IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140203

Docket: 12-2429

Registry:
Victoria

Between:

Gregory Preece

Plaintiff

And

Shirley Leonard
and Skeena Rent-A-Car Ltd.

Defendants

Before:
The Honourable Mr. Justice Barrow

Reasons for Judgment

[1]            
The plaintiff was injured in a motor vehicle on October 3, 2010.
Liability is admitted and the matter proceeded to trial for purposes of
determining damages.

[2]            
The plaintiff seeks non-pecuniary damages, arguing that an award of
$80,000 is appropriate in the circumstances of this case. The defendant
acknowledges that the plaintiff was injured and is entitled to an award of
non-pecuniary damages but argues that $30,000 is appropriate given the nature
and extent of his injuries.

[3]            
The plaintiff is also seeking damages for loss of his income earning
capacity. He argues that an award approaching three times his average annual
income of $50,000 is warranted. The defendant argues that no award is warranted
under this head in the circumstances of this case.

[4]            
The plaintiff is also claiming a modest amount for the cost of future
care.

[5]            
The parties have agreed on special damages. Those damages total
$5,625.06. In addition, they have agreed on the plaintiff’s past wage loss
claim. That claim amounts to $5,703.

The Accident

[6]            
The accident occurred in Enderby. The plaintiff was driving his 2003
Pontiac Grand Am southbound on South Regent Avenue. His 11-year-old son was
with him in the front passenger seat. The defendant was operating a rented
Toyota Camry, travelling westbound on Bellevedeer Street. Where Bellevedeer
Street intersects South Regent Avenue, there is a stop sign for westbound
traffic. The defendant did not see the stop sign and travelled through the
intersection, striking the plaintiff’s vehicle. The point of impact on the
plaintiff’s vehicle was in the middle of the driver’s side door. The point of
impact on the defendant’s vehicle was the right front bumper. The damage to the
plaintiff’s vehicle was repaired at a cost of $2,123. The damage to the
defendant’s vehicle was repaired at a cost of just under $1,400.

[7]            
Although liability for the accident is admitted, the defendant, Shirley
Leonard, testified. It was argued that she minimized the accident, and perhaps
her responsibility for it. I do not agree. Ms. Leonard impressed me as an
honest and careful witness. The plaintiff, Gregory Preece, also impressed me as
an honest and careful witness. To the extent their accounts of the collision
diverge, and their accounts do not diverge substantially, I attribute it to the
different perspectives from which they experienced the collision and nothing
more.

[8]            
The defendant testified that she thought she was travelling at between
20 and 25 kilometers per hour when she struck the plaintiff’s vehicle. She
testified that although she had not checked her speedometer, she estimated her
speed based on the circumstances at the time. She said that she was unfamiliar
with the area and had stopped at a railway crossing not long before the
accident. These circumstances led her to believe that she was not travelling
more than 20 or 25 kilometers per hour. I accept that she was travelling at
about that speed. I accept her explanation for how it is she reached that
estimate, and it seems to me that that estimate is broadly consistent with the
damage the vehicles sustained. In any event, not much turns on this issue
because liability is admitted, and the issues I must resolve relate to the
injuries the plaintiff sustained and not the precise extent of the forces that
may have been experienced by the occupants of the vehicle.

[9]            
Counsel for the defendant argues that there is reason to doubt the
plaintiff’s credibility based in part on what happened in the immediate
aftermath of the accident. The plaintiff had been involved in a minor rear end
collision some three weeks before the accident that gives rise to this
litigation. The earlier accident occurred when the plaintiff bumped into a
vehicle that he was following through a construction zone. Neither vehicle
sustained any damage, and although the plaintiff and the other driver exchanged
information, nothing ever came of it. The plaintiff mentioned this earlier
accident on two and perhaps three occasions in the aftermath of the October 3,
2010 accident. The suggestion was made that on those occasions, he said that he
had experienced a sore back as a result of the earlier accident. He denied that
his back was sore following that accident. Counsel for the defendant argues
that this inconsistency or contradiction is a basis to doubt his other
evidence.

[10]        
Both Mr. Preece and Ms. Leonard behaved civilly, responsibly
and kindly towards one another in the aftermath of their collision. Ms. Leonard
got out of her car and immediately inquired about whether the plaintiff was
injured. She was particularly concerned about whether his son had been injured.
Mr. Preece did not think he had been particularly injured, at least
initially. He recognized that Ms. Leonard was upset, and in an effort to
put her mind at ease, he explained that he had been involved in an accident
some weeks before and, as a result, understood how she felt. Although he said
his back was sore, he did not link that to the earlier accident.

[11]        
Both vehicles were capable of being driven following the accident, and
neither Mr. Preece nor Ms. Leonard thought it necessary to call the
police or summon an ambulance. They exchanged the details of their insurance
and other particulars, and Mr. Preece drove to his parents’ house not far away.
Once there, he thought it prudent to call the police and Cst. Bannister
responded to the call. In Cst. Bannister’s “general occurrence” report, he
noted that Mr. Preece told him his back was stiff. He also noted that Mr. Preece
mentioned a “previous accident in general conversation”. As with the
conversation that took place at the scene, I am not satisfied that Mr. Preece
told the officer that he had hurt his back in the earlier occurrence; rather,
he simply mentioned both facts – the earlier accident and the fact that his
back was sore – in the same conversation.

