IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140207

Docket: M113355

Registry:
Vancouver

Between:

Michael Shipley

Plaintiff

And

Travis O. Bye

Defendant

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Madam Justice Kloegman

Reasons for Judgment

Introduction

[1]            
The plaintiff, Michael Shipley, was rear-ended by the defendant, Travis
Bye on January 26, 2010, at the intersection of Royal Oak Avenue and Deer Lake
Parkway in Burnaby, British Columbia.

[2]            
The plaintiff was driving to work in a company F350 Cube truck. He was
stopped at the intersection when he heard a screech of brakes from the car
behind him and then felt an impact. He felt his seat belt tighten up, his hand
slip off the wheel, and the truck move about four inches forward, narrowly
missing the vehicle in front of him.

[3]            
The plaintiff got out of the truck, talked to the defendant who had been
driving the car behind him, exchanged information, and observed that the front
end of the defendant’s Jetta Volkswagen was pushed in. It looked like the
engine had dropped down. The plaintiff’s truck had two small dents in the back
bumper, and was repaired for $350.00. The defendant deposed on examination for
discovery that he had been quoted about $4,000.00 to repair his vehicle but
could not afford it and so repaired it himself for $100.00 and then sold it.

[4]            
The defendant did not testify and no submissions were made with respect
to the credibility of his evidence on discovery. I accept the plaintiff’s
submission that there was extensive damage to the defendant’s vehicle and that
the impact was not insignificant.

[5]            
The plaintiff claims that he suffers permanent injury to his back as a
result of the accident. He says the injury has seriously impacted his life and
prevented him from returning to most of the physical activities he enjoyed
before the accident. He submits that he was unable to work for two years, can
only work part-time at his current job, and has been foreclosed from pursuing
his journeyman’s ticket as a Refrigeration/Air Conditioning Mechanic. In
addition, the plaintiff claims that he has lost the opportunity to pursue full-time,
or even part-time, physically demanding occupations to which he was previously
suited. He has spent nearly $18,000.00 on trying to rehabilitate himself and
will require further funds for ongoing exercise and vocational training.

[6]            
The third party, Insurance Corporation of British Columbia (“ICBC”),
does not contest that the defendant is liable for the accident. However, the
third party takes the position that this was a minor crash, causing some soft
tissue injury to the plaintiff that has more or less resolved. Any current
problems experienced by the plaintiff were not caused by the motor vehicle
accident. The third party submits that the plaintiff was not a credible witness
and that his disability is not permanent, nor as extensive as he would have the
Court believe. The third party paints a picture of a young man who prefers not
to work, lacks ambition, and has not been significantly damaged in his career
prospects.

Injuries and Treatment

[7]            
After the accident the plaintiff continued driving to his work at the warehouse
of Cool Air Rentals Ltd. (“Cool Air”) where he had been employed since 2006. He
testified that he tried to work for the rest of the week but his pain became
too severe to return the following week. He described it as “pain from the
bottom of my back all the way to the top” and that he was “literally frozen in
bed for that time”.

[8]            
I have some concerns about the plaintiff’s recollection of his injuries
and accompanying symptoms. Although he testified to being frozen in bed for six
weeks, Facebook photographs showed him out with friends attending the Winter
Olympic events during February 2010, just two weeks after the accident.

[9]            
He also testified that he immediately experienced a tingling sensation
down his left leg. However, the day after the accident, he saw his general
practitioner Dr. Witherspoon and she reported in her medical legal letter
of October 23, 2012, that when she saw the plaintiff on January 27,
2010, he reported that the pain did not (my emphasis) radiate to his
legs; he had no sensory symptoms.

[10]        
The plaintiff returned to Dr. Witherspoon a week later, reporting
significant lower back pain and the occasional jolt or shock up the spine. She
found visible spasm and prominence of his left lower thoracic and lumbar
muscles and very limited movement of his lower back. On February 10, 2010, he
reported to Dr. Witherspoon that the intensity of his back pain was much
worse. Dr. Witherspoon recommended that he stop work. On February 22,
2010, he reported his mobility was better after the physiotherapy and
medication Dr. Witherspoon had prescribed him.

[11]        
By the end of March 2010, the plaintiff’s physiotherapist had indicated
that the plaintiff could return to work. On April 28, 2010, the plaintiff
reported to Dr. Witherspoon that he was able to work an eight hour day
with modified duties that did not involve heavy lifting. The pain in his back
was the same. He also reported a work place incident where he was kneeling and
as he got up he was hit in the back with an air conditioning unit so he had
more pain.

