.

[41]        
In her report of March 21, 2011, Ms. Richardson Carman described effort
testing she performed and she concluded that the plaintiff gave full effort
during the assessment. The same report found limitations with regards to body
motions and positions as well as activities such as climbing, balancing and
reaching and handling. The result was that the plaintiff is restricted from
work with significant demands for sustained standing or walking; for body
dexterity; for climbing and balancing; for reaching to shoulder level and
overhead; and for handling where there is a work intensive posture or where
there is frequent head turning. With respect to strength, although the
plaintiff demonstrated the strength to lift, carry, push and pull a load in the
medium strength category, he would not be suited for many jobs in that category
because of his restrictions and altered gait pattern. Therefore he would likely
be restricted to work which was rated as limited or light strength.

[42]        
Ms. Richardson Carman made a number of recommendations with respect to
future care. These included Botox treatment at an annual cost of $1993.88 for
four treatments per year. Homemaking assistance was recommended for two hours
per month for a yearly cost of $647.76 and house/yard maintenance was
recommended for an annual cost in the range of $300-$490. As well, the
provision of additional mirrors on the vehicle driven by the plaintiff was
recommended including an amount of $50 for purchase and trial of several
mirrors. Payments for medications were recommended as follows: Ratio-Emtec 30
(annual cost of $316.55 to $474.82); Codeine Contin ($1159.06); Teva
Rabeprazole (annual cost of $365.25); Ibuprofen (annual cost of $8.11 to
$10.81); and Senokit S (annual cost of $20.80 to $62.40).

[43]        
In a subsequent report dated September 7, 2012, Ms. Richardson Carman
reported on a second physical capacity evaluation of the plaintiff performed on
July 4, 2012. The conclusions and recommendations were essentially the same as
the previous assessment.

Ms. Christiane Clark (December 11, 2012, two reports)

[44]        
Ms. Clark is an expert in labour economics, for the plaintiff.

[45]        
Ms. Clark’s reports set out estimates of earnings from employment,
estimates of the value of non-wage benefits and present value calculations of
the cost of care items and services referred to in the reports of Ms.
Richardson Carman.

Dr. Richard Kendall (September 14, 2012)

[46]        
Dr. Kendall is an expert in orthopaedic medicine for the defendant. Dr.
Kendall relied on documents for his report and did not examine the plaintiff.

[47]        
Among other things Dr. Kendall concluded that the plaintiff sustained a
soft tissue injury to the neck and back as a result of the May 2007 accident. There
is nothing to suggest a fracture, disc location or nerve root injury. The neck
pain was associated with headaches which appeared to be the most problematic
symptom at times. Headaches were often worse with certain movements or
positions. There is pre-existing degenerative disease of the lower cervical
spine; indirect evidence of previous symptoms is referred to in the documents
and they relate to previous motor vehicle accidents. However, the plaintiff was
asymptomatic in the neck and back at the time of the May 2007 accident.

[48]        
Dr. Kendall also said the following in his report of September 14, 2012,

It is Mr. Murphy’s contention that it was the neck symptoms
and headache that prevented him from returning to successful employment after
his knee arthroscopy. However, it appears that his family doctor (Wais) is of
the opinion that the knee arthritis is his impediment to successful return to
work. I note that during his knee rehabilitation there are no indications of neck
pain. There are infrequent visits to his family doctor (Dr. Richard Wais)
concerning his neck during this period. I would agree that the knee disorder is
the primary condition which is preventing him from being successfully employed
in his previous position.

It appears, therefore, neck symptoms are less disabling than
his chronic knee osteoarthritis and headache. I’m also of the opinion that the
knee osteoarthritis is the main impediment to successful return to employment. The
neck symptoms are a minor component preventing him from working.

. . .

Investigations of his left knee have revealed significant
medial compartment osteoarthritis and meniscus tear. Symptoms were severe
enough to require chronic analgesics and anti-inflammatories and the use of an unloader
brace. The knee did not respond well to an arthroscopic procedure and he was
off work for over 8 months before a short, but failed, trial returning to work.

. . .

