IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100114

Docket:
06-5117

Registry: Victoria

Between:

Brendan Colt Esau

Plaintiff

And

Dustin Timothy Myles

Defendant

Before: The Honourable Madam Justice Ross

Reasons for Judgment

Introduction

[1]            
The plaintiff, Brendan Esau, seeks damages for
injuries sustained as a result of a motor vehicle accident that occurred on
June 20, 2005 when the vehicle Mr. Esau was driving was struck from behind
by the vehicle driven by the defendant, Dustin Myles.

[2]            
Liability is not at issue. In addition, counsel
for Mr. Myles concedes that Mr. Esau was injured in the accident and
that as a result he is entitled to non-pecuniary damages, an award for past
wage loss and for loss of future earning capacity. The issues are the extent of
the injuries that he suffered, the quantum of the damages and the effect, if
any, of a pre-existing condition or the damages awarded.

Facts

[3]            
Mr. Esau is 24 years old. He was born and
has lived his entire life in Fort St. John. He demonstrated a very strong work
ethic early in life, starting part-time work at age 12 and continuing with
part-time employment until he graduated from High School. His parents
emphasized that this work resulted from his initiative, not their urging. He was
working up to 30 hours a week during High School in addition to his studies.
His first job was doing cleanup work. He then worked in food preparation and
eventually at Canadian Wholesale where he was employed in the produce
department. The work involved considerable heavy lifting and was quite
physically demanding.

[4]            
Mr. Esau graduated from High School in June
2003. However, he was frank to say that he did not particularly enjoy school
and struggled academically, particularly in math and science. He worked with a
tutor and sought extra help, both at school and from his mother, and with this
help, was able to graduate. Like many young people, he was not certain of his
career goals during High School. He had some interest in taking the Power
Engineer course at Northern Lights College.

[5]            
Mr. Esau’s parents were both strongly
supportive of Mr. Esau learning a trade and had set aside some money to
help him. However, immediately after graduation Mr. Esau wanted to earn
more money to support himself while at college. He worked full-time at Canadian
Wholesale, receiving a promotion to assistant supervisor of produce. In March
2004, he wrote the Canadian Adult Achievement Test (“CAAT”) and the Math
Entrance Exam in support of an application to the Power Engineering and Gas
Processing Program at Northern Lights College. He failed both tests and
recognised that he would require further tutoring and assistance if he hoped to
enter that program. However, he did not pursue that support at the time.

[6]            
He left his position at Canadian Wholesale in
August 2004 and started with Cascade Steaming Inc. as a swamper. He moved away from
home at this time. Mr. Esau stated that his plan was to save money, upgrade
his skills, and then go back to school eventually.

[7]            
The position with Cascade offered higher wages
and the possibility for substantial overtime. It was a position requiring heavy
labour and was very physically demanding. In addition, the hours were often
very long. Mr. Esau had no difficulty carrying out his duties and
experienced no problems with his back.

[8]            
In early 2005, Mr. Esau left his position
and started working with Redneck Oilfield Service as a swamper. Then in May
2005, he started to work with Alpine Environmental (“Alpine”) as a field
technician. Mr. Esau’s father was employed by Alpine at the time and
recommended it to his son as a good opportunity. Mr. Esau was trained on
the job. He started on an on call basis and was later taken on full-time. The
work at Alpine was also very physically demanding with long hours. There were
some opportunities for advancement within the company to the positions of
foreman and supervisor. Mr. Esau stated that he enjoyed the work very much
and had no difficulty performing his duties.

[9]            
Mr. Esau’s health prior to the motor
vehicle accident was generally good. He suffered a grand mal seizure at age 15
and was treated with medication. Eventually he was taken off the medication,
but suffered seizures about a year later. He was placed back on medication and thereafter,
has had no further seizures. It is common ground that his epilepsy is not
germane to any of the issues to be determined in this litigation. Mr. Esau
experienced no problems with his back prior to the motor vehicle accident.

[10]        
Prior to the accident Mr. Esau enjoyed a
very active lifestyle. In addition to the physical demand of his employment, he
participated in many sports and enjoyed hunting and fishing.

