IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140422

Docket: M123360

Registry:
New Westminster

Between:

Edgar Bulpitt

Plaintiff

And

Scott Muirhead,
Skyco Resources Ltd. and Canadian Road Leasing Company

Defendants

Before:
The Honourable Mr. Justice Weatherill

Reasons for Judgment

Introduction

[1]            
This action arises out of a motor vehicle accident (the “Accident”) that
occurred on November 5, 2007.  The plaintiff was stopped at a traffic light
when his vehicle was rear-ended by the defendants’ vehicle.

[2]            
Liability is admitted.

[3]            
The plaintiff claims damages for:

                                                   
i.     pain
and suffering and loss of enjoyment of life;

                                                  
ii.     past
loss of income;

                                                
iii.     loss
of future opportunity/earning capacity;

                                                
iv.     future
care costs;

                                                 
v.     future
loss of homemaking capacity; and

                                                
vi.     special
damages.

[4]            
The defendants admit that the plaintiff was injured in the accident but
contend that his injuries resolved in relatively short order and that his
ongoing pain symptoms are the result of a pre-existing condition, not the Accident.

Evidence at Trial

a)    The Plaintiff

[5]            
The plaintiff is 46 years old.  He has been employed as a firefighter by
the City of New Westminster since 1990 (the “City”).  He worked his way up the
ranks from rookie, to Firefighter First Class, to Firefighter Second Class, to
Firefighter Third Class.  In 2003 he became a “Qualified Officer”, which means
he qualified to work as either a Lieutenant or a Captain if the need arose.  In
2006, he was “confirmed” as a Lieutenant.  In 2011 he was confirmed as a
Captain.

[6]            
New Westminster firefighters work two 10-hour day shifts and two 14-hour
night shifts over an eight day rotation.

[7]            
Work as a firefighter is physically demanding.  As a Captain, the
plaintiff primarily supervises and directs a team of firefighters.  However, he
may be called upon to engage in the physical demands of a regular firefighter
if the need arises.

[8]            
The plaintiff supplemented his firefighter’s income by working at other
jobs on his days off.  Initially he ran a welding business.  Subsequently he
owned and operated a modular fence-rental company.  He also did small home
renovation jobs for friends and acquaintances.

[9]            
The plaintiff had no history of neck pain or headaches prior to the
Accident.

[10]        
On November 5, 2007, the plaintiff was driving his 2004 Dodge pick-up
truck northbound on Highway 91 towards New Westminster.  It was a clear, dry
day.

[11]        
At approximately 8:30 am, he stopped at a traffic light, waiting to proceed
through the intersection at 72^nd Avenue.  It was rush hour and
traffic volume was heavy.  He was advancing toward the traffic light in what he
described as a “slinky effect” – the cars ahead of him would incrementally move
forward, followed by his vehicle and the vehicles behind him.

[12]        
Suddenly, the plaintiff’s vehicle was struck from behind by the
defendants’ Ford pick-up truck.  The vehicle was leased by the defendant, Skyco
Resources Ltd. (“Skyco”) from the defendant Canadian Road Leasing Company.  It
was being driven by Skyco’s employee, the defendant Scott Muirhead.

[13]        
The plaintiff had no warning of the collision.  Upon impact, his body
was violently jolted backward and then forward.  He described the jolting
sensation as similar to a “strong header” in soccer.

[14]        
The plaintiff instantly felt pain in his head and the back of his neck.

[15]        
The plaintiff and the defendant moved to the side of the road, exchanged
information and proceeded on their respective ways.

[16]        
Within ten to fifteen minutes, the plaintiff realized he was disoriented
and not feeling well.  He drove to the office of his long-time family
physician, Dr. Wong.  Dr. Wong was not available to see him.  The plaintiff
drove home.

[17]        
Shortly thereafter, the plaintiff’s wife drove him to a walk-in clinic. 
He was prescribed pain and anti-swelling medication.

[18]        
During the first month after the Accident, the plaintiff had steady,
intense pain in his neck and head.  He spent most of his days lying on the
couch and most nights “sleepless”.  He described the neck and head pain as a 6
or 7 on a scale of 1 to 10.

[19]        
After the first month, his pain became less intense, although it
persisted.

[20]        
The plaintiff was away from work on sick leave for several months after
the Accident.  When he returned to work he did very little other than light
duties.  The night shift in particular aggravated his pain symptoms and, on Dr.
Wong’s recommendation, he ended his graduated return to work program and
returned home to convalesce.    Approximately eight months after the Accident,
after undertaking physiotherapy, the plaintiff’s pain symptoms had improved such
that he was able to return to work on a full time basis.  He was unable to
recall whether he has taken any other time off due to the Accident.

[21]        
The plaintiff continues to suffer from headaches and neck pain due to
the Accident.  The pain is aggravated by upper body activities.  He feels as
though his condition has “plateaued”.  He has learned to live with his symptoms
and tries to manage his life and activities in a way that does not aggravate
them.

[22]        
Since his return to full time work, the plaintiff began volunteering for
the Rapid Intervention Team (“RIT”) – those who stand by at fire or accident
scenes and physically participate in firefighting duties only in the event of
an emergency involving other firefighters who are at risk.  He would prefer to
be actively involved in firefighting duties but he works with the RIT to avoid aggravating
his Accident-related injuries.  However, he testified that he would not
hesitate to respond if the need arose and the safety of his fellow firefighters
was in peril, even at the risk of his own safety or health.

[23]        
Since becoming a Qualified Officer in 2003, the plaintiff’s chosen
career path was to complete the requisite courses that would allow him the
opportunity to advance beyond Captain to non-union management positions, such
as Fire Chief, Deputy Fire Chief or Assistant Deputy Fire Chief.  He sold his
modular fence-rental business in October 2007, shortly before the Accident, to devote
his spare time to taking the predecessor to the current Fire Executive
Management Program (“FEMP”) at the British Columbia Institute of Technology
(“BCIT”).

[24]        
As a result of the Accident, the plaintiff is not able to do home
renovations.

[25]        
He researched the BCIT course load required for the FEMP and concluded that
he would not be able to handle it due to fatigue, his neck pain and headache
flare ups.  He felt he could not concentrate on more than one course at a time
and his understanding was that BCIT was unable to accommodate that more
leisurely pace.  It appears that BCIT has recently started to offer the FEMP both
part-time and on-line.  The plaintiff was unaware of this change.

[26]        
The plaintiff concluded that his aspiration of becoming a Fire Chief (or
Deputy) was no longer an option due to his inability to cope with the rigour of
the FEMP.  Instead he launched upon a new secondary career path.  He took
individual self-paced safety oriented courses at both BCIT and the University
of Fredericton.  In August 2011, he received an Advanced Level Certificate in
Health, Safety and Environmental Processes from the University of Fredericton. 
In June 2012, he obtained his Canadian Registered Safety Professional designation
and began a business that provides safety consulting services to, primarily,
the construction industry.  So far, he has been retained as a safety consultant
by two construction companies.