Analysis

[49]        
There is no question that the plaintiff suffers from medical problems
and resulting disabilities. There is however, a question related to the cause
of these problems.

[50]        
With regards to the headaches and neck pain, there was a motor vehicle
accident involving the plaintiff on May 17, 2007. His vehicle was rear-ended by
the defendant and two weeks later (when he ran out of pain medication for his
knee) the plaintiff saw his doctor for headaches, neck pain and lower back pain.
The lower back pain resolved with time. The evidence is that the plaintiff did
not suffer headaches of any significance or any neck pain prior to the May 2007
accident.

[51]        
There is general acceptance among the experts that the plaintiff
suffered a soft tissue injury to his neck on May 17, 2007. There was no
fracture, dislocation or nerve root injury. There is restricted range of motion
in all directions and even simple tasks such as reading bring on headaches and
neck pain. The plaintiff testified that, at times, he actually vomits because
of the pain from his headaches. He has tried various treatments with some affect.
The most recent has been Botox injections which have given him some relief. For
example, Dr. Tsui administered the injections and, in a report dated May 10,
2012, he reported that the plaintiff said “the migrainous headaches have abated
since the last treatment.” Similarly a report dated August 15, 2012 reported a
“good response in terms of the migraines.” Despite this improvement the frontal
headaches continue. The plaintiff’s evidence about his headaches is consistent
with that of Dr. Tsui.

[52]        
Therefore, the current situation is that the severe migrainous headaches
have abated but the frontal headaches remain and they are chronic. I conclude
that these headaches, and the neck pain, are as a result of the May 2007 motor
vehicle accident. Further, these symptoms are independent of any problems with
the left knee although, as will be seen, the left knee is certainly a relevant
and complicating factor. These headaches are obviously very real for the
plaintiff, with the consequences noted, and they are consistent with the
medical evidence.

Non-pecuniary damages

[53]        
In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal has
outlined the factors to consider when assessing non-pecuniary damages (at para.
46),

[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]
B.C.J. No. 163 (Q.L.), 2005 BCCA 54).

[54]        
I was presented with a number of cases by the parties as comparables for
an award of non-pecuniary damages in this case.

[55]        
The plaintiff seeks damages of $90,000.00. Among other decisions, the
following are relied on: Ward v. Klaus, 2010 BCSC 1211; Drodge v.
Kozak, 2011 BCSC 1316; Ho v. Dosanjh, 2010 BCSC 845; Ashmore v.
Banicevic, 2009 BCSC 211; and Lorenz v. Gosling, 2011 BCSC 1250. On
the other hand, the defendant submits that damages in the range of $55,000.00
to $70,000.00 are appropriate. Cases relied on by the defendant include: Lamont
v. Stead, 2010 BCSC 432; Lorenz, supra; Jacobsen v. Beaton, 2009
BCSC 231; and Ashmore, supra.

[56]        
I accept that many of the plaintiff’s daily activities he participated
in prior to the May 2007 accident are now unavailable to him. He is unable to
participate fully with his grandchildren. He is unable to be useful around the
home by doing chores and assisting his wife as he did before the 2007 accident.
His social interactions with friends have become very restricted and his relations
with his wife have suffered. Reading and watching television brings on
headaches. On the other hand, as above, there has been some relief since the
Botox injections largely eliminated the severe migrainous headaches, leaving
the chronic frontal headaches. The primary medical disability relates to these
frontal headaches and neck pain.

[57]        
The headaches are not "rebound" headaches from medication, as
explained by Dr. Robinson in his evidence, although he also noted that there
can be co-morbidity as between migraine and rebound headaches. As above, the
plaintiff has been using significant amounts of pain medication in the form of
Ratio-Emtec 30 (four to six tablets per day) and Codeine Contin (two tablets
per day). Both of these medications contain codeine, an opiate. The difference
is that the latter medication contains caffeine and the former does not. The
plaintiff also takes Ibuprofen as well as medications for blood pressure and
acid reflux but these medications do not seem to affect his everyday activities
to any great extent.