[12]        
Dr. Dost, a neurologist who performed an independent medical examination
of the plaintiff, opined in his report dated November 8, 2012, that the
radicular pain suffered by the plaintiff was more consistent with an injury
received from this workplace accident than the motor vehicle accident.
Radicular pain should have manifested within a month after the motor vehicle
accident. As it was, the plaintiff did not complain of numbness or tingling
until four months after the motor vehicle accident, but within a couple of
weeks of the workplace accident.

[13]        
The plaintiff testified that he was hit in the shoulder by the air
conditioning unit, not on the back. This is inconsistent with the clinical entry
of Dr. Witherspoon that records he was hit in the back. Given my previously
mentioned concerns with the plaintiff’s credibility, I cannot give his evidence
alone much weight. I cannot find on a balance of probabilities that the
plaintiff’s neurological symptoms were caused by the motor vehicle accident. In
any event, both Dr. Dost and Dr. Weiss agree that the plaintiff’s
neurological symptoms have completely resolved. The pain that he has
consistently experienced since the motor vehicle accident is mechanical, or
purely musculoskeletal back pain.

[14]        
On April 28, 2010, Dr. Witherspoon decided to refer the plaintiff
to a physiatrist, Dr. Weiss. The plaintiff reported to Dr. Weiss on
July 13, 2010, that initially he had no complaint of paresthesia involving his
lower extremities. However, on further questioning by Dr. Weiss, the
plaintiff described intermittent symptoms of numbness or tingling radiating
down his leg. Dr. Weiss diagnosed a herniated disc with irritation of the
left L-5/S-1 nerve roots, the natural history of which was slow and gradual
improvement with healing to take as long as six months.

[15]        
In December 2010, Dr. Weiss recommended that the plaintiff maintain a
relatively sedentary lifestyle to allow for further healing. By December 2011,
a CT Scan indicated that the prior herniation had retracted and there was no
structural evidence of radiculopathy, or nerve root involvement. However, the
CT Scan revealed a structurally abnormal joint at the L3/4 level where the
plaintiff was complaining of pain. Dr. Weiss advised the plaintiff to work on
improving his fitness and strength.

[16]        
The plaintiff continued to have pain in the L3/4 area, even after taking
prescribed medication, so Dr. Weiss arranged for him to receive a
corticosteroid injection on March 16, 2012. The plaintiff reported a
reduction in symptoms. On September 27, 2012, the plaintiff underwent an
injection into his left ilio-lumbar ligament resulting in a significant
reduction of symptoms. In December 2012, Dr. Weiss referred the plaintiff
for another of these injections with even more success.

[17]        
On March 1, 2013, Dr. Weiss encouraged the plaintiff to embark on a
graduated return to work, avoiding heavy lifting, bending, and twisting of his
back.

[18]        
On August 16, 2013, Dr. Weiss described the plaintiff as being in very
good physical shape. Nonetheless he recommended caution when getting back to
his previous activities.

[19]        
In his report of September 17, 2013, Dr. Weiss concluded that:

1.     The motor
vehicle accident produced an acute discogenic injury at the L4-5 level with
possible L5 nerve root irritation. The plaintiff’s radicular symptoms had
resolved and the disc prolapse had retracted.

2.     The
current pain that the plaintiff was feeling was multi-factorial from a
discogenic lesion at the L4-5 level, a pre-existing but a symptomatic
dysplastic L3‑4 facet joint which had become inflamed from the accident,
and soft tissue/ligamentous pain at the ilio-lumbar region which Dr. Weiss
could not say was caused by the accident.

[20]        
Dr. Weiss also opined in his report of September 2013 that the plaintiff
had lost the physical capacity and functionality to perform heavier forms of
work related activity. He stated that it is also likely that the plaintiff will
remain compromised in his ability to perform heavy physical work due to
persistent back pain, some of which was directly attributable to the accident.
Dr. Weiss could not say that the accident had caused any acceleration in
degenerative disc disease of the plaintiff’s lower back.

[21]        
With the exception of the cause of the possible nerve root involvement
at L5, Dr. Weiss’ conclusions were not challenged or contradicted and I accept
them as accurate. I find that an L4-5 discogenic injury and an aggravation of a
previously asymptomatic congenital dysplastic L3-4 facet joint were caused by
the motor vehicle accident. Any other injuries or pain complained of by the
plaintiff during the material time have not been proved, on a balance of
probabilities, to have been caused by the subject accident.