[27]        
Since the Accident, the plaintiff has taken numerous other courses
related to both his firefighting vocation (some mandatory and others not) and
safety within the construction industry.  Most of these courses required that
he write examinations.  He has recently been certified as an instructor for
Level One of the firefighter’s Structural Collapse Rescue Program.  He taught
this course for the first time in February 2013.

[28]        
A few months prior to the trial, the plaintiff submitted his application
for Assistant Deputy Fire Chief even though he has not taken the FEMP.  It
remains to be seen what will become of his application.

[29]        
The plaintiff’s income tax returns reveal that his employment income for
the years after the Accident was as follows:

2008                       $70,902

2009                       $98,426

2010                       $96,427

2011                       $97,885

2012                       $104,684

[30]        
From the date of the Accident to June 6, 2008, the plaintiff was paid
wages of $20,365.56 as part of the sick leave benefits under his collective
agreement.

[31]        
Prior to the Accident, the plaintiff was actively involved in many sporting
activities, including hockey at a competitive level, skiing (black diamond
runs), long distance biking, running, jogging and hiking.  He worked out at the
gym once per week on all weights and machines.

[32]        
As a result of the Accident, the plaintiff had to “dial everything down”. 
He is able to use the gym but avoids heavy weights and lifting above his head. 
He was unable to play hockey until 2013 (five years later after the Accident)
when he resumed playing in a non-contact, non-competitive “gentleman’s” league
once every few weeks.  He plays golf but it aggravates his neck pain.  His
skiing is now confined to cruising on green and blue runs.  He is able to hike
but finds that going down steep inclines jars his neck and aggravates the pain
and headaches.  He returned to biking two years post-Accident but he is only
able to ride for approximately 45 minutes.  Running and jogging is now limited
to one to two kilometers once or twice a week.  In 2012, he participated in
personal challenge events called “Super-Spartan” and “Warrior Dash” but he avoided
any activities and obstacles that aggravated his neck pain.

[33]        
He rarely does anything athletic without first taking pain medicine.

[34]        
The plaintiff’s sleep continues to be interrupted at night due to neck
pain.

[35]        
The plaintiff struck me as someone who is modest about his athletic talents. 
He did not exaggerate his pain symptoms.  Indeed, he downplayed them.  Plainly,
he is a stoic person who strives to do his best.  I found him to be a credible,
forthright and down to earth witness who gave his evidence in an honest manner. 
I accept his evidence in its entirety.

b)    Judith
Bulpitt

[36]        
Mrs. Bulpitt is the plaintiff’s wife of 22 years.  She testified about
the differences she has observed in the plaintiff after the Accident.

[37]        
She described the plaintiff before the Accident as an “over-achiever”, a
“pedal to the metal” kind of person.  He did everything with exuberance.  He
was highly productive and competitive.  He was skilled at mechanical and
handyman tasks.  He always had at least two jobs.  His career plan was to
“retire as Fire Chief”, which has been his aspiration since she met him in 1989.

[38]        
Since the Accident, the plaintiff has changed significantly.  He spends
a lot of non-productive time on the couch which frustrates him.  He is no
longer competitive.  He “lacks lustre”.  He is unable to do some of the tasks
around the house that he did prior to the Accident, such as painting (if it involves
reaching and lifting his arms) and plumbing.

[39]        
Prior to the Accident, the plaintiff was a “passionate, flat out going
for it athlete” who excelled in all sporting activities he participated in. 
Since the Accident he is no longer competitive at sports, whether it is hockey,
skiing, bike riding or running.  His physique has changed.  He is no longer as “buffed,
broad and muscular” as he was prior to the Accident.

[40]        
Mrs. Bulpitt confirmed that, after the Accident, she and the plaintiff had
extensively researched the BCIT courses required for the FEMP and concluded he
would not be able to manage the work load.  When the plaintiff subsequently
began taking on-line courses at home, he did so in a special chair with an
ottoman and pillow and often dozed off.  She said it was out of character for
him to do so.

c)     Dave
Phillips

[41]        
Mr. Phillips is a firefighter who is also employed by the New
Westminster Fire Department.  He has known the plaintiff since he began his
employment with the Department 18 years ago.  In addition to firefighting, Mr.
Phillips worked with the plaintiff in the plaintiff’s welding and fencing
businesses, as well as on some of the plaintiff’s home renovation jobs.  They also
played hockey and travelled together.

[42]        
Mr. Phillips described the plaintiff prior to the Accident as a person
who was driven and a very good athlete.  He was known within the New
Westminster Fire Department as a person who aspired to move into a management
position, of which there are three: Fire Chief, Deputy Fire Chief and Assistant
Deputy Fire Chief.

[43]        
Since the Accident, the plaintiff and Mr. Phillips no longer play hockey
or travel together.  He has not seen the plaintiff working out in the gym as he
used to before the Accident.

[44]        
Mr. Phillips testified that the FEMP was not well received by the
firefighters when it was introduced by New Westminster’s new Fire Chief in 2011
because several issues had not been addressed, such as a pre-requisite course
requirement for one of the BCIT courses and conflicts in work and holiday
schedules.  The FEMP has not been endorsed by the firefighters’ union.

[45]        
Mr. Phillips confirmed that the mandatory age of retirement for New
Westminster firefighters is 60.

d)    Chief Tim
Armstrong

[46]        
Chief Armstrong is the Chief of the New Westminster Fire Department.  He
has occupied that position since September 2009.

[47]        
Chief Armstrong drafted the FEMP and published it in October 2011.  Its
purpose was to provide a clear and transparent structure for management training
of firefighters within his department interested in advancing into a management
role.  Its impetus was the perceived lack of a succession plan within the Department
and the firefighters’ union’s position that the Department needed to find a way
for its members to become eligible for management positions rather than have
those positions filled from other jurisdictions.

[48]        
In Chief Armstrong’s opinion, the FEMP is a relatively easy program for
firefighters, requiring no more than three hours per week of BCIT courses. 
Yet, neither the union nor the firefighters have embraced it.  Not a single
firefighter has applied for enrollment in the program.

[49]        
The FEMP has now been adopted as a standard by fire departments
throughout British Columbia.

[50]        
The fact that a firefighter has not taken the FEMP does not disqualify
him/her from a management position.  There are many factors that are taken into
account during the selection process.  The FEMP is but one of them.

[51]        
Chief Armstrong’s income is approximately $162,000 per year.  A Deputy
Chief within his department earns approximately $125,000 per year.  However, Chief
Armstrong explained that each person hired in one of these management roles
negotiates his/her own salary and is paid commensurate with his/her individual
qualifications.

e)    Dr. Shek Wong

[52]        
Dr. Wong has been a practising family physician since 1966.  He has been
the plaintiff’s family doctor since the plaintiff was a small child.

