IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140110

Docket: 12-1846

Registry:
Victoria

Between:

Robert Austin

Plaintiff

And

Sherry Reardon and
Jayson Reardon

Defendants

Before:
The Honourable Mr. Justice Barrow

Reasons for Judgment

[1]            
The plaintiff was injured in a motor vehicle accident on July 2, 2010.
Liability has been admitted. The matter proceeded to trial for the purpose of
assessing damages.

[2]            
The defendants agree that the plaintiff is entitled to non‑pecuniary
damages. Although they do not agree with the amount of the damages sought by
the plaintiff, the extent of the parties’ disagreement on this point is not
particularly significant. The real issue is whether the plaintiff has proven a
loss of future income earning capacity.

The Plaintiff’s Background and The Accident

[3]            
The plaintiff is now 20 years old. At the time of the accident he was
17. He grew up in Lumby where his parents still live and work. At the time of
the accident he was living at home and had just completed Grade 11.

[4]            
The plaintiff’s father is a logging truck driver. His grandfather was a
logging contractor and still works in the logging industry. As a result, the
plaintiff grew up around heavy equipment. He described himself as an average
student in academic courses in high school. He excelled in “hands on” courses.
He has always had an interest in mechanics, and in particular working on heavy
equipment.

[5]            
The accident happened when the plaintiff was driving his 1985 Toyota
4Runner westbound on Highway 6 en route to his parents’ home in Lumby. He was
wearing his seatbelt. He came to a stop because a vehicle in front of him was
turning left. The defendant, who was also westbound, rear-ended him. The
collision was reasonably significant, but the plaintiff was able to drive his
vehicle from the scene. Neither the plaintiff nor the defendant thought it
necessary to summon the police or an ambulance; rather, they just exchanged
information and proceeded on their way.

[6]            
The rear bumper and the trailer hitch on the plaintiff’s vehicle bore
the brunt of the impact. Both were bent underneath the body of the vehicle. His
vehicle was not otherwise damaged. The defendant’s vehicle sustained reasonably
substantial damage to its front end.

[7]            
The plaintiff drove from the scene of the accident to the office of his
insurer in Lumby. By the time he arrived there he was beginning to feel stiff
in his upper back. By coincidence his mother drove by the insurance office and
noticed her son’s vehicle. She stopped to chat with him. She realized he may
have been more significantly injured than he thought and she took him to the
hospital in Vernon.

[8]            
The plaintiff was examined at the hospital and x‑rays were taken
of his thoracic and lumbar spine. Those x‑rays were normal and the
plaintiff was discharged. About 10 days later he had an x‑ray of his
cervical spine and it too was normal.

[9]            
On July 8, 2010 the plaintiff saw his general practitioner, Dr. Barss.
Dr. Barss referred him to physiotherapy. The plaintiff attended “a few
times”, but found that he was sorer after the treatments than he was before and
as a result he stopped going.

[10]        
The plaintiff had worked for a masonry company in the summer of 2009 and
again during the spring break in 2010. He had been hired by the company for the
summer of 2010 and was scheduled to begin work on the Monday following the
accident. His job with a masonry company involved heavy labour – mixing
concrete, carrying it to the masons and bricklayers and setting up and taking
down scaffolding. The plaintiff attempted to work but found that he was simply
too sore. He remained off work for the month of July and tried again to work in
early August. He worked for about a week and one-half before concluding that he
was simply unable to cope with the physical demands of the job and the pain he
was experiencing.

[11]        
The parties have agreed that the plaintiff lost $4,200 in income he
would have earned that summer. The defendants argue, although not particularly
strenuously, that the plaintiff failed to mitigate his loss by failing to
investigate alternative less physical occupations during that summer. I am not
persuaded that the defendants have established a failure to mitigate. Viewed in
prospect, the plaintiff did not know he would not recover during that summer.
In fact, I infer his condition did improve somewhat given that he thought he could
return to the masonry job in early August. By mid-August, when he realized that
was not possible, the summer was almost over. I am satisfied that the plaintiff
is entitled to recover judgment in the sum of $4,200 plus pre‑judgment
interest for his past loss of income.

The Plaintiff’s Injuries and The Course of His Recovery

[12]        
As noted above, the plaintiff saw his family doctor about a week after
the accident. He saw his doctor again at the end of July 2010. It appears that
the only other time he saw his family doctor in connection with the injuries he
sustained in the accident was in June 2012. Dr. Barss has not provided a
report, nor did he testify at the trial.

[13]        
In terms of passive therapies, the plaintiff saw a physiotherapist on a
few occasions in the month after the accident. He stopped going because he was
in reasonably significant pain and he found that the treatments aggravated
rather than alleviated his symptoms. He returned to physiotherapy in April 2011
and continued treatments until November of that year. Although he experienced
some short-term benefit from those treatments, he did not receive any long-term
relief. He also received massage therapy on a referral from his family doctor
but, as with the physiotherapy, they provided little relief and he soon stopped
going.

[14]        
Mr. Austin has never been prescribed any pain or anti-inflammatory medication
for his condition. His consumption of over-the-counter medications has been
modest. He testified that he takes Advil about twice a month, and sometimes
more frequently. He said, and I accept, that he is generally opposed to taking
any form of medication if he can avoid doing so.