[58]        
Dr. Robinson agreed that it was "not impossible" that some of
the headaches were from the plaintiff’s use of opiate medication. That is not
strong proof of rebound headaches and there is no other expert evidence on this
point. I find that the primary basis for the plaintiff’s headaches is the 2007
accident and injury to his neck.

[59]        
Apart from causation, the plaintiff’s use of medications is a
complicating factor from a different point of view. The evidence is not clear
exactly when he began to take the codeine related medications. However it is
clear that he began them prior to the May 2007 accident and as a way of dealing
with his left knee pain. This is evident from the fact that the plaintiff
testified that he did not notice any pain from the 2007 accident until he
stopped taking Emtec for his knee pain. It follows that an important reason for
the medication is to treat the left knee pain. Having said that, I accept that
the plaintiff gets some relief for his headaches and neck pain from these
codeine medications.

[60]        
It is also clear, as commented by virtually everyone including the plaintiff,
that the medication is in significant amounts and it affects his daily
activities. Dr. Robinson described the "considerable" use of
analgesics by the plaintiff. And the plaintiff was described by a trainer as
being "out in space" when he was being trained for the head checker
work. In October 2007, some months after the 2007 accident, the plaintiff
explained to WCB that he was taking significant medication to keep the swelling
down on his knee. In an email dated October 12, 2010 the plaintiff was describing
problems he was having working with computers and concentrating. He said, “In
my opinion this is due not only to the constant headaches but also to the
amount of codeine medication that I take to try and manage my pain.”

[61]        
I accept that some of this is the result of the headaches themselves and
their debilitating effect over time. However, I also conclude that the use of
opiate medications for the left knee problems has some affect on daily
activities, including the plaintiff’s pain and suffering. The evidence is that
the plaintiff’s use of these medications did not change after the 2007 accident.
It is not possible to specify the degree of responsibility but I conclude that
the left knee disability is a factor to be considered in the assessment of non-pecuniary
damages. I do not agree, as submitted by the plaintiff, that the full range of his
symptoms presented is attributable to the medications used for the headaches. The
result is that some lesser amount is payable because the plaintiff’s current
problems are affected by medication unrelated to the 2007 accident.

[62]        
Overall, I conclude that an amount of $65,000 is an appropriate amount
for non-pecuniary damages in this case. That figure recognizes the chronic
frontal headaches. It also recognizes the undoubted emotional toll the
headaches have had on his life, including his family, friends and the limitations
on activities he used to do before the 2007 accident. And, it recognizes that
pain medications for the left knee have played a role in the current situation.

Loss of future wage loss capacity

[63]        
In general, the following sets out the approach to the assessment of
future earning capacity (Tsalamandris v. McLeod, 2012 BCCA 239 at para.
31),

The appellants do contest how the trial judge then went about
assessing that loss [of future earning capacity]. The trial judge set out to
apply the principles canvassed in Rosvold v. Dunlop, 2001 BCCA 1, saying
at para. 259:

The principles that govern the measurement of damages for
loss of earning capacity were thoroughly discussed in Rosvold v. Dunlop,
2001 BCCA 1, 84 B.C.L.R. (3d) 158. The principles set out in that case can be
summarized as follows:

1. the assessment of damages is not
a precise mathematical calculation but a matter of judgment;

2. a plaintiff is entitled to be
put in the position she would have been but for the accident;

3. an award for loss of earning
capacity recognizes that the ability to earn income is an asset and the
plaintiff deserves compensation if this asset has been taken away or impaired;

4. since these damages must often
be based on a hypothetical, the standard of proof of a hypothetical is “real
and substantial possibility” and not mere speculation;

5. the court must consider the real
and substantial possibilities, and give weight to them according to the
percentage chance they would have happened or will happen;

6. one starting approach to
valuation may be to compare the likely future of the plaintiff had the accident
not happened, and the likely future of the plaintiff after the accident has
happened, and to consider the present value of the difference between the
amounts earned under these two scenarios. (I note that in using the word
“likely”, the Court on this point was meaning what hypothetical was a real and
substantial possibility);

7. however, the overall fairness and reasonableness of the
award must be considered, taking into account all of the evidence.

