IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140630

Docket: M114048

Registry:
Vancouver

Between:

Robert Bouvier

Plaintiff

And

Guenther Otto M.
Behrend

Defendant

Before:
The Honourable Madam Justice Harris

Reasons for Judgment

Introduction

[1]            
The plaintiff, Robert Bouvier, was injured in a motor vehicle accident
which occurred on September 23, 2009 (the “accident”). He was 57 years of age
at the time of the accident and 62 years of age at the time of trial.

[2]            
The defendant, Guenther Behrend, admits liability for the accident but
disputes the extent of the plaintiff’s injuries and the amount of damages, in
particular, the plaintiff’s claim for non-pecuniary damages, future loss of
earning capacity and future care costs.

Analysis

What injuries did Mr. Bouvier sustain?

[3]            
I begin with the motor vehicle accident (the “accident”). Mr. Bouvier
testified he was driving a bus northbound on Quadra Street near Mackenzie
Avenue in Victoria, British Columbia when, suddenly and without warning, a vehicle
driven by Mr. Behrend swerved in front of his bus, causing him to apply
the brakes to avoid a collision. The bus came to a quick stop.

[4]            
At the point of impact, Mr. Bouvier was firmly grasping the door
control handle with his left hand – as he was preparing for the next bus stop. The
force of the impact caused the door control handle to break off in his hand.

[5]            
Mr. Bouvier’s evidence is that he felt an immediate tug in his elbow and
knew something was not right. He felt stunned by the collision. Although his
arm was sore, he had to attend to the passengers on the bus who had been
jostled by the collision. He helped them off the bus and called for assistance.

[6]            
By the next day, Mr. Bouvier testified the pain in his arm was
excruciating. He had searing pain in his forearm. He said it felt like he had
hot lava on his arm and a knife in his elbow. He went to a walk-in medical
clinic and subsequently his family physician. He was referred to a number of specialists.

[7]            
Mr. Bouvier was prescribed an elbow brace, analgesics (Arthotec and
Ibuprofen), and referred to physiotherapy. He underwent a period of intensive
rehabilitation through Work Safe BC (“Work Safe”), but continued to experience
pain, soreness and shooting pains from his elbow down his arm and into his hand.
He also experienced numbness and tingling in the ulnar digits of his left hand.
He was given a cortisone injection but it did not have a positive effect.

[8]            
He was ultimately referred to rehabilitation specialists, Dr. Gershman
and subsequently Dr. Filbey. He was also referred to Dr. Perey who is
an orthopaedic surgeon. He was diagnosed with left lateral epicondylitis, from
a tear in the tendon of the epicondyle, and mild cubital tunnel syndrome, from compression
of the ulnar nerve. There is no dispute between the parties about the plaintiff’s
diagnosis and also that he sustained these injuries in the accident.

[9]            
Mr. Bouvier testified at the trial that the intensity of the pain
diminished significantly over time, but that he continues to experience pain and
discomfort in his arm and tingling and numbness in two of his fingers, which is
generally brought on by cold weather or by use or pressure on the elbow. He
stated that his arm is unreliable in that it can become weak, causing him to
lose his grip and drop objects. He testified that, as a result of the injury to
his arm from the accident, he was removed from his bus driver position at BC
Transit. Work Safe was extensively involved in his rehabilitation program.

[10]        
The defendant acknowledges that Mr. Bouvier experienced pain and
discomfort from the accident but submits that his symptoms improved
significantly in the years following the accident. Although the defendant does
not dispute that Mr. Bouvier is unable to work as a bus driver, the
defendant notes that he is capable of other work.

[11]        
The plaintiff’s evidence as to the injuries to his arm, the level of
pain he experienced in the period immediately following the accident, and the
level of pain he continues to experience from the injuries sustained in the accident
turns, to a considerable extent, on his credibility. The evidence of his expert
and lay witnesses is based, in large measure, on what the plaintiff reported to
them such that if he did not tell the truth about his condition, the value of
their evidence diminishes. There were no medical experts called by the
defendant.

Should the plaintiff be believed?

