IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151210

Docket: S111884

Registry:
Vancouver

Between:

John Scarfe

Plaintiff

And

Fernco
Developments Ltd., Norco Developments Ltd., Lenco Development Ltd., Seacastle
Enterprises Inc., and Burger King Restaurants of Canada Inc.

Defendants

Before:
The Honourable Madam Justice Young

Reasons for Judgment

INTRODUCTION

[1]           
The plaintiff slipped on a wet floor in the bathroom of the Nanaimo Burger
King restaurant on May 4, 2010 and injured his right shoulder and right knee. The
plaintiff initiated proceedings against several defendants but the proceedings
against Fernco Developments Ltd., Norco Developments Ltd. and Burger King
Restaurants of Canada Inc. were all discontinued. The only remaining defendant
is Seacastle Enterprises Inc.

ISSUES

1)       Liability

2)       General damages

3)       Loss of earning
capacity

LIABILITY

The Facts

[2]           
On May 4, 2010, the plaintiff was eating in the Burger King restaurant
located near Departure Bay, Nanaimo, British Columbia. He had eaten at that
restaurant on a number of occasions and continues to eat at that restaurant
still. He had used the washroom at that restaurant before.

[3]           
After eating his meal, the plaintiff went to the men’s washroom alone. He
was not in a hurry. He opened the door and walked a step or two and then he was
on the floor. He recalls that his feet slipped to the left and he landed on his
right leg. His right leg bent awkwardly at the knee and he heard either a snap
or a crunch depending on when in his testimony I take the evidence from. The
next thing he knew he was lying on the floor. He did not know what he slipped
on.

[4]           
Prior to the fall, the plaintiff did not see any water on the floor or
any wet paper towels. The plaintiff did not see any caution sign alerting him
to the possibility of a slippery floor. When he was asked to look at the
photographic exhibits of the washroom, he said he had seen a yellow caution
sign during subsequent visits to the Burger King but he never saw it facing the
washroom door before. It was normally located to the right underneath the sink.
He did not see a caution sign when he entered the washroom on May 4, 2010. He
was not looking at the floor when he walked into the washroom. He was looking
straight ahead.

[5]           
The photographic evidence depicts a very small washroom with a tile
floor. One witness estimated the size to be about 12’ x 8’. The washroom
contains a sink and a small vanity, one stall with a toilet in it and two
urinals.

[6]           
The plaintiff was wearing running shoes with good treads on that day. He
was not in any particular hurry. He had been in the washroom before but never
paid any attention to it.

[7]           
While lying on the floor, the plaintiff realized that he was lying in
water because his pant leg was wet from the ankle right up to the waistband of
his pants and his T-shirt was wet right up to his armpit. When he was getting
up, he became aware that he had been lying on brown paper towels which were on
the floor and they were wet. The plaintiff does not know to this day where the
water came from.

[8]           
The plaintiff felt pain almost immediately in his right knee and in his
right shoulder.

[9]           
Within seconds, a man, Kevin Kaska, was leaning over him and asked the
plaintiff if he was all right. The plaintiff told him that he thought that he
had hurt his leg and that he couldn’t get up. The man lifted the plaintiff up
and gave him his name and telephone number in case the plaintiff required
further assistance with this case. Kevin Kaska was a complete stranger to the
plaintiff at the time of the accident.

[10]       
Mr. Kaska gave evidence at the trial and confirmed that he was a
complete stranger to the plaintiff at the time although he has run into him and
chatted with him three or four times since. These conversations were about work
not about the accident.

[11]       
Mr. Kaska went into the Burger King to use the washroom. He saw the
plaintiff lying on the floor and he saw some water on the floor as well. He
said there was quite a bit of water and that he got his own feet wet. He had to
walk around the plaintiff to the urinal. The plaintiff told him that he had
hurt his leg. Mr. Kaska helped him up and asked if he was okay. He noted
that the plaintiff’s pants were wet from the water on the floor.

[12]       
Mr. Kaska believed that the time of the accident was after lunch. He
did not witness the fall but came in after the fall. He did not help the
plaintiff out of the washroom. He left the plaintiff in the washroom leaning
against the sink. The Plaintiff said he was okay and Mr. Kaska was in a
hurry so he gave the plaintiff his name and telephone number and then he left. He
did not report the incident to anyone at the counter before leaving the restaurant.

[13]       
There was no indication to Mr. Kaska that the plaintiff had
consumed alcohol or was in anyway impaired at the time of the accident.

[14]       
The plaintiff wiped himself off and went to the counter in the
restaurant and spoke to a young woman of short stature. The plaintiff estimates
that she was about five foot two inches tall. He told her that they had a
problem in the washroom with water and paper towel on the floor and that he
thought he hurt his knee when he fell. Apparently the young woman told him that
her manager was out and that he could call back later.

[15]       
The defendant called three witnesses to address the issue of liability. The
first witness was Samson Haire who was working at that Burger King on the day
of the accident and has had seven years’ experience working for Burger King
restaurants in various capacities.

[16]       
Several people were identified as having worked the day shift at the
Nanaimo Burger King on May 4, 2010.

[17]       
The identity of the young woman the plaintiff spoke to is unknown but Mr. Haire
thought it might have been Melissa Freeland. She was not called to give
evidence but did sign a statement which was admitted by consent and which said:

December 11, 2012

TO WHOM IT MAY CONCERN,

My name is Melissa Freeland and I am the Shift Manager at the
Nanaimo Burger King restaurant and have been working in this restaurant for
over 7 years.

On May 4 2010 I was working the 12:30 to 5:30 shift. During
my shift I did not receive any washroom incident complaint from anyone. If any
incident was reported to me, I would have written it down and notified Donna
the restaurant general manager.

Melissa Freeland

[18]       
Donna Butterworth was working as the general manager of the Nanaimo
Burger King Restaurant from 2006 to 2012 and maybe longer. She was working the
7:00 a.m. to 3:00 p.m. shift on May 4, 2010 but was not called to give evidence
despite the fact that she was still working for Burger King at the time of Mr. Haire’s
examination for discovery. Instead, counsel consented to exhibiting her written
statement which said:

December 9, 2012

TO WHOM IT MAY CONCERN,

My name is Donna Butterworth and I am the General Manager of
the Nanaimo Burger King Restaurant and have been managing this restaurant for
over 6 years.