[15]        
The plaintiff was referred to Dr. Duncan Laidlow, a physiatrist, by
his lawyer. Dr. Laidlow examined him on two occasions: first, on March 23,
2012, and again a year later on March 22, 2013. Dr. Laidlow prepared
reports following each of his examinations and he was cross-examined about them
at trial.

[16]        
In March 2012, Dr. Laidlow diagnosed the plaintiff as suffering
from a musculoligamentous strain of the cervical spine, mid‑back and
lumbar spine. He concluded that as a result of this strain the plaintiff had
developed “significant myofascial tightness” which in turn gave rise to
mechanical pain primarily in the mid‑back but also in the neck and lower
back. Dr. Laidlow confirmed that diagnosis following his March 2013
assessment. The only other doctor whose evidence is before the court is Dr. Michael
Piper, an orthopedic surgeon who the plaintiff saw at the defendants’ request
in February 2013. Dr. Piper concluded that the plaintiff had suffered a
“moderate musculoligamentous injury to the cervical and thoracic spine”.

[17]        
The plaintiff reported to Dr. Laidlow, and confirmed in his
evidence at trial, that in the first six months after the accident his
condition seemed to be improving. Since then, however, it has not improved. In
fact he thinks it is getting worse. The most significant aspect of the
plaintiff’s injury is the injury to his mid‑back in an area just below
his shoulder blades. He testified that he has pain in that area every day. It
is aggravated if he sits for extended periods of time and, according to Dr. Laidlow,
it is reduced when he is moving about or lying down.

[18]        
The pain he experiences in his neck is more variable. It is only
intermittently present and seems to be aggravated by periods of prolonged
sitting. His low back pain is even less frequently present and not particularly
severe or functionally limiting.

[19]        
In March 2012, Dr. Laidlow found that Mr. Austin’s range of
motion in his neck was somewhat reduced (60 degrees in lateral rotation to
either side, whereas the normal range for a person of the plaintiff’s age is
about 80 to 90 degrees). In addition, the plaintiff’s ability to flex his neck
was about one-half of normal. He could, however, fully extend his neck. As to
the plaintiff’s mid‑back, Dr. Laidlow found that his ability to
rotate to either side was about one-half of the normal range of motion for
individuals of the plaintiff’s age. Finally, Dr. Laidlow found some
reduction in the plaintiff’s ability to flex his low back. In all other
respects, the plaintiff’s physical abilities were unremarkable.

[20]        
Dr. Laidlow thought the plaintiff’s prognosis in March 2012 was “guarded”.
He expressed the view that it was “extremely important” that the plaintiff pursue
a community-based exercise program focused on restoring his mobility. He thought
the plaintiff’s symptoms would wax and wane according to the extent to which he
was able to re‑establish full mobility. As a result, he recommended a
supervised exercise program focusing on the various muscle groups controlling
the mid‑ and upper back. He concluded his March 30, 2012 report by
noting:

If he is able to carry on with
his stretching program for a minimum of six months to a year and regains
flexibility, I do feel that his symptoms will lessen over where they are now.
Having said that, the fact that his symptoms have persisted this long suggests
that he still will be prone to mechanical pain into the future.

[21]        
Following Dr. Laidlow’s initial assessment, the plaintiff attended
a fitness facility in Vernon and began a focused stretching program under the
supervision of a kinesiologist. There is no report from the kinesiologist, but
the plaintiff testified that he participated in the program at the gym for
“about a month or two”. Thereafter, he continued to do the stretching and other
exercises demonstrated for him by the kinesiologist, at home. He testified that
he continues to do those stretching exercises today.

[22]        
In March 2013, Dr. Laidlow again examined the plaintiff. Again, the
plaintiff’s most significant area of pain was his mid‑back. He told Dr. Laidlow
that he experienced pain there all the time. Further, and notwithstanding the
exercises he had been doing, he reported that he did not think he had improved
at all over the previous year. To the contrary, he felt he was still getting
worse. In spite of his perception, Dr. Laidlow found that the plaintiff’s range
of motion in his neck had improved inasmuch as his ability to forward flex,
which the year before had been one-half of normal, was found to be unimpeded.
His lateral range of motion in his neck remained approximately what it had been
the year before. His mid‑back had also improved in that his range of
motion in rotation to either side had been one-half of normal in March 2012, it
had improved to three-quarters of normal by 2013. As for his low back, whereas
in March 2012 there was “significant tightness” and his ability to flex forward
was only one-half of normal, by March 2013 he was no longer tender and had
“good basic flexibility … in forward flexion, extension and lateral bending to
each side.”

[23]        
Dr. Laidlow expressed the view in his March 22, 2013 report that:

…The exercises given within a
trainer supervised program seemed to aggravate him and were not changed to
prevent that. He has been doing stretching exercises and strengthening at home,
but has not been able to change the tightness in the upper back, mid back and
lower back.

I note that Dr. Laidlow had the benefit of a report
prepared by the kinesiologist who designed and supervised the exercise program
that the plaintiff participated in. That report was not, however, tendered in
evidence at the trial.

[24]        
Dr. Laidlow concluded his March 22, 2013 report by noting that Mr. Austin’s
prognosis “for further recovery is poor.” He did, however, add:

…I think that his symptoms will continue, although it is
possible that they might improve to a degree if he is able to restore the
mobility to the areas that are tight at the present time.