[53]        
Dr. Wong testified as a lay witness.  He advised the Court that the
plaintiff had no reports of injury to his neck prior to the Accident.

[54]        
He saw the plaintiff on November 13, 2007, eight days after the
Accident.  He diagnosed an acute flexion injury to the plaintiff’s neck.

f)      Dominic
Shew

[55]        
Mr. Shew is an occupational therapist specializing in the field of
functional capacity evaluation.  He was called as an expert in that field.  The
defendants accepted his qualifications and expertise without debate.

[56]        
Mr. Shew conducted a two-day evaluation of the plaintiff’s capacity to
perform and sustain various workplace and other activities.  He used standard
protocol tests and work simulations.  He compared the plaintiff’s results to peer
reviewed and scrutinized normative standards published in the National
Occupational Classification and the Dictionary of Occupational Titles.  The first
day’s evaluation lasted seven hours and forty minutes.  The second day’s
evaluation lasted three hours and thirty minutes.

[57]        
Throughout testing, the plaintiff provided a high level of physical
effort.  In Mr. Shew’s opinion, the results of his testing were an accurate
representation of the plaintiff’s physical and functional abilities and
limitations.

[58]        
On cross-examination, Mr. Shew agreed that he had not discussed with the
plaintiff the physical demands that he personally faced in his vocation as a
fire fighter.  He insisted that he was well versed in the tasks fire fighters
perform and that the plaintiff had advised him there was nothing atypical in
his personal fire fighter duties.

[59]        
Mr. Shew tested the plaintiff’s ability to meet all demands of his job
and did not dwell on how often each task had to be performed.

[60]        
In Mr. Shew’s opinion, the plaintiff is able to manage all of his
administration duties as a captain.  He observed only mild functional
limitations while the plaintiff was sitting and no functional limitations while
the plaintiff was standing, walking or climbing:

Mr. Bulpitt demonstrated the capacity to safely and
dependably manage activity that requires sedentary to modified heavy level
strength through full body range….He also demonstrated the capacity to safely
and dependably manage heavier loads from sedentary to heavy level strength as
long as they were maneuvered from floor to knuckle height

Throughout testing, Mr. Bulpitt
did not demonstrate any significant functional restrictions tolerating activity
requiring hand dexterity, grasping, weight bearing…and low-level positions

[61]        
However, he found that the plaintiff was limited in his ability to
perform upper body tasks, particularly if they were repetitive or sustained:

During testing, he consistently demonstrated restrictions
tolerating activity that placed stress to his neck and upper back…These
restrictions were more pronounced as testing progressed and particularly during
work simulation.  There were measured restrictions in his tolerance for
two-handed lifting especially if he had to maneuver the loads above his
knuckle/waist height.  There were also restrictions in his tolerance for
sitting.  Further, there were restrictions in his cervical and shoulder
mobility.

With respect to avocational or unpaid tasks, test
results and clinical observations indicate that he is capable of performing
light…to heavy….homemaking chores as long as he paces himself appropriately
throughout the day and week.  However, he is likely to experience more
difficulty with tasks requiring the maneuvering of heavier items above his
knuckle/waist height and those that require reaching and positioning of his
neck and upper body for prolonged and repetitive periods.

Based on test results, Mr. Bulpitt demonstrated adequate
strength to safely perform brief periods of the basic physical requirements of
[a firefighter].  However, the measured decline in his ability to repeat the
two handed lifting task later on Day 1 and on Day 2 suggests that over time,
there would likely be a reduction in his functional strength particularly if he
was required to maneuver heavier loads above his waist/knuckle height.  Thus,
he will likely be restricted and unable to manage such demands if required,
which will likely place himself, his co-workers and others at risk of injury.

With respect to his work as a Fire Fighter, based on the
summation of the test findings, clinical observations and his response to
testing the days following the assessment, Mr. Bulpitt demonstrated the
initial, essential strength generally required of this line of work.  However,
his inability to sustain tasks requiring heavy level strength suggests that he
will not be able to tolerate such demands if required over the course of his
workday indicating that he will likely struggle and potentially be at risk of
injury.  In addition, the measured and functional decline in his capacity
denotes that over time, if repetitive demands involving the use of his upper
body are required, there will likely be a reduction in his speed and functionality;
thus, he is not well suited for the full body positional demands required of
this occupation.  Overall, when taking into account his difficulties sustaining
the upper body positional and strength demands, there are concerns regarding
his safety, the safety of his co-worker(s) and the safety of other individuals
in the community since it is likely that he would be unable to tolerate such
demands on a continuous basis, if required.

[Emphasis in original]

[62]        
I found Mr. Shew to be a credible and objective expert.  I accept his
opinions without reservation.

g)    Dr. Cecil
Hershler

[63]        
Dr. Hershler is a physiatrist who specializes in physical medicine and
rehabilitation.  He examined the plaintiff on June 10, 2010 and again in late
2012 at the request of plaintiff’s counsel.  He prepared two expert opinion
reports relating to his examinations, dated June 16, 2010 and January 22, 2013,
respectively.  His expertise and expert reports were admitted without debate or
qualification.

[64]        
In Dr. Hershler’s opinion, the plaintiff’s ongoing neck pain is the
result of a protrusion of the disc at C6/7 which was caused by trauma. 
Although there is evidence of pre-Accident mild degeneration of the plaintiff’s
spine due to age, this process was normal and in the plaintiff’s case was
asymptomatic until the Accident occurred.  He opined that it is highly unlikely
that the plaintiff’s spine degeneration is the cause of his current pain
symptoms.

[65]        
In Dr. Hershler’s opinion, the trauma of the Accident caused the
plaintiff’s C6/7 disc to protrude and become symptomatic and is causing the
pain the plaintiff is experiencing.

[66]        
Dr. Hershler concluded that, in view of the time that has passed since
the Accident, the plaintiff has likely reached a plateau in his recovery and
his injury is permanent.  In addition, given the nature of the plaintiff’s
injury, he is more vulnerable to re-injury and his condition could deteriorate
in the future.  Dr. Hershler reported that the plaintiff had described his
ongoing pain as 3 on a scale of 1 to 10.

[67]        
Dr. Hershler believes that Pulse Signal Therapy (or Pulsed
Electromagnetic Field Therapy) (“PST”) may help the plaintiff’s pain.  That
therapy is not without controversy.  Dr. Hershler is the only physician in
British Columbia who offers it.  He does so on a privately funded basis.  He is
of the view that if treatment is available that may help a patient reduce his
pain and increase his functioning, he has a duty to offer it.  He maintains
that 70% of his patients have experienced positive results from the treatment.