On May 4, 2010, I was working the 7 am to 3 pm shift. During
my shift I did not receive any incident complaint of any kind from anyone. If I
had received any, I would have written it down and done my due diligence of
properly handling it.

Donna Butterworth

[19]       
Mr. Haire was working at the Burger King on May 4, 2010 as a shift
coordinator. He is familiar with the systems that were in place in the restaurant
at the time of the accident. He has no recollection of the day. He relied
entirely on the documentation to give his evidence.

[20]       
In May 2010, the Burger King shift coordinators and managers were
expected to check all items on an inspection checklist every half hour. There
was a Manager Control Checklist which is signed by the manager or shift
coordinator and there is a Washroom Daily Checklist.

[21]       
Copies of these inspection checklists were entered into evidence and
they provide very detailed time entries every half hour and then an initial
beside each of the time entries. Burger King does regular inspections of its
franchises and focuses on washroom cleanliness.

[22]       
The problem with the system that the Burger King had in 2010 was that the
person signing the checklist was not necessarily the person who observed the
washroom. According to Mr. Haire, the managers and shift coordinators
delegated the task of checking the washroom to crew all the time but the
manager or shift coordinator then initialed the checklist once they had sent
someone. He signed the checklist when he sent someone to check the washroom or
when they came back and reported to him. On occasion the crewmember would sign
the checklist. I had the impression from him that that was unusual.

[23]       
There is a comment section on the Washroom Daily Checklist but it is
blank on all 31 pages for May 2010. Mr. Haire was asked when a comment
would be filled in. His answer was that they would fill in the comment section
if they had to close the washroom down for some reason. When asked how he knew
that someone else did an inspection, Mr. Haire acknowledged that he could
not confirm for sure that it had been done.

[24]       
Mr. Haire has no recollection of May 4, 2010 because he says that
nothing unusual occurred on that day.

[25]       
The operations manager for the Burger King, Mr. Shawn Dhillon,
gave evidence and neither counsel asked him if he recognized the handwriting on
the checklist or knew if one person filled all the times in. He said that the
proper procedure is to have the person who checked the washroom initial the
checklist and that this documentation should not be delegated so someone else.

[26]       
Mr. Vidit Nayyar gave evidence. He has been a manager at
Burger King for over five years. He started working in the Nanaimo restaurant after
the accident occurred. He gave evidence of the procedures in place at the
restaurant now. There is an Incident Report that should be filled in if there
is a fall or accident. He has no personal knowledge of the events on May 4,
2010. His practice was to have the person who inspected the washroom fill in
the Washroom Daily Checklist.

Handwriting

[27]       
The time entries on the Washroom Daily Checklist look like they are all
in the same handwriting and not necessarily in the handwriting of the person
who signed the Checklist.

[28]       
I sustained an objection to having Mr. Haire questioned on his
opinion as to whether the entries were all made by the same person. Later in
the hearing Mr. Bolda made me aware of s.8 of the Canada Evidence Act,
R.S.C., 1985, c. C-5 and R. v. Abdi (1997), 116 CCC (3d) 385 (Ont
C.A.) and R. v. Adam, 2006 BCSC 1401; and as a result of my reading the Canada
Evidence Act and those cases, I agree that an expert is not required
to compare handwriting specimens. Section 8 of the Canada Evidence Act
states:

Comparison of a
disputed writing with any writing proved to the satisfaction of the court to be
genuine shall be permitted to be made by witnesses, and such writings, and the
evidence of witnesses respecting those writings, may be submitted to the court
and jury as proof of the genuineness or otherwise of the writing in dispute.

[29]       
Section 45 of the British Columbia Evidence Act, R.S.B.C. 1996,
c.124 which applies to this civil trial, is virtually identical to s.8 of the Canada
Evidence Act. It states:

Comparison of disputed writing
with writing proved to the satisfaction of the court to be genuine must be
permitted to be made by a witness, and the writing and the evidence of
witnesses about it may be submitted to the court and jury as evidence of the genuineness
or otherwise of the writing in dispute.

[30]       
I gave the defendant notice that I would be comparing the handwriting on
these checklists in the absence of expert handwriting analysis. In R. v.
Abdi, the Ontario Court of Appeal said, regarding s.8 of the Canada
Evidence Act:

This section does not preclude a
trier of fact from comparing disputed handwriting with admitted or proved
handwriting in documents which are properly in evidence, and drawing inferences
there from. In these circumstances, a trier of fact may make the comparison in
the absence of witness testimony as to the genuineness or otherwise of the
disputed writing.

[31]       
Mr. Haire identified his initial “S” on both of the checklists. He
also identified the other initials for Donna Butterworth, Alan Peterson and
Chester Selina. When asked if he recognized the handwriting of the time entries,
he said “I can’t tell if the times are my handwriting. I don’t recognize my own
handwriting”.

[32]       
I have had a 30 page Washroom Daily Checklist sample to compare. I cannot
believe that these time entries were written by a number of different people. The
formation of numbers is very similar on all 31 pages. I find a more likely
explanation is that someone filled in a list of arbitrary times and the shift
coordinators or managers in charge initialed all the times in order to meet the
Burger King Franchise standards.

[33]       
This conclusion renders this document worthless as a business record. The
expectation was that a shift coordinator or manager in charge checked the
washrooms every half hour but I do not have any direct evidence that this
actually occurred. I do have evidence that it was the expectation. I find it
unbelievable that Mr. Haire cannot recognize his own handwriting and
cannot confirm that he entered the time entries. It is more likely than not
that he did not write the times on the Washroom Daily Checklist because the
handwriting in the “time” column did not change between the shifts he was
working and the shifts he was not working.

[34]       
Of particular interest is the fact that there was no notation made on
May 4, 2010 despite the fact there was water and paper towels on the
floor and this was observed by the plaintiff and by Mr. Kaska. In fact,
there were no notations on any pages so nothing unusual happened at the Burger
King for the month of May 2010.

[35]       
No Incident Report was completed by a young woman of short stature who
was working at the counter on May 4, 2010.

Reliability of Evidence

[36]       
The factors to be considered when assessing credibility were summarized
by Dillon J. in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186,
aff’d 2012 BCCA 296, 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.); Farnya v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.)
[Farnya]; 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 (Farnya at para. 356).