I think it is extremely important
that he is set-up with a community-based program that would have a chance of
restoring the mobility to normal. There should, if anything, be a reduced
emphasis on strengthening and a concentration on daily stretching. I would
suggest that he be set-up with a trainer, again, to be sure that he is doing a
home program concentrating on improving the flexibility of the scalene
musculature, … in the upper back and the lumbar … musculature in the lower
back.

Dr. Laidlow also noted that the plaintiff found his exercise
program aggravated his symptoms. He thought that was likely because the program
involved too much weight training and that the plaintiff may have overdone the
stretching.

[25]        
I conclude from Dr. Laidlow’s reports and his evidence at trial
that although the plaintiff himself does not think that his situation has
improved, his situation has in fact improved. He has achieved measurable gains
in the range of motion in his neck and low back and in particular in his mid‑back.
This is important because, as Dr. Laidlow pointed out, the plaintiff’s
symptoms are likely to vary in accordance with his ability to recover mobility.
Second, although not optimistic, Dr. Laidlow is not convinced that the
plaintiff has reached maximal recovery. As I understand his evidence, he is of
the view that improvement remains possible if the plaintiff participates in a
further supervised exercise program focusing on stretching.

[26]        
Dr. Piper’s findings on his examination of the plaintiff, which
took place about a month before Dr. Laidlow’s second assessment, were
largely consistent with those of Dr. Laidlow. Dr. Piper found that
the plaintiff had “a very good range of motion” on rotation of his neck. Flexion
and extension of his neck were about 80 percent to 90 percent of normal. As to
his thoracic spine, Dr. Piper found that “[h]e had perhaps slightly
diminished thoracic rotation both to the right and left.” He noted, however,
that Mr. Austin had some muscle spasm in his mid‑thoracic region and
complained of tenderness on deep palpation to the muscle groups in the upper
thoracic area.

[27]        
Dr. Piper, like Dr. Laidlow, is of the opinion that the
plaintiff will benefit from further structured and supervised exercises. He
wrote that:

…As far as therapy is concerned
I do believe at this point it would be appropriate for him to be involved in a
very aggressive rehabilitation program such as is available at the CBI or KARP
clinics. With such a program and a continuing involvement in the appropriate
therapeutic exercises provided I think Mr. Austin’s symptoms will become
less with the passage of time.

What the programs at the “CBI” or “KARP” clinics are was not
addressed in the evidence.

[28]        
With this background in mind, I turn to the question of damages.

Analysis

Non-Pecuniary Damages

[29]        
The plaintiff argues that an award of $80,000 is appropriate in these
circumstances. Support for that contention is said to be found in several
cases, including Bergman v. Standen, 2010 BCSC 1692; Wiener v. Ralla,
2009 BCSC 1743; Esau v. Myles, 2010 BCSC 43; and Jackson v. Mongrain,
2010 BCSC 1866.

[30]        
The defendants argue that an award of between $40,000 and $45,000 is
appropriate. In support counsel points to Fifi v. Robinson, 2012 BCSC
1378; Perry v. Ismail, 2012 BCSC 123; and Lee v. Jarvie, 2010
BCSC 1852.

[31]        
Mr. Austin is now 20 years old. It has been some 40 months since
the accident and he remains in reasonably constant pain. His pain is such that
it interferes with his ability to sleep. He finds that he wakes up in the night
about twice a week as a result of his pain. According to Dr. Laidlow, his
prognosis for further recovery is poor. I accept that his condition is chronic
and likely permanent. Further, I am satisfied that with participation in an
exercise program that takes account of the recommendations of Dr. Laidlow
there is some prospect that the plaintiff will experience an improvement in his
functionality and a corresponding reduction in his symptomology. In addition, I
am satisfied that there is little chance that his condition will further
deteriorate.

[32]        
I am satisfied that the plaintiff was in reasonably significant pain
during the summer of 2010 and into the fall of that year. By the beginning of
2011, I am satisfied that his pain had ameliorated to the point where he
returned to physiotherapy, albeit without any long-lasting benefit. I accept
that his symptoms were elevated during the nine months he spent in the
pre-apprenticeship program. His participation in that program involved long
days of sitting, either in a classroom or during his commute back and forth
between Lumby and Kelowna. Once he finished the classroom portion of his
pre-apprenticeship training and began working as an apprentice heavy duty
mechanic, I am satisfied that his symptoms, and specifically the pain he
experienced, moderated.

[33]        
I recognize that attendances on one’s family doctor are not necessarily
an indication of the level of pain one experiences. Further, and for similar
reasons, the consumption of either prescription or non-prescription analgesics
is not necessarily a reliable gauge of the pain being experienced. Having said
that, I think it of some significance that Mr. Austin has never taken
prescription medication to control his pain and rarely takes over-the-counter
analgesics for that purpose. Further, he saw his family doctor twice in the
month following the accident, but did not see him again, at least as a result
of the injuries he sustained in the accident, for the next two years.

[34]        
Prior to the accident, Mr. Austin was an active teenager. He
enjoyed snowboarding and playing pick-up sports. Further, he enjoyed riding his
BMX bicycle, something he did virtually every day, at least from the spring
until the fall. In addition, he liked to ride an off-road motorcycle or dirt
bike.