[12]        
The factors to be considered when assessing credibility were summarized
by Dillon J. in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, as
follows:

Credibility involves an
assessment of the trustworthiness of a witness’ testimony based upon the
veracity or sincerity of a witness and the accuracy of the evidence that the
witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452,
50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various
factors such as the ability and opportunity to observe events, the firmness of
his memory, the ability to resist the influence of interest to modify his recollection,
whether the witness’ evidence harmonizes with independent evidence that has
been accepted, whether the witness changes his testimony during direct and
cross-examination, whether the witness’ testimony seems unreasonable,
impossible, or unlikely, whether a witness has a motive to lie, and the
demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202
(Ont. H.C.); Faryna v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.) [Faryna];
R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately,
the validity of the evidence depends on whether the evidence is consistent with
the probabilities affecting the case as a whole and shown to be in existence at
the time (Faryna at para. 356).

[13]        
Typically the starting point in a credibility assessment is to presume
truthfulness, Halteren v. Wilhelm, 2000 BCCA 2. The presumption of
truthfulness will be displaced by evidence that the evidence is demonstrably
inaccurate, unreliable, or false.

[14]        
In this case, I found that the plaintiff was forthright and consistent
in his evidence about his injuries from the accident. Mr. Bouvier
impressed me as an individual who has worked hard in his life. He has worked in
various demanding positions and was relatively stoical in his description of
the pain and discomfort he experienced from the accident. Although he was off
work for a period of time following the accident, there is no evidence that he
malingered. He returned to work at BC Transit when alternate work was made
available to him and subsequently sought out other employment opportunities.

[15]        
He did not appear to overstate the effects of his injuries when he gave
his evidence and confined his claim to the injury to his left arm and only the
ulnar fingers of his left hand. I note that this was the focal point of his
complaint from the time of the accident and, as noted above, there is no
dispute that he injured his arm in the accident to such a degree that he could
not return to his former position as a bus driver.

[16]        
In assessing his credibility, I found it significant that Mr. Bouvier
willingly acknowledged that the pain and discomfort from his injuries have improved
dramatically since the accident. In cross examination, Mr. Bouvier was
quick to admit that, while he sometimes has pain from using his arm, otherwise
the pain has become “minimal” and he described the pain as being at a level of
two out of ten. Similarly, he stated to Dr. Perey that the pain was “usually
quite tolerable” as long as he does not expose his arm to cold or perform any
heavy activities.

[17]        
On the whole, I found the plaintiff to be a credible and reliable
witness.

Were the injuries caused by the accident?

[18]        
In accordance with Athey v. Leonati, [1996] 3 S.C.R. 458, I must
determine whether the accident caused Mr. Bouvier’s current problems, and,
if they did, whether there were any pre-existing injuries and a measureable
risk that the pre-existing conditions would have detrimentally affected the
plaintiff in the future, regardless of the defendant’s negligence.

[19]        
In that regard, a plaintiff is only entitled to be restored to his
original position. The most basic principle of tort law is that the plaintiff
must be placed in the position he or she would have been if not for the
defendant’s negligence, no better or worse. The defendant must take a plaintiff
as found, even if the plaintiff’s injuries are more severe than they would be
for a normal person (“the thin skull rule”). However, the defendant need not
compensate the plaintiff for any debilitating effects of a pre-existing condition
which the plaintiff would have experienced anyway (“the crumbling skull rule”):
Athey, at paras. 32-35.

[20]        
As noted above, there is no dispute as to the diagnosis of the
plaintiff’s injuries or that the injuries to his arm were caused by the
accident. Accordingly, I accept the opinion of Dr. Filbey and Dr. Perry
that Mr. Bouvier developed left lateral epicondylitis and mild cubital
tunnel syndrome from the accident. I also accept the plaintiff’s evidence that the
injury to his arm initially caused him intense pain and that the frequency of
the pain and discomfort gradually diminished over time, with the program of physiotherapy
and rehabilitation he undertook. I find that by the time the plaintiff returned
to work at BC Transit, the pain in his arm and the numbness and tingling in his
ulnar fingers generally occurred only when he used his arm for heavier tasks or
when his arm was exposed to cold.

[21]        
There is evidence that Mr. Bouvier had a number of pre-existing
medical conditions, including diabetes, hypertension, migraines and asthma. I
find there is some risk that these conditions may detrimentally affect him in
the future, regardless of the defendant’s negligence.

What Damages should be awarded to Mr. Bouvier?

Non-Pecuniary Damages

[22]        
An award of non-pecuniary damages compensates a plaintiff for loss of
amenities, pain, suffering and loss of enjoyment of life.