[37]       
I find Mr. Kaska to be a reliable and credible independent witness.
Mr. Kaska, who has no reason to exaggerate, said that his feet were wet
when he left the washroom and that there was a large pool of water. The floor
was covered with paper towels indicating that someone had seen the water on the
floor before the plaintiff arrived. If the Burger King staff had been following
the procedure, then surely somebody would have noted that the washroom had to
be shutdown to wipe up a large amount of water. The alternative is that both
the plaintiff and Mr. Kaska are lying but I don’t believe they are. It is
more likely that the staff at Burger King fill in these inspection lists
without conducting regular inspections.

[38]       
The plaintiff does not have a firm memory of some matters. It was
difficult to get him to describe his injuries and how they affected him. His
memory of the fall itself was firm and it harmonized with the evidence of the
independent witness Kevin Kaska whose evidence has been accepted. The evidence
that the plaintiff reported the incident to someone at the counter is vague and
I am not certain that it occurred. If it did not, then that could explain the
defendant’s complete lack of recollection of the event.

[39]       
Mr. Haire has no recollection of May 4, 2010 and is completely
dependent on the documents in giving his testimony. Mr. Dhillon says that
he recalls that he was there but his explanation is that he specifically
recalls he was there because he is always there Monday to Friday every week. That
is not a specific recollection. His evidence was not helpful. Mr. Dhillon
confirmed that the proper procedure is that the person who inspects the washroom
is supposed to sign it and that they are not supposed to delegate that task to
another person. This procedure was not followed on the day in question.

[40]       
I accept the plaintiff’s evidence of how the injury occurred. I also
accept his evidence that he was injured on that day in the Burger King
restaurant.

Law on Liability

[41]       
Seacastle Enterprises Inc. acknowledges that it is an occupier of the premises.

[42]       
Section 3 of the Occupiers Liability Act, R.S.B.C. 1996, c. 336
reads:

(1)  An occupier of premises owes a duty to take that care
that in all the circumstances of the case is reasonable to see that a person,
and the person’s property, on the premises, and property on the premises of a
person, whether or not that person personally enters on the premises, will be
reasonably safe in using the premises.

(2)  The duty of care referred to in subsection (1) applies
in relation to the

(a)        condition of the
premises,

(b)        activities on the
premises, or

(c)        conduct of third parties on the premises.

[43]       
In Rees v. B.C. Place, [1986] B.C.J. No. 2594, Trainor J. summarized
the obligation under s. 3 of the Occupiers Liability Act in this
way:

The proceedings are brought under the Occupiers Liability Act
and that Act provides that an occupier has a duty to take that care that is
reasonable in all the circumstances of the case to see that a person in using
the premises will be reasonably safe.

The first requirement to satisfy
that obligation is to take the kind of steps that were taken by the Defendants
here to put into place a system to safeguard against dangerous substances being
allowed to remain on the surface of the concourse. And then secondly to be sure
that there was compliance by the people who were carrying out that
responsibility with the system in place.

[44]       
The applicable standard of care was described by Ross J. in Ball v.
GAP (Canada) Inc., 2001 BCSC 1106, aff’d 2002 BCCA 488 in these terms at paras. 25‑27:

The standard expected of an occupier is one of
reasonableness, not perfection. In Milina v. Bartsch (1985), 49 B.C.L.R.
(2d) 33 (S.C.), (aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.), McLachlin J., as she
then was, wrote at p. 58:

…the duty owed by an occupier of premises is to take
reasonable care to see that persons using the premises will be reasonably
safe.  The Acts do not impose a duty to take reasonable care to insure that
persons using the premises will be ‘absolutely safe’. As stated in Hagerman
v. Niagara Falls (1980), 29O.R. (2d) 609, per Labrosse J. at p. 613, the
occupier does not owe a duty to provide safety in all circumstances, but rather
a duty to use reasonable care to prevent injury or damage from danger which is
known or which ought to be known. [emphasis added]

Case law holds that "an occupier is not an
insurer". Lamont v. Westfair Properties (Pacific Ltd.) et al., [2000]
B.C.J. No. 513 (Q.L.); 2000 BCSC 406, at para. 20.

While it is the case that the
occupier is not an insurer and that the standard is not one of perfection, the Act
does place an affirmative duty on the occupier to make the premises reasonably
safe. See Waldick v. Malcolm, [1991] 2 S.C.R. 456.

[45]       
In Mainardi v. Shannon, 2005 BCSC 644, Preston J., at para. 21,
set out a number of principles developed in cases applying the occupier’s duty
imposed by the Occupiers Liability Act:

(1)        The
plaintiff bears the onus of proving on a balance of probabilities that the
occupier breached his or her duty of care.

(2)        A
presumption of negligence is not created by the fact that the plaintiff was
injured. The plaintiff must establish that some act or failure to act on the
part of the occupier resulted in his or her injury.

(3)        The
duty of care imposed by the Act does not require the occupier to remove
every possibility of danger — the test is one of reasonableness, not
perfection.

(4)        The
Court is not entitled to resort to speculation when determining the cause of
the plaintiff’s fall and subsequent injury. The plaintiff must prove the nexus
between his or her fall and the occupier’s failure to discharge his or her duty
of care.

(5)        The
care that an occupier must take differs according to the nature and use of the
premises.

(6)        The
occupier need not, in all cases, show that he or she had a specific policy in
place to deal with the maintenance of the portion of the premises where the
fall occurred. The nature of the premises will determine whether or not a
maintenance scheme will be required.

[Omitting
the citations]

[46]       
In Atkins v Jim Pattison Industries Ltd. (c.o.b. Save-On-Foods and
Drugs) [1998], 61 BCLR (3d) 183 (CA), the British Columbia Court of Appeal
allowed the appeal of a decision where the trial court found that the
defendant’s maintenance scheme was reasonable and that the plaintiff had the
onus to prove that the maintenance plan was not followed on the day of the
accident:

In my view this demonstrates error of law. The plaintiff had
established a prima facie case of negligence. The defendant sought to refute it
by showing that it had a reasonable scheme in place which was being followed.
It is not enough to demonstrate that there is a plan in existence. The
defendant must call some evidence to show that it was being followed. To
paraphrase Cumming J.A. in Kayser v. Park Royal Shopping Centre Ltd. (1995), 16
B.C.L.R. (3d) 330 at p. 334, there must be evidence from which
it is reasonable to infer that the system in place for ensuring that hazards
are minimized was followed on the day in question. In some cases the occupier
may not be in a position to call evidence to show that a particular person
swept the floor (or did whatever the plan required) on the particular day in
question. It must at least establish that there was routine compliance with the
scheme from which the trial judge can infer observance on the day in question.

