IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Cyr v. Kopp,

 

2016 BCSC 679

Date: 20160418

Docket: S133483

Registry:
Vancouver

Between:

Richard Cyr

Plaintiff

And

Rod Kopp and PNL Logistics
Ltd.

Defendants

 

Before:
The Honourable Mr. Justice G.C. Weatherill

 

Reasons for Judgment

Counsel for the Plaintiff:

J.B. Carter
M.R. Sporer

Counsel for the Defendants:

D. Quinlan Q.C.
J.T. Hamel

Place and Dates of Trial:

Vancouver, B.C.

March 14-18, 21-22,
2016

Place and Date of Judgment:

Vancouver, B.C.

April 18, 2016



 

Introduction

[1]            
On November 18, 2011, the plaintiff was involved in a motor vehicle
accident (the “MVA”).  He was the driver of a vehicle that was stopped at a red
light when it was struck from behind by a 10 ton flat-bed truck (“Truck”)
driven by the defendant, Rod Kopp and owned by the defendant PNL Logistics Ltd.
(collectively the “defendants”).  The plaintiff claims damages for the injuries
he sustained in the accident.

[2]            
Liability has been admitted by the defendants.

[3]            
The principle issues for determination are:

a)    the extent and
severity of the plaintiff’s injuries;

b)    whether the
plaintiff mitigated his loss; and

c)     assessment
of the past and future loss of capacity suffered by the plaintiff.

Background

[4]            
The plaintiff is 39 years old.  He is a journeyman heavy duty mechanic,
holding certificates in both commercial transport mechanics and heavy duty
mechanics.  He is also a certified heavy duty mechanics instructor.

[5]            
The plaintiff excels at and very much enjoys repairing machines. 

[6]            
Commencing in 2006, after several years’ work as a commercial
transportation mechanic in Kamloops and Burnaby, the plaintiff began working
for the British Columbia Maritime Employers Association (“BCMEA”) at various
sites at the Port of Vancouver (“Port”) as a “casual” worker.  The BCMEA is an
association of more than ten different employers at the Port.  It provides the
skilled and unskilled labour required at the Port. 

[7]            
There are roughly 3,000 workers employed at the Port, approximately
one-half of whom are members of the union.  The BCMEA dispatches available workers
to the various sites for each of the day, night and graveyard shifts through a
hiring hall, first according to union membership seniority, and then according
to seniority within the casual employee ranks.  There are increased pay
differentials for the night, graveyard and weekend shifts. 

[8]            
Casual employees move through various “boards” in the hiring hall,
ascending from the “OO” board at the bottom through the “T”, “C”, “B” and
finally the “A” board.  Their progression through these boards is based upon
their seniority and the hours they have worked at the Port.

[9]            
The plaintiff’s employment at the Port involved working both as a heavy
duty mechanic and occasionally as a labourer when he was unable to secure work
as a mechanic.  He typically worked approximately 1,800 hours per year.

[10]        
Prior to January 1, 2016, casual employees who worked a minimum of 800
hours annually earned “pensionable years”.  However, those pensionable years did
not become activated and did not qualify for a pension until such time as the
worker became a full-time union member. 

[11]        
Effective January 1, 2016, the pension scheme for workers at the BCMEA
changed such that a full year of pensionable service is credited once the
worker earns a threshold of $67,902 in a year.  However, unlike the previous
scheme which gave no pensionable credit unless a threshold of 800 hours was
worked in the year, the new scheme gives pensionable credit for earnings less
than the threshold ($67,902) on a pro rata basis.

[12]        
Jat Aujla, a union member at the Port, testified that casual workers
become union members from the “A” board based on their seniority number which
is dependent on attrition from members of the union retiring or dying.  Mr.
Aujla became a journeyman heavy duty mechanic in 1989 and, after working in the
trade for 15 years, joined the BCMEA in March 2005.  He became a member of the
union in November 2014, approximately 9½ years later after having worked
full-time at the Port throughout that period.

[13]        
The plaintiff testified that when he started working for the BCMEA in
2006, after Mr. Aujla did, he anticipated that he would become a member of the
union after approximately eight years of work as a casual employee, or by
January 1, 2014.  He did not provide any substantive basis for that prediction.

[14]        
In addition to his passion for working as a heavy duty mechanic, the
plaintiff had a desire to teach.  In late 2006, after a rigorous interview
process, he was hired by the British Columbia Institute of Technology (“BCIT”)
to teach a course in diesel mechanics, which he did full time from 7 am to 1:30
pm until the government funding for the course was lost approximately 6 months
later.  During this time, the plaintiff worked night shifts at the Port.

[15]        
By 2008, the plaintiff had progressed from the “OO” board to the “C”
board at the hiring hall.  He secured regular employment with the BCMEA working
full-time on the day shift providing regular maintenance at Vancouver Terminals
(“VanTerm”).  He described the work as physically demanding.

[16]        
In late 2008, the plaintiff decided to modify his career path.  He developed
a plan to teach heavy duty mechanics at Vancouver Community College (“VCC”). 
He began taking the requisite courses required by the Provincial Instructors
Diploma Program (“PIDP”).  His ultimate strategy was to work approximately 1,000
hours per year at VCC and the minimum 800 hours per year at the Port.  His goal
was to secure a pension from each employer.  He finished the PIDP course work
in a relatively fast six weeks, excelling in each of the seven courses.