[23]        
In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined
the factors a trail judge should consider when assessing such damages:

The inexhaustive list of common factors cited in Boyd
[v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary
damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

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

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

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as
a factor that should not, generally speaking, penalize the plaintiff:  Giang
v. Clayton, 2005 BCCA 54).

[24]        
Counsel for the plaintiff submits the medical evidence substantiates
that the injuries to Mr. Bouvier’s arm are such that he can no longer do
any significant or repetitive lifting or rotating of his left arm and he is not
able to rely on his hand to grasp objects. Counsel contends that these injuries
have to be considered in the context of a man whose work ethic is his defining
feature. Mr. Bouvier will no longer be able to drive transit buses as he
had done for the preceding thirteen years and he will no longer be able to work
as a long haul driver after retirement from BC Transit, as he had planned. He
will also no longer be able to use his trailer for travelling or socializing,
which further detracts from the lifestyle he had before the accident.

[25]        
Counsel for the plaintiff submits that, having regard to the relevant
case law, the appropriate range of non-pecuniary damages in this case would be $75,000
to $175,000, with a mid-range of $140,000. He relies on the decision of the
Court of Appeal in Stapley, wherein the court reduced the jury award to $175,000
for arm injuries involving neuropathic disruption and a very significant effect
on overall function; Jackson v. Jefferies, 2012 BCSC 814, where the
court awarded $75,000 for non-pecuniary damages for stiffness and weakness in the
wrist and back pain that prevented the plaintiff from continuing his pursuit to
become a journey man plumber; and Power v. White, 2010 BCSC 1084, in
which the plaintiff was awarded $135,000 for non-pecuniary damages for a torn
pectoral muscle causing ongoing pain and disability related to the plaintiff’s
use of his arm.

[26]        
While counsel for the defendant acknowledges that Mr. Bouvier
experienced pain and discomfort from the accident, he submits that these
symptoms have largely resolved. Counsel notes, in this regard, that there is no
record of the plaintiff complaining about his elbow from August 2011 to May
2013, despite seeing his family physician in that period. Counsel contends the
accident has had little impact on Mr. Bouvier’s household activities and
hobbies.

[27]        
Further, the defendant submits that Mr. Bouvier’s epicondylitis is
not a lifelong condition and notes that the medical evidence was that the
overwhelming majority of patients eventually make a full recovery. In any
event, the defendant contends that the plaintiff had the option of day surgery
to address the numbness in his fingers, with a high likelihood of full
recovery.

[28]        
Counsel for the defendant proposes that an appropriate amount of damages
for pain and suffering would be $40,000. The defendant relies on the decisions
of this court in Hilderbrand v. Milne, [1996] B.C.J. No. 1635, in which
the court awarded $12,500 for an elbow injury causing fairly severe pain and
discomfort for three to four months and still occurred with heavy use –
although the defendant acknowledges the amount of damages awarded in Hilderbrand
would need to be adjusted for the age of the plaintiff and today’s dollars at
$25,000 to $37,000; and Thorp v. Gerow, 2008 BCSC 622, in which the
court awarded $50,000 for a dislocation of the elbow which continued to cause
some restriction in range of motion and ongoing discomfort when performing
physical activities.

[29]        
In my view, the cases referred to by the defendant do not involve as
significant a disruption to the plaintiff’s lifestyle as occurred in this case.
Prior to the accident, Mr. Bouvier had acquired considerable seniority as
a bus driver with BC Transit which, for a man in his late 50s, was important to
his financial security. As a result of the accident, he was transferred out of
the bus driver bargaining unit and lost all of his seniority. He no longer had
the same level of job security as he had prior to the accident.

[30]        
Further, before the accident, he was able to enjoy a level of
responsibility through his role as an acting transit supervisor, which
contributed to his sense of self-esteem and job satisfaction. While he was not
a full time supervisor, the evidence is that he did considerable work as an
acting supervisor. I accept his evidence that he valued the opportunity this
role afforded to him to work with other drivers and to support them. I am
satisfied that he would have continued as an acting supervisor, when called
upon, had the accident not intervened. As I will discuss later, the work which
was available to the plaintiff after the accident was not so rewarding.

[31]        
His position as a bus driver was also important to his social life. He enjoyed
the camaraderie of the other bus drivers, a number of whom he saw outside of
work who became his friends. When he was transferred out of the bargaining
unit, he lost daily contact with his bus driver colleagues.