According to the trial judge
in the case at bar the defendant was not required to call evidence that the
plan was being followed, it was up to the plaintiff to prove that it was not. I
think that this is wrong. It is not up to the plaintiff to negative a potential
defence. It is up to the defendant to call evidence in support of its defence.
The onus remains with the plaintiff to prove her case. She must overcome the
defence on a preponderance of evidence or lose her case.

(paras. 6
and 7)

[47]       
In Coulson v Canada Safeway Ltd. (1988), 32 B.C.L.R. (2) 212 (BCCA),
cited in MacKandy-Gray v London Drugs Limited, 2013 BCSC 2069, the
defendant did not establish that a reasonable system of inspection was in place
because of lack of evidence from its employees that they inspected the area in
question.

Analysis of the Evidence on the Issue of Liability

[48]       
In this case, the defendant put a good system in place to ensure that
the washrooms in its restaurant are clean and dry but what was lacking was a
system to ensure compliance by the people who were carrying out the responsibility
with the system in place.

[49]       
In 2010 there is no indication that Mr. Haire would check on the crewmember
or go and check the washroom himself to ensure that he was receiving proper
information. It also appears that one person filled in the times on the
checklist and the shift manager initialled beside the times but may have
done so without inspecting. I am not certain that the staff at the counter had
a clear idea of what they were to do if someone reported a spill or a fall
either.

[50]       
It appears that compliance with the system changed after Mr. Haire
left Burger King. I heard the evidence of Mr. Nayyar and he described a
completely different system. Mr. Nayyar was very clear that the person who
made the observation had to sign the document. Mr. Nayyar was not working
at the Burger King at the time of this accident.

[51]       
Mr. Dhillon gave the same evidence that the task of inspecting the
washroom and signing off on the inspection was not a task that could be
delegated to a crewmember. The person who inspected the washroom was to sign
the Washroom Daily Checklist. Clearly this procedure was not followed.

[52]       
I find the defendant is liable for this accident.

[53]       
The next question is whether the plaintiff was contributory negligent.

Contributory Negligence

[54]       
As per s.4 of the Negligence Act, R.S.B.C. 1996, c. 333,
when a plaintiff contributes negligently to causing his or her own injury, the
court must determine relative degrees of fault. The correct inquiry is whether
the plaintiff failed to take reasonable care for his or her own safety and
whether that failure was one of the causes of the accident: Bradley v. Bath,
2010 BCCA 10 at para. 27.

[55]       
The court’s task is to assess the respective blameworthiness of the
parties, rather than the extent to which the loss may be said to have been
caused by the conduct of each. Fault or blameworthiness evaluates the parties’
conduct in the circumstances, and the extent or degree to which it may be said
to depart from the standard of reasonable care: Alberta Wheat Pool v.
Northwest Pile., 2000 BCCA 505 at paras. 45-46; Bradley at para. 24.

Discussion

[56]       
The plaintiff did have a duty to take reasonable care for his own safety.
He was wearing shoes with a good tread and looking ahead as he entered the
washroom. He wasn’t running. He wasn’t walking and reading a cell phone. He
just opened the door, stepped in and slid.

[57]       
If he saw the water and walked through it without taking care not to
slip, then he might be partly responsible for the accident. I find however,
that he had no opportunity to see the water before he fell because the washroom
is so small and he only took one or two steps and was down.

[58]       
The defendant says that he should have been warned by the yellow caution
sign that was facing the door.

[59]       
I’m not satisfied that the yellow caution sign is a great assistance to
the defendant in this case because by the time the plaintiff would have seen the
yellow caution sign, he was already in the process of slipping. The caution
sign was under the sink, possibly facing the door, possibly not. Giving the
defendant the benefit of the doubt, if it was facing the door, then the
plaintiff would only have seen it after he had taken his first step or two and
his evidence is that he fell after taking one or two steps. It was too late to
alert the plaintiff to hazards.

[60]       
If the defendant wants people to be cautious in its bathroom then the
sign would need to be outside the bathroom door.

[61]       
I find that the plaintiff did take reasonable care and was not
contributorily negligent.

GENERAL DAMAGES

The Injury

[62]       
The plaintiff was helped to stand up by Mr. Kaska. He tried to dry
himself off and he walked out of the bathroom to the counter in the restaurant and
then to his son’s car. He said he could barely walk because his knee was
hurting.

[63]       
By the time the plaintiff got to his son’s home, his knee had started
swelling and his son applied ice to his swollen knee. The plaintiff was having
trouble walking the next day. His son took him to the hospital in Duncan.

[64]       
The plaintiff says that he couldn’t walk for quite some time afterward
and that he used crutches for five or six months. A friend lent him a knee
brace which he used with some relief. The plaintiff does not recall when he
returned to his work as a building contractor. When he returned to work, he
assumed light duties.

[65]       
The plaintiff has pain in his right knee and has had pain from the date
of the accident. He did have arthroscopic surgery in 2013 and the pain has
reduced substantially but he can still feel it in that he is sometimes not
stable. The most difficult task for him is climbing ladders while carrying any
kind of weight. Now five years after the accident, his son does all of the
heavy work and he might be able to climb up one or two rungs on a ladder but he
cannot carry drywall or roofing tiles as he once did.

[66]       
After the plaintiff’s arthroscopic surgery in 2013 he attended
physiotherapy on two occasions at his own expense. The range of motion in his
right shoulder is reduced so that he cannot raise his right hand directly over
his head. If he reaches forward with his right arm, his fingertips go numb.

[67]       
I get the impression from his testimony that the plaintiff didn’t really
follow any treatment plan or work on strengthening his knee. He did some
stretching but no strengthening exercises. He said that he has a $5,000
mountain bike at his house that he can’t use. There is no medical reason why he
can’t cycle.

[68]       
The plaintiff says that he has enjoyed about a 60% recovery of his knee.
It still aches like a toothache. His knee clicks sometimes as well. He limps
when he walks. His shoulder still hurts and his hand goes numb when he reaches
forward with that arm. He takes sleeping pills at night now to help him sleep.