[11]        
The motor vehicle accident occurred on June 20,
2005. Mr. Esau was stopped at an intersection waiting for the vehicle in
front of him to complete a turn when his vehicle was struck from behind by the
vehicle driven by the defendant. He was wearing his seat belt. The collision
created a significant impact. Mr. Esau’s car was pushed about 3/4 of the
way into the intersection. There was considerable damage to Mr. Esau’s
vehicle, which was eventually written off. The front seat broke and Mr. Esau
hit his head on the steering wheel. The rear of the vehicle was pushed in.

[12]        
Mr. Esau drove his vehicle to Alpine to
speak with his father, who reported the accident. He was feeling very shaken up.
His forehead was swollen. He had pain in his neck and lower back. The next
morning his neck and back were very sore and he went to emergency at Fort St.
John Hospital. He was given an x-ray, neck brace and a prescription for pain
and inflammation and told to stay off work for a couple of weeks. Mr. Esau
found that the medication made him very groggy.

[13]        
Mr. Esau followed up with his family
doctor, Dr. Hattingh, about two weeks later. By that time, his neck pain
had mostly resolved. However, the pain in his back was still very problematic. Dr. Hattingh
gave him another prescription and told Mr. Esau that he could return to
light duties at work.

[14]        
Mr. Esau tried to return to his employment
in early July 2005. He found that he could not perform his tasks without
assistance and his back pain was very aggravated. He stated that his back was
very sore; he could hardly move and could hardly even bend. Part of the
difficulty was that Alpine did not really have any truly light duties that it
could assign to Mr. Esau.

[15]        
Mr. Esau returned to Dr. Hattingh who
advised him not to return to work. He was referred to physiotherapy between
July 15 and October 7, 2005 and acupuncture and massage therapy between
November 8 and December 12, 2005. Mr. Esau stated that his back did not
improve during that period. He was unable to return to work. Dr. Hattingh
referred Mr. Esau to Dr. Lavoie, an orthopaedic surgeon in Edmonton.

[16]        
Mr. Esau was also referred to Dawson Creek
Physiotherapy where he was assessed by Gareth Lowe, a physiotherapist. Mr. Lowe
referred Mr. Esau to Eunice McCaffrey, a personal trainer for a core
strengthening program. He attended this program between January 12, 2006 and
April 18, 2006. Mr. Esau found that he experienced some improvement with
this program. Mr. Esau continued to do the exercises he was taught after
the program concluded. He reported that by March 2006 his back had improved,
but that he had not completely recovered.

[17]        
Mr. Esau returned to Mr. Lowe for a
functional assessment in March 2006. Mr. Lowe testified that on March 10,
2006 he reported that Mr. Esau’s:

“…ability to perform consistently at this
level for prolonged periods remains questionable, as an increase in lumbar
spine symptoms (discomfort and muscle spasm) was noted the day following
testing. These symptoms lasted the remainder of the following day and into the
morning of the next.”

[18]        
Mr. Lowe advised Mr. Esau to continue
with four more weeks of the conditioning program following which he may be able
to attempt to return to work.

[19]        
On May 29, 2006, Mr. Esau saw Dr. Lavoie.
Mr. Esau testified that Dr. Lavoie advised him to find a trade that
was lighter duty and to lose weight. At that time he was 200 pounds and was
told to lose another 20 to 30 pounds. Over the course of the next year, he lost
40 pounds.

[20]        
Mr. Esau testified that at this time,
almost one year after the accident, he was experiencing constant pain in his
low back. On a good day, it would be about four or five out of ten. On a bad
day, it would be ten out of ten. He was getting about two bad days per week.

[21]        
Mr. Esau stated that the weight loss was
also beneficial to his back, however, he continued to have pain that was
constant and flare ups of severe pain about twice a week.

[22]        
After seeing Dr. Lavoie, Mr. Esau
began to look for employment that was lighter than what he had done previously
and something that would not aggravate his low back. He applied for a number of
jobs. In one instance, Choice Lumber, he testified that he felt he was not
hired because he advised them that he could not do any heavy lifting. His
father suggested that he apply for a position that he had heard was available
at Fort Motors and would not involve heavy physical work and Mr. Esau did
so. He was hired to begin work at Fort Motors on June 26, 2006 and testified
that he understood that the job he was hired to do would be light duty and
would involve running for parts and driving the customer shuttle. His evidence
was that this did not happen and that he was asked to hold automotive parts,
such as transmissions, in place while the mechanics were bolting it to the
vehicle. These activities aggravated his back pain. He tried to be moved to the
“counter” but he understood that it would be a year before he would be able to
move into such a position.