[17]        
On February 16, 2009, the plaintiff was involved in an incident during
which he was assaulted by members of the Vancouver Police Department (“VPD
incident”).  That VPD incident resulted in the plaintiff sustaining various
injuries which still continue to affect him, including a right shoulder injury. 
He described the shoulder injury as feeling like a socket of his shoulder was
not in its right place and that there was a wedge driven between his right
shoulder blade and his shoulder.  The VPD incident also resulted in a
resurgence of migraine headaches that the plaintiff had suffered from as a
teenager but which had abated over time.

[18]        
The plaintiff sought very little medical attention with respect to his
right shoulder injury.

[19]        
The trial of the plaintiff’s action arising out of the VPD incident was
set to be heard at the same time as this action.  However, that other action
was recently settled.  One of the settlement terms is that, in this action, the
plaintiff will not seek to recover any judgment or award against the defendants
which would allow them to in turn claim contribution or indemnity against the
defendants in the VPD incident action. 

[20]        
The significant shoulder discomfort from the VPD incident resulted in
the plaintiff no longer being able to work his regular employment position at VanTerm. 
He testified that he was unable to perform the physical maneuvers he was
required to perform at VanTerm and that he was concerned about his safety.  He
gave up that position and returned to his casual position working night shifts. 
He chose night shifts for several reasons.  First, given his then seniority at
BCMEA, he was able to strategically choose his work assignments to reduce the probability
he would have to perform heavy work.  Second, there is a good chance during
night shifts that workers are on “standby” which allows them an opportunity to
sleep during the shift.  Third, the plaintiff’s hourly wage was higher on night
shifts than it was on his previous day shifts.

[21]        
Mr. Aujla confirmed that the afternoon shift is typically more “laid
back” than the day shift during which most of the heavy-duty repair work takes
place.

[22]        
The plaintiff testified on cross-examination that, as a result of the
VPD incident, he anticipated only being able to work 500 hours per year at the
Port.  He agreed that 500 hours per year was his new work reality as a result
of his shoulder injury.

[23]        
In late April 2009, after having completed the PIDP courses required to
become a certified provincial instructor, the plaintiff was hired by Vancouver
Community College where he has worked full time ever since.  Initially, he was
a “Term Instructor”, but since November 2011, after a 2½ year period of
probation, he has been a “Regular Instructor”.  He is required to teach 910
hours per year and spend 100 hours per year on professional development.  Currently,
his seniority is such that he is able to arrange his teaching schedule (112
teaching days) as he wishes.

[24]        
Mr. Brian Haugen is currently the dean of trades and technology at
Kwantlen Polytechnic University.  From 2009 to 2014, he was the head of the
heavy duty mechanic and commercial transport department at VCC.  He was on the
hiring committee at the time the plaintiff applied for a teaching position at
VCC.  Mr. Haugen testified that at the time the plaintiff was hired by VCC,
he was aware that the plaintiff planned to continue to work at the Port.  He
said that although VCC frowned upon its teachers engaging in employment
elsewhere during their professional development hours for which they were being
paid at VCC, the plaintiff’s employment at the Port while teaching actually worked
out well for VCC, as the plaintiff was staying current in his trade.  Moreover,
his job at the Port gave him the flexibility to return to VCC whenever he was
needed.  Nevertheless, Mr. Haugen did speak to the plaintiff on occasion about
him not dedicating sufficient time to his teaching duties.

[25]        
The plaintiff continued his night-shift work at the Port as a casual
employee with the BCMEA.  He testified that, by 2011, the pain, discomfort and
strength in his right shoulder had improved as a result of a self-directed
exercise program such that his ability to perform heavy work during his shifts
at the Port had increased.  He testified that he was working towards increasing
his work hours at the Port from 500 to 800 hours per year.  However, he agreed
on cross-examination that, at the time of the MVA, he continued to have pain in
his right shoulder that radiated up to his neck as well as migraines as a
result of the VPD incident.  He also agreed with his evidence on examination
for discovery that his shoulder injury recovery had plateaued and that it was
as good as it was going to get.

[26]        
Although the plaintiff worked many shifts during the first half of 2011,
he worked no shifts at the Port during July, only four shifts in August, no
shifts in September, only two shifts in October and no shifts in November. 
Indeed, between April and November 18, 2011, the plaintiff worked an average of
18 hours per month at the Port.

[27]        
On Friday, November 18, 2011, at approximately 6 p.m., the plaintiff was
in his 1998 BMW 328is vehicle, stopped at a red light.  His nine year old
daughter was in the front passenger seat.  His girlfriend’s dog was in the back
passenger compartment with its hind legs on the rear seat and its front leg on
the console between the front seats.  The plaintiff was leaning forward
adjusting the car’s radio.  The Truck rear-ended the plaintiff’s vehicle,
either while the plaintiff’s vehicle was still stopped or just as it was
beginning to move forward when the traffic light turned green.  The plaintiff
testified that his head immediately went backwards.  The top of his head struck
the vehicle’s headrest compressing it before the rest of his body struck the seat
back.  The impact was sufficient to launch the dog (a basset hound) forward
into the vehicle’s front dashboard.  The vehicle was deemed a write off by ICBC
and the plaintiff received $10,358 for it.  There was no damage to the Truck.

[28]        
Shortly after the collision, the plaintiff began to experience migraine
headaches as well as neck pain, nausea and vomiting.

[29]        
The plaintiff did not seek any medical attention until the following
Monday (November 21) when he attended a walk-in clinic.  He was diagnosed as having
been concussed and as having a soft tissue injury.  He was advised to take
Advil for his pain.  He also received a prescription for pain killers but did
not fill it.  He was advised to see his family physician, but did not do so. 
He was also advised to return to the clinic within about a week, but did not to
do so either. 