[69]       
His knee collapsed shortly before the trial one day when we was chasing
a wasp in the house. The plaintiff cannot climb a ladder. He can’t squat.

[70]       
He has had to give up steelhead fishing because he can’t walk on uneven
or slippery rocks and in streams and keep his balance. I assume that this is
due to the lack of stability of his knee. This was a true passion for him and
is a great loss.

[71]       
Geraldine Poirier is a friend of the plaintiff’s and had employed him
before the accident to do pest control for her when she managed an apartment
building. She has been retired since 2011. She now lives on Thetis Island and
gave evidence of the plaintiff’s functioning before and after the accident. Before
the accident, she described the plaintiff as a person who could outdo any young
man climbing ladders and crawling in crawl spaces. He was a workaholic and he
appeared to have no limitations. He was a happy‑go‑lucky gentleman.
After the accident he was angry especially about losing his ability to work. It
took him a good year to get over his crankiness as she put it. He is no longer
agile and he walks with a limp.

[72]       
Jamie Scarfe, the plaintiff’s son gave evidence. He was at the
restaurant with the plaintiff on the day of the fall. When the plaintiff went
to the washroom Jamie went to the truck and waited for him. The plaintiff came
out of the restaurant limping and wet. He told his son that there was water on
the washroom floor and he slipped and hurt himself. Jamie noted that the
plaintiff’s right knee was swelling. He bought ice to put on it. He stayed with
his father that night and they alternated warm and cold compresses overnight.

[73]       
By the next morning the knee was more swollen and very painful. Jamie
took his father to the hospital in Duncan the next day. There is no record of
the visit. Dr. Galina Turpin referred the plaintiff to an orthopedic
surgeon. I am not certain if Dr. Turpin worked at the Duncan Hospital. I
accept the evidence of the plaintiff and his son that they did go to the Duncan
hospital.

[74]       
The first consultation with Dr. Shalinder Arneja, orthopaedic
surgeon, was not until October 2011. When asked why it took so long the
plaintiff quipped that he is not a famous hockey player so he had to wait for
the consultation.

[75]       
Michael Dufort who now works for B.C. Ferries, gave evidence because he
had done work for the plaintiff on roofing jobs on a number of occasions prior
to the accident. He is a long‑time friend of Jamie Scarfe’s. He gave
evidence that he would make $200 to $300 for a day job as that was the industry
standard and more if he had a weeklong job.

[76]       
He described the plaintiff as active and energetic. He said that the
plaintiff put the young guys to shame running up and down ladders carrying
bundles of shingles. The plaintiff could do very strenuous work and was agile
and strong. A bundle of shingles could weigh up to 60 pounds. Since the
accident, Mr. Dufort sees the plaintiff in pain and limping. He said he is
really not the same guy.

Medical Evidence

[77]       
Dr. Arneja is an orthopedic surgeon specializing in shoulder and
knee surgery. He first saw the plaintiff on October 27, 2011 for consultation
regarding the plaintiff’s right knee injury. He performed arthroscopic surgery
on March 8, 2012 and had a post‑operative consultation on March 13, 2012
regarding the knee arthroscopy. He conducted a further consultation on July 19,
2012 regarding the plaintiff’s right shoulder pain. Dr. Arneja was not
called for cross‑examination and so his medical legal report, dated
September 1, 2012, is uncontested. He is accepted as an expert in the field of
orthopedic surgery.

[78]       
Dr. Arneja acknowledged receiving a referral from Dr. Turpin. The
plaintiff presented with symptoms of locking knee catching, his knee giving
away and in particular pain in the medial aspect of the knee. Based on the
history and physical examination findings, Dr. Arneja came to the
conclusion that the plaintiff had a meniscal tear.

[79]       
The plaintiff underwent knee arthroscopic surgery on March 8, 2012 and
it was found that he did indeed have a buckle handle tear of his medial
meniscus as well as a complete tear of his anterior cruciate ligament. Dr. Arneja
performed a debridement and a partial medial meniscectomy.

[80]       
The plaintiff was seen five days post‑operatively. Dr. Arneja
said the plaintiff underwent several weeks of physiotherapy but the plaintiff
said he only went twice. Dr. Arneja said the plaintiff essentially made a
good recovery with respect to his right knee after the arthroscopy. The
plaintiff doesn’t necessarily agree with this statement.

[81]       
With respect to his right shoulder, the plaintiff was referred to Dr. Arneja
by Dr. S. Singh. He reported to Dr. Arneja that he injured his right
shoulder at the same time he injured his knee when he slipped and fell at the
Burger King restaurant. His main symptoms included pain and weakness involving
his right shoulder with pain measuring at a three out of ten on a visual analog
scale. He had had no treatment for the shoulder.

[82]       
Ultrasound and plain x-rays were performed and reviewed by Dr. Arneja.
The ultrasound suggested an intrasubstance partial tear of his supraspinatus
tendon. His recommendation was for Mr. Scarfe to undergo three to four
months of physiotherapy to work on a rotator cuff strengthening program as he
felt it was likely that he would respond well to a non‑operative
treatment. If the physiotherapy was not helpful, then he might consider
shoulder arthroscopy.

[83]       
Dr. Arneja confirmed that the plaintiff had no pre‑existing
knee pain and that the meniscal tear could be attributed to an acute traumatic
event such as a fall.

[84]       
In terms of vocational disability, the meniscal tear sustained by the
plaintiff and the interval between the date of his injury and the date of his
knee surgery would make it difficult for him to participate in any high‑impact
activity regarding his right knee.

[85]       
It was Dr. Arneja’s expectation that approximately three months
post‑operatively the plaintiff would have been able to return to full
duties without restriction with respect to his right lower extremities. Dr. Arneja
was of the view that as of the date of his medical legal report, September 1,
2012, the plaintiff should have been able to participate in most activities of
daily living, sporting activities and occupational activities regarding his
right knee. He anticipated a full recovery with respect to the meniscal tear
but was unable to give an opinion on recovery from the right shoulder injury
given that the physiotherapy had not been completed yet.

[86]       
In August 2013, the plaintiff underwent a physical capacity and work
tolerance assessment completed by Bruce Hunt. Mr. Hunt was not called for
cross‑examination and so his report was uncontested as well.

