IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140912

Docket: M105807

Registry:
Vancouver

Between:

Christopher S.
Rasmussen

Plaintiff

And

Todd Edward Blower

Defendant

Before:
The Honourable Mr. Justice Funt

Reasons for Judgment

I.                
Introduction

[1]            
On December 9, 2008, the plaintiff was a passenger in a stopped
minivan which was struck in the rear by the defendant’s vehicle.  There was
significant damage to both vehicles.

[2]            
Liability has been admitted.

[3]            
The plaintiff suffered soft tissue injuries which resulted in neck and
back pain, knee pain, left leg numbness and headaches.

[4]            
The plaintiff claims as damages:

[5]            
For the reasons that follow, the Court awards the plaintiff $40,400.

II.              
Pleadings

[6]            
In his Notice of Civil Claim, filed November 30, 2010, the
plaintiff pleaded (in part):

5.         As a consequence of the Collision, the plaintiff
has suffered temporary full disability and permanent partial disability, pain
and suffering, and loss of enjoyment of life, particulars of which include, inter
alia:

(a)     injury
to the neck;

(b)     injury
to the shoulders;

(c)     injury
to the back;

(d)     injury
to the left elbow;

(e)     injury
to the left leg;

(f)      injury
to the left knee;

(g)     soreness
to the chest;

(h)     headaches;

(i)      numbness;

(j)      loss
of sleep;

(k)     multiple
abrasions, bruises and strains;

(l)      loss
and restriction of movement;

(m)    continuing
pain;

(n)     loss
of concentration;

(o)     loss
of coordination;

(p)     nausea;

(q)     insomnia.

(collectively, the “Injuries”).  The plaintiff will continue
to have pain and suffering and loss of enjoyment of life in the future.

6.         As a consequence of the Injuries, the plaintiff
has suffered a loss of income and other benefits, the particulars of which have
not yet been fully determined, and will continue to suffer loss of income and
other financial benefits.  The plaintiff will continue to have pain and
suffering and loss of enjoyment of life in the future.

7.         As a further consequence of the Injuries the
plaintiff has been put to and incurred expenses for medicine, medical treatment
and other expenses, particulars of which have not yet been fully determined,
and will continue to be put to additional expenses.

8.         As a further
consequence of the plaintiff has suffered a past and future loss of
housekeeping capacity.  The plaintiff also makes an In Trust claim for
compensation on behalf of those persons who completed housekeeping tasks for
the plaintiff.

[7]            
The defendant pleaded (in part) that the plaintiff “failed to follow
medical advice in respect of treatment or exercise” and argued the plaintiff “failed
to mitigate his damages”.

III.            
Plaintiff’s Background

[8]            
The plaintiff is 47 years old.  He has a Grade 12 education.

[9]            
The plaintiff has been involved in two common law relationships, and has
been with Ms. Tina Tibbits, his current girlfriend, since 2010.  From his
first relationship, he has one stepdaughter (15) and a son (13), and from his
second, he has a daughter (9).  He does not live with any of his children.

[10]        
For a number of years after high school, the plaintiff was a driver and then
a manager for a trucking business.  He enjoyed boating and, with a slowdown in the
trucking business, he started to work in the marine industry.  He has taken a
number of marine courses and is currently qualified to captain ships under
60 gross tons.

[11]        
At the time of the accident, the plaintiff was teaching courses in small
boating for QuickNAV Boating School, then located on Granville Island.  The
plaintiff earned $250 per day.  On average, he taught two five-day courses per
month.

[12]        
Approximately three months after the accident, in March 2009, the
plaintiff started to work for the Canadian Coast Guard Auxiliary – Pacific
Region (now Royal Canadian Marine), as a boating instructor, primarily in
classroom instruction, and as a safety auditor and inspector.  The contract,
which ended in 2011 as a result of budget constraints, required the plaintiff
to teach at various locations throughout British Columbia.  He earned approximately
$50,000 per year.

[13]        
As noted, the plaintiff seeks $5,000 in past wage loss which relates to
the period from the date of the accident to the date that he started work with
the Coast Guard Auxiliary.