[35]        
Mr. Austin found that he was unable to ride his BMX bicycle after
the accident because the posture he had to assume in doing so was very
uncomfortable. He sold his bicycle and has not replaced it. In addition, he has
been unable to ride his dirt bike since the accident, again because the jarring
nature of that activity causes him more pain than the enjoyment he derived from
the activity.

[36]        
As against the foregoing, several matters are worthy of note. First,
although Mr. Austin no longer rides an off-road motorcycle, he has
purchased and uses an off-road 4-wheel drive ATV. The ATV he drives is known as
a “side by side” and it allows him to sit much as if he would if driving a car.
He testified that he drives that vehicle over rough roads and can do so for up
to six hours in an outing. Oddly, the plaintiff testified that he enjoyed
wakeboarding before the accident, but since the accident he has found that he
cannot tolerate that activity for as long as he used to. On cross-examination,
however, he acknowledged that he only wakeboarded occasionally prior to the
accident and only took up the activity more frequently in 2012 after his
parents purchased a power boat.

[37]        
I accept that the plaintiff’s injuries caused him to stop riding his BMX
bicycle. I also accept that since January 2011 he has had much less free time
to engage in recreational activities. He has been working full-time and from
time to time long hours since January 2012 and for the year before that was
going to school and enduring a fairly time consuming commute. In addition, I
accept that he can no longer enjoy off-road dirt biking but he can and does
enjoy riding an off-road ATV. Finally, I accept that the pain he experiences
fatigues him. I accept that he generally spends evenings after work either
lying down or otherwise resting his back. I accept that he would not do so but
for the injury he sustained.

[38]        
Turning to the authorities, in Bergman v. Standen, the
32-year-old plaintiff suffered soft tissue injuries to her back. At the time of
trial, some four years after the accident, she was still experiencing
relatively constant discomfort and pain. She perceived herself to be more
functionally limited than she in fact was. Her injuries were not expected to
significantly improve. The impact on her life was, if anything, greater than
the impact that Mr. Austin’s injuries have had on his life. The plaintiff
in Bergman was awarded $75,000 in non‑pecuniary damages.

[39]        
The plaintiff in Wiener v. Ralla was a 40-year-old married father
of two. He suffered from chronic mechanical back pain as a result of a
significant motor vehicle accident. His pain caused him fatigue, although he
was able to continue with his career and indeed able to take on and then expand
a business that involved some physical activity. He was awarded $75,000 in non‑pecuniary
damages.

[40]        
The plaintiff in Esau v. Myles was a 24-year-old male working in
physically demanding jobs. He suffered a mechanical strain to his lower back
which left him in permanent pain. His pain was such that he was unable to work
for about a year after the accident. It remained constant at the time of trial.
He had followed all of the recommendations provided to him by his health care
providers and, like Mr. Austin, had a strong work ethic and a stoic
approach to life. Unlike Mr. Austin, however, the plaintiff in Esau
was unable to carry on with the heavy labour jobs that he had formally pursued.
Further, his ability to work around his home and his intimacy with his partner
had been affected. He was awarded $70,000 in non‑pecuniary damages.

[41]        
Finally, in Jackson v. Mongrain, the 38-year-old plaintiff was
engaged in heavy labour up to the time of the accident. He sustained an injury
to his neck and back which left him with chronic pain. His injuries were such
that he could not continue with his former occupation. Stewart J.
described Mr. Jackson’s pain as “nagging”, something that was always with
him, but only caused real and substantial discomfort when he was at work or
otherwise engaged in a physically demanding activity (para. 53). His pain
had, if anything, a more significant effect on his recreational activities than
is the case in Mr. Austin’s situation. He was awarded $75,000 in non‑pecuniary
damages.

[42]        
In Fifi v. Robinson, the 22-year-old plaintiff suffered soft
tissue injuries to her neck, shoulder and back areas. She suffered fairly acute
discomfort following the accident, but by the time of the trial the pain she
was experiencing was “relatively minor” and not significantly limiting.
Moreover, her injuries were not likely to give rise to any significant ongoing
disability. She was awarded $42,000 in general damages.

[43]        
In Perry v. Ismail, the 27-year-old plaintiff suffered soft
tissue injuries to his neck, lower back, shoulder and knee. He was awarded
$42,000 in general damages. His injuries had not completely resolved at the
time of trial, but the trial judge found that he had not followed medical
advice in relation to physio and massage therapy, nor had he participated in a
rehabilitation program.

[44]        
In Lee v. Jarvie, the court found that his soft tissue injuries
to his neck and back had substantially resolved within a year following the
accident. He was awarded non‑pecuniary damages of $40,000.

[45]        
I accept that the plaintiff’s condition is permanent, although there
remains some possibility of improvement. His condition has affected his ability
to enjoy life, but not to a particularly marked degree. He is still able to,
and does, participate in recreational activities that have a physical dimension
to them. He is able to work at a very physically demanding occupation. I
accept, however, that he is left fatigued, particularly at the end of a day’s
work, and that his fatigue is in part due to the pain that he struggles with.
His situation is more serious than the situations of the plaintiffs in Lee
v. Jarvie, Perry v. Ismail and Fifi v. Robinson. His
circumstances are not, however, as significant or pronounced as the plaintiffs
in Bergman v. Standen, Esau v. Myles, and Jackson v. Mongrain.