[64]        
The cases also suggest using an approach based on a loss of earnings’
method for the assessment of the loss of future earning capacity. This involves
the so-called “Brown factors” as follows (Perren v. Lalari, 2010
BCCA 140 at para. 11),

… In Kwei [Kwei v. Boisclair (1991), 60
B.C.L.R. (2d) 393, 6 B.C.A.C. 314], where it was not possible to assess damages
in a pecuniary way as was done in Steenblok [(1990), 46 B.C.L.R. (2d)
133 (B.C.C.A.), Taggart J.A., speaking for the Court, held that the correct
approach was to consider the factors described by Finch J., as he then was, in Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353. Mr. Kwei had suffered a significant
head injury with significant permanent sequelae that impaired his intellectual
functioning. However, both before and after the accident, he worked at a
variety of low paying jobs, thus making it difficult for him to demonstrate a
pecuniary loss. Mr. Justice Taggart cited the Brown factors with approval:

[25]      The trial judge, as I
have said, referred to the judgment of Mr. Justice Finch in Brown v. Golaiy.
Future loss of earning capacity was at issue in that case. It stemmed from
quite a different type of injury than the injury sustained by the plaintiff in
the case at bar. But I think the considerations referred to by Mr. Justice
Finch at p. 4 of his reasons have application in cases where loss of future
earning capacity is in issue. I refer to this language at p. 4 of Mr. Justice
Finch’s judgment:

 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.

[65]        
The plaintiff seeks damages for future wage loss in the range of
$346,500 to $828,954.00. The defendant submits that no damages are payable
under this head of damages.

[66]        
The plaintiff’s estimate of damages under this head assumes that the
2007 neck injury is the only reason he has a future wage loss. However, he also
has had a left knee disability since 2005. Some assessment of the history and
extent of that disability is necessary in order to understand what are the
future limitations on the plaintiff’s ability to work.

[67]        
The left knee injury occurred at work in November 2005. A WCB medical
report dated January 24, 2006, stated the injury was resolving but by March 28,
2006, arthroscopic surgery was being considered. On May 2, 2006, post traumatic
arthritic change was noted, as was “notable joint space narrowing on the medial
side compared to the lateral side”, and an unloader brace was recommended to
help him at work. An examination of May 8, 2007 recorded that the pain was
“reasonably controlled with the use of the brace” and the plaintiff was “not
requiring other medication.” He reported intermittent discomfort “but overall
[he was] managing.”

[68]        
Three days before the May 17, 2007, motor vehicle accident, on May 14,
2007, the plaintiff reported to WCB that his knee was swollen and sore when he
returned home from work; he could not squat except with difficulty and climbing
rail car ladders was difficult. Further, he could not climb ship ladders and
even ladders with three to four rungs were very difficult. Gangways were also
difficult because of the slope and bounce. The plaintiff could walk but walking
with a heavy load tired his knee out.

[69]        
A telephone note from a case manager at WCB, dated October 4, 2007,
noted significant knee restrictions, as described by the plaintiff. Specifically,
he could only bend his knee a little, he could not kneel on it, squatting was
hard and climbing railcars and digging with a shovel were difficult. He could
walk ten minutes but then he needed to sit and relax, he could not climb
ladders, he wore a brace all the time(except at home) and he was taking
significant medication to keep the swelling down on his knee. He was unable to
stand for more than an hour. Another medical report from WCB, dated February
11, 2008, recorded the plaintiff as saying that his “main complaint is constant
symptoms in his left knee.”

[70]        
A WCB permanent functional impairment assessment, dated February 11,
2008, found sporadic clicking of the knee, swelling with increased activities
and inability to crouch or crawl. The plaintiff was recorded as rating his knee
symptoms as a nine out of ten. As part of the functional impairment assessment
the plaintiff completed a questionnaire about his medical conditions and limitations.
This document was aimed at eliciting information about the left knee. However
it did ask the plaintiff to list all medications and dosages he was taking and
state the reason for the medications. He listed Ibuprofen without identifying
the reason and Emtec for his knee. He did not refer to other pain or headaches
or medication for those conditions.