[14]        
The plaintiff declared bankruptcy in 2005.  He earned approximately $10,000
in 2006.  For 2007 and 2008 respectively, his total income was approximately
$17,000 and $26,000.  His current income derives from teaching boating courses,
from using his yacht for “Luxury Cruise and Learn” weeks, and from chartering
activities with Ms. Tibbits under the name “The Captain and the Chef”.

[15]        
As of the time of trial, the plaintiff had not filed his tax returns for
the 2010-2012 taxation year for two reasons.  First, he did not wish the tax
refund he expected to receive to be applied to outstanding family maintenance
arrears because he thought the arrears were greater than they should have
been.  (He testified that they were recently reduced to approximately
$20,000.)  Second, as a result of an August 2013 water taxi accident in which
he was a passenger, his computer and many of his documents were destroyed.

[16]        
The evidence of the plaintiff’s current earnings was murky.  All told,
it appears he earns $50,000 per year, if not more.  Ms. Tibbits testified
that she paid the plaintiff $25,000 to $35,000 in 2012.  The plaintiff also had
other captain duties and taught boating courses.

IV.           
plaintiff’s Injuries and Earning Capacity

[17]        
The plaintiff’s overall description of his injuries accord with those
commonly associated with whiplash.  He says that he suffers from neck, shoulder
and back pain, with sleeplessness and headaches (currently on a weekly basis). 
He says that he struggled with a 25-lb. weight gain.

[18]        
Before the accident, the plaintiff enjoyed skiing, playing hockey, scuba
diving, swimming, and golf.  He now says that he cannot participate in these
activities without experiencing pain.

[19]        
With respect to lifting, in examination in chief, the plaintiff
testified:

… every time I lift
anything over 10 pounds I can feel it.  When I set up my
classroom I can feel it the next day.  Currently I get Tina [Tibbits]
to help me set up classrooms.

[20]        
In cross-examination, it became apparent that  Ms. Tibbits
accompanies him on his teaching trips only some of the time.

[21]        
The plaintiff says he had plans to pursue employment as diverse as a
corrections officer, a tugboat captain and a scuba rescue diver for the Coast
Guard but now, as a result of his injuries, he cannot attain any of these
positions and that he has diminished earning capacity.

[22]        
Before the accident, the plaintiff had taken the initial steps to apply
to become a corrections officer.  After the accident, he withdrew the
application because he thought that there was a strength and endurance test
that he doubted he would have the capacity to pass.

[23]        
At trial, the defendant called Ms. M. McNeil, Regional Recruitment
Manager for Correction Services of Canada, who testified that since 2002 applicants
for the post of corrections officer have not been required to undergo a
strength and endurance test.  Ms. McNeil said that Corrections Canada seeks
officers who have the personality and communication skills to handle inmates
and to diffuse tense situations.  Ms. McNeil testified that only
approximately 10% of a pool of pre-qualified candidates obtain jobs with
Corrections Canada.

[24]        
The plaintiff led evidence as to the steps to become a tugboat captain,
such as the requisite sea time to obtain the appropriate certificate.  However,
it was not explained what the current demand for tugboat captains is.  At the
time of the accident, the plaintiff was 42 years old and had only four weeks of
deckhand experience.  In cross-examination, the plaintiff testified:

Q         If I understood you correctly, you worked
there [at Seaspan] four weeks?

A          Four weeks I took a training course,
deckhand training course –

Q         Yes?

A          – and then they put me on the job training
and then I was one of the first bunch of guys because I was junior to
get laid off, and the layoffs just continued to happen and they still have
over half of their fleet parked.

[Emphasis added]

[25]        
Like his Corrections Canada application, the plaintiff also withdrew his
application for scuba rescue diving with the Coast Guard.  The Court readily accepts
that being in top physical condition would be a requirement to be a scuba
rescue diver.  The plaintiff testified that he thought the annual salary for
scuba rescue divers (without the value of public service benefits) was
approximately $45,000, a figure not dramatically different from the
approximately $50,000 he earned with the Coast Guard Auxiliary.