[23]        
Due to his worsening low back pain, he looked
for other employment which would be less aggravating. His father, Mr. Brent
Esau, testified as to his observations of the plaintiff when he came home from
work at Fort Motors. Mr. Esau was living at home again during this time
and his father had a good opportunity to observe his son. Mr. Esau Sr.
testified that when his son was working at Fort Motors, he was in extreme pain
some days after work particularly after having to do heavy lifting to help the
mechanics.

[24]        
Mr. Esau Ieft Fort Motors on September 23,
2006 and applied for a position at AAA Safety. He was hired as an SCBA
technician, commenced employment with them on October 10, 2006, and remains
employed there. Mr. Esau received on the job training with respect to this
position which he was able to complete. This position did not have the physical
demands of his previous jobs and Mr. Esau and his father testified that it
did not aggravate his back to the extent that his previous job at Alpine and
Fort Motors did.

[25]        
Mr. Esau stated that his low back pain is
essentially unchanged over the past three and a half years. He always has low
back pain. On a good day he rates it as a four or five out of ten. If he is
doing a lot of manoeuvring or bending at work, it can go up to eight, nine or
ten out of ten.

[26]        
Mr. Esau felt he was not earning enough
money and held a second job at Cosmic Grounds Coffee Shop between January 2007
and May 2007. He ended that employment as a result of his epilepsy following a
few seizures. After this, he was placed back on his anti-seizure medication and
has been seizure free since then.

[27]        
Mr. Esau was not happy with the level of
his income and in September 2007 took a second job again, this time at the
Aurora Theatre. He remains employed at the theatre in a part-time capacity
selling hot foods to customers.

[28]        
Mr. Esau testified that he still suffers
from low back pain and that his employment at AAA Safety still causes an increase
in his pain, particularly if he is doing more manoeuvring and bending. He
stated that after an evening working at his second job at the Aurora Theatre,
his low back pain can go up to an eight or nine out of ten. He states that
going for long walks will cause his back pain to worsen. He tried running on
occasion but was unable to continue as the impact from the running was hard on
his back. Sitting and standing for a long time will cause his back pain to
worsen.

[29]        
Mr. Esau’s evidence was that before the
accident, he enjoyed fishing, ice hockey and hunting. He testified that there
are still some activities that he participates in, such as hockey, but that it
aggravates his low back. His father testified that he has played golf with his
son and observed that this sport causes low back pain. Ms. Sipes, the plaintiff’s
girlfriend testified that the plaintiff’s back pain affects their ability to
enjoy intimacy in their relationship.

[30]        
Mr. Esau’s mother and father also testified
that they have observed that their son is in pain after performing tasks that he
was able to do before the accident. Mrs. Esau gave evidence that she and
her husband helped Mr. Esau move in August 2009 and she observed that
moving a loveseat and heavy boxes over a two hour period was painful for him.

[31]        
Mr. Esau reports that he is still doing the
exercises he was taught. His back remains problematic. Many of the activities
of daily living cause an increase in his pain including long walks, running,
sitting, standing, and lifting. He is able to do his job, but with considerable
pain.

Expert Evidence

[32]        
Dr. James Filbey, who is a specialist in
Physical Medicine and Rehabilitation, examined Mr. Esau and prepared two
expert reports, dated April 15 and August 16, 2009.

[33]        
X-ray and CT scans together with physical
examination revealed that Mr. Esau had certain anatomical anomalies;
namely, spondylolisthesis and spondylolysis, as well as spinal bifida occulta,
in his lower back at the L4/L5 area. These were congenital or developmental
conditions that predated the motor vehicle accident, but were asymptomatic prior
to the accident. These conditions, however, rendered Mr. Esau more
vulnerable to injury to his lower back and predisposed to developing chronic
symptoms when injured. With respect to causation, Dr. Filbey’s report read
as follows:

Diagnosis:

It is my opinion, based on the available
information including the history, physical examination and review of records
that Mr. Esau has the following diagnoses:

1.   Low back pain — mechanical/musculoligamentous strain with
underlying spondylolisthesis, spondylolysis and spina bifida occulta;

2.   Cervical spine pain — resolved.

Causation:

It is my opinion
that the symptoms related to the above diagnoses are a direct result of the motor
vehicle accident. The spondylolisthesis and spondylolysis, as well as the spina
bifida occufta, predated the MVA but were not symptomatic. It is my opinion
that had the MVA not occurred, there is no indication that he would have, or
would have ever, developed symptoms in the low back. It is evident that he did
report low back pain at the ER the day following the accident. It is noted that
his return to regular work resulted in an aggravation of these symptoms. There
is no indication that he would have developed low back pain had the pain
following the MVA not occurred.

[34]        
Dr. Filbey recommended that Mr. Esau
undergo a bone scan with SPECT imaging to clarify the situation with respect to
the anatomical anomalies, and in particular, whether there was further deterioration.
That test was conducted and in his subsequent report Dr. Filbey concluded:

Discussion:

The bone scan suggests that at this stage,
there is no indication that he is experiencing any bone remodelling or damage
in the lower lumbar region. It also indicates that the grade I
spondylolisthesis is stable and not causing progressive disc / joint
deterioration at this time.

The CT and MRI images confirm that he has an
anatomical anomaly in the form of a spondylolysis with spondylolisthesis.

These anatomical variants pre-dated the MVA
but are consistent with an abnormal bony and ligamentous structure which has
led to his spine being more vulnerable to the forces of injury and in addition,
less able to rehabilitate following such an injury.

In this instance, he remains symptomatic at
more than 4-years post accident. It is very unlikely that he will have
symptomatic resolution over time. The fact that the bone scan is normal is
consistent with the opinion that the MVA related injury has not put him at significant
risk of pre-mature or accelerated degenerative bone change in the spinal
regions.

It is my opinion that it is more likely than
not that his symptoms are likely to remain very similar to their current level
over the long term. He may get some symptomatic improvement if he is able to
avoid activities that strain the lumbar region, however, he will remain
symptomatic and very vulnerable to exacerbations of pain with such tasks.

Tasks that are likely to aggravate his
symptoms and place increased forces on the abnormal spinal segments
(spondylolysis and spondylolisthesis) include heavy lifting, twisting, bending
and turning. Labourous tasks are more likely to place increased strain
(shovelling, lifting etc.).

Less strenuous tasks may aggravate his pain
but are unlikely to significantly increase symptoms over the long-term (ie.
Will result in increased symptoms for short periods of time) include prolonged
stationary postures including sitting / standing while performing tasks.

Mr. Esau
is, in my opinion, less able to take full advantage of gainful employment that
requires moderate to heavy tasks / labour. He is best suited for employment
that allows him to be more sedentary with light tasks and frequent position
change and task variation.

[35]        
A vocational assessment was prepared by Derek
Nordin. Mr. Nordin administered a number of tests to measure academic
achievement, aptitudes and vocational interests. Mr. Esau performed very
poorly on the tests in virtually every category. Mr. Nordin was not of the
view that Mr. Esau’s effort was deficient. However, the results were
anomalous in that they were inconsistent with Mr. Esau’s achievements both
at school and in his employment. In other words, according to these test
results, Mr. Esau should not have been able to graduate from High School
and perform in the jobs he has held, including his current position. Mr. Esau
showed interest in doing jobs with tangible results, operating heavy equipment,
using tools, operating precision machinery, fixing, building, repairing. He had
a high interest in food service, mechanical/fixing, electronics and protective
service occupations.

[36]        
Mr. Nordin concluded that it is more likely
that had Mr. Esau not been injured, he would have pursued a career path
that involved practical training applications with a heavier reliance on
physical prowess. With respect to Mr. Esau’s interest in training as a
power engineer, Mr. Nordin was of the view that the cognitive demands of
this field were likely beyond Mr. Esau, while he would not rule it out as
a possibility.