[12]        
Shortly after speaking to the police officer, Mr. Preece thought it
prudent to go to hospital given the pain he was experiencing in his back. The
emergency out‑patient record for Mr. Preece’s attendance that day
contains a note that reads “no past injuries (sore back prior)”. This, too, is
said to support the inference that Mr. Preece had experienced a sore back
as a result of the earlier motor vehicle accident. The absence of any context
for this note, and the absence of any mention of an earlier accident, renders
it of no value in assessing Mr. Preece’s credibility. Finally, I note
that Taylor Mackenzie, Mr. Preece’s wife, was asked about the
previous motor vehicle accident. She testified that her husband had telephoned
her when it happened. She said that he had not complained about any back
problems arising out of that accident, nor had he sought any medical advice or
pursued any medical treatment. I accept her evidence without reservation.

The Background of the Plaintiff

[13]        
The plaintiff is 35 years old. He was 32 years old when the accident
happened. He grew up in Enderby, graduating from high school there in 1997.

[14]        
He described himself as a good student who passed regularly from one
grade to the next receiving average grades in the process. Throughout high
school, he was assigned a learning assistant. He had, and has today, difficulty
reading and spelling. He describes himself as being “good” in mathematics
provided he has a calculator. His parents purchased him a laptop computer when
he was in high school to assist him in his studies. Mr. Preece impressed
me as a concrete thinker whose skills and abilities lie in areas that do not
involve complicated or abstract analysis.

[15]        
After completing high school, Mr. Preece completed a six-month
program in auto body repair and a further three-month program in auto body
painting. Although he enjoyed that kind of work, he was unable to get a job in
that field after he completed school. He obtained a job at the sawmill in
Enderby in the meantime. He worked in the sawmill as a lumber piler and
sometimes a forklift operator for the next seven years. He tried again to
secure employment in the auto body repair industry, and this time was
successful. He was hired to do sandblasting and painting at an auto body shop
in Salmon Arm. He testified that he enjoyed the work, but in February 2010,
after three years with the auto body shop, he was hired at Okanagan Aggregates
also to do sandblasting and painting but at a higher rate of pay. He was
working at Okanagan Aggregates at the time of the accident.

[16]        
Mr. Preece and Ms. MacKenzie married in 2003. They have three
children. Their oldest child, who is now 14 years old, was with Mr. Preece
on the day of the accident. He was not injured in the collision.

[17]        
Mr. Preece and Ms. MacKenzie purchased a 2.5-acre parcel of
land near Grimrod in 2002. There was a mobile home on the property. The
property is in a rural setting not far from the Salmon Arm cross-country ski
facility. Mr. Preece and Ms. MacKenzie both enjoy outdoor activities
– hiking, riding all-terrain vehicles and cross-country skiing. They planned to
build a home on their acreage and expected to live there indefinitely.

[18]        
Ms. MacKenzie has a high school education and has taken some
computer courses at Thompson Rivers University. In the four or five years prior
to the accident, she worked as a forklift driver and more recently as a loader
operator.

[19]        
The mobile home in Grimrod was heated exclusively by wood. Mr. Preece
and Ms. MacKenzie would gather, split and pile six to ten cords of
firewood annually. Although this chore involved significant effort, my sense is
that they both enjoyed doing it. Because of the elevation of their property,
they received six to eight feet of snow per year, and Mr. Preece assumed
responsibility for snow blowing their reasonably long driveway.

The Plaintiff’s Injuries and Their Consequences

[20]        
As noted above, the plaintiff went to the emergency department of the
hospital in Salmon Arm on the day of the accident. He testified that he was
experiencing pain in his lower back and felt numbness in his right leg. By the
time he was seen at the hospital, he described his pain as severe. He
received pain medication by injection at the hospital and was given a
prescription for anti‑inflammatories and pain killers. He was advised not
to go to work, and as a result, he went home and remained off work for the next
two weeks.

[21]        
He saw his family doctor, Dr. Jeff Millar, on October 12, 2010. He
reported to Dr. Millar that he had pain and stiffness in his upper back
but that these symptoms were diminishing. His pain in the sacroiliac joints of
his back remained significant and was impairing his ability to bend over and
thus his ability to do his job. He also told Dr. Millar that he had some
minor numbness in his left leg. Dr. Millar advised Mr. Preece to
remain off work for one or two weeks and to attend physiotherapy. He gave him a
prescription for an anti-inflammatory analgesic.

[22]        
Mr. Preece testified that his pain was severe in the 10 days or two
weeks following the accident. He could not move from a sitting position to a
standing position without the assistance of his wife. By October 15, 2010, his
low back pain had subsided to the point that he felt he should try to return to
work. He did that and his employer placed him on light duties.