[30]        
The plaintiff continued his normal work schedule at VCC.

[31]        
The migraines and pain persisted. 

[32]        
On cross-examination, the plaintiff confirmed his history of migraine
headaches since he was a teenager.  He agreed that it was the consumption of
beer that seemed to trigger these headaches. 

[33]        
Within several weeks of the MVA, the plaintiff’s neck and back became
“stiff” and painful.  The pain persisted, primarily between his shoulder blades. 
He began having random and often acute spasms in his neck and back which
interrupted his sleep.  The spasms would typically “loosen up” during the beginning
of his day but return as the day progressed.  His pain symptoms were aggravated
by heavy lifting.

[34]        
The plaintiff was able to continue teaching at VCC albeit with pain
which rendered him unable to perform hands-on demonstrations during his
classes.  He had the students perform the demonstrations under his direction.  Mr.
Haugen noticed that the plaintiff was less “hands on” with his students after
the MVA.

[35]        
The plaintiff did not work at the Port for almost two months after the
MVA because of the pain in his back and neck.  On January 4, 2012, he attempted
to work one shift.  Within two hours, a migraine developed which he testified
became unbearable.  He left work early and returned to the walk-in clinic the
following day where the attending doctor recommended that he attend
physiotherapy.  The physician’s clinical note reads:

I can recall that I felt Mr.
Cyr’s inability to remain at work on January 4th was due to the fact
that his neck muscles had become weakened due to lack of conditioning since the
MVA and I advised that he attend LV physiotherapy for neck strengthening
program.  Advil was advised as needed.

[36]        
The plaintiff did not follow that recommendation. 

[37]        
On January 7, 2012, the plaintiff left for a three week vacation in
Mexico.

[38]        
On February 14, 2012, upon his return from Mexico, the plaintiff sent an
email to ICBC advising:

…I am feeling better thanks.  I’m
sorry I haven’t responded to you as I was having crazy migraines after the
accident…I am back to work at the college now and I’ll be trying back at the
ports in about a months time.  But I think I’ll be ok.

[39]        
On February 24, 2012, the plaintiff again attended the walk-in clinic. 
The attending physician prescribed ice, Advil and Flexural for his pain.  He
filled this prescription.

[40]        
On April 16 and 17, 2012, the plaintiff worked two shifts at the Port. 
His migraine returned but he managed to complete his first shift.  However, he
was unable to complete his shift the following day due to the pain.

[41]        
On April 18, 2012, the plaintiff saw his family doctor for the first
time after the MVA.  Dr. Bowlsby recommended that the plaintiff initiate a
rehabilitation program under the direction of a physiotherapist.  The plaintiff
did not follow that advice.  Instead he continued with a self-directed exercise
program at his gym.  He also installed a hot tub at his home which he found
provided relief from his pain. 

[42]        
The plaintiff made a second visit to Dr. Bowlsby on June 22, 2012.  At
the time of this assessment, Dr. Bowlsby was under the mistaken impression that
the plaintiff had followed his earlier rehabilitation program and had been
receiving “passive physiotherapy modalities” which were proving to be of little
or no benefit.  He again recommended that “treatment should consist of manual
therapy in conjunction with a directed exercise program”. 

[43]        
The plaintiff saw a physiotherapist for one visit on June 25, 2012.  He
testified that he performed the daily exercises prescribed by the
physiotherapist for several months and while there was some improvement, his
pain persisted.  He attempted to maintain his fitness by regular exercise at his
gym. 

[44]        
The plaintiff also started running as part of his self-directed
rehabilitation.  He ran between 20 to 30 kilometers per week.  He testified
that the running helped “loosen” his upper back and improve his fitness. 
However, after several months he began to develop significant pain in his left
hip and left knee as well as muscle spasms in his left leg.

[45]        
In August 2012, the plaintiff again attempted to return to work at the
Port.  He worked a total of two shifts, on August 3 and 10.  On both occasions,
he found that his migraines and back spasms returned within two hours and that
within three hours, he was unable to function.

[46]        
Mr. Haugen testified that the plaintiff showed frustration at not being
able to continue to work at the Port.

[47]        
He has not made any attempts to return to work at the Port since August
10, 2012.  Having worked or attempted to work a total of five shifts after the
MVA, the plaintiff has concluded that his career as a heavy duty mechanic is
over.

[48]        
The plaintiff’s migraines and other pain symptoms persisted.  In April
2013, Dr. Bowlsby prescribed “Axert” for his migraines as well as an
anti-inflammatory called diclofenac.  He did not fill either prescription.

[49]        
By October 2013, the plaintiff’s left hip, knee and leg pain from
running was such that he sought treatment from a chiropractor.  He attended six
chiropractic sessions between October 2013 and February 2014.

[50]        
In January 2014, the plaintiff’s girlfriend, Suzanne Gibson, whom he had
met in the summer of 2013, moved in with him.  She has a diploma in Sports
Science as well as two years post-secondary education towards her bachelor of
science in nursing degree.  She also has a diploma in health information
management and is currently employed by Fraser Health Authority as an analyst
in its clinical policy office.