Causation

[37]        
The principles to be applied were articulated in
Athey v. Leonati, [1996] 3 S.C.R. 458, at pp. 466-468 [Athey].
I summarize those principles as follows:

(a)        causation
is established where the plaintiff proves to the civil standard on a balance of
probabilities that the defendant caused or contributed to the injury;

(b)        the
“but for” test is the general test for causation. Where this test is
unworkable, causation is established where the defendant’s negligence “materially
contributed” to the occurrence of the injury;

(c)        the
defendant’s negligence need not be the sole cause of injury; so long as it is a
material cause, the defendant will be liable. There is no apportionment between
tortious and non-tortious causes;

(d)        the plaintiff
is to be restored to the position he would have been in absent the defendant’s
negligence. Therefore the defendant need not compensate the plaintiff for the
debilitating effects of pre-existing conditions, nor for subsequent events
which are completely unrelated to the defendant’s negligence.

[38]        
In the present case it is conceded that the
motor vehicle accident caused injury to Mr. Esau’s lower back. The issue
is whether there should be a reduction to reflect the debilitating effects of Mr. Esau’s
pre-existing condition. In that regard the approach to be taken is summarized
in Athey at para. 35 as follows:

The so-called "crumbling skull"
rule simply recognizes that the pre-existing condition was inherent in the
plaintiff’s "original position". The defendant need not put the
plaintiff in a position better than his or her original position. The
defendant is liable for the injuries caused, even if they are extreme, but need
not compensate the plaintiff for any debilitating effects of the pre-existing
condition which the plaintiff would have experienced anyway. The defendant is
liable for the additional damage but not the pre-existing damage: Cooper-Stephenson,
supra, at pp. 779-780 and John Munkman, Damages for Personal
Injuries and Death (9th ed. 1993), at pp. 39-40. Likewise, if there is
a measurable risk that the pre-existing condition would have detrimentally
affected the plaintiff in the future, regardless of the defendant’s negligence,
then this can be taken into account in reducing the overall award: Graham v.
Rourke [(1990), 74 D.L.R. (4th) 1]; Malec v. J. C. Hutton Proprietary
Ltd. [(1990), 169 C.L.R. 638 (Aust. H.C.)]; Cooper-Stephenson, supra,
at pp. 851-852. This is consistent with the general rule that the
plaintiff must be returned to the position he would have been in, with all of
its attendant risks and shortcomings, and not a better position.

[Emphasis in
original.]

[39]        
The position of the plaintiff is that there is
no measureable risk that the pre-existing condition would have detrimentally
affected Mr. Esau in the future and accordingly there should be no
reduction in the award. Counsel for the defendant submits that there is a
measureable risk that Mr. Esau’s anatomical anomalies would have resulted
in injury in the future, absent the accident, and that accordingly a reduction
in the award is appropriate to reflect that risk. Both counsel rely upon the
evidence of Dr. Filbey to support their positions.

[40]        
I have reviewed Dr. Filbey’s reports and
his testimony and have concluded that there is no measurable risk in Mr. Esau’s
case that, absent the accident, the anatomical anomalies would have
detrimentally affected him in the future. Thus, it is not appropriate to
discount the award to reflect the contingency. In particular, I note that Mr. Esau
did not have any back pain prior to the accident. It was determined that he did
not suffer from degenerative spondylolisthesis. The bone scan determined that
his condition was stable, there was no inflammatory process.

[41]        
It was Dr. Filbey’s opinion that had the
accident not occurred there is no indication that Mr. Esau would have ever
developed symptoms in the low back. Dr. Filbey noted that in the research,
and in his experience, spondylolisthesis that is of a non-degenerative type is
not associated with an increased incidence of back pain above the general
population. It was his opinion that if an individual who had this condition
engaged in activities that stressed the back, there was a greater likelihood
that they would experience pain, but that the pain was not likely to be
disabling pain.

Non-Pecuniary Damages

[42]        
Counsel for Mr. Esau submits that the
appropriate award for non-pecuniary loss is $95,000. Counsel emphasizes in
particular Mr. Esau’s youth and the prognosis that the chronic pain will
be lifelong. The injury has had an impact upon every area of Mr. Esau’s
life, his work, his leisure activities, his ability to do work at his home, and
his intimacy with his partner. Counsel cites the following authorities: Cipriano
v. Cipriano (1996), 74 B.C.A.C. 19, 22 B.C.L.R. (3d) 148; Slocombe v.
Wowchuk, 2009 BCSC 967; Pett v. Pett, 2008 BCSC 602 (varied 2009
BCCA 232) and McTavish v. MacGillivray, 2000 BCCA 164, 74 B.C.L.R. (3d)
281.