[68]        
Dr. Hershler was an impressive witness whose opinions were expressed in
a straightforward, understandable, helpful and objective manner.  I have no
hesitation in accepting his evidence.

h)    Dr. Iain
Dommisse

[69]        
Dr. Dommisse is an orthopedic surgeon with expertise in the spine.  He
was qualified, without debate, as an expert on the diagnosis, cause and
prognosis of injuries to the neck and spine.

[70]        
Dr. Dommisse performed an independent medical examination of the
plaintiff on January 28, 2011.  His expert report is dated February 8, 2011.

[71]        
Dr. Dommisse confirmed Dr. Hershler’s opinion that the plaintiff has
normal age-related degeneration in his upper spine, the onset of which predated
the Accident.

[72]        
He agreed with Dr. Hershler that the Accident caused the plaintiff’s
injury and subsequent pain.

[73]        
However, Dr. Dommisse differed from Dr. Hershler in other respects.  He
opined that the plaintiff would have suffered from the onset of his pain
symptoms by approximately age 45 regardless of the Accident.  He testified that
most people experience bulging of one or more discs at age 45.  In his
experience, approximately 40% of the population have this bulging phenomenon without
experiencing any pain symptoms.  He inferred, therefore, that 60% of the
population has or will become symptomatic, albeit to different degrees.  He
opined that the odds are the plaintiff would likely have been in this 60% category.

[74]        
Dr. Dommisse concluded that the plaintiff’s MRI findings, which
disclosed a broad based disc protrusion at C6-C7, are inconsistent with a
traumatic event.  He opined that a traumatic event would have caused a more
focused rupture with concentrated pain at the C6-C7 level.  In the plaintiff’s
case, he is experiencing diffuse pain around his neck and up into his head,
which is more consistent with degeneration.

[75]        
On cross examination, Dr. Dommisse agreed that, although spontaneous
onset of pain resulting from trauma is usually not long lasting, it is possible
that it will be permanent.  He also agreed that the plaintiff was more
susceptible to injury due to the degeneration of his spine than someone without
such degeneration.

[76]        
In Dr. Dommisse’s opinion, the plaintiff will be able to continue
working in his present capacity as a firefighter until his retirement age of 60
albeit with intermittent use of anti-inflammatory medication and analgesics.  On
cross examination, he agreed that he was not qualified as an occupational
therapist and that he had no expertise in functional capacity assessment. 
Moreover, he agreed that he had little knowledge of the nature of the
plaintiff’s work as a firefighter.

Analysis

a)    Causation

[77]        
The “but for” test is the general test for factual causation: the
plaintiff must prove on a balance of probabilities that but for the defendants’
negligence, he would not have suffered his injury.  The defendant’s negligence
must have been a necessary cause of the injury.  This test was most recently
summarized and affirmed by the Supreme Court of Canada in Clements v.
Clements, 2012 SCC 32 at paras. 8 – 10 (see also Ediger v. Johnston,
2013 SCC 18 at paras. 28 – 29).

[78]        
The classic statement of the law of causation by Mr. Justice Sopinka in Snell
v. Farrell, [1990] 2 S.C.R. 311 328 is that causation need not be
determined by scientific precision.  It is a practical question of fact that
can be answered by ordinary common sense.

[79]        
Once factual causation is found, liability may still be limited in the
assessment of damages.  I note the well-established principle of tort law that
the defendant need not place the plaintiff in a better position than his
original position and should not compensate the plaintiff for damage he would
have suffered in any event, otherwise known as the crumbling skull rule: Blackwater
v. Plint, 2005 SCC 58 at paras. 78 – 81.

[80]        
I am not persuaded by Dr. Dommisse’s opinion that the plaintiff’s
current pain symptoms are the result of the degenerative condition in his spine
and that his pain would have developed regardless of the Accident.  I note that
Dr. Dommisse’s opinion seems to be based primarily upon bell curves and
probabilities rather than the plaintiff’s individual circumstances.

[81]        
In essence, Dr. Dommisse’s view is that 100% of the population will
experience degeneration of the spine at some point during life.  He referred to
a bell curve which illustrated that most of the population will begin to
experience degeneration at around age 45.  He opined that 40% of the population
with a degenerative spine condition will be asymptomatic.  He concluded that, since
the plaintiff is symptomatic, he must therefore be part of the remaining 60% of
the population who are symptomatic due to spine degeneration.

[82]        
In my view, that logic is inapt.  The plaintiff had no pain symptoms
before the Accident.  Immediately after the Accident he had pain.  The pain was
acute and relentless for months.  It has never fully resolved.

[83]        
I prefer the opinion of Dr. Hershler to that of Dr. Dommisse.

[84]        
I find that, notwithstanding the degenerative process taking place in
the plaintiff’s spine prior to the Accident, it is more probable than not that the
plaintiff’s ongoing pain symptoms are a direct result of the trauma caused by
the Accident.

[85]        
It is pure speculation to suggest that the plaintiff’s pre-existing
spine degeneration condition would have detrimentally affected him in the
future.  As Dr. Dommisse opined, 40% of the population never have symptoms. 
However, there is a possibility that symptoms would have developed regardless
of the Accident.  Any measurable risk established by the evidence that the
plaintiff’s pre-existing condition would have detrimentally affected him in the
future must be considered when assessing non-pecuniary damages: Jokhadar v.
Dehkhodaei , 2010 BCSC 1643 at para. 111.

b)    Non-Pecuniary
Damages

[86]        
In Stapley v. Hejslet, 2006 BCCA 34 (leave to appeal refused
[2006] S.C.C.A. No. 100), Madam Justice Kirkpatrick outlined the factors to be
considered in awarding non-pecuniary damages:

[46]      The
inexhaustive list of common factors cited in Boyd that influence
an award of non-pecuniary damages includes:

 (a)
age of the plaintiff;

 (b)        nature of
the injury;

 (c)        severity
and duration of pain;

 (d)        disability;

 (e)        emotional
suffering; and

 (f)         loss or
impairment of life;

 I
would add the following factors, although they may arguably be subsumed in the
above list:

 (g)
impairment of family, marital and social relationships;

 (h)        impairment
of physical and mental abilities;

 (i)         loss of
lifestyle; and

 (j)         the
plaintiff’s stoicism (as a factor that should not,                              generally
speaking, penalize the plaintiff: Giang v.                            Clayton,
[2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[87]        
The plaintiff is 46 years old.  He has been suffering from neck pain and
headaches caused by the Accident for over five years.  For the first several
months, the pain was intense and unrelenting.  It has eased but it persists at
a level of 3 on a scale of 1 to 10.  He was initially completely disabled by
the pain but, after several months, was able to function albeit with pain.  He
continues to have limited upper body movement.  He is unable to tolerate
activity that places stress on his neck and upper body such as, for example,
reaching in front or to the side, working overhead or positioning his head
awkwardly.  His tolerance for extended periods of sitting is limited, as is his
ability to lift, climb and engage in repetitive movement involving his arms and
shoulders.  He continues to avoid work and other activities that involve those types
of movements.  It is possible that his pain and restriction of activities will
increase in the future.