[46]        
Given all of the foregoing, I am satisfied that an award of $65,000 in
non‑pecuniary damages is appropriate.

Loss of Future Income Earning Capacity

[47]        
Counsel for the plaintiff argues that the evidence establishes that
there is a real and substantial possibility of a future event leading to an
income loss and as a result the plaintiff is entitled to an award of damages
under this head. He argues that although the plaintiff has not missed any time
from work as a result of his injuries, that is so largely because of his
perseverance, his stoic nature and his willingness, at least in the short term,
to attempt to work through his pain in the hope that he may achieve his dream
of becoming a journeyman heavy duty mechanic.

[48]        
The plaintiff points to Dr. Laidlow’s March 22, 2013 report in
which he recommended that the plaintiff seriously consider altering his
vocational course to pursue a less physically demanding trade. Counsel concedes
that it is not certain that the plaintiff will make this change, but there is a
real and substantial possibility that he will find it necessary sooner rather
than later to do so.

[49]        
Counsel for the plaintiff argues that the evidence establishes that the
plaintiff has both an aptitude for, and an interest in, electrician’s work.
Electrician’s work is less physically demanding than the work of a heavy duty
mechanic. Counsel argues that on the evidence it is appropriate to quantify the
plaintiff’s loss using the “earnings approach” as opposed to the “capital asset
approach”. Employing that approach involves recognizing the fact that the
plaintiff will be out of the work force entirely for the duration of the
pre-apprenticeship schooling necessary before beginning a formal apprenticeship
as an electrician. Further, the approach involves accounting for the reduced
earnings that an apprentice receives, and finally accounting for the fact that
electricians earn less than journeyman heavy duty mechanics. All of this gives
rise to a loss in the order of $500,000. Counsel argues, however, that because
it is not certain that the plaintiff will experience this loss, the amount
should be reduced to reflect that contingency. The plaintiff suggests that an
award of $250,000 under this head of damages is reasonable.

[50]        
Counsel for the defendants argues that no award should be made for loss
of future income earning capacity because the plaintiff has not proven that
there is a real and substantial possibility of a future event leading to an
income loss. In support, counsel points to the fact that the plaintiff has
completed both his pre‑apprenticeship schooling, which involved extended
periods of sitting (which is among the most difficult postures for the plaintiff
to sustain), and two years of apprenticeship. Generally speaking, apprentices
do the heaviest and most physically demanding jobs. Given that the plaintiff
has completed both of these things without losing any time, counsel argues that
there is not a “real and substantial possibility” that he will change his
vocational pursuit in future. In addition, counsel points out that the
plaintiff has been able to complete his duties without any accommodation from
his employer. Indeed, it appears that until just before the trial his employer
was not even aware that he had been involved in an accident. In these
circumstances, the defendants argue that no award should be made under this
head of damages.

[51]        
As noted, the plaintiff had just finished Grade 11 when the accident
occurred. He returned to school in September 2010 to begin Grade 12. He
remained in school until the end of the calendar year. In January 2011 he began
a pre‑apprenticeship course in heavy-duty mechanics with Okanagan College
in Kelowna. He took this course as part of his high school curriculum, and thus
while he did not attend high school after December 2010, he graduated on
schedule in May 2011. He completed his pre‑apprenticeship program in
October 2011.

[52]        
The pre‑apprenticeship program was difficult for Mr. Austin
primarily because it involved seven hours of classroom work five days a week.
In addition, he commuted from his home in Lumby, a drive of over an hour each
way. All of this sitting aggravated the symptoms in his lower back and neck and
to a lesser degree in his mid‑back. In spite of this, he did not miss any
time either from high school or from the pre‑apprenticeship program.

[53]        
Before the pre‑apprenticeship program ended, Mr. Austin had
obtained a job with Gudeit Bros. Contracting Ltd. in Lumby. He worked there on
the weekends, doing general labour work and assisting the mechanics. When his
pre‑apprenticeship training finished, he was hired by Gudeit Bros. as a full-time
apprentice mechanic. Gudeit Bros. are in the logging business and most of the
mechanical work that Mr. Austin did was on logging trucks. He worked at
Gudeit Bros. from October to the end of December 2011. He missed no time from
that employment.

[54]        
During Mr. Austin’s pre‑apprenticeship training program, he completed
a two-week work placement with Great West Equipment, a dealership in Vernon
that sells and services heavy duty Volvo equipment. Mr. Austin enjoyed his
time with that company, both because of the variety of work and, I infer, the
quality of Great West as an employer. As a result, once he finished his pre‑apprenticeship
program he contacted Great West Equipment seeking employment. He took the job
with Gudeit Bros. hoping that if a position opened up at Great West he would
have an opportunity to work there. A position did open up and Great West
offered it to him. Mr. Austin began work there in January 2012 and remains
employed there today. He is about to begin his third year as an apprentice.
Assuming he continues in his present job, he will finish his apprenticeship and
become a journeyman heavy duty mechanic at the end of 2015.

[55]        
Mr. Austin works primarily at his employer’s shop in Vernon. When
working at that location his hours are from 7 a.m. until 3:30 p.m. Monday
through Friday. From time to time he accompanies journeyman mechanics off site
to carry out repairs on equipment throughout the Okanagan, the Kootenays and as
far away as Mackenzie.