[87]       
Mr. Hunt notes in his history and facts that the plaintiff returned
to work gradually approximately six months after surgery. While working the
plaintiff restricts low‑level positioning, above his shoulder reaching,
ladder work and limits heavy lifting and carrying to manage his right knee and
shoulder pain. His current symptoms (in August 2013) included persistent right
lateral knee pain and joint pain and occasional right posterior shoulder pain.

[88]       
At the assessment in August 2013 the plaintiff did not meet the full
unrestricted physical demands of a construction labourer. He did not have
sufficient leg strength, lower limb mobility and stability to meet the low‑level
positioning, agility and balance requirements for this labour‑intensive
work. He did not meet the variable heavy low level to overhead strength demands
of a construction labourer. The plaintiff met the sedentary to light
occupational demands of a construction contractor with accommodation to low‑level
positioning, stairs, balance, ladders, overhead reaching and floor lifting.

[89]       
Mr. Hunt observed that the plaintiff had considerable atrophy in the
lower limb right quadricep muscle and continued to adopt right knee protective
pain avoidance posturing. He was unable to activate and contract the right thigh
muscle. Muscle atrophy and ongoing right knee pain were compounding leg
strength, knee functioning and recovery.

[90]       
Mr. Hunt’s recommendation was that the plaintiff should avoid repetitive
bending low‑level positioning, stair walking and floor level lifting to
control ongoing low back symptoms and limit right knee pain and exposure to
potential injury.

[91]       
The plaintiff identified as having considerable right hand grip
deficiency two standard deviations below the norm and 27 to 33% less than his
non‑dominant left hand. This required further medical review.

[92]       
The plaintiff was seen as adopting compensatory posturing as a means to
manage and control right knee pain. This compensatory posturing was impacting
standing walking activities. He continued to pace himself and limit activities
that aggravate the knee and right shoulder symptoms. He avoided certain
movements and hired other trades or helpers to manage the more physically
demanding labour‑intensive construction routines.

[93]       
It was Mr. Hunt’s unchallenged opinion that the plaintiff was less
competitively employable due to decreased above shoulder reach tolerance and
right knee pain and compensatory posturing.

[94]       
In his recommendations, Mr. Hunt said that the plaintiff would
benefit from a custom knee brace and could consider getting foot orthotics. He
should wear a knee brace when working and walking to assist with stabilizing
the joint in minimizing the impact of the right leg limp associated with
protective posturing pain and musculoskeletal weakness. Orthotics may assist
with maintaining lower limb alignment.

[95]       
The plaintiff required further medical review for right hand weakness.

[96]       
The plaintiff required further specific lower limb strengthening therapy
but Mr. Hunt recognizes that there were barriers to the plaintiff attending
active rehabilitation. These barriers include limited access to active based
therapy due to funding, compliance issues, and living on a small isolated Gulf
island, which requires ferry travel to and from the clinic on Vancouver Island.

Damages – Duty to Mitigate

[97]       
A plaintiff has an obligation to take all reasonable measures to reduce
his or her damages, including undergoing treatment to alleviate or cure
injuries: Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC
1111 at para. 234.

[98]       
Once the plaintiff has proved the defendant’s liability for his or her
injuries, the defendant must prove that the plaintiff acted unreasonably and
that reasonable conduct would have reduced or eliminated the loss. Whether the
plaintiff acted reasonably is a factual question and it involves a
consideration of all of the circumstances: Gilbert v. Bottle, 2011 BCSC
1389 at para. 202.

[99]       
It is pretty clear to me that this plaintiff has failed to mitigate his
damages. He was prescribed five weeks of post‑operative physiotherapy. He
went twice. He has done no strengthening exercise. Some of his disability is
related to the loss of muscle mass in his right quadricep muscle. The only home
exercises he has done are stretching exercises which appear to be related to
the shoulder injury and not the knee injury. I do note that in Mr. Hunt’s
report, there is some reference to the plaintiff walking one hour a day for leg
strengthening exercise. This was not referred to in evidence.

[100]     Both Dr. Arneja
and Mr. Hunt recommended the plaintiff come back for further assessment of
his shoulder injury after a course of physiotherapy. He did not do the course
of physiotherapy and he never went back for further assessment.

[101]    
Chiu v. Chiu, 2002 BCCA 618 at para. 57 sets out the test
for failure to mitigate by not pursuing recommended treatment:

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.

[102]     Also, see Wahl
v. Sidhu, 2012 BCCA 111 at para. 32; and Morgan v. Galbraith, 2013
BCCA 305 at para. 78.

[103]     The
defendant can prove that the plaintiff acted unreasonably by not following the
medical advice. They have not made any effort to prove the extent to which the
plaintiff’s damage would have been reduced if he had acted reasonably. For that
reason the failure to mitigate argument must fail.

Non-Pecuniary Damages

Law

[104]     Non-pecuniary
damages are awarded to compensate the plaintiff for pain, suffering, loss of
enjoyment of life and loss of amenities. The compensation award should be fair
to all parties and in fairness, is measured against awards made in comparable
cases. Such cases, though helpful, serve only as a rough guide. Each case
depends on its own unique facts: Trites v. Penner, 2010 BCSC 882 at paras. 188-189.

[105]    
 In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal
outlined the factors to be considered when assessing non‑pecuniary
damages at para. 46:

The inexhaustive list of common factors cited in Boyd [Boyd
v. Harris (2004), 237 D.L.R. (4th) 193, 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]
B.C.J. No. 263 (QL), 2005 BCCA 54)).

[106]     The
plaintiff relies on the following decisions to assist the court in assessing quantum
of non‑pecuniary damages:

1)            
Cabrera v. Sandhu 2009 BCSC 1321. In this case, the plaintiff had
ongoing right knee injury and sustained a medial meniscus tear and underwent
surgery. The plaintiff received an award of $60,000.

2)            
Trenholm v. Randhawa, [1996] B.C.J. No. 1783. In this
case, the plaintiff suffered minor soft tissue injuries resolving within four
months of the accident but a knee injury with the meniscal tear persisted and surgery
was required. The plaintiff suffered pain and restrictions following surgery
and was awarded $50,000 for non‑pecuniary damages.

3)            
Buttar v. Bremmam, 2012 BCSC 531. In this case, the
plaintiff suffered cartilage injury to the knee with ongoing symptoms limiting
the plaintiff’s recreational pursuits and his inability to work at the same
high level he did before the accident. This plaintiff was awarded $60,000 in
general damages.