[23]        
Mr. Preece’s job with Okanagan Aggregates was very physically
demanding. Generally, his responsibilities were to sandblast heavy equipment in
preparation for painting. He was also responsible for the painting. To
sandblast the equipment, he was required to carry a hose pressurized to 150
pounds per square inch, up and down a ladder as he worked his way around a
piece of equipment. He might have to climb a ladder carrying the hose 25 times
in an hour. In addition, he needed to regularly replenish the sand being
discharged through the hose. The bags of sand weigh about 100 pounds. He was
required to do all of this work while wearing a helmet equipped with eye
protection and a breathing hose. The painting aspect of his job was less
physically demanding but still required him to adopt odd postures as he reached
around, under and over equipment. It also required frequent work from ladders.

[24]        
Notwithstanding the very physical nature of the job, Mr. Preece
enjoyed the work. It was, he testified, the kind of work he had gone to school
to perform. He took satisfaction in making a piece of equipment that looked old
appear new again.

[25]        
His job at Okanagan Aggregates was seasonal. In mid-November each year,
he would be laid off. Over the winter he received employment insurance,
generally returning to work with the advent of the paving season in May. In
2010, Mr. Preece remained on light duties from October 15th until mid‑November
when he and the other employees were laid off for the season. He hoped
that the six-month layoff would allow his low back to heal, such that he could
return to his regular duties.

[26]        
He returned to work in May 2011. He resumed his regular duties
sandblasting and painting, but his employer provided him with a helper to aid
with the heavier lifting the job required. Mr. Preece worked through the
2011 season, and although he did not miss time from work, he did not accept
overtime shifts that were typically available and which he had, in past years,
readily accepted.

[27]        
By the end of the 2011 season, Mr. Preece had come to the
conclusion that the pain he was experiencing in his low back was such that he
needed to consider pursuing a less physically demanding job. His father is a
truck driver and Mr. Preece had, from time to time, thought about pursuing
a career as a truck driver. With the physical limitations arising from his low
back pain, he decided to pursue that vocation over the winter of 2011/2012.

[28]        
In order to obtain a truck driving position, Mr. Preece needed to
secure a Class 1 driver’s licence and complete an airbrake course. The Class 1
driver’s licence test has both a written component and a practical or road
component. Perhaps predictably, given Mr. Preece’s intellectual
limitations, he failed the written component of the driver’s test three times.
He was successful on the fourth attempt. Perhaps equally predictable, given Mr. Preece’s
practical bent and manual dexterity, he passed the road test aspect on his
first attempt. He received his licence in May 2012.

[29]        
He returned to work with Okanagan Aggregates in May. His employer again
accommodated him by assigning him a truck driving job. The truck driving job he
was given was one that required about four hours per day to complete. In the
remaining six to eight hours of a typical shift on the paving crew, Mr. Preece
did other duties that involved manual labour associated with road paving.

[30]        
Mr. Preece did this constellation of duties over the summer, but
the manual labour component of his job proved difficult. By the late summer, he
concluded that he would not be able to continue. Ms. MacKenzie began
searching on Internet job sites for truck driving jobs that her husband might
apply for. She found a job in Lloydminster, Alberta. She and Mr. Preece
drove there with their fifth-wheel trailer. Mr. Preece was interviewed and
offered a job. The job involved driving a tanker truck to oil wells scattered
throughout the Lloydminster area. In order to do the job, it is necessary for
the truck driver to be able to find specific oil wells using a map. During the
initial period of his employment, Mr. Preece was assigned to a regular
driver and given the task of navigating to the various wells that had to be serviced.
He was unable to find the wells using the map. Although he thought he was
slowly mastering the task, his employer lost confidence in him and he lost the
job. He got another job driving a different kind of truck, but the physical
demands of that job proved too much, and he lasted just a day. He obtained a
third job near the community of Marewayne. He and his spouse moved their
fifth-wheel trailer to Marewayne and Mr. Preece took up that job. Problems
arose with the way he was being paid, and he left that job after two months. On
October 22, 2012, Mr. Preece was hired by his present employer. This job, like
the first job he accepted in Lloydminster, involved driving a tanker truck to
oil wells in the Marewayne area. When he was first hired, he was paid $25 per
hour (the same hourly rate he was earning at Okanagan Aggregates). In June or
July of 2013, his wage increased to $27 per hour. He continues to work for the
same employer today.

[31]        
The plaintiff’s employer at Okanagan Aggregates described the plaintiff
as “a good kid”, “a good worker”, someone who got along with others, and
was generally a reliable employee at least until his motor vehicle accident. The
plaintiff’s current employer regards him as a valuable employee. Although the
plaintiff has only worked for his present employer for about a year, in that
time, he has received a raise and his employer has accommodated him by
providing him with less physical jobs during the periods that the plaintiff is
not actually required to be driving a truck.