[56]        
Regardless of where the plaintiff is working, the tasks he performs are
generally the same. He is required to do a significant amount of welding, and
that involves assuming awkward and strenuous postures in order to access areas
of machines that require repair. He works on both wheeled and tracked
equipment. His job often involves removing the tracks from heavy equipment when
it is necessary to either replace them or to access areas behind them. Simply
removing and later reinstalling the tracks is a physically demanding task. Each
segment of track is held on by two bolts. Those bolts are first tightened using
a heavy impact drill and then torqued using a seven-foot long wrench. Removing
other parts of heavy equipment often requires the use of heavy sledge hammers
to remove pins and cylinders. While the shop is equipped with hoists that can
be of some assistance in accomplishing some of these tasks, much of the work
involves heavy lifting and sustaining awkward postures.

[57]        
The field work which the plaintiff is sometimes required to do involves
similar tasks but longer hours. Carrying out repairs on equipment in Mackenzie
involves working in camp. When there the mechanics work seven days straight,
between eight and ten hours a day.

[58]        
According to Derek Nordin, a vocational consultant, the pay structure
for apprentices in most trades follows a set formula. New apprentices, that is
those in the first six months of their apprenticeship, are generally paid 40
percent of the journeyman rate. Every six months there is a pay increase of 10
percent, such that in the last six months of an apprenticeship the apprentice is
paid 85 percent of the journeyman rate. A journeyman heavy duty mechanic earns
approximately $40 an hour. When Mr. Austin began his apprenticeship with
Great West Equipment he was earning $16.20 an hour. At the time of trial he was
earning $24.70 an hour. During the first 11 months of 2012 he earned
approximately $73,000, an income that reflects the substantial amounts of
overtime he was able to work.

[59]        
Journeyman electricians earn $35.55 an hour. The pre-apprenticeship
electrician’s program is a 24-week program which costs $4,150, inclusive of
tuition, books and supplies. In addition, tuition for each subsequent year of
the program is $1,152.

[60]        
Mr. Austin has not told his employer about his accident (although
by happenstance his employer may now be aware of it). He testified that he
deliberately did not tell his employer for fear that it might compromise his
prospect of completing his apprenticeship. As noted above, he has not missed
any time from his employment due to his injuries, nor has he declined any
opportunity to pursue overtime. He testified that he has no pain-free days and
that of the various tasks he is required to perform, installing and removing
tracks, carrying out repairs on the undercarriage of equipment, and welding
cause him the most difficulty. He testified that he thinks he is slower than other
workers and is quicker to require assistance. Devan Pollard, a co-worker and
fellow apprentice of the plaintiff, testified that the plaintiff seems to
require assistance more often than others and is more careful in how he
approaches jobs, particularly if those jobs that involve heavy lifting.

[61]        
The plaintiff testified that while he is able to do his job, it causes
him significant pain.

[62]        
Dr. Laidlow concluded that because the plaintiff’s symptoms have
persisted as long as they have, he will be prone to mechanical pain into the
future. As to this prospect, he wrote:

…This does cause me concern when
he has chosen as his future career to be a heavy duty mechanic. Of all of the
trades it probably would be very hard to find one that is heavier in nature and
more likely to aggravate mechanical pain in the neck, mid back and lower back.
I would suggest that he consider a change of plan to a trade or alternate work
that would be lighter in nature than this. He is not causing himself physical
harm in carrying on and becoming a heavy duty mechanic, but he is causing
himself a lot of pain, which is likely to continue as long as he is doing this
job.

[63]        
Dr. Laidlow’s opinion in this respect is not contradicted by Dr. Piper.
Dr. Piper noted the plaintiff’s concern about his ability to continue with
his vocation. Mr. Austin told him that while he is able to do his work, he
is exhausted at the end of each day and on returning home has to lie down. Dr. Piper
was asked, in the letter of instruction sent to him by defence counsel, to
comment on the degree to which the plaintiff is disabled, either from
recreational pursuits or his job, as a result of the injuries he sustained in
the accident. Dr. Piper did not offer an opinion, one way or the other, on
either of these issues nor did he express an opinion on the implications of the
plaintiff’s injuries on his ability to pursue his chosen vocation.

[64]        
The first issue in determining whether a loss of future earning capacity
has been proven is whether the evidence establishes that the plaintiff’s
earning capacity has been impaired to any degree by his injuries. If so, the
second issue is valuing or quantifying that impairment.

[65]        
The parties disagree on whether the plaintiff has met the threshold
burden. That burden was described by Garson J.A. in Perren v. Lalari,
2010 BCCA 140 at paragraph 32 as follows:

[32]      A plaintiff must always prove … that there
is a real and substantial possibility of a future event leading to an income
loss.

(emphasis in original)

If this threshold is met,
then:

Hypothetical events (such as how
the plaintiff’s life would have proceeded without the tortious injury) or
future events need not be proven on a balance of probabilities. Instead, they
are simply given weight according to their relative likelihood.

(Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 27
per Major J.).

[66]        
The defendants point to two circumstances which militate against the
plaintiff’s claim in this regard. First, the plaintiff has completed the more
physically demanding aspects of his apprenticeship and did so without missing
any time from work. Second, the plaintiff’s condition has improved inasmuch as
both Dr. Laidlow and Dr. Piper have objectively measured an
improvement in his flexibility or range of motion. According to Dr. Laidlow,
an increase in flexibility should result in a reduction of symptoms and an
improvement in function.