[51]        
Ms. Gibson testified that she saw no indication of the plaintiff having
pain symptoms until they were on a hike several weeks after she moved in with
him.  She saw that he was struggling with carrying a backpack.  After some
probing by her, he disclosed the VPD incident and the MVA.  Thereafter, Ms.
Gibson assisted the plaintiff with stretching exercises and pushed him to make
them a regular occurrence, usually 15 to 20 minutes at least three times per
week.  She also urged him to attend physiotherapy.

[52]        
Ms. Gibson testified that the plaintiff rarely complains about pain but she
has observed his sleep being disturbed and has noticed him having obvious neck
and shoulder pain.  She sees him regularly taking Advil and occasionally
Robaxacet, usually after activities such as jet skiing and hiking.  She also
testified that the plaintiff is strategic in what and how he lifts things.

[53]        
In September 2014, the plaintiff broke his right wrist and sprained his
left wrist as a result of a fall from a bicycle.  It took several weeks before
he finally went to have them examined by a physician who confirmed the breaks. 
Thereafter, he was in a cast for approximately 6 weeks.

[54]        
Also in September 2014, the plaintiff became the head of VCC’s heavy
mechanical trades department which is primarily an administrative position.  His
work hours at VCC increased from 25 to 32 per week.  He recently resigned from
that position to return to full-time teaching.

[55]        
On December 8, 2014, the plaintiff was assessed by an occupational
therapist for a full day.  He testified that the activities he was asked to
perform were substantially less physically demanding than his work at the Port.

[56]        
On January 14, 2015, at the recommendation of Dr. Bowlsby, the plaintiff
was examined by a physiatrist, Dr. Dhawan, who recommended cortisone injections
in his upper back.  The plaintiff declined the injections.  He was concerned
that they would provide only temporary discomfort relief and would mask the
underlying problem.

[57]        
In August 2015, the plaintiff is seen on a surveillance video
commissioned by the defendant attending with a friend at an automobile wrecking
yard in Chilliwack.  The video shows that the plaintiff had no apparent
difficulty bending and stooping under a wrecked vehicle, reaching under the
vehicle with tools and extending his arms and pulling a loaded-parts-wagon. 
The plaintiff testified that he felt sore before the trip to the auto wrecking
yard and had taken Advil before leaving.  He felt even sorer afterwards.  He
also testified that the tool box and auto parts that he is seen lifting and/or
carrying in the video weighed approximately 20 pounds.

[58]        
Commencing in September 2015, the plaintiff attended the MaxFit Movement
Institute where he had several chiropractic treatments and some massage
therapy.  These sessions caused him significant discomfort and he discontinued
them after approximately one month, whereupon his pain symptoms improved
somewhat.

[59]        
On November 17, 2015, the plaintiff attended physiotherapy for one
session.  He was advised to pace and manage his activities which he is now
learning to do.  He testified that, as a result, his injury seems to have
stabilized, his pain has “mellowed” and his mobility has improved.

[60]        
The plaintiff testified that he continues to have the following
symptoms:

a)    a burning
sensation and tenderness at the back of his head between his shoulder blades;

b)    constant burning
in his right shoulder area;

c)     migraines
are less frequent but still occur once every couple of weeks when his muscles
get tight and which last for several days;

d)    tightness in his
right shoulder and mid-spine area; and

e)    dull, constant
pain in his lower back.

[61]        
The plaintiff testified that the pain in his shoulder, neck and back
wakes him up at night.  He has recently purchased a bed that tilts upwards
which helps his sleep.

[62]        
Upon the advice of Dr. Bowlsby, the plaintiff is scheduled to undergo a
full MRI examination in August 2016.

[63]        
The plaintiff testified that he feels he has lost some of his identity
as a result of his inability to work as a heavy duty mechanic at the Port.  He
relished the comradery of the Port job and the sense of satisfaction he got after
fixing a large piece of machinery that was broken.

[64]        
The plaintiff testified that his job at the Port and his teaching career
at VCC fit together well.  He is able to complete his annual 910 hour teaching
requirement in 112 work days, leaving 148 work days for vacation and other
work, which he was previously able to do at the Port by just showing up without
prior commitment. 

[65]        
He testified that it is not feasible for him to become an automobile
mechanic instead of a heavy duty mechanic.  He cited several reasons.  First,
he would have to apprentice for approximately 6,000 hours in order to become a
journeyman automobile mechanic and would receive credit for only 1,500 hours
for his years of work as a heavy duty mechanic.  Second, an automobile mechanic
apprenticeship cannot be done part time – he would have to leave his VCC job in
order to do it.  Third, he testified that he would not be able to effectively
and efficiently compete in the marketplace due to his pain symptoms as it would
take him significantly longer than other mechanics to complete a task.  The
plaintiff testified that, to replace his lucrative Port income, he would have
to obtain a university degree which was not practical given his age, the
expense and the time it would take to complete the degree while working full
time at VCC.

[66]        
In 2014, the plaintiff was retained by the provincial government to
write a section for a new text book and to review the content prepared by
others.  He received $6,000 for this contract work.

[67]        
The plaintiff spends much of his free time engaged in his hobby of
modifying old vehicles into “hot rods”, something he has enjoyed since he was
16 years old.  He testified that even working on small vehicles aggravates his
pain and that, while he is able to manage his pain by taking Advil and drinking
beer, he is not as proficient at his hobby as he should be.  His friends help
him with the heavier aspects of the work.  However, he continues to be able to
perform much of the work on his own including installing drive trains.

[68]        
The plaintiff is able to perform many other activities, such as stand-up
jet skiing, skiing, hunting, walking and hiking and driving his 4×4 vehicle on
forest service roads.