[88]        
The plaintiff is stoic.  He is not a complainer and he tends to minimize
his problems.  However, he is frustrated by his inability to participate to the
same degree in sports and other physical activities he excelled in prior to the
Accident.  To that extent, his lifestyle has been negatively affected.

[89]        
The defendants admit that, throughout, the plaintiff has sought and
obtained appropriate treatment for his injuries.

[90]        
Counsel for the plaintiff submits that non-pecuniary damages in the
amount of $95,000 would be appropriate. He relies on the following decisions:

(i)     Ng. v. Sarkaria,
2011 BCSC 1643 ($95,000);

(ii)    Jokhadar v.
Dehkhodaei, 2010 BCSC 1643 ($90,000); and

(iii) 
Muhammedi v. Ogloff, 2013 BCSC 496 ($95,000).

[91]        
In Ng, the plaintiff was 31 years of age at the time of the
accident.  Before the accident the plaintiff was fit and active; he took
responsibility for the gardening, yard work and renovations on his house.  As a
result of the accident, he suffered injuries to his neck, back and right knee.  He
returned to work a year after the accident only to experience severe pain in
his back and right leg.  He was diagnosed with right-sided sciatica caused by
disc herniation, which the court found was caused by the accident.  He
underwent surgery and endured a painful recovery.  The plaintiff’s activities
were significantly curtailed in the 18 months preceding his diagnosis of disc
herniation.  Post-surgery, the plaintiff still experienced limitations in the
activities he would normally engage in out of concern for re-injury.  From time
to time, he would suffer from episodic pain as a result of over-exertion. 

[92]        
In Jokhadar, the plaintiff was 34 years of age at the time of the
accident.  She claimed the accident caused her to suffer from extensive
physical injuries and exacerbated her bipolar affective disorder.  The court
concluded that the plaintiff had sustained injury to her right neck and
shoulder area.  The accident had also caused a disc protrusion in her spine
that was likely to become increasingly symptomatic.  There was a strong
probability that surgical intervention would be required.  This protrusion had
irritated a nerve, in turn, causing her pain.  She had also suffered from neck,
shoulder, arm, mid-back and low back pain, weakness and tenderness.  The court
nevertheless found that some of her ongoing reported limitations were in fact
attributable to her psychological symptoms.  The court further found that while
the accident had contributed to the exacerbation of her mental health problems,
she would have suffered from increasing symptoms of bipolar disorder regardless
of the accident.  This contingency was taken into account in the assessment of
her damages.

[93]        
In Muhammedi, the plaintiff suffered from headaches, soft tissue
injuries to her neck and lower back and a far lateral disc protrusion as a
result of the accident.  She also suffered from significant pain, numbness and
tingling in her right leg.  She had presented symptoms of depression and
anxiety to her attending physicians.  At the time of trial she was 39 years of
age.  The court found that within two years of the accident, the plaintiff had
begun to feel improvement, although she had to take care not to aggravate her
pain.  She still suffered from some pain and was limited in certain bending
motions.  The court accepted one expert’s evidence that there was a likelihood
(exceeding 50%) that she would require surgery for her back.  The court
rejected the defence’s hypothesis that the symptoms experienced by the
plaintiff had preceded the accident.  The plaintiff was also compensated for
her inability to care for her infant daughter in the first few years of her
life and her limited ability to cook, clean and look after her family.

[94]        
The defendants submit that an appropriate award for non-pecuniary
damages is $45,000. They
rely on the following decisions:

i.       Doosti
v. Enterprise Rent-a-Car Canada Ltd., 2006 BCSC 247 ($35,000);

ii.      Gilmour
v. Machibroda, 2008 BCSC 260 ($45,000);

iii.    Lamont v.
Stead, 2010 BCSC 432 ($60,000); and

iv.    Loeppky v.
ICBC, 2012 BCSC 7 ($45,000).

[95]        
In Doosti, at the time of trial, the plaintiff was 41 years old. 
The accident had occurred three years prior.  The plaintiff experienced nausea
on the night of the accident.  He developed pain in his upper back and shoulder
the following day.  The court found that the plaintiff had sustained a moderate
soft tissue injury as a result of the accident, which had triggered existing
degenerative changes in his spine to become symptomatic.  The court found that
the pre-accident degenerative changes in the cervical spine would have likely
affected the plaintiff’s neck mobility and would have caused pain regardless of
the accident.  The court discounted his non-pecuniary damages award taking into
account this likelihood.

[96]        
In Gilmour, the plaintiff was 24 years of age at the time of the
accident, much younger than the plaintiff in this case.  He was hospitalized
for a day after the accident and prescribed Tylenol 3 and Advil for his pain.  He
returned to work after a month of recovery.  He continued to take Tylenol and
Advil for the pain in his neck, upper and lower back.  His lower back pain was
aggravated by sitting for a long time or walking a long distance.  He was
unable to participate in all of the leisure activities he had previously enjoyed.
One expert had identified a degenerative disc disease in the plaintiff’s
spine.  The court found that the plaintiff’s spine would have become
symptomatic regardless of the accident.  The defendant’s liability was limited
to the soft tissue injuries caused by the accident, which he had recovered from
within six months, as well as the plaintiff’s pain and suffering in relation to
his neck and upper spine pain for four years from the date of the accident.

[97]        
In Lamont, the plaintiff was 50 years of age at the time of
trial; the accident had occurred three years earlier.  She was a
physiotherapist and a mother of three teenagers.  Her major complaint was a
mechanical neck injury.  She was diagnosed with a grade two soft tissue injury
to the neck, shoulders and upper back.  The court accepted that the plaintiff
was a very fit, active, energetic and hardworking woman prior to the accident.  She
was able to return to full time employment after the accident with
accommodations made by her employer.  However, she continued to work with chronic
pain, which exhausted her.  As a result, she did not have energy for household
chores, parental duties and leisure activities.  The evidence established that
the prospect for any significant improvement to her neck pain was poor and that
it was likely her pain was permanent.  The court rejected the defendant’s
assertion that her pain pre-existed the accident, noting the evidence was
insufficient to support that position. 

[98]        
In Loeppky, the 36 year old plaintiff sustained injuries to his
jaw, neck, mid and upper back and thigh as a result of the accident, causing
him to suffer from pain and headaches.  He had recovered fully from his
injuries with the exception of his back within three to six months of the
accident.  The court found that the plaintiff was able to resume his former
fitness regime with some adjustments.  However, he was forced to change
positions within the Vancouver Police Department because of his injuries.  The
court held that he would likely continue to suffer mild back pain and stiffness
as well as flare-ups.