Non-Pecuniary Damages

[22]        
The plaintiff and his family all described his pre-accident activities
as sports oriented and an area in which he excelled.  He was an aggressive
skier and snow-boarder, played lacrosse, soccer, football and was an amateur
disk jockey. He golfed with his dad, sailed with his mother and played some
basketball. While he was not an academic achiever at school, he earned an “A”
in physical education. He was very social and had a good group of friends.

[23]        
The plaintiff testified that since the accident, he had not snowboarded
because it is too risky. The twisting motion of a golf club was not a good
idea. He did not play soccer or run, but he was able to juggle a soccer ball
and throw a football or Frisbee. He was able to swim and did so three times a
week. He also worked out regularly at a gym. He still had a good social life,
although he no longer did all the same activities with his friends.

[24]        
Although the plaintiff did not suffer from depression, he testified that
his mood had improved since returning to work. He had been frustrated that
because he could not work, he could not afford to move out of his mother’s
home. He had undergone extensive physiotherapy and three cortisone injections
to his back. He was left with residual lower back pain and the inability to
perform heavy physical tasks or engage in strenuous, risky sports activities.
His future employment prospects may have been compromised.

[25]        
I have reviewed the authorities provided to me by both counsel, some of
which were the same. The most factually similar cases are Esau v. Myles,
2010 BCSC 43; Roy v. Storvick, 2013 BCSC 1198; Peso v. Hollaway,
2012 BCSC 1763; and Jackson v. Jeffries, 2012 BCSC 814. It appears from
these cases that the plaintiff’s damages are in the range of $70,000 to
$100,000. In my view, the plaintiff here should be awarded the sum of $85,000
for non-pecuniary damages.

Past Income Loss

[26]        
The plaintiff returned to work at Cool Air immediately after the
accident. He found after a few days he could no longer function. He was off
work from February 4 to March 19, 2010. He returned to work at Cool
Air on a graduated basis until January 28, 2011, at which time he stopped
and did not return until more than two years later, on March 26, 2013. At
the time of trial, he was currently working approximately four hours per day,
five days per week at a rate of $15.75 per hour.

[27]        
Cool Air has been an extremely accommodating employer. Mr. Paterson,
Vice-President and Corporate Counsel of Cool Air, testified that when the
plaintiff returned to work on March 22, 2010, the company made sure he
increased his hours slowly and did not do any real heavy physical labour.
Instead of assigning the plaintiff to installation tasks which involved moving
heavy equipment, Mr. Paterson had him organize the warehouse. Eventually
Mr. Paterson concluded that the plaintiff was simply not progressing as they
had hoped. He felt for the plaintiff’s own well-being that the plaintiff should
stop and do further rehabilitation to regain his abilities. The company’s view
was that maybe they could have continued to provide him work, but it was
preferable that he take time off to get better. They did not proceed with any
formal lay off and kept paying his benefits, expecting him to come back in a
few months. When he did not return within a few months, Mr. Paterson
helped him apply for long-term disability benefits. They kept in touch.
Ultimately the plaintiff suggested he return to work in 2013.

[28]        
Notably, Mr. Paterson was under the assumption when the plaintiff left
in January 2011 that he was following the advice of his medical advisors that
he should stop working to rehabilitate. Mr. Paterson did not know that no
practitioner had told the plaintiff he should not work at all.

[29]        
The plaintiff testified that he was “laid off” by Cool Air in January
2011. He could not remember if he had been told by anyone not to work after
January 2011. He testified that Dr. Weiss told him “no heavy lifting”, but
on examination for discovery he had deposed that no doctor had imposed any
lifting restrictions; they had simply said to swim rather than run or cycle.
The plaintiff admitted to not looking for any jobs that might have been
suitable for his physical state at that time. He was not sure whose decision it
was to stay off work completely.

[30]        
The third party submitted that the plaintiff’s decision not to work for
the entire period between January 2011 and March 2013 was unreasonable, and I
agree. The plaintiff’s own occupational therapist, Ms. Hunt, opined in
October 2011 that the plaintiff was capable of working in sedentary
light/medium and even medium/heavy jobs full-time, with some limitations. Dr. Weiss
found by December of that year that the hernia had retracted and there was no
sign of nerve root involvement, although the aggravated L3-4 facet joint was
still causing some pain.