[69]        
Matthew Whilloughby-Price, who has known the plaintiff since 1995 and
describes him as a good friend, testified that he has never heard the plaintiff
complain about any physical problems other than migraines.  However, after the
MVA, he has noticed that the plaintiff tends to start drinking beer early in
the morning when he is working on his hot rods.  He had never seen the
plaintiff drink beer that early in the day prior to the MVA.

[70]        
The plaintiff’s employment income for the relevant years was as
follows:’

Year

Port

BCIT

VCC

BC Govt.

 

Total

 

2007

$40,189

$16,847

 

 

$57,036

 

2008

$73,902

 

 

 

$73,902

 

2009

$44,470

 

$47,106

 

$91,576

 

2010

$22,084

 

$61,891

 

$83,975

 

2011

$25,185

 

$69,203

 

$94,388

 

2012

$2,929

 

$84,325

 

$87,254

 

2013

 

 

$87,202

 

$87,202

2014

 

 

$88,546

$6,000

$94,546

 

 

 

 

 

 

Plaintiff’s Medical and Functional Capacity Experts

Dr. Glenn Bowlsby

[71]        
Dr. Bowlsby has been the plaintiff’s family physician since 2004.  He
was qualified without debate as an expert in family medicine.  He prepared an
expert report which is dated January 20, 2015.

[72]        
Dr. Bowlsby treated the plaintiff for several maladies prior to the MVA,
including a seizure disorder, migraine headaches, gastroesophageal reflux
disease and vertigo.

[73]        
After the MVA, Dr. Bowlsby examined the plaintiff on April 18, June 22,
September 19, and December 6, 2012, April 27, 2013, and January 31 and December
5, 2014.

[74]        
During the April 18, 2012 consultation, the plaintiff apprised Dr.
Bowlsby of the MVA but said nothing about the VPD incident.  The plaintiff
complained of frequent headaches as well as pain in his neck and upper back.  He
did not complain about the shoulder injury sustained during the VPD incident or
any lower back pain.  Dr. Bowlsby diagnosed a grade 2 whiplash as a result of
the MVA and recommended that the plaintiff initiate a rehabilitation program
under the direction of a physiotherapist.  The purpose of his recommendation
was to ensure that a proper exercise program was devised for the plaintiff’s
rehabilitation.  He anticipated that the plaintiff would fully recover within
three months.

[75]        
Dr. Bowlsby saw the plaintiff next on June 22, 2012.  He assumed,
incorrectly, that the plaintiff had been receiving “passive” physiotherapy
treatments over the course of the preceding two months.  Had he known that the
plaintiff had not followed his April 18, 2012 recommendation, he would have
repeated it.  Regardless, Dr. Bowlsby recommended “manual” physiotherapy
treatments for six months and expected the plaintiff to be able to return to
work at the Port within six to twelve months.  Dr. Bowlsby testified that the
purpose of repeated physiotherapy visits is to allow the therapist to both
assess whether the plaintiff is performing the recommended exercises correctly
and adjust them as necessary in order to ensure the best rehabilitation
possible.  Dr. Bowlsby was still unaware of the plaintiff’s VPD incident-related
shoulder injury. 

[76]        
Dr. Bowlsby’s third post-MVA consultation with the plaintiff took place
on September 19, 2012.  The plaintiff reported no improvement in his symptoms. 
Dr. Bowlsby understood, again incorrectly, that the plaintiff had availed himself
of the manual physiotherapy treatments and that he had stopped them because
they were ineffective.  However, at this point he had only attended one
session.  Dr. Bowlsby also understood that the plaintiff was exercising seven
days a week to build strength.  Had he known that the plaintiff only attended
one physiotherapy session, he would have recommended that he attend further
sessions, but nonetheless, they discussed whether the active rehabilitation
program offered by ICBC might be of benefit.

[77]        
Dr. Bowlsby’s next assessment of the plaintiff was on December 6, 2012. 
Again he assumed, incorrectly, that the plaintiff was continuing with an
exercise and rehabilitation program directed by a physiotherapist.

[78]        
On April 27, 2013, Dr. Bowlsby provided the plaintiff a prescription for
Axert (for migraines) and diclofenac (an anti-inflammatory) to manage his neck
pain.  It is likely that he provided the plaintiff with samples to try first and,
if effective, expected that the plaintiff would fill the prescription that he
had given to him.

[79]        
Dr. Bowlsby next saw the plaintiff on January 31, 2014, at which time
the plaintiff complained of new pain symptoms, being low back pain radiating to
his lower limbs, which both Dr. Bowlsby and the plaintiff attributed to the plaintiff’s
new running regime.  Dr. Bowlsby does not associate these symptoms with
anything to do with the MVA, but at this time referred the plaintiff to Dr.
Dhawan who specializes in soft tissue injuries.

[80]        
Dr. Bowlsby’s final assessment of the plaintiff took place on December
5, 2014.  He continued to assume that the plaintiff was engaged in a
rehabilitative exercise program directed by someone with expertise.  He found
that the plaintiff’s cervical, thoracic and lumbar spine areas had normal
mobility with the exception of a mild decrease in lumbar flexion.  .

Dr. Pankij Dhawan

[81]        
Dr. Dhawan is a physiatrist who examined the plaintiff on January 14,
2015.  His report is dated November 20, 2015 and was put in evidence without
Dr. Dhawan’s attendance being required.