[43]        
Counsel for Mr. Myles accepts that Mr. Esau
suffers from continuing low back symptoms that have persisted since the
accident. Counsel notes that the intensity and frequency of the symptoms has
diminished over time, particularly since Mr. Esau completed the physical
conditioning program. Counsel submits that the appropriate award for non-pecuniary
loss in the circumstances is $30,000 to $40,000 citing Haines v. Shewaga,
2009 BCSC 340 [Haines]; Lubke (Litigation guardian of) v. Mattin,
2009 BCSC 709 [Lubke]; Stone v. Kirkwood, 2008 BCSC 1295 [Stone];
Chen v. Beeler, 2004 BCSC 584 and Lowen v. Kovacevic, 2005 BCSC
1520, 30 C.C.L.I. (4th) 156 [Lowen].

[44]        
It is clear that Mr. Esau suffered soft
tissue injuries to his neck which resolved within a few weeks of the accident
and a mechanical/musculoligamentous strain to his lower back, which because of
his anatomical anomalies has left him with permanent pain in his lower back. Mr. Esau
has done everything suggested to recover. He followed all medical
recommendations. He works through his pain. He has a very strong work ethic and
consequently works at both a full-time and part-time job. He has taken very
little time off work since October 2006. However, he continues to have chronic
pain with flare ups of severe pain. He is no longer able to participate in jobs
requiring heavy labour. He is able to take part in leisure and sporting activities
that he enjoys, but not at the level he previously enjoyed and with pain. His
ability to work around the home is affected as is his intimacy with his partner.

[45]        
I have considered all of the authorities
provided by counsel. Considering the authorities and Mr. Esau’s
circumstances, I award $70,000 for non-pecuniary damages.

Past Wage Loss

[46]        
Mr. Esau’s counsel submits that but for the
injuries he sustained in the accident, he would have moved up into a foreman’s
position and continued working at Alpine Environmental until it went into
receivership in June 2008 and that following the closure of Alpine he would
have found other employment within a short time.

[47]        
In 2005, Mr. Esau only worked on a
full-time basis at Alpine for a short time. His actual earnings in 2005 were
$18,646.00 (gross). He only worked half that year and it is submitted that but
for the accident, he could have earned at least $36,000.00 that year.

[48]        
Mr. Esau’s actual pre-accident earnings
history was:

[49]        
Counsel submits that based on the evidence,
there is a substantial possibility that Mr. Esau would have been able to
take a foreman’s position at Alpine, and that his earnings would have been expressed
as gross income:

Hypothetical
Earnings but for Accident:

[50]        
Mr. Esau’s actual earnings were:

[51]        
Counsel submits that Mr. Esau’s loss of
earnings is the difference between what he would have earned but for the
accident, less his actual earnings ($171,000.00 to $186,000.00 less $107,609.00
= $63,391.00 to $78,391.00).

[52]        
Counsel submits that his (gross) past income
loss is $63,000.00 to $78,000.00.

[53]        
Counsel for Mr. Myles notes that during the
16 weeks of his employment with Alpine, Mr. Esau’s earnings (gross) were
$8,357.70, which is equivalent to $522.35 per week or $27,144.00 on an annual
basis.

[54]        
Evidence from witness, Trevor Roste, former supervisor
with Alpine, estimated the annual earnings of a field labourer at between
$40,000.00 and $45,000.00 and that of a foreman at between $45,000.00 and
$50,000.00 (gross). Mr. Roste also agreed that Mr. Esau’s job was
“seasonal” and that work was dependent on a number of factors including the
availability of work as well as road and weather conditions. In the final two
weeks prior to the accident, Mr. Esau was only paid for five hours of
work.

[55]        
As a result of his injuries, Mr. Esau was
off work from June 20th, 2005 to June 26th, 2006. Counsel for Mr. Myles
submits that but for the accident, Mr. Esau would have earned gross income
of $30,000.00 during the work loss period. Reducing for income tax and E.I.
premiums payable on the gross amount reduces the loss to approximately
$24,000.00. Since June 26th, 2006, counsel for the defendant submits that Mr. Esau
has not lost income as a result of the motor vehicle accident.