[71]        
Then a medical report dated June 9, 2008, stated that the left knee had
“deteriorated significantly” with constant pain that woke the plaintiff up at
night. Despite taking Emtec four or five times a day, plus Ibuprofen, there
were “significant flares of discomfort at least five to six times a year which
really set him back.” New x-rays showed that the knee was “almost
bone-on-bone.” Arthroscopy was considered preferable over a joint replacement
because the latter could not offer significant pain relief. There was some
debate among the doctors about the relative benefits of these two approaches. Ultimately
arthroscopy was performed in July 2009 and the plaintiff did not attempt to return
to work until June 2010. On cross-examination the plaintiff agreed that his
knee got worse rather than better after the 2009 surgery.

[72]        
According to his letter of September 29, 2009 to the WCB, the plaintiff
missed about 261 shifts at work “with the limitations caused by my injured
knee”, from 2006 to July 2009. He has not worked since July 2009, except for
his attempts to be trained as a head checker in 2010. In October 2009, and then
again in January 2010, the plaintiff’s knee gave way causing him to fall down
stairs on each occasion.

[73]        
From the above it is clear that the plaintiff had, and continues to
have, a significant left knee disability. The knee problem became serious about
the time of the May 2007 motor vehicle accident
and, for example, was reported in a June 2008 medical report to be bone-on-bone.
I turn to the plaintiff’s attempts in October 2010 to be trained as a head
checker.

[74]        
As above, these attempts were unsuccessful when, after four days, he
withdrew from the training. He testified it was because of his headaches and
his inability to concentrate. On the other hand, the final evaluation form
(which he signed) says that he did not have the computer skills to do the work.
On his own evidence, the plaintiff was suffering from left knee problems when
he was being trained for the head checker position. That is why he could not do
the checking work with cranes requiring ladder work and why he (and others)
focussed on the checking positions at the gates where the work was more
sedentary. I also find that there were concentration problems related to the
use of pain medication for the knee. Again, the plaintiff is not entitled to
damages for problems that are unrelated to the May 2007 accident that is the
subject of this litigation. I accept that there were also problems with
concentration related to the severe headaches during the brief training period
in October 2010.

[75]        
Yet another issue to consider for the potential of work as a head
checker is the fact that the plaintiff does not have access to the same work as
other members of Local 500 of the ILWU. This is because he is rated for light
work. As well, for historical reasons, the plaintiff is on a different dispatch
board than other members of Local 500. The evidence is that, even if he had no
health problems, he would get less work than other members, perhaps little work.

[76]        
From this I conclude that the knee problems, the headaches and
medication were factors in the plaintiff’s unsuccessful attempt to be trained
as a head checker. As well, apart from any issues about disabilities or
medications, even if he had been successful in completing the training he would
not have access to the same work opportunities as other members of Local 500 of
the ILWU. Because he was rated for light work and because of his restricted
dispatch rights he would have worked fewer shifts.

[77]        
I next turn to the income of the plaintiff as a way of assessing the
loss earning capacity of the plaintiff. I reproduce the table of his income
from above as follows (I have removed the columns describing employment
insurance, WCB, wage indemnity and CPP disability benefits),

[78]        
The highest year for employment income was in 2004 but the evidence does
not explain the reason. The average is $35,167 but the range is wide. The
earnings in 2002 were obviously substantially less than those in 2011 but it is
hard to conclude that reflects a pattern because there were quite high earnings
in 2007 and 2008. The motor vehicle accident was in May 2007 and the earnings
for that year were the third highest, then 2008 was the fourth highest. The
knee injury was in 2005, the earnings that year were a little more than the
average (and were less than the year before, 2004), and then dropped again in
2006. However, again, there was a significant increase in 2007. I have used
employment income by itself, rather than include benefits such as WCB, in order
to assess capacity to work.

[79]        
As above, one approach to the assessment of income earning capacity is
to look at a plaintiff’s loss of earnings, typically comparing earnings before
and after the accident that caused the injuries. However, I am unable to
discern a pattern of loss of earnings from the above income amounts in this
case. Clearly, there were reduced earnings in 2010 and 2011 but I am not
convinced this assists the plaintiff. WCB payments in 2010 were $35,329 for the
left knee so this suggests the 2007 motor vehicle was not a significant factor,
at least for that year.