[82]        
Dr. Dhawan opined that the plaintiff suffered soft tissue injuries to
his right shoulder with impingement tendinopathy and could not rule out the
possibility that a labral or rotator cuff tear or capsular laxity had also been
sustained during the VPD incident.  He suggested that local anesthetic and
steroid injections be considered followed by a strengthening program.

[83]        
Dr. Dhawan also opined that, as a result of the MVA, the plaintiff
suffered soft tissue injuries to his cervical and lumbar spine with bilateral
cervical facet injury which caused his headaches and muscle spasms.  He
suggested that Botox injections might be helpful to reduce the plaintiff’s neck
pain, spasms and headaches and improve his range of motion and overall
functioning.  He also suggested that a small dose corticosteroid injection to
the cervical facets and left sacroiliac joint might be helpful.

[84]        
In Dr. Dhawan’s opinion, the symptoms from the VPD incident and the MVA
had become chronic given the length of time the symptoms had persisted since
those incidents.

Laura Andrews

[85]        
Ms. Andrews was qualified without debate as an expert in physiotherapy
and the conduct of and reporting on functional capacity evaluations.

[86]        
She conducted a seven hour functional capacity evaluation of the
plaintiff on December 8, 2014.  Her functional capacity report is dated
February 25, 2015.

[87]        
Ms. Andrews described the functional capacity testing protocols she
utilized as a “hybrid” testing regime developed by OT Consulting/Treatment
Services Ltd. over the course of the past 25 years based upon the collective
experience of its practitioners.  She testified that it was more comprehensive
than the standard “Matheson” protocols used by others in her field.

[88]        
Ms. Andrews’ notes of her interview of the plaintiff indicate that his
major concern at the time was “… his lower back and sciatic issues in the
future that may cause greater problems with mobility and activities.  He has
learned to manage the other areas of injury”.

[89]        
In Ms. Andrews’ opinion, the plaintiff gave full and consistent effort
during the evaluation and her observations can be relied upon as an accurate
representation of his physical function on December 8, 2014.  However, she
pointed out that the plaintiff tended to underestimate his actual abilities, in
that his functional capacity proved to be higher than his own self-assessment.

[90]        
Ms. Andrews observed that the plaintiff had difficulty with sustained
reaching activities, especially with the right arm as well as with sustained
and repetitive bending and crouching.  She also observed that he had
difficulties performing strength activities under controlled circumstances and
that he utilized compensatory movements and pain management strategies
throughout and after tasks.  In Ms. Andrews’ opinion, the plaintiff’s
lifting and body mechanics were “not optimal”, which she assessed as likely due
to pain in his knees.

[91]        
Based upon her evaluation, Ms. Andrews is of the opinion that the
plaintiff is employable with some physical restrictions on a part-time or
full-time basis (up to eight hours per day, five days per week) in limited,
light and medium strength job capacities, but that he is not physically capable
of competitive employment in jobs requiring frequent standing, inclined or
quick walking, full range or sustained bending, kneeling, crouching, stair
climbing and/or reaching above chest height or lifting more than 44 pounds
(heavy strength category).

[92]        
According to the National Occupation Classification (“NOC”), the job of
a heavy duty mechanic requires multiple body positions including sitting,
standing, walking, bending, stooping, kneeling and crouching, as well as upper
limb coordination.  Based upon her evaluation of the plaintiff on December 8,
2014, it is Ms. Andrews’ opinion that he was not capable of safely and
dependably performing work as a heavy duty mechanic on either a part-time or
full-time basis.

[93]        
Ms. Andrews opined that the plaintiff would likely benefit from a pain
management specialist, engaging in further physiotherapy to prescribe the
correct exercises for him and an occupational rehabilitation program which
would include cardiovascular fitness, stretching and strengthening, work
simulation exercises including correcting body mechanics and lifting techniques
and pain education and management techniques. 

[94]        
On cross-examination, Ms. Andrews agreed that initiation of
physiotherapy soon after the MVA would have been advisable and that the
plaintiff should have undergone physiotherapy for at least two to three weeks
before deciding to engage in a different rehabilitation regimen.  She opined
further that, even though the plaintiff’s self-directed program has the benefit
of input from Ms. Gibson, he should nevertheless have had input from a
qualified physiotherapist.  In Ms. Andrews’ opinion, the plaintiff has a good
chance of being able to return to work as a heavy duty mechanic if the
foregoing recommendations are followed.

[95]        
Ms. Andrews confirmed that, in conducting her functional capacity
evaluation of the plaintiff and arriving at her opinions, she did not parse out
the injuries and associated complaints of pain and disability as between the
VPD incident, the MVA and the plaintiff’s running injuries.

Defendants’ Medical Expert

Dr. Marc Boyle

[96]        
Dr. Boyle is an orthopaedic surgeon who conducted an independent medical
examination of the plaintiff on September 30, 2014.  His report is dated
September 30, 2014.

[97]        
Dr. Boyle also prepared a rebuttal report, dated February 1, 2015, to
that of Dr. Bowlsby.  Dr. Boyle prepared a third report, dated January 28,
2016, updating his September 30, 2014 report after reviewing the reports of Dr.
Dhawan and Ms. Andrews.  He did not conduct a further examination of the
plaintiff.

[98]        
All of Dr. Boyle’s reports were introduced in evidence without him
having to be called as a witness.

[99]        
It is Dr. Boyle’s opinion that the plaintiff suffered a soft tissue
injury to his cervical spine ligaments, tendons and muscles as a result of the
MVA.  Dr. Boyle opines that there is no evidence of injury to the plaintiff’s
vertebrae or discs or that he suffered any neural compromise in his cervical
spine.  Based on statistics, he opines that the plaintiff’s symptoms will resolve
over time without residual disability. 