[32]        
Returning to the course of the plaintiff’s injuries, he saw Dr. Millar
on February 18, 2011, and again on April 29, 2011. When his pain
persisted, Dr. Millar arranged for x-rays. Those x-rays were taken in
early May, and they revealed “moderate disc space narrowing at L4-5 and L5-S1
with mild narrowing at L3-4”. These findings led Dr. Millar to conclude
that Mr. Preece has “chronic degenerative arthritis and disc space
narrowing in his lumbar spine”.

[33]        
Mr. Preece takes Ibuprofen and Tylenol twice a day and more
frequently when his is not working. Although the physical demands of his job
coupled with the reasonably constant discomfort he experiences are tiring, working
provides some relief inasmuch as he is more limber when he is working than when
he is sedentary. He has taken prescription analgesics and anti-inflammatory
medication from time to time since his injury. He wears a lumbar brace all the
time, save when he is sleeping.

[34]        
When Mr. Preece gets home from work, he applies ice to his low
back, and when he gets home early enough, he spends time in a jet tub in the
home he and his wife occupy in Marewayne.

[35]        
The plaintiff impressed me as a stoic individual. In May 2013, he
suffered a hernia. The hernia will need to be surgically repaired. While he has
met with the surgeon, the surgery itself is yet to be scheduled. He wears a
hernia belt, but in spite of that, the hernia sometimes protrudes causing him
significant pain. He testified that when that happens, he “tries to push it
back in” and takes more Tylenol.

[36]        
I accept that Mr. Preece is in reasonably constant mild to moderate
discomfort in the area of his low back. I accept that his level of discomfort
is elevated at the end of most working days. Further, I accept that
periodically he experiences acute and very painful episodes.

[37]        
Mr. Preece has learned that bending over can exacerbate his
condition. As a result, he tries to avoid doing that. He now purchases work
boots that do not have to be laced up.

[38]        
Mr. Preece’s condition has had an effect on his recreational
activities. After the accident but before moving from the Grimrod area, he
stopped cross-country skiing and hiking. He was unable to gather the necessary
wood to heat his home. He solicited his father’s assistance with that chore.
Perhaps most significantly because he felt unable to continue working at
Okanagan Aggregates, the plaintiff and his wife decided to sell their home and
move to Alberta so that he could pursue a less physically job. Although they
both seem remarkably positive about the move, they both testified, and I
accept, that prior to the accident, they looked forward to remaining on their
rural acreage and pursuing the recreational activities that living there
afforded. Living there also meant that they were close to their extended
families, Mr. Preece’s family in Enderby and Ms. MacKenzie’s family
in Kamloops.

[39]        
The only other medical evidence is that from Dr. James Filbey, a
physiatrist who assessed Mr. Preece on January 23, 2013. His report of the
same day was tendered in evidence. Dr. Filbey was not cross-examined. He
diagnosed Mr. Preece with lumbar spine pain secondary to or related
to spondylosis and myofascial/musculoligamentous in nature. Like Dr. Millar,
Dr. Filbey noted pre‑motor vehicle accident related degenerative
changes in his spine that were apparent on the x-rays that Dr. Millar had
ordered. As to these, he wrote:

…There is no indication that
these findings were symptomatic. The MVA is a point in time event that has rendered
his low back symptomatic and it is likely that the degenerative changes are now
symptomatic as a result. The degenerative changes indicate that he was likely
vulnerable to developing such symptoms in the setting of a trauma, however,
there is no indication that he would have developed symptoms had the MVA not
occurred.

[40]        
Dr. Filbey expressed the further opinion that based on the extent
of the degenerative changes apparent on the x-ray, it was “possible” that Mr. Preece
would develop symptoms like those that he is now experiencing, but that Dr. Filbey
would not expect that to occur “before his 5th decade and it is also quite
possible that he would not have developed any limiting symptoms absent trauma”.

[41]        
As to prognosis, Dr. Filbey wrote that the trauma sustained in the
motor vehicle accident:

…has lead [sic] to the onset of
clinical symptoms and this has resulted in a permanent change in the natural
history of his lumbar spine pain. The degenerative changes make it less likely
that he will have resolution of symptoms.

[42]        
Dr. Millar is essentially of the same opinion, that is, that the
motor vehicle accident caused trauma to Mr. Preece’s low back which
aggravated his arthritic condition and caused it to become symptomatic. Given
the persistence of Mr. Preece’s symptoms, Dr. Millar suspects “it
will never fully resolve and will likely continue to affect his quality of life
and work”.

[43]        
In summary, I am satisfied that the plaintiff suffered a moderate strain
to the lumbar and sacroiliac area of his spine. This traumatic injury triggered
a previously asymptomatic but chronic degenerative arthritic condition.
Further, I think it more likely than not that the plaintiff’s condition is
permanent. It is a condition that gives rise to constant but moderate pain
punctuated by periodic episodes of acute pain.

[44]        
Based on the opinion of Dr. Filbey, I am not satisfied there is, or
was, a “measureable risk” that the plaintiff’s pre-existing condition would
have detrimentally affected him in the future, at least prior to him turning 50
(see Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 35). If the
plaintiff continued to work in the very physically demanding job that he had at
the time of the accident, I think there is a measureable risk that his
degenerative condition would have affected him even in the absence of the motor
vehicle accident, by the time he was approaching age 50.