[67]        
In addition, the defendants point to two cases which, counsel argue,
have some factual similarity to the matter at hand. Those cases are: Lee v.
Jarvie and Kosoric v. Maitland, 2009 BCSC 108. In both of these
cases no award for loss of future income earning capacity was made.

[68]        
In Lee v. Jarvie the plaintiff was injured shortly before he was
to begin training as an RCMP officer. He completed that training with “stellar”
reviews (para. 233). Further, his performance as an RCMP officer after he
finished training was “equally positive” (para. 232). His claim for an
award for loss of income earning capacity was based on his assertion that he no
longer met the physical requirements for some specialized aspects of RCMP work.
His claim was rejected in part because the trial judge did not consider that he
was unable to meet the physical requirements for those specialized units and
because precisely what the physical criteria were was not established in the
evidence.

[69]        
In Kosoric v. Maitland, the plaintiff was 22 years old when she
was involved in an accident. She had just finished high school and was about to
start post-secondary education. At the time of trial she was two years into a
four-year program leading to qualification as a registered nurse. Her
physiatrist testified that she would probably have difficulty working full-time
as a nurse and might be unsuitable to some kinds of nursing jobs. The trial
judge noted that while the plaintiff continued to experience pain, her injuries
had not limited either her work or her personal life (para. 115). Further,
she concluded that if the plaintiff participated in the exercise routine that
had been recommended by her various care givers it was likely that her symptoms
would “substantially improve” (para. 118). The trial judge concluded that
the plaintiff had not proven she would suffer any future wage loss as a result
of her injuries. She reached this conclusion based in part on the plaintiff’s
abilities and performance during that portion of her training program that she
had completed by the time of trial, and in part on her conclusion that her
symptoms would improve over time if she exercised in the manner recommended. In
the result, no award was made for diminished income earning capacity.

[70]        
I accept the plaintiff’s evidence in this case. In particular, I accept
that he is in relatively constant pain. Further, I accept that the physical
demands of his job aggravate his pain. Aside from simply causing him
discomfort, his pain is generally enervating to the point where on completion
of a day’s work he finds it necessary to simply lie down and rest in the
evening. Finally, I accept that the plaintiff has a strong work ethic and is a generally
stoic individual.

[71]        
Mr. Austin wants to work as a heavy duty mechanic. He has wanted to
do so for some years. He is reluctant to abandon this career both because he is
suited to the work and he because he has a good paying job working for an
employer he likes and with colleagues he enjoys. He said, however, that he does
not know how much longer he can continue to pursue his chosen career. If his
pain increases or if he simply finds it intolerable to continue living with the
pain he is now experiences, he said he may have to make a change. He also said
that one reason he has not made a change to this point is that he simply cannot
afford to.

[72]        
I am satisfied that there is a real and substantial possibility of a
future event leading to an income loss. I think it unlikely his condition will
deteriorate but that remains a possibility. I think there is a real and
substantial possibility that even if his pain remains relatively constant, there
may come a point at which the “cost” extracted by the pain is not worth the
benefit he derives from his job. The physical demands of his job give rise to
increased levels of pain. His pain interferes with his ability to sleep. Both
the lack of sleep and the pain itself, leave him exhausted at the end of the
working day. If the plaintiff were to conclude that the pain he experiences as
a result of the physical demands of his work will continue unabated and indefinitely,
he might reasonably decide that the satisfaction and financial benefit he takes
from his work is simply not worth the price he must pay in terms of physical
discomfort and fatigue. It seems to me that such a decision would be
reasonable. My impression is that while the plaintiff is able to carry out his
tasks now, he is only just able to do so. He might reasonably conclude that as
he ages he will reach the point, assuming all other things are equal, that he
will be simply be unable to continue paying the price necessary to pursue his chosen
vocation.

[73]        
As against the foregoing, however, there is the possibility that his
condition will improve. His condition did improve between March of 2012 and
March of 2013. His range of motion improved over that time and Dr. Laidlow
allows for the possibility of further improvement. He wrote that it is
“extremely important” that Mr. Austin participate in a community-based
program designed to restore his “mobility to normal”. It was his view that
increasing or improving his flexibility would likely result in a decrease in
his symptomology. In addition, to the extent the physical demands of his job
may change once he becomes a journeyman mechanic, the change will involve a
reduction in the heavier aspects of the work.

[74]        
In summary, I am satisfied that if participation in a further supervised
exercise and stretching program does not result in an improvement in
functionality and a reduction in symptomology, then it would be reasonable for
the plaintiff to change vocations and pursue a trade that is less physically
demanding. On the other hand, if further supervised stretching and exercise
gives rise to even a modest improvement in his functionality and a
corresponding reduction in his symptomology, then I think it unlikely the
plaintiff will alter his vocational course. Perhaps more to the point, it would
be unreasonable for him to do so. These conclusions satisfy me that there is a
real and substantial possibility of a future event that will lead to an income
loss.