[100]     In
particular, Dr. Boyle found no evidence of MVA-related injury to the
plaintiff’s right shoulder.

[101]     Dr. Boyle
opines that it is reasonable to have expected the plaintiff to miss three to
four month’s work followed by a graduated return to work at the Port with the
plaintiff being able to resume full time work there within a further two to
three months with no loss of function thereafter.  He opines that the MVA did
not alter the plaintiff’s future employability at the Port.

[102]     Dr. Boyle
stressed the plaintiff’s lack of exposure to a proactive physiotherapy program
and recommended a proactive exercise and rehabilitation program under the
direction of a physiotherapist/kinesiologist for six months.

Curtis Peever

[103]     Mr. Peever
is a labour market economist who was called by the plaintiff as an expert to
provide the court with the multipliers and net present value calculations
required to assess the plaintiff’s loss of earnings and Waterfront Industry
Pension Plan Benefits.

[104]     Mr. Peever
is the epitome of the role that an expert witness should play in the court
process.  He understands his role and executes it with precision and in an
open, candid, objective and helpful manner.  I have no difficulty accepting his
calculations in their entirety.

[105]     All of Mr.
Peever’s calculations assume that the plaintiff would have worked 500 hours per
year at the Port after the MVA.

Analysis

Credibility and Reliability

[106]     As is the
case in most personal injury actions, the most important witness is the
plaintiff himself.

[107]     My
assessment of the plaintiff is that he is a stoic individual who tends to play
down and not complain to others about his pain.  He is reluctant to follow the
advice of medical practitioners and, instead, prefers to rely on his own
self-directed rehabilitation regime. 

[108]     I found the
plaintiff to be a sincere witness who generally attempted to be forthcoming
throughout his testimony.  However, there were several examples of his evidence
being either contradicted or inaccurate as it related to the principal issues
set out in the introduction above.  Some examples are:

a)    in his direct
evidence, he said that his VPD incident-related right shoulder injury was getting
better prior to the MVA and that he was in the process of increasing his work
hours at the Port up to his planned 500 per year.  Yet, during his examination
for discovery on December 16, 2013, he testified that his shoulder injury “got
as good as it was going to get”.  His BCMEA work records indicate that he
worked very little at the Port in the months before the MVA;

b)    he led Dr.
Bowlsby to believe that he was receiving physiotherapy when in fact he was not;

c)     he
testified that his self-directed exercises, as assisted by Ms. Gibson were 20
to 120 minutes in duration.  Ms. Gibson testified that the exercise sessions
were typically 15 to 20 minutes; and

d)    he testified
that, after visiting the MaxFit physiotherapist in November 2015, his pain
symptoms were steadily improving and had “mellowed out”.  Yet, during his
examination for discovery on January 15, 2016, he testified that his symptoms
were getting worse and that “nothing’s getting better”.

[109]     The
foregoing left me with a concern about the reliability of the plaintiff’s
evidence regarding the extent and severity of his MVA-related injuries.

[110]    
McEachern, C J S C, as he then was, made the following statement in Price
v. Kostryba
, [1982] B.C.J. No. 1518 at para. 5:

In Butler v. Blaylock, decided 7th October
1981, Vancouver No. B781505 (unreported), I referred to counsel’s argument that
a defendant is often at the mercy of a plaintiff in actions for damages for
personal injuries because complaints of pain cannot easily be disproved. I then
said:

I am not stating any new principle
when I say that the court should be exceedingly careful when there is little or
no objective evidence of continuing injury and when complaints of pain persist
for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer. But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence — which could be just his own evidence if the surrounding
circumstances are consistent — that his complaints of pain are true
reflections of a continuing injury.

[111]     I agree
with those sentiments and find that they are applicable in this case.

Causation

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

[113]     The classic statement of the law of causation by
Mr. Justice Sopinka in Snell v. Farrell, [1990] 2 S.C.R. 311 at
para. 29, is that causation need not be determined by scientific
precision.  It is a practical question of fact that can be answered by ordinary
common sense. 

[114]     Once factual causation is found, liability may still
be limited in the assessment of damages: Blackwater v. Plint,
2005 SCC 58 at paras. 78 – 81.  I note the well-established principle of tort
law that the defendant need not place the plaintiff in a better position than
his original position and that he should not compensate the plaintiff for
damage he would have suffered in any event, otherwise known as the crumbling
skull rule, which was set out by the Supreme Court in Athey v. Leonati,
[1996] 3 S.C.R. 458 at paras. 34-35, as follows:

It is named after the
well-known “thin skull” rule, which makes the tortfeasor liable for the
plaintiff’s injuries even if the injuries are unexpectedly severe owing to a
pre-existing condition.  The tortfeasor must take his or her victim as the tortfeasor
finds the victim, and is therefore liable even though the plaintiff’s losses
are more dramatic than they would be for the average person.

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.

[115]     There is
no doubt that the MVA resulted in the plaintiff suffering injury.  However, I
do not accept that his present condition is entirely due to the MVA.  The
plaintiff’s current problems are multifactorial, and relate to his pre-existing
headache condition, the VPD incident, the MVA, and his extensive running.  This
combination of factors left him partially disabled for a period of time after
the MVA.  The task is to assess the extent of the MVA’s contribution to the
injuries suffered and to determine how the MVA impacted his continuing and
changing condition.  That task is not made any easier where, as here, the scant
objective evidence regarding the plaintiff’s ongoing injuries is based upon a
misapprehension by the medical practitioners as to the plaintiff’s
rehabilitation regime.