Conclusion

[107]     I agree
with the plaintiff’s submission that an award of $50,000 for non‑pecuniary
damages is reasonable in all the circumstances. The plaintiff did suffer the
meniscal tear and ACL rupture due to this slip and fall accident. He has
experienced a high level of pain while waiting for surgery and has had reduced
but persistent pain after arthroscopic surgery. He has been unable to work at
the same capacity. He is not able to pursue his favourite hobby which is steelhead
fishing.

[108]     Some of
his ongoing problems can be attributed to his lack of participation in
rehabilitation therapy. Although that might result in a reduction of damages, I am
mindful of the fact that the plaintiff also injured his shoulder at the time of
this accident and that his shoulder injury has not resolved. For that reason I
think the position taken by the plaintiff at this trial on the issue of non‑pecuniary
damages is reasonable and I award $50,000 to the plaintiff.

Loss of Earnings or Loss of Earning Capacity

[109]     The
plaintiff is a building contractor. He or his business has a contract with Home
Depot doing mostly roofing and gutters. He says that he was also doing some
pest control work before the accident. The plaintiff and his collateral
witnesses all described him as a strong agile man prior to the accident. He
could outwork men half his age. For example he could climb a ladder with a 60
pound load of shingles on his shoulder without difficulty. Roofing and gutter
work is all work that requires ladder climbing. He was also capable of doing
overhead work.

[110]     Since the
accident, the plaintiff and his collateral witnesses all confirmed that he is a
changed man. He lacks the agility and strength he once had. He is very
reluctant to climb ladders especially because of his knee instability and
reduced leg strength. Because of his shoulder problems he cannot lift heavy
weights.

[111]     One
confusing bit of evidence is that the plaintiff said he handed his business
over to his son in 2008 or 2009 and when asked why, he said “I just couldn’t do
it anymore”. When questioned by his own counsel he answered “I was rebuilding
my house on Thetis Island and most of the jobs they had they only needed a
single guy. It was more important for me to spend time building my house which
I am still working on.”

[112]     He was
asked again if he handed his business over to his son because he was working on
building his house and he said they didn’t need me and I was working on my house.
This evidence led me to believe that the plaintiff had stopped working as a
contractor and wasn’t working on the Home Depot contract. Earlier in his
evidence he said that he was working on gutters and roofing right before the
accident but I think that his son was doing this work after 2008 or 2009 when the
plaintiff signed the business over to him.

[113]     Before the
accident, the plaintiff was working for one client doing pest control on a
number of apartment buildings she managed. He said he was doing this right up
until the accident. He was asked if this could be a physically demanding job
and he said that it can be or it can be just getting a can of raid from the
hardware store and spraying it. He was asked if he could do pest control since
the accident and his answer was “oh absolutely”. He then saw the shake of the
head of his counsel and realized he’d answered wrong way and said “no I can’t
climb up ladders anymore”. He was asked about ladders and pest control and he
said a lot of pest control is done in attics and crawlspaces and that will
cause a problem because he can’t do ladder work and he lacks the agility. He
didn’t refer to crawling around on his knees but I suspect that he would have
difficulty doing that with his knee injury.

[114]     This
earnings loss claim is a difficult one to quantify because the plaintiff
doesn’t keep financial records. I have no idea if he was receiving income from
the business from 2009 to immediately before the accident. I have to assume
that the Home Depot contract is not for cash but no financial records were
filed. I draw a negative inference. If no records were filed of the plaintiff
earning money from the Home Deport contract then I conclude that he didn’t earn
any money.

[115]     The
plaintiff’s son, Jamie gave evidence that his father handed him the business in
2008 or 2009 and that the plaintiff was working on his own house. He did say
however, that he worked on and off with his father after handing over the
business but said nothing of what he actually paid him. Jamie said that he is
now working on a contract with Home Depot doing gutters and siding citing
mainly residential work.

[116]     Jamie
agreed that some of the work he does is for cash. Some of the cash is declared
on tax returns and some is not. He described the effect of the injury on his
father. He used to pack shingle bundles up a ladder and now he can’t do it at
all. He said that he and his father had a pest control business for five or six
years. They did work for Geraldine Poirier. He said they had to crawl in
crawlspaces and climb ladders to get to attics. He said that his father would
not be able to do that anymore. He did say that his father was doing some of
the pest control work immediately before the accident but didn’t say anything
about what he earned.

[117]     Prior to
the accident the plaintiff was good at bringing in business. He is less able to
do that now. I don’t know if he was doing this immediately before the accident.
Jamie said his father seems depressed now.

[118]     Jamie said
that he did have his father do some cleanup on a job but he was having trouble
with that too so he doesn’t ask him anymore.

[119]     The
evidence is very unclear about how much work the plaintiff was actually doing
prior to the accident after handing the business over to his son and whether he
was being paid from the business at all.

[120]     Mr. Dufort,
who is the friend of the plaintiff’s son, has worked for the plaintiff’s
business on a number of occasions assisting with roofing and siding. He
estimated that he could earn between $200 and $300 for a job and usually that
income was cash. He said if he worked for a straight week, he could make a few
thousand dollars. He described the plaintiff as strong, agile and able to lift
60 pounds of shingles up a tall ladder without difficulty. Mr. Dufort was
aware of the accident and did work with the plaintiff several months after the
accident. He said the plaintiff was not doing any heavy work and was in more of
a supervisory role.

[121]     The
physical capacity and work tolerance assessment supports a conclusion that the
plaintiff has suffered a loss of earning capacity. How it converts into income
loss is the difficult question because no evidence was lead as to how much
income the plaintiff was actually earning before the accident.

Past Loss of Earning Capacity

[122]     Compensation for past loss of earning capacity is to be based on
what the plaintiff would have, not could have, earned but for the injury that
was sustained: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30;
M.B. v. British Columbia, 2003 SCC 53 at para. 49.

[123]     The trial judge has discretion to determine what period or periods
[of time] are appropriate for the determination of net income loss: Lines v.
W.D. Logging Co. Ltd., 2009 BCCA 106 at paras. 181-186. In exercising
this discretion, the trial judge should keep in mind that the plaintiff is to
be put back in the position he or she would have been in had the accident not
occurred (Lines at paras. 185-186).