V.             
Soft Tissue Injuries

[26]        
In Price v. Kostryba (1986), 70 B.C.L.R. 397, Chief Justice
McEachern observed that most soft tissue injuries resolve within approximately
six months to a year:

[4]        Perhaps no injury has
been the subject of so much judicial consideration as the whiplash.  Human
experience tells us that these injuries normally resolve themselves within six
months to a year or so.  Yet every physician knows some patients whose
complaint continues for years, and some apparently never recover.  For this
reason, it is necessary for a court to exercise caution and to examine all the
evidence carefully so as to arrive at fair and reasonable compensation. …

[27]        
After the accident, the plaintiff did not follow the advice of his
doctors.  Although he stopped working after the accident for approximately
three months, he did not attend regular ongoing physiotherapy or massage
treatment, as recommended.  He attended one session of each.

[28]        
The plaintiff was prescribed medications such as Advil, Valium,
Tylenol 3, Celebrex (an anti-inflammatory), and Flexeril (a muscle
relaxant).  Viewed pragmatically, the effectiveness of such prescriptions was
probably affected by the plaintiff’s alcohol consumption.  Under
cross-examination, the plaintiff testified:

Q         Okay, we’re going to jump now to Tab
Number 3.  This is an emergency report, Vancouver Coastal Health, from
Lions Gate Hospital.  The date on it is shown as January 2nd, 2009.  That
date is in the upper section.

A          Okay, upper right in the centre there.

Q         Correct.  Does this refresh your memory about
having attended Lions Gate Hospital on that date?

A          Yes.

Q         And on that date you went because you had been
vomiting for the entire day, right?

A          Yes.

Q         And that vomiting was associated with having
been drinking for a period of time?

A          Drinking and taking Celebrex and Advil
together, I was told.

Q         Were you also – had you also moved out of Anna’s
home [second common-law spouse] and into the boat at that point in time?

A          No, Anna actually drove the boat down ‘cause
I was unable to because I was at the sink throwing up the whole trip
down. We were at the Clementine outstation of Burrard Yacht Club in Indian Arm
at the top of Indian Arm, and I drove – or Anna drove the vessel down to
Deep Cove where we met up with friends and the ambulance, and the ambulance
took me to the hospital.

…

Q         Now, at that time, if I understood your
evidence correctly yesterday, you were going through a period of drinking?

A          Yes.

Q         And was alcohol or overuse of alcohol a
problem that you’d had in your past?

A          Briefly.

Q And again, if I understood your
evidence yesterday, this drinking issue went until sometime into 2010?

A Yes.

[Emphasis added]

[29]        
The plaintiff called Dr. C. Wilson-Haffenden to provide expert
evidence with respect to family medicine.  Although the plaintiff had been seen
by walk-in clinic doctors, Dr. Wilson-Haffenden was his primary
physician.  Under cross-examination, Dr. Wilson-Haffenden testified that she
could not recall being told of the plaintiff’s January 2, 2009 emergency
room visit or of his overuse of alcohol.

[30]        
Mr. Warlow, an executive officer of Royal Canadian Marine, hired
the plaintiff in March 2009 for the boating instructor position.  Mr. Warlow
saw the plaintiff from time to time and never observed the plaintiff
experiencing any physical difficulties.  He was not told by others that the
plaintiff had physical limitations.  The plaintiff did not miss work because of
the accident.

[31]        
The plaintiff’s pleadings, filed November 30, 2010, overstate the
plaintiff’s injuries.  The Court is satisfied that if the plaintiff’s injuries
were as serious as those pleaded, he would not have been able to discharge his
full-time duties successfully with the Royal Canadian Marine for over the
approximately 19 months before he filed his pleadings.  In April 2010,
he reported that he had work stress because he was working 80 hours per week.

[32]        
Dr. Wilson-Haffenden concluded in her medical-legal report:

In summary, Mr. Rasmussen was rear-ended in an MVA on December 9,
2008.  He suffered with prolonged soft tissue injuries to his neck and back
with resulting severe headaches.  The patient also experienced persistent
insomnia, restlessness and agitation for 4 and a half years after this MVA. 
These injuries were significant in that they were disabling.  Mr. Rasmussen
was unable to work for almost 4 months after the MVA.  And despite treatments
and medications for these flare-ups of headaches, neck and back pain with
insomnia, Mr. Rasmussen had to change his lifestyle and not participate in
his preferred sports of hockey, swimming and scuba diving.  He now walks and
does some yoga and stretching instead.