Non-pecuniary Damages

[45]        
As noted above, the plaintiff seeks non-pecuniary damages in the amount
of $80,000. In support of that position, counsel points to Wiener v. Ralla,
2009 BCSC 1743; Esau v. Myles, 2010 BCSC 43; Jackson v. Mongrain,
2010 BCSC 1866; Szymanski v. Morin, 2010 BCSC 1; Love v. Lowden,
2007 BCSC 1007; Kasic v. Leyh, 2009 BCSC 649; and Miller v. Lawlor,
2012 BCSC 387.

[46]        
The defendant argues that an award in the order of $30,000 for non‑pecuniary
damages is more appropriate relying in support on: Loik v. Hannah, 2009
BCSC 1196; Boutin v. MacPherson, 2012 BCSC 1814; Kailey v. Dhaliwal,
2007 BCSC 759; and Ludwig v. Frighetto, 2012 BCSC 1721.

[47]        
The 40-year-old plaintiff in Wiener v. Ralla suffered mechanical
neck, mid‑back and lower back pain that was unlikely to improve (or
deteriorate). The pain limited the plaintiff’s ability to do heavy or
repetitive lifting, or assume prolonged static or awkward spinal postures. His
injuries also compromised his ability to pursue his professional career. He was
awarded $75,000 in non-pecuniary damages. The plaintiff in Esau was
involved in a much more significant collision than was the case in the matter
at hand. Mr. Esau’s vehicle was written off from the damage it sustained.
He suffered a low back injury that left him in constant and reasonably
significant pain and periodically in severe pain (para. 25). Dr. Filbey,
who gave evidence in Esau, concluded that the plaintiff’s symptoms would
remain relatively constant over the long term. Heavy lifting, twisting, bending
and turning were activities that would likely aggravate his symptoms. Mr. Esau
suffered from pre‑existing back conditions (spondylolisthesis, spondylolysis
and Spina Bifida Occulta). Unlike Mr. Preece, Dr. Filbey opined that
there was “no indication” that Mr. Esau “would have, or would have ever,
developed symptoms in the low back” but for the accident. In the result, Ross
J. concluded that there was no measurable risk of Mr. Esau’s pre-existing
condition detrimentally affecting him in the future and, thus, no basis to
reduce any award as a result. She concluded that an award of $70,000 for
non-pecuniary damages was appropriate (para. 45).

[48]        
Mr. Szymanski was 55 years old at the time of his trial. He
suffered a “mild to moderate” injury to his neck and shoulder area which had
developed into a chronic condition. His condition limited his recreational
activities and was most evident when he was engaged in his reasonably
physically demanding job as a hardwood floor installer. He was awarded $75,000
in non-pecuniary damages (paras. 142-144). The plaintiff in Love v.
Lowden was 28 years old at the time of the accident that gave rise to that
litigation. He was very physically active prior to the accident. He sustained
chronic, ongoing and permanent injuries to his lower back and sacroiliac joint.
His injuries gave rise to noticeable but not “moderately severe” or
debilitating pain (para. 61). Gropper J. awarded $60,000 in non-pecuniary
damages.

[49]        
In Kasic, the 50-year-old plaintiff was, at the time of the
trial, “suffering continuous and debilitating pain”, a condition he endured
since the accident some four years earlier. His condition limited his ability
to twist, bend, or stand or sit for any appreciable length of time. Those
limitations were likely to be permanent. He was awarded $70,000 in
non-pecuniary damages. In Miller, B.D. MacKenzie J. awarded the
24-year-old plaintiff $65,000 in non-pecuniary damages. Mr. Miller
suffered “chronic pain and discomfort in varying degrees”. That condition had
diminished his quality of life and his prognosis for further recovery was poor.

[50]        
Mr. Preece’s circumstances are less serious than those in Miller
v. Lawlor, in part because he is older. His circumstances are very similar
to those in Esau v. Myles but for the implications of Mr. Preece’s
pre-existing degenerative arthritis. His circumstances are similar to those of Mr. Szymanski,
except that Mr. Preece is younger than Mr. Szymanski.

[51]        
The plaintiff in Loik was 46 years old. She suffered soft tissue
injuries that kept her off work for several weeks but improved over time. At
the time of trial, some three years post-accident, she had not completely
recovered but the limitations of her injuries were relatively modest. She was
awarded $25,000 in non-pecuniary damages. The 55-year-old plaintiff in Boutin
was awarded $25,000 in non-pecuniary damages. Baker J. described his injuries
at para. 52 as follows:

[52]      While Mr. Boutin
did experience some pain, discomfort and stiffness as a result of the injuries
to his neck and back, he did not lose range of motion and he was able to return
to his physical and recreational activities relatively quickly after the
accident. His injuries did not incapacitate him from working, but he did
experience discomfort while working. He continued to have some mild,
intermittent symptoms at time of trial.