[75]        
The next issue is quantifying the compensation to which the plaintiff is
entitled. As was pointed out in Perren v. Lalari, there are two
generally accepted methods of assessing damages under this head: the earnings
approach and the capital asset approach. In Jurczak v. Mauro, 2013 BCCA 507,
Stromberg‑Stein J.A. wrote:

[36]      This process is “an assessment rather than a
calculation” and “many different contingencies must be reflected in such an
award”: Barnes v. Richardson, 2010 BCCA 116 at para. 18.
“Ultimately, the court must base its decision on what is reasonable in all of
the circumstances. Projections, calculations and formulas are only useful to
the extent that they help determine what is fair and reasonable”: Parypa v.
Wickware, supra, at para. 70.

[37]      With that said, if
there are mathematical aids that may be of some assistance, the court should
start its analysis by considering them. For example, in Henry v. Zenith
(1993), 31 B.C.A.C. 223 at paras. 44-48, 82 B.C.L.R. (2d) 186 (C.A.), this
Court held that a trial judge’s failure to consider an economist’s projections
of a plaintiff’s lost future earning capacity contributed to the judge
committing an error in principle, which “resulted in a wholly erroneous
estimate of the damages”.

[76]        
The mathematical approach in this case involves accounting for the
period of time the plaintiff would have no income as a result of the need to
repeat the pre‑apprenticeship program, the loss of income associated with
the two additional years of apprenticeship that he would have to complete, and
the lower income that electricians earn.

[77]        
According to Mr. Nordin, and based on the 2006 Census estimates but
adjusted to reflect 2013 dollars, heavy duty mechanics earn an average of about
$80,000 a year. Electricians earn about $57,500 a year. A journeyman heavy duty
mechanic earns $41 per hour; a journeyman electrician earns $35.55 an hour. I
think it reasonable to use those hourly rates in determining the plaintiff’s
notional loss. I recognize that his employer pays $1.50 per hour towards an
RRSP on his behalf and that he is able to work significant overtime. There is
no reason to conclude that similar benefits would not be available in another
trade and in any event this approach to quantifying his loss is necessarily
somewhat rough. As noted above, the hourly rates of electrician and heavy duty
mechanic apprentices follow the same pattern: both are paid a percentage of the
journeyman’s rate and the percentage increases during the apprenticeship.

[78]        
Given the pay formula, and working as a heavy duty mechanic, the
plaintiff will earn $27 per hour for the first six months of 2014 and about $30
per hour for the final six months, for an annual income of about $60,000. He
will earn about $32 per hour or $66,500 during 2015, his fourth and final year
as an apprentice. In 2016 he will earn the journeyman rate of $41 an hour or $85,280
annually.

[79]        
If the plaintiff were to switch to the electrician’s trade now, and if
the transitions first to school and then to the paid workforce were seamless,
he would earn about $14,500 in 2014 ($14 per hour for the second half of the
year). In 2015 his income would be about $38,800; in 2016 it would be about
$46,000; and in 2017 or his fourth year as an apprentice it would be about
$60,000. Thereafter his income as a journeyman electrician would be about
$74,500 annually.

[80]        
His notional loss would be about $45,500 in 2014; $27,700 in 2015;
$39,280; in 2016; and $25,280 in 2017. Thereafter his annual loss would be
$10,780. Summing these values and discounting them to reflect present value
(using the rates derived by Robert Carson in his August 6, 2013 report) the
plaintiff’s notional loss to age 65 would be $365,000 plus the cost of tuition
and books of about $5,000 for a total loss of about $370,000.

[81]        
It remains to account for the relative likelihood of the plaintiff
experiencing a loss of the sort postulated. In attempting to divine this
likelihood, I consider the following matters to be significant. First, during
the most acute phase of the plaintiff’s injuries (from the time of the accident
until sometime after the first assessment by Dr. Laidlow), the plaintiff
did not miss any time either from the academic portion of his training or his
actual apprenticeship. Second, the plaintiff has not missed any time from his
apprenticeship since, and that period includes the most physically demanding
aspects of his training. Third, there is the prospect of further improvement in
the plaintiff’s condition. Finally, the plaintiff’s commitment to his job and
his career are factors that make it less likely that he will make a change.
Based on all of these matters, I consider the prospect of a change from heavy
duty mechanics to the trade of electrician to be about 25 percent. Further, it
is a change which, if it happens, will not likely happen for at least a year. I
reach that conclusion on the basis that I think it likely that the plaintiff
will re-double his efforts at a structured exercise program of the kind
recommended by Dr. Laidlow in his second report, before making any
decision.

[82]        
On the other hand, it is not realistic to assume a seamless transition
between pre-apprenticeship schooling and the paid work force. Further, whether the
plaintiff’s condition deteriorates or not, if he has to change jobs for any
reason, he will be at some competitive disadvantage as a potential employee. Taking
all of these considerations into account, and acknowledging that what is at
issue here is an assessment of the plaintiff’s loss of earning capacity, I find
that he is entitled to an award of $90,000.

Summary and Costs

[83]        
As noted above, the parties agree that the plaintiff’s past loss of
income is $4,200. Given that I am not persuaded he failed to mitigate that
aspect of his claim, he is entitled to judgment for that amount plus pre‑judgment
interest. He is entitled to non-pecuniary damages in the sum of $65,000 and
damages for loss of future income earning capacity of $90,000.

[84]        
Unless there are matters touching on the issue of costs about which I am
unaware, the plaintiff is entitled to his costs calculated under Rule 15-1.

”G.M.
Barrow J.”
The Honourable Mr. Justice Barrow