[99]        
After considering all of the evidence, the submissions of counsel and
the case authorities, I find that an appropriate award for non-pecuniary
damages in this case is $85,000.  In making this award, I have considered and
taken into account the risk that the plaintiff’s pre-existing degenerative
spinal condition would likely have detrimentally affected him in the future.

c)     Past
Wage Loss

[100]    
The plaintiff claims that he has lost income in the amount of $37,894.62
(this amount is the result of an agreed upward adjustment provided during the
post-trial proceedings referred to below).  It is based upon his absence from
work due to his Accident-related injuries, not upon any loss in wages.  The
evidence appears to be that he received all of the wages he would otherwise
have received had the Accident not occurred as sick leave benefits to which he
was entitled as an employee of the City of New Westminster.  In essence, the
amount being claimed by the plaintiff is in respect of a subrogated claim by
the City.

[101]    
The defendants argued that there is no evidence the plaintiff’s sick
leave benefits were depleted or that the Accident had any impact upon his entitlement
to benefits in the future.  The defendants say that the plaintiff has failed to
prove a claim for past wage loss.

[102]     The only
evidence proffered by the plaintiff during the trial in respect of a claim for
past wage loss came in the form of a letter dated June 6, 2008 from a payroll
clerk with the City of New Westminster to ICBC.  It states:

“Please find enclosed the completed Certificate of Earnings
form for [the plaintiff].  I am also attaching a copy of the subrogation
agreement from the Collective Agreement for The City Firefighters’ Union, Local
256.

The gross pay lost up to May 30, 2008 due to [the Accident]
is $20,365.56.  Please be aware that his sick claim is still ongoing so this
figure is not a final amount.

When a settlement has been reached, please forward to my
attention the total amount of earnings lost due to this accident, plus any
interest attributed to those earnings, payable to the City of New Westminster. 
This will allow us to credit Mr. Bulpitt’s sick plan and return any gratuity
hours that he lost due to the accident.

[Emphasis added]

[103]    
The attached “subrogation agreement” states:

Sick Leave Recovery

a) An employee
may use sick leave credits for time lost through accidental injuries PROVIDED
THAT prior to making a claim or commencing an action for damages against a
third party in respect of such injuries, he shall notify the Employer of such
claim and enable the Employer the opportunity to be represented in all
proceedings or settlement discussions relating to the claim.  Any such claim
shall include a claim for loss of wages including pre- and post- judgement
interest, and to the extent that recovery is made, such amount will be
reimbursed to the Employer.  The Employer will reimburse the employee, fifty
percent (50%) of the cost of the legal fees certified by the employee’s legal
counsel as being attributed to providing the wage/benefit loss claim.

[104]    
During argument at trial, I expressed to plaintiff’s counsel my concern
that this evidence was insufficient to prove the employer’s right to make a
subrogated claim for the wage benefits it had paid to the plaintiff while he
was unable to work due to his Accident-related injuries.

[105]    
On July 26, 2013, approximately one month after the trial had been completed,
the plaintiff applied to reopen his case to adduce fresh evidence regarding
this aspect of his claim.  After hearing the parties’ submissions as well as
evidence that the City of New Westminster intended to claim from the plaintiff
the full amount of the sick leave benefits that were paid to him ($37,894.62)
regardless of the outcome of this trial, I granted the plaintiff leave to
reopen this aspect of his case on the condition that he applied to add the City
of New Westminster as a party to this action.  It was my view that having the
City as a party was necessary to ensure that all matters in this proceeding
were effectively adjudicated upon.

[106]    
The application to add the City as a party was heard on April 4, 2014. 
The delay was due to the time it took for an unsuccessful leave to appeal
application and the availability of counsel.

[107]    
After considering the submissions of counsel, I conclude that there would
be no utility in allowing the application to add the City as a defendant.  The
purpose of doing so would be to determine whether the City is entitled under
the terms of its Collective Agreement with the union to repayment of sick leave
benefits from the plaintiff in an amount exceeding what he recovers at trial
for his personal injury claim.  However, I accept the submissions of counsel
for the City that this court does not have jurisdiction to interpret the
provisions of the collective agreement between the City and the union: St.
Anne Nackawic Pulp & Paper Co. Ltd. v. Canadian Paper Workers Union, Local
219, [1986] 1 S.C.R. 704 at 718-719; Weber v. Ontario Hydro, [1995]
2 S.C.R. 929 at para. 43.

[108]    
Regardless, it is my view that the June 6, 2008 letter and the excerpted
portion of the Collective Agreement is evidence that the plaintiff’s sick leave
benefits were not as they would have been but for the Accident.  Clearly, there
was a benefit plan that had been negotiated by the City and the firefighters’
union the terms of which were contained in the Collective Agreement.  Further,
this letter is evidence of what it will take to restore the plaintiff’s sick
leave plan to its pre-Accident status.

[109]    
In all cases, the court retains residual power to grant appropriate
relief through its inherent jurisdiction: Anderson v. Buydens, [1998]
B.C.J. No. 2675 at para.16 (S.C.).  In this case, a miscarriage of justice
would result if the plaintiff was awarded nothing for past wage loss because he
received benefits from his employer yet the employer was able to “claw back”
those same benefits by way of a right of subrogation.  I am satisfied that
there ought to be a provisional award for past wage loss in this case.  The
plaintiff is entitled to full indemnity from the defendants in respect of any
amount to which the plaintiff is or becomes obligated to re-pay to the City of
New Westminster in respect of benefits he received as a result of the Accident.

d)    Loss of Opportunity/Earning
Capacity

[110]    
An award for loss of earning capacity is made in recognition that a
plaintiff’s capacity to earn income is an asset that has been taken away.  If a
plaintiff’s permanent injury limits him in his capacity to perform certain
activities and consequently impairs his income earning capacity, he is entitled
to compensation: Rosvold v. Dunlop 2001 BCCA 1 at para. 8.  The
plaintiff must demonstrate both impairment to his earning capacity and a real
and substantial possibility that the impairment will result in a pecuniary loss. 
The standard of proof is simple probability, not the balance of probabilities:
Drodge v. Kozak, 2011 BCSC 1316 at paras. 147-148.

[111]     Once that
threshold is met, the plaintiff may prove the amount of loss by one of two
calculation approaches, as set out by the British Columbia Court of Appeal in:
Perren v. Lalari, 2010 BCCA 140:

[32]      A plaintiff must always prove,
as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, that there is a real and
substantial possibility of a future event leading to an income loss.  If the
plaintiff discharges that burden of proof, then depending upon the facts of the
case, the plaintiff may prove the quantification of that loss of earning
capacity, either on an earnings approach, as in Steenblok, or a capital
asset approach, as in Brown.  The former approach will be more useful
when the loss is more easily measurable, as it was in Steenblok.  The
latter approach will be more useful when the loss is not as easily measurable,
as in Pallos and Romanchych.  A plaintiff may indeed be able to
prove that there is a substantial possibility of a future loss of income
despite having returned to his or her usual employment.  That was the case in
both Pallos and Parypa.  But, as Donald J.A. said in Steward,
an inability to perform an occupation that is not a realistic alternative
occupation is not proof of a future loss.