Mr. Boutin’s injuries were much less significant
than those sustained by Mr. Preece.

[52]        
The plaintiff in Kailey was 36 years old. He had a physically
demanding job as a stucco worker. He suffered a moderate soft tissue injury.
The most pronounced symptoms he experienced had substantially diminished by
three months post‑accident. By the time of the trial, some three years
after the accident, even though symptoms that had continued to bother him
following the initial acute phase had moderated such that they only had a
“minor impact” on his ability to do his physically demanding job (para. 40).
Mr. Kailey was awarded $27,000 in non‑pecuniary damages. I regard Mr. Kailey’s
injuries as significantly less serious than those of Mr. Preece.

[53]        
Mr. Ludwig was 40 years old at the time of the trial. He suffered
neck, shoulder, and upper and lower back strain in a motor vehicle accident.
Those injuries had substantially improved by the time of the trial but had not
“completely resolved”. He would experience flare-ups if he sat for a prolonged
period (para. 62). Mr. Ludwig’s “prognosis for a full recovery [was]
promising”. He was awarded $30,000 in non-pecuniary damages.

[54]        
I am satisfied that the plaintiff will continue to suffer generally
chronic levels of moderate pain punctuated by relatively infrequent episodes of
severe pain. This condition caused him to sell the property he and his wife
looked forward to developing, move from the community in which he was born and
raised, limit the physical activity he enjoyed by way of recreation, and
negatively affected his intimate relations with his wife and his general
ability to enjoy life. I am satisfied that there was a measurable risk that he
would experience some of these symptoms as a result of his pre-existing
degenerative condition, but that the symptoms would not have been as severe and
would not have been experienced until much later in his life. Taking all of these
matters into account, I am satisfied that non-pecuniary damages of $75,000 are
appropriate in this case.

Loss of Future Income Earning Capacity

[55]        
The plaintiff argues that on the evidence in this case, “there is a real
and substantial possibility of a future event leading to an income loss” (Perren
v. Lalari, 2010 BCCA 140 at para. 32). Because his loss is not easily
measureable, the plaintiff argues that the capital asset approach described in Pallos
v. Insurance Corporation of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.),
and Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), is the
appropriate method by which to quantify his loss.

[56]        
The defendant argues that the plaintiff has not proven a substantial
possibility of a future event leading to an income loss. At best, the evidence
supports a speculative conclusion that the plaintiff’s injuries may have some
effect on his future employability, and that is not sufficient to warrant an
award.

[57]        
The defendant argues that several cases bearing factual similarity to
the matter at hand support the conclusion that no award is appropriate. Those
cases include Beagle v. Cornelson Estate, 2013 BCSC 933; Wiilson v.
Honda Canada Financial Inc., 2013 BCSC 1137; Daitol v. Chan and
Agostinho, 2012 BCSC 209; and Moore v. Cabral, 2006 BCSC 920.

[58]        
The defendant points to the fact that the plaintiff now works up to 16
hours per day in his current job and has missed very few days from work as a
result of his injuries. Further, he is making more money now than he did when
employed with Okanagan Aggregates. Moreover, he enjoys his work and has no
immediate plans to pursue a different career and if he were to do so, he noted
in his evidence that there are a lot of truck driving jobs available in the Marewayne
area. All of this, the defendant argues, militates against the conclusion that
there is a real and substantial possibility of a future event leading to an
income loss. At best there is speculation.

[59]        
I think it useful to begin with a consideration of the facts in some of
the cases cited by the defendant. In Perren v. Lalari, the 34-year-old
plaintiff suffered soft tissue injuries in a motor vehicle accident. Her
condition was chronic and likely to continue indefinitely. She was employed in
a management position with the provincial government. Her injuries did not
affect her ability to do her job or to do any similar job. They did, however,
render her less competitively employable in a position that required heavy or
repetitive work. Garson J.A. held that in these circumstances, the plaintiff
had failed to prove a substantial possibility of a future event leading to an
income loss. That was so even though, viewed in isolation, her circumstances
satisfied some, indeed most, of the considerations outlined in Brown v.
Golaiy and adopted in Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393
(C.A.). In Beagle v. Cornelson Estate, the 41‑year-old plaintiff
was employed as an office manager working at a desk and “working at a computer
but also necessarily moving about and interacting with her colleagues…” (para. 4).
Like Mr. Preece, Ms. Beagle had missed very few days from her work
following the accident and indeed increased her hours and responsibilities.
That was so notwithstanding that she continued to experience pain associated with
her soft tissue injuries five years after the accident. Her claim for
compensation for loss of future income earning capacity was dismissed. Jenkins
J. concluded that Ms. Beagle’s injuries did not limit her ability to
perform her job, nor was it likely that they would limit her ability to perform
other similar work. At paragraph 55, he noted that it was “extremely unlikely”
that Ms. Beagle would pursue more physically demanding work, and it was
only if she were to do that that her injuries would affect her income earning
capacity.