[31]        
The plaintiff submitted that as soon as Dr. Weiss recommended he return
to work, he did. However, it does not appear that Dr. Weiss ever advised
against working. In his report, Dr. Weiss stated that the plaintiff told
him on January 28, 2011, that his employer was suggesting he apply for
short-term disability benefits because he could no longer perform the heavier
tasks of his job. Dr. Weiss stated that on the number of occasions that he
saw the plaintiff, the plaintiff remained restricted in activities, “including some
work related tasks” (my emphasis). This observation came from the plaintiff’s
self-reporting. Nowhere in Dr. Weiss’ report or in his testimony did Dr. Weiss
opine that the plaintiff was not capable of working at all. Thus it appears
that the plaintiff led Mr. Paterson to believe it was his doctor’s
decision that he should stop working, and that he led Dr. Weiss to believe
it was his employer’s decision.

[32]        
It is commendable that the plaintiff pursued his rehabilitation
vigorously for 26 months, but there is nothing to suggest that he was not
capable of at least part-time work during that time in the categories outlined
by Ms. Hunt, or the vocations suggested by Mr. Nordin in his
vocational report of September 17, 2012. The plaintiff could not simply
refuse to work because his old job was no longer available: see Palmer v.
Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.), leave to appeal ref’d [1991]
S.C.C.A. No. 54.

[33]        
I find that the plaintiff’s claim for damages for past income loss
between January 28, 2011 and March 2013 must be discounted by 50% to
reflect compensation that the plaintiff could have earned during that time
period. Furthermore, the claim for lost income between March 2013 and trial
must be discounted by the amount that the plaintiff actually earned during that
time period.

[34]        
The plaintiff’s economist, Mr. Benning, calculated a past income
loss for the plaintiff on the assumption that without the accident the
plaintiff would have continued to work full-time at Cool Air to the end of
August 2011, at which time he would have entered a two year training program at
B.C.I.T. to become a Refrigerator and Air Conditioning Mechanic, or Domestic/Residential
Heating Technician and would have earned a corresponding salary. However, for
the reasons discussed below, this assumption was not shown on the evidence to have
been a substantial pre-accident possibility.

[35]        
In my view, the loss of the value of the work that the plaintiff would
have performed but was unable to do because of injuries sustained in the
accident can be realistically assessed from what he would have earned by
working full-time at Cool Air with overtime, bonuses and salary increases for
2011, 2012 and 2013. Plaintiff’s counsel submitted alternative calculations
based on this assumption. Using Mr. Paterson’s testimony, Cool Air payroll
records, and the plaintiff’s tax returns, plaintiff’s counsel calculated that
if the accident had not occurred and the plaintiff had continued to work for
Cool Air until March 2013, he would have earned approximately $124,000 gross
income more than he actually earned from the time of the accident to trial. This
figure of loss did not take into account the plaintiff’s failure to earn at
least part-time income between January 28, 2011 and March 2013.

[36]        
I will award the plaintiff the full amount of past wage loss claimed for
the year 2010 of $9,902 less 14% for income tax. As I do not believe that the
plaintiff’s decision not to work at all from January 28, 2011 through
March 2013 was reasonable, his claimed loss for this period must be discounted
by one-half the amount. Using the plaintiff’s chart at paragraph 97 of his
closing submissions, I find that the sum of $60,000.00 less 14% for income tax
represents a fair award for past income loss.

Future Income Loss

[37]        
Once again, all of Mr. Benning’s calculations for future income loss are
based on the assumption that the plaintiff would have obtained either a
Refrigeration and Air Conditioning Mechanic certification or a
Domestic/Residential Heating Technologist certificate from B.C.I.T. and gone on
to earn wages commensurate with those certifications.

[38]        
The evidence from the plaintiff was that he planned to undertake
training as a Refrigeration and HVAC mechanic in order to obtain his red seal
in the industry. However, other than a few general inquiries, he had taken no
steps towards this goal since he had started working at Cool Air in 2006.
Furthermore, based on the plaintiff’s academic record and vocational testing
results, his own expert Mr. Nordin did not think that this was a realistic
occupational goal. Mr. Nordin suggested the Domestic/Residential Heating Technology
program but there was no evidence from the plaintiff or anyone else that the
plaintiff had any interest in pursuing this occupation. In fact, the plaintiff’s
vocational test results disclosed that he had little interest in being anything
besides a nuclear physicist, racing car driver and fireman, none of which were
ever realistic options for the plaintiff.