[Emphasis in
original]

[112]     No
evidence was provided that would allow the Court to quantify in any measurable
way what the plaintiff’s future pecuniary loss is likely to be.  In such
circumstances, the appropriate approach is the “capital asset approach”: once
impairment of a plaintiff’s earning capacity as a capital asset has been
established, the court must do its best to put a value on it: Rosvold,
at para. 11.

The factors to be considered in assessing loss
of future earning capacity under the capital asset approach were set out in Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), cited with approval by Mr.
Justice Taggart in Kwei v. Bloisclair (1991), 60 B.C.L.R. (2d) 393
(C.A.):

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

The means by which the value of the lost, or
impaired, asset is to be assessed varies of course from case to case.  Some of
the considerations to take into account in making that assessment include
whether:

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

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

3.         The
plaintiff has lost the ability to take advantage of all job opportunities which
might otherwise have been open to him, had he not been injured; and

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

[113]     An issue
arose during the trial concerning the scope of the claim for loss of
opportunity/future earning capacity.  The defendants objected to the plaintiff
leading evidence of opportunity to earn income outside of his job as a
firefighter.  The reason for the objection was that, on May 9, 2011, the
defendants had served a demand for particulars that read:

The Defendants demand the following particulars of the
Amended Statement of Claim herein, pursuant to Rule 3-7(23):

a. particulars of the loss of
income, loss of opportunity to earn income, and loss of earning capacity
referred to in paragraph 8 of the Amended Statement of Claim;

[114]     The
plaintiff’s reply to the demand for particulars, dated September 24, 2012
stated:

ii)         Future Loss of Earning Capacity and Loss of
Opportunity

As a result of the subject
motor-vehicle accident, Mr. Bulpitt remains restricted in all physical activity
regarding lifting, climbing, any heavy or repetitive work with his arms and
shoulders, overhead work, reading and studying and other activities requiring
his [sic] to keep his head stationary.

[115]    
The reply then went on at length to describe the plaintiff’s work
limitations as a firefighter and his lost opportunity to become a Fire Chief,
Deputy Fire Chief or Assistant Deputy Fire Chief.  The reply did not mention
the plaintiff having lost the opportunity to earn income from work other than in
his line of work as a firefighter.

[116]    
Counsel for the plaintiff argued that there was no need for him to
provide more expansive particulars because the defendants would have known from
what was provided to them that the four factors set out in Brown were
implied.  He argued further that loss of capacity and loss of opportunity are
nebulous topics that cannot be particularized and that the Court must make its
quantum assessment based on either the earnings approach (which is
inappropriate here) or the capital asset approach, referring to Perren at
para. 32.

[117]    
Counsel for the defendants argued that the demand for particulars was
meant to tie the plaintiff’s hands regarding his claim.  They say that they proceeded
to trial assuming that the plaintiff’s claim for loss of earning capacity and
loss of opportunity was confined to his aspirations within the fire department. 
They submit that it would be unfair for them to now face further liability
based on the plaintiff’s other lost capacities and opportunities.

[118]    
I agree with counsel for the defendants that the plaintiff should have
provided more fulsome particulars of his claim in this regard.  However, as
matters unfolded, the plaintiff’s work and employment outside of the Fire
Department was canvassed by the defendants both during the plaintiff’s
examination for discovery and during cross examination at trial.  The
defendants had adequate opportunity to address that evidence and conceded
during argument that they have not been prejudiced in any way.  Fairness
dictates that this evidence be considered as part of the determination of the
plaintiff’s damages.

[119]    
It has been almost six and one-half years since the Accident.  Although
the plaintiff is now functioning relatively well, he continues to suffer from
pain in his neck and head as a result of the Accident.  His recovery has likely
plateaued.

[120]    
The only reliable evidence of the plaintiff’s ability to function in the
workplace is that of Mr. Shew who opined that the plaintiff’s functional
capacity is limited.  He expressed concern that the plaintiff is vulnerable to
re-injury and may not be able to maintain his current work situation until
retirement at age 60.

[121]    
The plaintiff submits that, in view of the physical nature of most of
his earning skills, his loss is significant.  He argues that he has suffered a
loss of opportunity/earning capacity in three areas:

a)    in his capacity to work as a firefighter;

b)    in his capacity to advance through studies to a managerial
position in the Fire Department; and

c)     in his capacity to engage in physical work outside of
his work as a firefighter.

[122]     The
evidence at trial was clear that the plaintiff has been performing the work
duties assigned to him since his return to work in 2008.  However, on the first
business day following completion of the trial, the plaintiff was suspended
from his duties, without pay, apparently because the City of New Westminster had
concerns about the plaintiff’s fitness for duty as a firefighter on the basis
of its understanding of the evidence the plaintiff led at trial.  By letter
dated June 24, 2013, Chief Armstrong informed the plaintiff as follows:

At the trial and in speaking to legal counsel for yourself
and ICBC I learned several things that caused me concern.  First, apparently
considerable medical evidence has been tendered at the trial as evidence of
your inability to perform the full range of duties required by your position. 
Second, you are apparently seeking the recovery of considerable damages as a
result of the accident and prior to being subpoenaed, we were not aware that
these proceedings had been instituted by you.

…This is to advise that you are
being held out of service without pay until you are able to prove to us that
you are in fact fit for duty.  We are formally requesting you provide copies of
all medical evidence tendered as exhibits at your trial so that we may assess
your fitness for duty as expeditiously as possible.

[123]    
I considered the plaintiff’s suspension to be a serious matter that
entitled to the plaintiff to apply to reopen his case if the City of New
Westminster determined him to be unfit to perform his duties, because that
finding would be directly related to the Accident.  On April 4, 2014, evidence
was placed before me during the plaintiff’s application to add the City of New
Westminster as a defendant which demonstrates that the plaintiff’s suspension lasted
for approximately three weeks.  Thereafter the plaintiff was placed on paid
sick leave due to non-Accident related maladies.  On August 18, 2013, the City
determined on the basis of medical evidence it had received that the plaintiff
was fit for duty and he was fully re-instated.

[124]    
At issue is the plaintiff’s lost pay during the approximate three week
suspension.  That issue is the subject of an ongoing grievance under the
Collective Agreement which has been brought by the plaintiff’s union against
the City.  The City has refused to pay the plaintiff for his lost wages during
the suspension because it says the plaintiff and/or his counsel acted
unreasonably in failing to provide the medical reports that were tendered in
evidence at the trial in a timely way.  If the grievance is successful, the
plaintiff will be fully compensated for his lost pay.

[125]    
The plaintiff argues that the City’s action in suspending him after the
trial was unreasonable and flowed entirely from the Accident.