[60]        
In Wilson v. Honda Canada Financial Inc., the plaintiff’s claim
for loss of future income earning capacity was also dismissed. Mr. Wilson
was a firefighter who also worked renovating houses and apartment buildings.
Fitzpatrick J. held that Mr. Wilson’s injuries had almost entirely
resolved by the time of the trial. Those which remained included some pain in
his neck and shoulder with accompanying headaches, but even those were
occurring on a “very intermittent basis” (para. 75). She concluded that
there was simply no evidence to support a claim of future disability (para. 71).
In view of that, she held that there was no medical evidence that the plaintiff
was unable to complete any of the tasks associated with renovating houses or
buildings, and as a result, he had not established a substantial possibility of
a future event leading to an income loss (para. 157).

[61]        
In Daitol v. Chan and Agostinho, Griffin J. held that the
plaintiff’s injuries, which included TMJ problems and left knee issues, were
likely to be long-term in their effect (para. 53). The plaintiff was
employed as a medical office assistant. Her injuries did not affect her ability
to do sedentary jobs or jobs involving physical demands similar to the career
she had chosen. In the result, she held that there was no real and substantial
possibility that the plaintiff would be unable to work in her chosen field in
the future.

[62]        
Similarly in Moore v. Cabral, MacKenzie J. (as she then was)
found the plaintiff had demonstrated no impairment of his ability to pursue the
kinds of employment he had been pursuing at the time of the accident and was
likely to pursue into the future. His claim for loss of future income capacity
was thus dismissed.

[63]        
Mr. Preece’s circumstances are different. Given his skill set, his
preferences, and his past work history, the kinds of jobs he will perform into
the future will all involve an element of physical labour. His present job
involves physical labour. His injuries limit his ability to do physical labour.
They do not prevent him from performing physical labour, but they limit his
ability to do so.

[64]        
Mr. Preece’s job with Okanagan Aggregates was very physically
demanding. I am satisfied that as a result of his injuries, he was unable
to that work. His employer accommodated his by assigning him a job that
involved driving truck and was generally less physically demanding duties. Even
that proved taxing for Mr. Preece. As a result, he pursued truck driving
positions in rural Alberta. The first truck driving job, he lost not because of
the consequences of his injuries but rather because of his cognitive
limitations. The next truck driving job he obtained was too physically
demanding. It involved a lot of stationary standing which he cannot tolerate
due to his injuries. It is true that his present employer, like most of his
earlier employers, values him as an employee. His employer has equipped the
truck that he drives with a more comfortable seat. The truck he drives is new
and has very good suspension. Even with these circumstances, Mr. Preece
continues to experience reasonably constant pain.

[65]        
The foregoing demonstrates that a variety of jobs that would otherwise
have been suitable to and pursued by Mr. Preece are beyond his abilities.
Other common trucking jobs, such as driving a low bed, as his father does, are
beyond Mr. Preece’s physical abilities.

[66]        
I accept that Mr. Preece will continue working for his present
employer as long as he can. I also accept that there is no immediate prospect
of his employer going out of business or otherwise terminating Mr. Preece’s
employment. It does not follow, however, that the prospect of losing this job
is mere speculation. Any number of future contingencies may give rise to a loss
by Mr. Preece of his present employment. The economy may slow; his
employer may sell out. If these or any other such events were to occur, Mr. Preece
would be at a competitive disadvantage in pursuing employment of the kind he is
suited for and likely to pursue. Unlike the plaintiff in Perren v. Lalari
or Daitol v. Chan, Mr. Preece’s injuries will limit his ability to
earn an income in the future should he find it necessary to secure another job.
Moreover, if another position were available that for other reasons Mr. Preece
found attractive, he would be unable to pursue it if it involved any more
physical labour than is required to carry out his present job.

[67]        
I am satisfied that there is a real and substantial possibility of a
future event giving rise to a loss of income.

[68]        
The next issue how that loss is to be quantified, that is, whether the
earnings approach or capital asset approach is most appropriate in the
circumstances. In Kwei v. Boisclair, the court adopted the
considerations noted by Finch J. (as he then was) in Brown v. Golaiy.
Those factors are 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.

(Kwei
at para. 25)

[69]        
All of these circumstance or considerations apply to Mr. Preece. He
is less capable overall from earning income from the kinds of employment that
he is apt to pursue. For the same reason, he is less marketable to employers
that he is likely to apply to. Further, he has lost the ability to take
advantage of job opportunities that he would otherwise pursue were they
available to him. Finally, he is an individual who takes some pride in the work
he does, and to that extent, he is less valuable to himself as a person capable
of earning income in a competitive labour market. Mr. Preece’s loss is
best quantified using the capital asset approach.

[70]        
Quantification of loss of future income earning capacity on the capital
asset approach usually involves some multiple or fraction of the plaintiff’s
annual income. Mr. Preece argues that for purposes of quantification, his
income should be taken at $50,000 per year and seeks an award of $150,000 under
this head of damages.