[80]        
Finally, there are the expert reports.

[81]        
All of the experts note the history of the 2005 knee injury before the
motor vehicle accident in 2007. Dr. Robinson stated that the knee problems have
had a “substantial impact” on the type of work the plaintiff can perform. Further,
there will be headaches for “many years to come”, they would have an impact on
the work available to the plaintiff but they “probably [would] not preclude him
from training as a gantry crane operator “if his knee pain is resolved.” Similarly,
as noted by Dr. Powers, Ms. Richardson Carman also pointed out that, at the
time of the 2007 accident, the plaintiff had physical restrictions related to
his left knee which limited the number and range of jobs he was able to do on
the docks. Dr. Powers opined that the plaintiff was capable of working only in
entry level positions with earnings in the $10.00 per hour range. However, that
opinion is a global one and it does not compare the significance of the knee
injury with the headaches. Indeed, none of the experts offered opinions on this
issue.

[82]        
Taking all of the above, it is quite clear that the plaintiff’s left
knee problems were, and are, a significant medical issue for him. That
significance relates to his ability to work and I find that the left knee
injury is a very significant limitation on what work he can do. There is also
the plaintiff’s significant and long-standing use of opiates for pain relief
and the negative effect of those medications on his vocational potential. Some
of that medication is related to the left knee problems (the amount of medication
now was about the same as the amount before the 2007 accident) and, therefore,
some of the effects are not appropriately part of this court action. The current
left knee problems may be the responsibility of WCB but that is for the WCB to
decide.

[83]        
I nonetheless also conclude that the plaintiff’s headaches, as a result
of the 2007 accident, negatively affect his future earning capacity. There is a
real and substantial possibility that the headaches will affect the plaintiff’s
future earnings. Again, it is difficult to separate out different causes, but I
accept that the headaches played a role in the unsuccessful head checker
training in October 2010. The headaches changed markedly about August 15, 2012
when Dr. Tsui reported that the migrainous headaches had abated, leaving the
frontal headaches. There were references in the evidence about a possible
second attempt at training in the near future and those discussions may be
related to this improvement.

[84]        
I do not agree with the submission made on behalf of the plaintiff that
his future earning capacity loss should be calculated as if he had worked
throughout the 2002 to 2011 period full-time on the waterfront. Nor is it
reasonable to conclude that the plaintiff would have worked full-time as a head
checker to the age of retirement. The plaintiff’s rating of light work and his
limited accessibility to work, compared with other members of Local 500 of the
ILWU, means that full-time work is not a realistic consideration.

[85]        
I might add that I also do not accept that the plaintiff would have
retired at age seventy but for the 2007 accident. There is no evidence of
average ages of employees on the waterfront and nor is there evidence of the
range of ages or the average age for retirement. Given the essentially medium
to heavy physical demands of the work I conclude that retirement well short of
age seventy would generally be desirable. The plaintiff is currently 59 years
old and I find that, but for the 2007 accident and the 2005 knee injury, he
would have retired in the next few years.

[86]        
As above, it is not possible to assess the plaintiff’s loss of future
earning capacity on a loss of earnings basis. Some form of a loss of capital asset
approach is appropriate. As above the employment earnings history does not reflect
a pattern that is useful. In my view an appropriate amount is one that would represent
the loss of future earning capacity that is attributable to the 2007 accident
and the resulting headaches. But, for the above reasons, that is very difficult
to isolate. The plaintiff is less marketable and less attractive as an employee
to prospective employers and, indeed, given his age, education, ability to
learn and significant disabilities he is close to being unemployable (considering
all his limitations) unless he can find some work on the waterfront. Dr. Powers
thought that a volunteer position somewhere was the best option open to the
plaintiff. Any amount must also recognize that the left knee disability plays a
significant role in the employability of the plaintiff. His medication use is
also noteworthy but of lesser importance than the knee itself.