[32]        
The plaintiff lives by himself and does not have significant hobbies. I
accept counsel for the plaintiff’s characterization of the plaintiff as a man
for whom work was his defining feature. The accident caused him to lose the
work life he had known for the preceding thirteen years.

[33]        
Further, in assessing the amount of non-pecuniary damages which are
appropriate in this case, in my view, it is also appropriate to consider the
disruption caused to the plaintiff by the accommodation process. I come to this
conclusion as, but for the accident, he would not have needed to be
accommodated in an alternate position.

[34]        
 When the injuries from the accident were found to preclude him
continuing as a bus driver, BC Transit was obliged to offer him alternative
employment. However, I accept the evidence of Ms. Carberry, the Work Safe
vocational consultant, that BC Transit did not treat the plaintiff well in the
accommodation process. Her evidence supports the evidence of Mr. Bouvier
regarding BC Transit’s resistance to reasonably accommodating him.

[35]        
The first position to which he was assigned after it was determined that
he could not continue as a bus driver, included heavy lifting, which was work
beyond his physical limitations. When this was drawn to the attention of BC
Transit officials by Ms. Carberry, as well as a Work Safe physician and occupational
therapist, the evidence of Ms. Carberry was that BC Transit denied the
validity of the occupational therapist’s report and asserted that he should
remain in the job.

[36]        
Although the wage rate for that position was considerably less than what
he had earned as a bus driver, BC Transit’s position was that the plaintiff had
the opportunity to apply for positions within the new bargaining unit. However,
the reality was that Mr. Bouvier did not have the seniority and skills to readily
obtain other positions.

[37]        
When Work Safe recommended that he receive retraining so that he would
be in a position to bid into better paying positions, according to the evidence
of Ms. Carberry, which I accept, BC Transit was reluctant to accept this
recommendation and would not agree to pay for the recommended upgrading.

[38]        
BC Transit’s reluctance to assist the plaintiff in finding a position,
with a more comparable salary to what he had been earning, is also illustrated
in the evidence of Mr. Krumm. Mr. Krumm testified that his daughter
was hired into an accounts receivable position with BC Transit which the
plaintiff had applied for – even though she was an outside candidate with less experience
than the plaintiff.

[39]        
Although BC Transit subsequently assigned the plaintiff to another
position, according to the plaintiff’s evidence, it involved menial tasks, such
as cutting pieces of paper into small pieces and putting stickers on buses. I
accept that for someone of Mr. Bouvier’s age and experience, he could
reasonably find this type of work to be demeaning – particularly in the context
where he believed that BC Transit was assigning him such work to force him to
quit – which he testified was causing him to feel stressed and physically upset.
Although he was reluctant to leave BC Transit as he needed to work, he ultimately
found he could not tolerate the working conditions and retired early at 60
years of age.

[40]        
In considering the evidence in relation to the difficulties encountered
by the plaintiff after he returned to work at BC Transit following the
accident, it is significant that there was no evidence to contradict the
evidence of the plaintiff, Ms. Carberry, and Mr. Krumm. The only
witness from BC Transit called by the defendant was Mr. Shearer, the
Manager of Service Delivery. He was not the plaintiff’s supervisor after Mr.
Bouvier returned to work and did not have any direct knowledge of the process
of accommodation or how the plaintiff was treated. Based upon the evidence
before me, I accept that the plaintiff was not treated well in the accommodation
process and that this had such a negative impact on him that it caused him to
leave his employment with BC Transit.

[41]        
With regard to the nature of Mr. Bouvier’s injury, as noted above,
I have found that the injury from the accident initially caused him intense
pain which gradually reduced over time but left him with occasional pain and
weakness and limitations on his ability to use his arm for heavier tasks. The
partially disabling nature of the injury is substantiated by the evidence of
the physicians who testified and by the plaintiff’s removal from the position
of bus driver. That said, he is able to carry out most of the activities of
daily living with minimal pain, including driving (with the restrictions
previously identified).