[71]        
It is appropriate to take account of the likelihood of a future event
occurring giving rise to a loss of income. That is not determinative of an
appropriate award under this head, but it is a factor to be accounted for. On
the basis of that circumstance and all the other evidence, I am satisfied that
an appropriate award for loss of future income earning capacity in this case is
$75,000.

Mitigation

[72]        
The defendant argues that Mr. Preece has failed to mitigate his
losses by not following his doctor’s recommendations regarding physiotherapy
and not pursuing either a gym or a home-supervised exercise program as
recommended by Dr. Filbey.

[73]        
In Wahl v. Sidhu, 2012 BCCA 111, MacKenzie J.A. held at para. 32:

[32]      The test for failure to mitigate by not pursuing a
recommended course of medical treatment is set out at para. 57 of Chiu
v. Chiu, 2002 BCCA 618, 8 B.C.L.R. (4th) 227:

In a personal injury case in which
the plaintiff has not pursued a course of medical treatment recommended to him
by doctors, the defendant must prove two things: (1) that the plaintiff acted
unreasonably in eschewing the recommended treatment, and (2) the extent, if
any, to which the plaintiff’s damages would have been reduced had he acted
reasonably.

See also Gregory v. Insurance
Corporation of British Columbia, 2011 BCCA 144, 17 B.C.L.R. (5th) 101.

[74]        
Dr. Millar recommended that Mr. Preece pursue a course of
physiotherapy. He first made that recommendation in December 2010. He repeated
it in February 2011 and again in May 2011.

[75]        
Mr. Preece testified that Dr. Millar told him in December 2010
to simply look in the telephone book for a physiotherapist and arrange a course
of treatment. Mr. Preece said that he was confused by that advice and did
not pursue it as a result. When he saw Dr. Millar in February, he said he
was confused and Dr. Millar provided more concrete suggestions regarding
the pursuit of physiotherapy which Mr. Preece then pursued. On its face, Mr. Preece’s
claim of “confusion” is, as the defendant characterized it, “weak”. I accept it
however. It is consistent with the plaintiff’s evidence generally and with his
limited cognitive capacity.

[76]        
A second argument advanced by the plaintiff is that even had he pursued
physiotherapy earlier and perhaps longer, the evidence does not support the
proposition that such treatments would have positively benefited his
symptomology. To a significant degree, the plaintiff’s injuries are the result
of the activation of a pre‑existing arthritic condition in his back. Dr. Millar’s
uncontradicted evidence is that physiotherapy would not have alleviated Mr. Preece’s
symptoms to the extent they were secondary to his arthritic condition. While
there is merit in this submission, it does not entirely address the defendant’s
argument. That is so because, at least in part, the plaintiff’s injuries are
soft tissue in nature. Dr. Millar said as much and the plaintiff’s
evidence otherwise supports that conclusion in that he testified that he
experienced some relief as a result of the physiotherapy sessions he did attend
in the spring of 2011.

[77]        
On balance, however, I am not persuaded that the defendant has proven a
failure to mitigate. The plaintiff took the treatments recommended after he
overcame the confusion he initially experienced. In addition, as Dr. Millar
also pointed out, simply returning to a physically demanding job is a form of
physical therapy. The plaintiff testified that he typically feels better when
he is physically active at work than when he is sedentary on his days off.

[78]        
On balance, I am not persuaded that had the plaintiff pursued more
physiotherapy or participated in a structured exercise program, his symptoms
would have been appreciably reduced.

Cost of Future Care

[79]        
The plaintiff wears a back brace almost all the time. He has done so for
many months now. He replaces his brace once or twice a year. They cost $53
each. Dr. Filbey wrote that it is “not unreasonable” for Mr. Preece
to continue wearing the brace given the benefit he reports receiving from it.

[80]        
The plaintiff also consumes Tylenol and Ibuprofen on a regular basis.
Further, he is required to pay a portion of the anti-inflammatory medication
($6 per month). The defendant argues that at least some of the plaintiff’s
consumption of Tylenol is necessitated to relieve pain he experiences due to a
hernia he suffered independently of the accident.

[81]        
I am satisfied that both the annual or semi-annual expense for the back
brace and the amount claimed for medications are reasonable and medically
indicated in the plaintiff’s circumstances. In total, the expenses amount to
$240 per year for medication and $52 per year for the back brace. Discounted
for present value and on the basis that both the medication and the back brace will
be required by the plaintiff for the duration of his working life, I am
satisfied that it is appropriate to award $6,500 for the cost of future care.
This represents a $2,260 reduction from the gross amount, and that reduction is
intended to reflect contingencies.

Conclusion

[82]        
In summary, the plaintiff is entitled to judgment:

Non-pecuniary Damages ‑ $75,000

Loss of Future Income Earning Capacity ‑ $75,000

Past Wage Loss (agreed) ‑ $5,703

Special (agreed) ‑ $5,625.06

Cost of Future Care ‑ $6,500

[83]        
The parties are at liberty to address the question of costs if they are
unable to agree.

“G.M.
Barrow, J.”

The
Honourable Mr. Justice Barrow