[124]     The burden of proof of actual past events is a balance of
probabilities. An assessment of loss of both past and future earning capacity
involves consideration of hypothetical events. The plaintiff is not required to
prove these hypothetical events on a balance of probabilities. The future or
hypothetical possibility will be taken into consideration as long as it is a
real and substantial possibility and not mere speculation: Athey v. Leonati
at para. 27 Athey v. Leonati,
[1996] 3 S.C.R. 458; Morlan v. Barrett, 2012 BCCA 66 at
para. 38.

Conclusion

[125]     On a balance of probabilities, I cannot quantify past income loss
with any precision because the evidence I have before me is that this plaintiff
handed over the business in 2008 or 2009 and was building his house. He may
have done some pest control work and he may have done some odd jobs for his
son’s business. Both Ms. Poirier and Jamie Scarfe gave evidence and could
have said what they were paying the plaintiff before the accident but did not. I
have to conclude that they were not paying him before the accident.

[126]     I find that the plaintiff did lose the capacity to earn income. Had
someone asked him to do an odd job, he would now have to say no because of the injuries
he sustained in this accident. There may have been occasions when his son
needed an extra pair of hands on the job and would have called his father to
assist but for the injuries and there may have been occasions before she
retired that Ms. Poirier would have called the plaintiff and asked him to
assist with pest control. The plaintiff’s main focus was building his house so
I have to assume that these occasions would have been rare but there is a real
and substantial possibility that these occasional requests would have been
made.

[127]     I will award the plaintiff $5,000 for past loss of earning capacity.

Loss of Future Earning Capacity

Law

[128]     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 on 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 (S.C.); Pallos
v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260
(C.A.); Pett v. Pett, 2009 BCCA 232.

[129]     Insofar as possible, the plaintiff should be put in the position he
or she would have been in but for the injuries caused by the defendant’s
negligence: Lines at para. 185. 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 Corporation of British Columbia, 2011
BCCA 144 at para. 32.

[130]     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. The “earnings
approach” will generally be more useful when the loss is easily measurable: Perren
v. Lalari, 2010 BCCA 140 at para. 32. Where the loss “is not
measurable in a pecuniary way”, the “capital asset” approach is more
appropriate: Perren at para. 12.

[131]     On this evidence, I am restricted to applying the capital asset
approach. In doing so I must consider :

1)            
whether the plaintiff has been rendered less
capable overall of earning income from all types of employment;

2)            
whether the plaintiff is less marketable or attractive
as a potential employee;

3)            
whether the plaintiff has lost the ability to
take advantage of all job opportunities that might otherwise have been open;
and

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

Brown; Gilbert v. Bottle, 2011 BCSC 1389 at para. 233; Morgan
at paras. 53 & 56.

[132]     The principles that apply in assessing loss of future earning
capacity were summarized by Low J.A. in Reilly v. Lynn, 2003 BCCA 49 at para. 101:

The relevant
principles may be briefly summarized. The standard of proof in relation to
future events is simple probability, not the balance of probabilities, and
hypothetical events are to be given weight according to their relative
likelihood: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 27. A
plaintiff is entitled to compensation for real and substantial possibilities of
loss, which are to be quantified by estimating the chance of the loss
occurring: Athey v. Leonati, supra, at para. 27, Steenblok v.
Funk (1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.). The valuation of the loss
of earning capacity may involve a comparison of what the plaintiff would
probably have earned but for the accident with what he will probably earn in
his injured condition: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at
93 (S.C.). However, that is not the end of the inquiry; the overall fairness
and reasonableness of the award must be considered: Rosvold v. Dunlop,
2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995] B.C.J. No. 644
(C.A.) (Q.L.). Moreover, the task of the Court is to assess the losses, not to
calculate them mathematically: Mulholland (Guardian ad litem of) v. Riley
Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Finally, since the course of
future events is unknown, allowance must be made for the contingency that the
assumptions upon which the award is based may prove to be wrong: Milina v.
Bartsch, supra, at 79.

[133]     I have considered the authorities presented by the plaintiff. In Gregory,
the B.C. Court of Appeal said that comparing cases are of limited utility in
assessment of future awards. The court is to compare the likely future of the plaintiff
if the accident had not happened and the plaintiff’s likely future after the
accident happened. The degree of impairment of the plaintiff’s earning capacity
depends upon the type and severity of the plaintiff’s injury and the nature of
the anticipated employment at issue. The court is directed to consider the
likely duration of the plaintiff’s prospective working life and must account
for negative and positive contingencies which are unique to each case.

Conclusion

[134]     Relying on the same facts that I reviewed under past loss of earning
capacity, I find that plaintiff has been rendered less capable overall of
earning income from all types of employment. I find that the plaintiff is less
marketable or attractive as a potential employee. I also find that the
plaintiff has lost the ability to take advantage of all job opportunities that
might otherwise have been open and that the plaintiff is less valuable to
himself as a person capable of earning income in a competitive labour market.

[135]     Now I have 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.

[136]     As I have found under past loss of earning capacity, this plaintiff
was essentially retired from building contracting and had been since 2008 or
2009. Nonetheless, I find that it is a real and substantial possibility that he
would have occasionally been called in to help his son’s business or to help roof
a friend’s house or to do some pest control work for money if he had remained
as physically capable as he was before the accident.

[137]     When I consider the overall fairness of this part of the award, I
find it would be unfair to the plaintiff to ignore the fact that these
occasional income earning opportunities are no longer available to him. I have
discounted the amount considerably in fairness to the defendant because there
is such unclear evidence of how much, if any, income the plaintiff was earning.

[138]     I will award $10,000 for future loss of earning capacity to the
plaintiff.

Conclusions on Cost of Future Care

Special Damages

[139]     The plaintiff is not claiming special damages.

SUMMARY

[140]    
In summary, damages are awarded as follows:

1)            
Non-pecuniary damage award: $50,000;

2)            
Past Loss of Earning Capacity: $5,000; and

3)            
Future Loss of Earning Capacity: $10,000.

COSTS

[141]    
The plaintiff has been successful in this case. Accordingly,
I award him costs at Scale B. I am not aware of any formal offer from the
defendant and given their position on liability, it is unlikely that there was
one. If I am incorrect, then within 14 days of the release of this decision, counsel
are to advise me through Supreme Court Scheduling of their desire to make
submissions as to costs.

“Young J.”