[42]        
The defendant submits that I should reduce the amount of damages because
the plaintiff failed to mitigate his damages – that he should have had an operation
to redress the symptoms associated with cubital tunnel syndrome. I am not
satisfied that the defendant has established that the plaintiff failed to act
reasonably in not having this surgery. I note that, while Dr. Perey
testified that there was a considerable chance of success associated with
surgery for cubital tunnel syndrome, neither Dr. Filbey nor Dr. Mueller
recommended that the plaintiff undergo this surgery, given the plaintiff’s
diabetes and the risk of scar tissue developing. Further, Dr. Perey
testified that he would not consider Mr. Bouvier a good candidate due to
his lack of response to cortisone. In light of this medical advice, the length
of time which it was anticipated to take to recover from surgery, and the fact
that the surgery would only partially address his symptoms (i.e. those associated
with the cubital tunnel syndrome), I find that the plaintiff acted reasonably
in electing for a more conservative means of coping with ongoing pain.

[43]        
In reviewing the authorities referred to me, I found the decision in Power
to be the most applicable, although I note that the plaintiff’s injury in
that case was more severe.

[44]        
Having regard to all of the circumstances in this case, I conclude that
the plaintiff is entitled to damages for the pain, suffering, loss of amenities
and loss of enjoyment of life resulting from the accident, which I assess at $110,000.

Loss of Earning Capacity

Past Loss of Income

[45]        
A plaintiff is entitled to compensation for past loss of income based on
what the plaintiff would have earned but for the injury that was sustained, Rowe
v. Bobell Express Ltd., 2005 BCCA 141; M.B. v. British Columbia,
2003 SCC 53. A plaintiff is only entitled to recover damages for his or her
past net income loss, Hudniuk v. Warkentin, 2003 BCSC 62.

[46]        
In this case, the parties have agreed that the amount of net income loss
sustained by the plaintiff prior to the time of trial is $72,539.45. I accept
the amount of past income loss agreed to and award this amount to the
plaintiff.

Loss of Future Earning Capacity

[47]        
A claim for loss of future earning capacity raises two key questions: 1)
has the plaintiff’s earning capacity been impaired by his or her injuries; and,
if so 2) what compensation should be awarded for the resulting financial harm
that will accrue over time? The assessment of loss must be based on the
evidence, and not an application of a purely mathematical calculation. The
appropriate means of assessment will vary from case to case: Brown v. Golaiy
(1985), 26 B.C.L.R. (3d) 353; Pallos v. Insurance Corp. of British Columbia
(1995), 100 B.C.L.R. (2d) 260; and Pett v. Pett, 2009 BCCA 232.

[48]        
The essential task of the court is to compare the likely future of the
plaintiff’s working life if the accident had not happened with the plaintiff’s
likely future working life after the accident: Gregory v. Insurance Corp. of
British Columbia, 2011BCCA 144 at para. 32.

[49]        
There are two possible approaches to assessment of loss of future
earning capacity: the “earnings approach” from Pallos; and the “capital
asset approach” in Brown. Both approaches are correct and will be more
or less appropriate depending on whether the loss in question can be quantified
in a measureable way: Perren v. Lalari, 2010 BCCA 140.

Has the plaintiff’s capacity to earn income been diminished? If so, what
compensation should be awarded for the resulting financial harm that will
accrue over time?

[50]        
There is no dispute that the plaintiff’s earning capacity has diminished
as a result of the accident. However, there is a marked difference between the
position of the plaintiff and defendant as to the amount of compensation which
should be awarded.

[51]        
Counsel for the plaintiff submits that Mr. Bouvier’s future earning
capacity has been impaired because his injuries have rendered him less capable
overall of earning an income. He is restricted from working in jobs which
involve lifting or rotational movement of his left arm or which involve outside
work in cold weather. Although the plaintiff has past experience working in
administrative positions which are more sedentary in nature, as he has not
worked in that capacity for the last 15 years and is now 62 years of age, counsel
contends that the plaintiff would be less marketable as an employee.

[52]        
Counsel for the plaintiff notes that, while Mr. Bouvier has now
been medically cleared to drive with a class 1 and 6 licence, he continues to
have restriction on his ability to lift and rotate his arm, thus restricting
his ability to perform work as a long haul truck driver – as he had planned after
his retirement. In that regard, counsel contends that the plaintiff’s history
of employment and dedication to work supported his evidence that, but for the
accident, he would have worked until 75 years of age as a long haul truck
driver.

[53]        
Based on the report of the plaintiff’s economist, Mr. Hildebrand,
the plaintiff submits that the plaintiff’s loss of future earning capacity should
be assessed at approximately $269,100.