[56]        
The approach to be taken by the court in dealing
with hypothetical events, such as how Mr. Esau’s life would have proceeded
without the accident, was clarified by the Supreme Court of Canada in Athey at
para. 27 as follows:

Hypothetical
events (such as how the plaintiff’s life would have proceeded without the
tortious injury) or future events need not be proven on a balance of
probabilities. Instead, they are simply given weight according to their
relative likelihood: Mallett v. McMonagle, [1970] A.C. 166 (H.L.); Malec
v. J. C. Hutton Proprietary Ltd. (1990), 169 C.L.R. 638 (Aust. H.C.); Janiak
v. Ippolito, [1985] 1 S.C.R. 146. For example, if there is a 30 percent
chance that the plaintiff’s injuries will worsen, then the damage award may be
increased by 30 percent of the anticipated extra damages to reflect that risk.
A future or hypothetical possibility will be taken into consideration as long
as it is a real and substantial possibility and not mere speculation: Schrump
v. Koot (1977), 18 O.R. (2d) 337 (C.A.); Graham v. Rourke (1990), 74
D.L.R. (4th) 1 (Ont. C.A.).

[57]        
I conclude that it is most likely that Mr. Esau
would have continued with Alpine until it went into receivership. He enjoyed
the work and by all accounts was performing well. However, Mr. Esau had
not worked with Alpine for long before the accident. While there were
possibilities for promotion within the company, I find it too speculative to
conclude that promotion was likely and to calculate past wage loss on the basis
of foreman’s wages. There was a possibility of such a promotion, but I cannot
say that it was a substantial possibility on the evidence. There is also a
possibility of reduced earnings due to lack of availability of work.

[58]        
I find that Mr. Esau’s gross earnings but
for the accident would have been:

[59]        
Mr. Esau’s actual earnings were $107,609. I
find the past gross wage loss to be $49,391. I leave it to counsel to express
that loss as a net loss figure with liberty to apply if necessary.

Loss of Earning Capacity

[60]        
It is common ground that despite the fact that
he currently earns approximately the same amount he was likely to earn at
Alpine before the injury, Mr. Esau’s future employment prospects have been
reduced as a result of his injury. He was unable to continue with his
employment at Alpine and is no longer able to work in physically demanding
occupations that require heavy lifting, bending, twisting. Occupations
requiring prolonged sedentary positions will increase his level of pain. Dr. Filbey
stated that he is best suited for employment that allows him to be more
sedentary with light tasks and frequent changes of position. Further, Dr. Filbey
notes that as a result of the accident, Mr. Esau is at greater risk of
progressive changes in his spine if he performs activities that repetitively
and frequently aggravate his back.

[61]        
The defendant concedes that an award for loss of
future earning capacity is appropriate. The disagreement is with respect to the
quantum of the award under this head of damage. Counsel for Mr. Esau seeks
an award in the range of $250,000 to $300,000 citing Pett v. Pett, 2009
BCCA 232; Morris v. Rose Estate (1996), 75 B.C.A.C. 263, 23 B.C.L.R.
(3d) 256; Heartt v. Royal, 2000 BCSC 1122; and Heyes v. Lanphier,
2003 BCSC 1126. It is the position of the defendant that a more modest award in
the range of $30,000 to $40,000 is appropriate to reflect Mr. Easu’s
circumstances, citing Haines, Lubke, Stone, and Lowen.

[62]        
The principles to be applied in assessing loss
of earning capacity were summarized by the Court of Appeal in Rosvold v.
Dunlop, 2002 BCCA 1 as follows:

The trial judge’s task is to assess the loss on a judgmental
basis, taking into consideration all the relevant factors arising from the
evidence: Mazzuca v. Alexakis, [1994] B.C.J. No. 2128 (S.C.) at
para. 121, aff’d [1997] B.C.J. No. 2178 (C.A.). Guidance as to what
factors may be relevant can be found in Parypa v. Wickware, supra,
at para. 31; Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.);
and Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J.
They include:

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

·       
2. whether the plaintiff is less marketable or attractive as an
employee to potential employers;

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

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

The task of the court is to assess damages, not to calculate
them according to some mathematical formula: Mulholland (Guardian ad litem
of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Once impairment of
a plaintiff’s earning capacity as a capital asset has been established, that
impairment must be valued. The valuation may involve a comparison of the likely
future of the plaintiff if the accident had not happened with the plaintiff’s
likely future after the accident has happened. As a starting point, a trial
judge may determine the present value of the difference between the amounts
earned under those two scenarios. But if this is done, it is not to be the end
of the inquiry: Ryder (Guardian ad litem of) v. Jubbal, [1995] B.C.J. No. 644
(C.A.); Parypa v. Wickware, supra. The overall fairness and
reasonableness of the award must be considered taking into account all the
evidence.