[39]        
The plaintiff testified that he misunderstood part of the vocational testing
instructions. Mr. Nordin said they could be understood by anyone with a grade
four education. In my view, the plaintiff was either not cooperating during the
testing or really did not understand how to answer the questions. Either way,
his school history and his vocational test results reflect a low academic aptitude
and ability to learn, together with a lack of drive and ambition. Those
indicators suggest it is highly unlikely that the plaintiff would embark on any
career that required further course work. Mr. Nordin opined that the
plaintiff was limited to unskilled or semi-skilled work which is not too
physically demanding, and where the job duties are generally acquired through
on-the-job training.

[40]        
The plaintiff has resumed work at Cool Air on a graduated return to work
basis. At some point he should be earning a salary commensurate with full-time
work, although his job role will have to exclude heavy physical demands. In
addition, the plaintiff has lost the ability to perform some unskilled or
semi-skilled labour that is heavily physically demanding. He is young, with a
long life ahead of him. Even before the accident his occupational prospects
were limited. Now they have been further limited by the injuries suffered in
the accident.

[41]        
Since Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 252 (S.C.), the
law on future income loss is clear that each case must be assessed according to
that specific plaintiff’s loss. Some general principles to keep in mind are:

a)   
Has the plaintiff been rendered less capable overall from earning income
from all types of employment?

b)   
Has the plaintiff been made less marketable or attractive as an employee
to potential employers?

c)    
Has the plaintiff lost the ability to take advantage of all job opportunities
which might otherwise have been open to him, had he not been injured? and

d)   
Has the plaintiff become less valuable to himself as a person capable of
earning income in a competitive labour market?

[42]        
In Perren v. Lalari, 2010 BCCA 140 at para. 32, the court
stated that a plaintiff must always prove that there is a real and substantial
possibility of a future event leading to an income loss. If the plaintiff
discharges that burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach (Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133
(C.A.), leave to appeal ref’d [1990] S.C.C.A. No. 327), or a
capital asset approach (Brown). The former approach will be more useful
when the loss is more easily measureable, as it was in Steenblok. The
later approach is more useful when the loss is not as easily measureable, as in
Pallos v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d)
260 (C.A.), and Romanchych v. Vallianatos, 2010 BCCA 20.

[43]        
In my view, the plaintiff’s loss in the case before me cannot be
calculated on the earnings approach put forward by Mr. Benning because I
do not accept that the evidence has shown a real and substantial possibility that
the plaintiff would have gone on to become an Refrigeration and Air
Conditioning Mechanic or Domestic/Residential Heating Technician. An inability
to perform an occupation that is not a realistic alternative occupation is not
proof of a future loss: Steward v. Berezan, 2007 BCCA 150.

[44]        
Nonetheless, on the medical evidence, and the evidence of Ms. Hunt
and Mr. Nordin, the added restrictions to the plaintiff’s job capabilities
support a real and substantial possibility of loss of income in the future,
whether from his current job or other future employment.

[45]        
The plaintiff’s situation is akin to the plaintiffs’ in Esau, Roy
and Jackson. In these cases, the court chose the approach that
compensated the plaintiff for loss of a capital asset in the range of
$150,000.00.

[46]        
Taking into account the fact that the plaintiff is not yet back to full
time work, I award him $200,000.00 to compensate for his loss of future income
and loss of future earning capacity.

Special Damages

[47]        
The plaintiff presented a claim for $17,325.49 reflecting costs of
rehabilitation until trial. On a balance of probabilities, these costs were
probably reasonably incurred by way of mitigation and I will allow them as
presented.

Future Cost of Care

[48]        
Ms. Hunt’s recommendations may have been appropriate back in 2011, but I
find that in the plaintiff’s current situation, the only reasonable costs for
future care are for the swimming and gym membership. I am aware that the
plaintiff did attend a gym before the accident with his friends, but he no longer
does so, as his routine is different and must be performed where he can swim as
well. I award the plaintiff the sum of $5,000 for cost of future care.

Conclusion

[49]        
The plaintiff is entitled to the following compensation:

[50]        
Subject to the Supreme Court Civil Rules, B.C. Reg. 168/2009, the
plaintiff is entitled to his costs at Scale B.

“Kloegman
J.”