[54]        
Counsel for the defendant submits any future loss of earnings must take
into account the plaintiff’s duty to take all reasonable measure to reduce his
loss. Referring to the decision of the Court of Appeal in Graham v. Rogers,
2001 BCCA 432, counsel submits that the plaintiff acted unreasonably in not
remaining in the job as a Maintenance Planning Assistant at BC Transit, which
was work to which he was suited. If, as the plaintiff claimed, he was not being
properly accommodated or harassed at BC Transit, he was entitled to file a
grievance – which he did not do. Instead he left his employment at BC Transit
to take a job at Sperry Rail. The defendant submits that, in these
circumstances, the financial consequences of the plaintiff’s decision should
not be borne by the defendant.

[55]        
Counsel for the defendant also submits that the plaintiff has not met
the onus of establishing that he would have obtained work as a long haul driver
but for the accident. He observes that there was no evidence that there was a
demand for long haul truck drivers in the plaintiff’s age bracket or otherwise;
that such work would have been available until the plaintiff attained the age
of 75; or that the plaintiff would have obtained a position as a long haul
driver with only limited and dated experience. He contends that the plaintiff’s
plan was unrealistic and speculative given the plaintiff’s age, health
condition, and his lack of recent experience as a long haul truck driver.

[56]        
On the basis of the economist who was called by the defendant, Mr. Peever,
the defendant submits that an award of $40,000 would be a realistic assessment
of his loss.

[57]        
With respect to the submission of the defendant that the plaintiff acted
unreasonably in not remaining in the job as a Maintenance Planning Assistant,
in my view the defendant has not established that the plaintiff acted
unreasonably. As noted above, I accept the evidence of the plaintiff, Ms. Carberry
and Mr. Krumm that BC Transit did not treat the plaintiff well in the
accommodation process and were resistant to accommodating him in a manner which
would allow him the opportunity to increase his earning potential. He was transferred
to a bargaining unit in which he had no seniority, he was not given a
meaningful opportunity to upgrade his skills to bid on better positions, he assigned
certain work that was too physically demanding, and he was not awarded a
position for which he appeared to be qualified in favour of an outside
candidate.

[58]        
I also accept the evidence of Mr. Bouvier that the accommodation
process had a negative effect of his health and sense of self-worth. The undisputed
evidence of the plaintiff was that he was being assigned demeaning tasks as a
Maintenance Planning Assistant and that certain employees with whom he worked
were resentful of his being transferred into a position in their bargaining
unit and made it uncomfortable for him. As noted above, the plaintiff’s work
situation was exacerbated by the plaintiff’s belief that management employees
were watching his every move and wanted to get rid of him. Whether or not that
was true, I find that the plaintiff had a basis for believing that management
was not supportive of him.

[59]        
Although the defendant contends that the plaintiff could have grieved
his treatment by the employer, the evidence of the plaintiff and Ms. Carberry
was that the union was involved in meetings with the employer. Further, when
the plaintiff had previously taken steps to bring concerns about his
accommodation to the attention of his employer, the evidence of Ms. Carberry
was that he was told he would be fired if he didn’t remain in the position to
which he was assigned.

[60]        
I do not take from the plaintiff’s evidence that the decision to leave
BC Transit was made lightly. He remained at BC Transit after the accident and
worked in the positions to which he was assigned, despite the difficulties he
encountered. He only left after he concluded that he would not be able to
obtain a position which would allow him the opportunity for greater income and job
satisfaction. After making the decision to leave, he diligently sought out
other work.

[61]        
After the plaintiff left BC Transit, he accepted a position at Sperry
Rail which would allow him to earn a reasonable income. Although the hourly
rate was less, he worked much longer hours.

[62]        
In these circumstances, I reject the contention that the plaintiff acted
unreasonably in leaving BC Transit for a position at Sperry Rail. While it is
apparent, with the benefit of hindsight, that the position at Sperry Rail was
not what it was represented to be, I accept that the plaintiff believed the
position would assist his financial standing and avoid the negative aspects of
his work at BC Transit.

[63]        
With respect to counsel for the defendant’s submission that the
plaintiff has not established that he would have worked as a long haul trucker
until he reached the age of 75, in my opinion, there is substance to this
position.

[64]        
While I accept that the plaintiff established that he had a desire and commitment
to work; that he was motivated to work after retirement because of his
financial situation; and that, in light of his years of experience as a bus
driver, working as some type of driver was employment for which he would have
been qualified and competitive, I nevertheless agree with counsel for the
defendant that it would be speculative to assume that the plaintiff would have
obtained a highly paid position as a “long haul” truck driver after retirement,
given his age, health and relative lack of experience in that industry.