The capital asset Mr. Rosvold
has lost is his ability to perform physically demanding work. Before the
accident he had earned a reasonable income without any periods of physical
disability. His ability to earn income has been impaired because those
occupations in which Mr. Rosvold has always earned a living were closed to
him by the accident. Even if Mr. Rosvold were able to earn the same amount
of income from alternative employment, he would still be entitled to
compensation for that loss: Palmer v. Goodall (1991), 53 B.C.L.R. (2d)
44 at 59 (C.A.).

[63]        
Mr. Esau suffered this injury at a very
young age. He has lost the capital asset of performing physically demanding
work. It is noteworthy that Mr. Esau’s employment prior to the accident was
physically demanding work. He does not have post-secondary training and even
without the injury faced some challenges in achieving his goal of attending
college and achieving certification in a trade. Now those challenges are much
greater as a result of the physical limitations consequent upon his injury.

[64]        
Absent completion of further training, the range
of occupations open to Mr. Esau by virtue of his interests and aptitudes
before the accident was relatively limited. Now the physically demanding
occupations are no longer open to him. He has been able to secure employment
that requires a moderate level of physical activity and he is able to do that
work. However, there is no doubt that he will be at a competitive disadvantage
in the workplace should he lose that job for any reason. I think that it is
clear that as a consequence of his injury he is less marketable to an employer.
While he is presently earning roughly what he would have likely earned at
Alpine, I think that it is likely that he will suffer some income loss in the
future as a consequence of his injury. However, even if that were not the case,
he is entitled to compensation as a result of the damage to his capital asset.

[65]        
In all of the circumstances, I assess Mr. Easu’s
loss of future learning capacity at $150,000.

Special Damages

[66]        
The special damages claimed in the amount of
$138 in relation to John Basco Massage Therapy, are conceded. I make an award
in that amount.

Cost of Future Care

[67]        
Mr. Esau seeks an award of $19,500 under
this head of damage. Counsel submits that it would be reasonable for Mr. Esau
to have funding to allow him to access six to twelve therapeutic treatments per
year for exacerbations of back pain. The current cost is $80.00 to $100.00 per
session for an annual cost of $480.00 to $1,200.00. The cost of these
treatments until Mr. Esau reaches the age of 74 (50 years) is $11,258.69
to $28,146.72 ($480.00 to $1,200.00 x present value factor 23.4556 @ 3.5%
discount rate = $11,258.69 to $28,146.72. Counsel for the defendant submits
that Mr. Esau has not shown that future costs of care will be incurred by
him as a result of his accident. He has not incurred costs of care to date and
there is no evidence to support a conclusion that he would incur those costs in
the future.

[68]        
Dr. Filbey was of the view that it was
reasonable for Mr. Esau in the future to have access to a few sessions a
year for physiotherapy and massage therapy to deal with flare ups. He
emphasized that it was what worked for the individual patient. He stated that Mr. Esau
did not require gym membership to continue his core strengthening.

[69]        
Mr. Esau’s evidence was that neither the physiotherapy
nor massage therapy helped his back. He attended in 2005 and apparently not
thereafter. What did provide assistance was losing weight and following the
exercises he was taught. I find that it is not likely that Mr. Esau will incur
these costs in the future as he has not found physiotherapy or massage therapy
helpful in the past. I make no award for cost of future care.

Summary

[70]        
In summary:

(a)      Non-pecuniary
Damages:  $70,000;

(b)      Past Wage Loss:  counsel to calculate net loss based upon
gross past wage loss of $49,391;

(c)      Loss of
Earning Capacity:  $150,000; and

(d)      Special
Damages:  $138.

[71]        
Costs will follow the event, unless counsel
indicate that they wish to make submissions on costs.

“Ross J.”