[87]        
I return to the earnings history of the plaintiff. As above, that
history reflects a significant amount of time away from work for his left knee
problems (in 2010, for example). As well, no particular pattern is identifiable
from these annual earnings. I conclude that an averaging of the earnings from
2002 to 2011 is a fair way to assess the plaintiff’s loss of future earning
capacity. It is based on his actual earnings and it accounts for high and low
years. It does not project far into the future (in particular to age seventy)
but it is substantially more than his earnings in 2010 and 2011. It also an
attempt to reflect the impact of the left knee disability on future earning
capacity. On this basis I assess the plaintiff’s loss of future earning
capacity at $36,000.

Past wage loss

[88]        
The plaintiff seeks damages in the amount of $139,200.00 for past wage
loss. The defendant submits there should be no damages under this head.

[89]        
To some extent I adopt the reasoning above with respect to future
earning capacity and apply it to past wage loss. It is not possible to isolate
the causes for specific periods of time from, for example, 2002 to 2011. Apparently
some of the low earnings are a result of market issues in the sense of work that
is unavailable through the ILWU. For example, earnings in 2003 were $35,054 and
earnings in 2004 were $64,191, both years being unconnected to the 2005 knee
injury and the 2007 motor vehicle accident and resulting headaches. The year
2010 had significant time off for the left knee problems.

[90]        
As well, as with future earning capacity, I do not agree with the
plaintiff that past earning loss should be calculated on the basis of full-time
work as a head checker. The headaches were a factor but there is a real
question whether he could have done that work because of his left knee injury. And,
assuming he could do the work, the evidence is that he would have limited
access to work because of his light work rating and relatively limited access
to work (compared to other members of Local 500).

[91]        
Overall, I conclude that there was some past income loss as a result of
the headaches and neck pain. I use an averaging approach for the period 2007 to
2011 and assess that loss at an amount of $26,000. Any receipt by the plaintiff
of disability or similar benefits are collateral benefits and not deductable.

Specials

[92]        
The plaintiff seeks damages in the amount of $9,474.71 for specials. The
defendant submits the amount should be $9,000.00.

[93]        
The plaintiff is not entitled to re-imbursement for expenses related to
treatment and medication for his left knee. The defendant’s estimate uses this
approach and I fix special damages at $9,000.

Future cost of care

[94]        
The plaintiff seeks damages in the amount of $78,046.22 for future care.
The defendant submits the amount should be $20,000.

[95]        
I accept that the plaintiff is entitled to costs for future care that
are related to the injuries arising from the 2007 motor vehicle accident. They
are as follows,

Botox injections: These have proven to be beneficial to the plaintiff.
in particular for controlling his migrainous headaches. They should continue
for four years, four times per year.

Total: $2,360.36 (one-time).

Homemaking assistance: To the degree that the plaintiff requires homemaking
assistance for his headaches and neck pain, this is appropriate.

Total: $400.00 (per year).

Home and yard maintenance: To the degree that the plaintiff
requires homemaking assistance for his headaches and neck pain, this is
appropriate.

Total: $300.00 (per year).

Medications: To the degree that the plaintiff requires homemaking
assistance for his headaches and neck pain, this is appropriate. The
plaintiff’s estimate of the amount for medications includes medications for the
knee disability. The cost of medication for reflux and other unrelated
conditions are not appropriate.

Total: $850.00 (per year)

Vocational: Some vocational assistance is appropriate as discussed by
Dr. Powers.

Total: $750.00 (one-time).

[96]        
The result is that the total for future cost of care is $4,660.36, plus
the application of an escalator for annual expenses into the future.

[97]        
The plaintiff seeks damages in the amount of $9,474.71 for special costs.
The defendant submits the amount should be $9,000.00.

[98]        
The plaintiff is not entitled to re-imbursement for expenses related to
treatment and medication for his left knee. The defendant’s estimate uses this
approach and I fix special damages at $9,000.

Summary

[99]        
For the above reasons damages in this case are assessed as follows,

[100]    
The parties may make submissions on the implementation of this
judgement, including the application of an escalator amount to future costs. The
issue of costs can also be addressed by further submissions received within
forty-five days of this judgement (or appeal or review).

“Steeves
J.”