[126]    
The defendants and counsel for the City (who appeared on the plaintiff’s
application to add the City as a defendant on April 4, 2014) point out that the
issue for determination in the grievance is whether the delay on the part of
the plaintiff in providing medical evidence of the plaintiff’s fitness was
reasonable.  If it was, the plaintiff will be compensated in full.  If it was not,
any loss of pay suffered by the plaintiff is due to the conduct of the
plaintiff and/or his counsel after the trial and is entirely unrelated to the
Accident.

[127]    
I agree with counsel for the defendants and the City.  In my view, the
post-trial suspension of the plaintiff is a matter between the plaintiff, his
union and the City.  It is currently the subject of a grievance by the union. 
The plaintiff had been working full time as a firefighter since 2009.  His suspension
after trial on the basis of evidence he led at trial was not a reasonably
foreseeable consequence of the Accident.  There is no basis for an order
allowing the plaintiff to re-open his case in respect of the suspension, as
precipitous and as unfortunate an incident as it may have been.

[128]    
As a Captain in the Fire Department, the plaintiff may be called upon to
perform the duties of a regular firefighter.  While by doing so he is
vulnerable to pain flare-ups, the plaintiff has been compensated for that risk
in the form of non-pecuniary damages.  I am unable to conclude on the evidence
that there is a real and substantial possibility the plaintiff may lose his job
as a Captain in the fire department because he may become re-injured or because
he poses a safety risk to the public and his fellow firefighters.  Indeed, the
plaintiff confirmed on cross-examination that he does not believe he is putting
himself or others at risk when he is on the job.

[129]    
I am also unable to conclude that there is a real and substantial
possibility the plaintiff was denied the opportunity to direct his studies
towards achieving the requisite courses for the positions of Fire Chief, Deputy
Fire Chief or Assistant Deputy Fire Chief as a result of the Accident.  Although
I accept that as a result of his Accident-related injuries he focused instead
on becoming a registered safety professional, the evidence, particularly that
of Chief Armstrong, makes it clear that the FEMP courses are available from
BCIT on a self-paced basis which the plaintiff is capable of enduring.  It
remains open to the plaintiff to take those courses and to otherwise qualify
for the management positions.  Indeed, from the evidence put before me during
the April 4, 2014 application, it is clear that the plaintiff completed the
Fire Officer II program for the position of acting Battalion Chief in March
2014 and is eligible to enter into the Battalion Chief Proficiency program
which, if successfully completed, will make him eligible to act as a Battalion
Chief in order of seniority.

[130]    
Nevertheless, I do accept that the Accident-related injuries may well
have delayed the plaintiff in his pursuit of those courses.  Hence there is a possibility
that he may have been hired into a management position earlier.  He is entitled
to modest compensation for that delayed opportunity.

[131]    
The plaintiff continues to work a second job as a safety consultant.  He
will retire from the New Westminster Fire Department in 14 years.  Thereafter,
there is little doubt he will continue to occupy himself by working at other
jobs, likely in the field of safety consulting for which he is qualified.  It
is plain that, despite the Accident, the plaintiff is still an achiever.  I
doubt that his ongoing neck injury will interfere with his post-retirement work
life.  Nonetheless, I find that the Accident rendered the plaintiff less
capable of earning income from all types of employment and less able to take
advantage of business opportunities that might otherwise have been available to
him.  It is reasonable to expect that the plaintiff will continue to be
affected by his neck injury for the rest of his life.  I find there is a real
and substantial possibility that the plaintiff will be precluded from pursuing
some of the opportunities that would have been available to him had he not
sustained his Accident-related injuries.  These include continuing with
part-time work prior to retirement and full time work thereafter, at least
until the age of 65.

[132]    
Quantifying the plaintiff’s loss of earning capacity is not an easy task. 
The assessment must take into account future contingencies and exigencies,
including whether the plaintiff would have been hired into a managment position
as well as the normal chances and hazards of life.

[133]    
Taking all of the foregoing into consideration, I assess the plaintiff’s
loss of future income earning capacity at $125,000.

e)    Cost of Future Care

[134]    
Dr. Hershler is of the opinion that further physiotherapy, massage
therapy or chiropractic treatments are unlikely to be helpful for the
plaintiff.  An alternative treatment, PST, a non-invasive and painless
treatment may provide positive results for him.  It is Dr. Hershler’s
experience that approximately 70% of patients respond positively to PST.  He is
confident that it will offer the plaintiff a chance for further pain
management.  Dr. Hershler’s clinic is one of two in Canada that offers this
treatment.

[135]    
The defendants argue that there is insufficient evidence of the efficacy
of PST.  They submit it is unconventional, expensive and unproven.

[136]     In my
view, it is sufficient that PST may be a useful therapy that is recommended by
an expert such as Dr. Hershler.  It matters not that Dr. Hershler is the only
practitioner in British Columbia who offers this treatment.  He was sincere in
his belief that it may help.  The plaintiff is entitled to have the opportunity
to try this treatment, given conventional treatments have not relieved his
pain.  I agree with the conclusion of this court in Smith v. Both, 2013
BCSC 1995, where Russel J. stated:

[161] While pulse signal therapy remains a novel therapy, Dr.
Hershler provided evidence that in his clinical experience, a substantial
percentage of patients experience improvement in their pain symptoms after they
undergo this therapy.

[162] The plaintiff should
be entitled to try this therapy. The potential it has to improve her pain
symptoms and therefore reduce the cost of loss of future earning capacity

[137]    
I am satisfied that PST is a worthwhile form of treatment and I am
awarding the plaintiff the sum for $2,000, which is the cost of the recommended
nine one-hour treatments over the course of a two week period.

f)      Future
Loss of Homemaking Capacity

[138]     The
plaintiff claims that he is unable to maintain his residence to the same extent
as prior to the Accident and that there are foreseeable upkeep tasks such as
roofing, carpentry and plumbing which he will likely have to pay others to complete. 
He claims $15,000 under this head of damages.

[2]        The
plaintiff demonstrated to me that, despite his Accident-related injuries, he
remains fully capable of performing these types of household tasks, albeit with
pain.  He has been compensated for that pain in the form of his non-pecuniary
damages.

[3]        I decline to make any
additional award under this head of damages.

g)    Special
Damages

[139]    
The parties agreed that the plaintiff is entitled to recover special
damages in the amount of $2,305.01.

Conclusion

[140]     The
plaintiff is entitled to judgment against the defendants in the following
amounts:

[141]     In
addition, the plaintiff is entitled to full indemnity from the defendants in
respect of any amount to which the plaintiff is or becomes liable to re-pay the
City of New Westminster in respect of sick leave or other benefits he received
as a result of the Accident.

[142]    
Subject to any further submissions the parties wish to make, the
plaintiff is entitled to his costs at scale B.

“G. C. Weatherill J.”