[65]        
I also do not have evidence as to the availability of long haul truck
driver positions in Canada or the extent to which such demanding work would be
reasonably available to persons who are between 65 and 75 years of age.

[66]        
I am, therefore, unable to conclude that, there was a real and
substantial possibility that, but for the accident, the plaintiff would have obtained
work as a long haul truck driver on a full time and then part time basis until he
reached the age of 75.

[67]        
Turning to what compensation should be awarded to the plaintiff for loss
of future earning capacity, I am satisfied that the capital asset approach to
the assessment of future income loss is appropriate. This is not a case in which
the loss of future earnings can easily be measured and quantified.

[68]        
I agree with counsel for the plaintiff, that the plaintiff’s field of
potential employment has been significantly narrowed and that he is less
capable of earning an income in a competitive labour market than he was prior
to the accident. His prospect of working as any type of driver is significantly
limited given the restrictions on heavy lifting. The plaintiff has a wealth of
skills from prior employment, but he hasn’t utilized those skills for some
time.

[69]        
The defendant relies on the fact that the plaintiff was able to obtain a
position at Sperry Rail following the accident, as evidence of his capacity to
earn a similar income in the future. However, I am satisfied that the work at
Sperry Rail was not work the plaintiff could perform on an ongoing basis –
given the cold temperatures and the lifting involved. I accept Mr. Bouvier’s
evidence that he was only able to stay in that position as long as he did
because a co-worker did the heavier tasks which were involved.

[70]        
I conclude that Mr. Bouvier is less marketable to prospective employers.
In that regard, it is not insignificant that the work he was able to obtain
near his home was as a security guard position with the Commissionaires. I do
not mean to suggest this is the only type of work which will be available to him.
The plaintiff has demonstrated a willingness to upgrade his skills and to
travel away from his home to obtain work. However, the scope of employment opportunities
has narrowed.

[71]        
In considering his future earning capacity, I recognize that there is a
possibility that the symptoms from his injuries may still improve. However,
given the length of time they have persisted, I find there is a real and
substantial possibility that his symptoms will not resolve further. As Dr.
Perey stated in his April 2012 report: “It is apparent that Mr. Bouvier will
have to remain on modified job status and this may be the case for the rest of
his working career.”

[72]        
In light of the above, I conclude that the defendant’s future earning
capacity projection significantly undervalues the plaintiff’s loss. While I
find that the plaintiff’s projection overstates what Mr. Bouvier would have
earned, it is closer to what I consider to be a reasonable assessment of his
loss of future earning capacity.

[73]        
All things considered, and taking into account both positive and
negative contingencies, I conclude that an appropriate award of compensation for
the plaintiff’s loss of future earning capacity is $160,000.

Cost of Future Care

[74]        
The plaintiff is entitled to compensation for the cost of future care
based upon what is reasonably necessary to restore him to his pre-accident
condition in so far as that is possible. The award is to be based upon what is
reasonably necessary on the medical evidence to preserve and promote the
plaintiff’s mental and physical well-being: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (S.C.); Gignac v. ICBC, 2012 BCCA 351; and Courdin
v. Meyers, 2005 BCCA 91.

[75]        
In this case the plaintiff seeks $3,500 for physiotherapy and massage
therapy and pain medication. As there is no medical evidence that physiotherapy
or massage therapy would reasonably be required to preserve his future health,
I decline to award those costs. With respect to pain medication, the evidence
supports the plaintiff’s use of analgesics to cope with ongoing pain, at the
rate of two 250 tablet bottles per annum. I award $500 for such medication.

Special Damages

[76]        
An injured person is entitled to recover reasonable out-of-pocket
expenses he or she incurred as a result of an accident. This is grounded on the
governing principle that an injured person is to be restored to the position he
or she would have been in had the accident not occurred: X. v. Y., 2011
BCSC 944.

[77]        
The parties agree that the plaintiff has incurred expenses as a result
of the accident in the amount of $11,952.61. I, therefore, award special
damages in the agreed amount.

Conclusion

[78]        
In summary, the total damages assessed amount to $ 354,992.06:

[79]        
The parties may make submissions as to costs if they are unable to
agree.

“The Honourable Madam Justice Harris”