I expect that Mr. Rasmussen
will have indefinite exacerbations from time to time of headaches, neck and
back pain associated with insomnia and fatigue.  He has adjusted his lifestyle
accordingly and takes medication as needed.

[33]        
In cross-examination, Dr. Wilson-Haffenden agreed that the
plaintiff could have further recovery if he were to dedicate himself to a
rehabilitation program.  She also observed that “life is life” and that “it is
hard to fit everything in”.

[34]        
If a patient does not disclose relevant facts (such as the overuse of
alcohol) to his or her physician, any recommended treatment will be less likely
to succeed, and when the treating physician is asked to provide expert
evidence, his or her opinion, through no fault of his or her own, is less
likely to be reliable:  see Chief Justice Wilson, Lenoard v. British
Columbia Hydro & Power Authority (1964), 50 W.W.R. 546, at 548.

[35]        
In considering the plaintiff’s reliability, the Court notes that
approximately three weeks after the accident, around the New Year, he took his
40-foot sailboat (co-owned with his mother) to his yacht club’s outstation at
the top of Indian Arm.  One would probably not take such a cruise if one lacked
physical agility.

[36]        
In sum, the Court finds that the plaintiff suffered from whiplash-type
injuries, but not to the extent he claims.

[37]        
He has headaches approximately once a week and infrequently suffers muscle
spasms in his neck and back.  His condition has improved and will probably continue
to improve with a rehabilitation regimen, but his injuries may not fully resolve.

VI.           
Mitigation

[38]        
The law does not encourage indolence.  An injured party has a duty to
mitigate:  see Graham v. Rogers, 2001 BCCA 432, at para. 35.  In this
type of case, the plaintiff must seek and follow the advice of his or her
physician with the goal of overall improvement and recovery.

[39]        
Regarding lack of mitigation, plaintiff’s counsel submits that the
plaintiff did not follow the recommended treatment of physiotherapy and massage,
stating that the two sessions that he did attend were painful, that he was
constantly travelling, and that he could not afford the treatments.

[40]        
The Court rejects the plaintiff’s reasons for failure to mitigate. 
Realistically speaking, perseverance is often the key to allowing medical
treatments a chance to work.  During the approximately three months for which
the plaintiff claims past wage loss, he could have attended physiotherapy and
massage sessions.  The Court is satisfied that he had sufficient funds or, as
noted by defence counsel, he could have claimed Part 7 benefits (Insurance
(Vehicle) Regulation, B.C. Reg. 447/83, Part 7).

[41]        
The defendant did not argue that, if the plaintiff had followed the
medical advice he received, the plaintiff’s injuries would have resolved within
“6 months to a year or so”: Price, supra.  The defendant stated
that the plaintiff’s non-pecuniary award should be reduced by 10%-20% in order
to take into account the plaintiff’s failure to mitigate.  The defendant has
satisfied the two-pronged test in Chiu v. Chiu, 2002 BCCA 618, set forth
by the late Mr. Justice Low, writing for our Court of Appeal:

[57]      The onus is on the
defendant to prove that the plaintiff could have avoided all or a portion of
his loss.  In a personal injury case in which the plaintiff has not pursued a
course of medical treatment recommended to him by doctors, the defendant must
prove two things: (1) that the plaintiff acted unreasonably in eschewing
the recommended treatment, and (2) the extent, if any, to which the
plaintiff’s damages would have been reduced had he acted reasonably. These
principles are found in Janiak v. Ippolito, [1985] 1 S.C.R. 146.

[42]        
The Court will reduce the non-pecuniary award it would otherwise have
ordered by 20%.  The plaintiff failed to mitigate by not following the reasonable
treatments recommended to him.  He also consumed alcohol in quantity which,
pragmatically viewed, probably reduced or nullified the effectiveness of the
prescribed medications.

VII.          
Damages

(a)           
Non-pecuniary

[43]        
The jurisprudence with respect to non-pecuniary damages is particularly
fact-specific.

[44]        
In Stapley v. Hejslet, 2006 BCCA 34, our Court of Appeal sets
forth some of the factors which may be considered in determining an award of
non-pecuniary damages:

[46] The inexhaustive list of common factors cited in [Boyd
v. Harris (2004), 237 D.L.R. (4th) 193] 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, 2005 BCCA 54).

[45]        
In this case, defence counsel argued that the non-pecuniary damages were
$25,000 to $40,000.  Defence counsel used the following authorities as a
guide: Travelbea v. Henrie, 2012 BCSC 1532; Ward v. Zhu, 2012
BCSC 782; Myers v. Leng, 2006 BCSC 1582; Manson v. Kalar, 2011
BCSC 373; and Filimek v. Braaten, 2009 BCSC 866.

[46]        
The Court did not find the plaintiff’s authorities to be particularly
helpful because they were a guide for more severe injuries than had been
sustained by the plaintiff.

[47]        
In considering the Stapley factors and the defendant’s
authorities, the Court will award $40,000 prior to the reduction for the
failure to mitigate.

[48]        
The Court has used the upper end of the defendant’s suggested range
because the injuries may never resolve fully.

[49]        
As described above, with respect to mitigation, the award of $40,000
will be reduced by 20% or $8,000 as a result of the plaintiff’s failure to
mitigate.  The final award for non-pecuniary damages will be $32,000.

(b)           
Past wage loss

[50]        
The Court will award $5,000 as past wage loss.  This represents the
amount the plaintiff claims is consistent with his typical income from the
QuickNAV boating school, and is roughly in line with his 2008 reported income
for tax purposes.

(c)           
Loss of earning capacity

[51]        
In Perren v. Lalari, 2010 BCCA 140, our Court of Appeal
sets forth, at para. 32, the rule that there must be a “real and
substantial possibility of a future event leading to an income loss” before
assessing that loss.  The loss may be quantified using the earnings approach or
the capital asset approach.

[52]        
The Court agrees with the submission of defence counsel that the
plaintiff has not met his burden under the Perren test.  He is gainfully
working in the marine industry and has skills and abilities which will enable
him to continue on this path in the future.

[53]        
The plaintiff did not satisfy the Court that there was a “real and
substantial possibility” that he would have become a tugboat captain.  The
income of a rescue scuba diver is comparable to his current income and, viewed
pragmatically, such opportunities are usually available (as in the case of
firefighters) to much younger men and women.  Similarly, the plaintiff has not
discharged his burden to prove that he would be limited with respect to any
other future or hypothetical possibility or opportunity. Speculation does not
satisfy the “real and substantial possibility” test.

[54]        
The Court will not award any amount for loss of earning capacity.

(d)           
Loss of housekeeping ability

[55]        
The Court will not make an award for loss of housekeeping ability.  As
noted, shortly after the accident, the plaintiff had the agility to take his
yacht up Indian Arm in the middle of winter.  The Court infers that he could manage
household chores.

(e)           
Cost of future care

[56]        
The plaintiff claimed $5,000 against future care, in order to cover a
gym membership, a rehabilitation program (or kinesiologist), and
over-the-counter medications.

[57]        
Defence counsel submitted a range of $1,000 to $2,000.

[58]        
A tailored rehabilitation training regimen will assist in improving the
plaintiff’s injuries and may ameliorate more severe symptoms as they arise.  A
dedicated rehabilitation regimen is important.  Once in place, it will need to
be followed but does not require a team of consultants.

[59]        
The Court will award $3,000 against future care, which the Court views
as sufficient to cover a rehabilitation program and related expenses, and
over-the-counter medications.

(f)            
Special damages

[60]        
As noted, the parties had agreed to $400 as special damages.

VIII.        
Conclusion

[61]        
The Court awards as damages:

(a)    Non-pecuniary
(after 20% reduction)               $ 32,000

(b)    Past
wage loss                                                    5,000

(c)    Loss
of earning capacity Ø

(d)    Loss
of housekeeping capacity Ø

(e)    Cost of future care                                              3,000

(f)    Special damages (agreed)         400

TOTAL: $ 40,400

[62]        
The Court asks that the defendant’s payment of the award be directed so
that any outstanding family maintenance order is honoured.  If the parties
require further direction, there is liberty to apply.

[63]        
If counsel wish to speak to costs, they may contact Trial Scheduling to
arrange a 9:00 a.m., one-hour Chambers hearing within 90 days of the
release of these Reasons.

____________ “Funt
J.”_____________
Funt J.