[116]     As noted
above, a term of the settlement of the plaintiff’s action arising out of the
VPD incident is that the plaintiff will not seek to recover any judgment or
award against the defendants in this action which would allow them to in turn
claim contribution or indemnity against the defendants in the VPD incident action. 
The plaintiff’s MVA-related injuries are, therefore, divisible from those
arising from the VPD incident.

Non-pecuniary Damages

[117]     Non-pecuniary damages are intended to compensate a
plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities:
Liu v. Bipinchandra, 2016 BCSC 283 at para. 110.

[118]     In Stapley v. Hejslet, 2006 BCCA 34, leave to
appeal ref’d [2006] SCCA No. 100, Madam Justice Kirkpatrick outlined the
factors to be considered in awarding non-pecuniary damages at para. 46:

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

(a)   age of the plaintiff;

(b)   nature of the injury;

(c)   severity and duration of pain;

(d)   disability;

(e)   emotional suffering; and

(f)     loss or impairment of life;

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

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

(h)   impairment of physical and mental abilities;

(i)     loss of lifestyle; and

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

[119]     The plaintiff is 39 years old. 

[120]     The
medical experts are in agreement, and I find, that the plaintiff likely
suffered a grade 2 whiplash injury as a result of the MVA.  That injury
affected the plaintiff’s right cervicothoracic region, extending to the right
shoulder.  He also experienced the onset of migraine headaches.

[121]     I accept
the plaintiff’s evidence that these MVA-related injuries continue to persist. 
I also accept Dr. Bowlsby’s opinion that, while they should have healed long
ago, the pain fibers in some people do not turn off over time and sometimes get
worse.  Dr. Bowlsby opined that, in his experience, approximately 10% of people
who suffer whiplash injuries prove to be difficult to treat and those injuries
can be a source of significant and sometimes permanent disability.

[122]     I am
unable to conclude that the plaintiff is one of those 10% because he refused to
initiate the physiotherapy treatments that were repeatedly recommended by his
medical practitioners.  This is a case of a patient thinking that he knows
better than his health practitioners: Middleton v. Morcke, 2007 BCSC 804
at para. 49.

[123]     Counsel
for the plaintiff submits that an award in the amount of $90,000 would be
appropriate for non-pecuniary damages in this case.  He relied on the following
decisions:

a)    Thompson v.
Choi
, 2015 BCSC 1283; and

b)    Worobetz v.
Fooks
, 2015 BCSC 150.

[124]     In Thompson,
the plaintiff was a 44-year-old journeyman sheet-metal worker who was hit by a
shuttle bus that ran a red light into an intersection.  The plaintiff suffered
from injuries to the neck, back, shoulders, arms, right hip, leg, knee and
ankle.  Many of the injuries improved, but the plaintiff complained of ongoing
and chronic shoulder pain, neck pain, right knee pain, headaches,
sleeplessness, stress and anxiety.  The court found that he suffered from
several pre-existing conditions including hemochromatosis, left knee pain, back
pain and low grade arthritis.  The court found that while the plaintiff’s
injuries were not solely responsible, they did inhibit his earning capacity and
significantly lessened his ability to earn income and support his family; he
had to take employment outside his trade, for lower wages and ultimately
entered into bankruptcy.  He could no longer hike as he once enjoyed, and his
emotional state was greatly affected.  While there was some improvement, the
problems persisted such that the court found that he would never fully recover
to his former level of function.  The plaintiff was awarded $90,000 in
non-pecuniary damages.

[125]     In
Worobetz
, the plaintiff was a 45-year-old mother of three who was struck
from behind while stopped waiting to make a left turn.  The plaintiff suffered
injuries to her neck, back, jaw, and hip and began to suffer from depression. 
She underwent physiotherapy, massage therapy, chiropractic treatments and
participated in other treatment regimens for her pain.  However, the pain
persisted to the time of trial.  The court found that prior to the accident the
plaintiff suffered from neck pain due to hypothyroidism, musculoskeletal pain
under her left breast, abdominal pain, and at times fatigue, but she was in
reasonably good physical condition and her motor vehicle accident related
injuries were different from her pre-existing problems.  At the time of trial
she was no longer able to go for lengthy walks, she found it difficult to
travel in a car for extended periods, she did not go out in the evenings or see
friends as much, she struggled with household chores, her mood was depressed, and
there was conflict between her and her husband which affected their intimacy.
As a result of the persisting problems the court awarded her $90,000 in
non-pecuniary damages.

[126]     Counsel
for the defendants submits that an award in the range of $50,000 to $65,000 is
appropriate.  He relies on the following decisions:

a)    Fell v.
Morton
, 2012 BCSC 428;

b)    Kuskis v. Hon
Tin
, 2008 BCSC 862;

c)     Rahim
v. Al Jundi
, 2013 BCSC 855; and

d)    Antoniali v.
Massey
, 2008 BCSC 1085

[127]     Fell
involved a 36-year-old plaintiff who was rear ended.  At the time of the
accident, she was self-employed in the film industry as both a first aid and
craft services provider.  Prior to the accident, she suffered from neck and
upper back pain along with a propensity to develop migraine headaches.  By the
date of trial, she was still suffering from pain in her neck, back and
shoulders that the court found was caused in part by the accident, and which
triggered the recurrence of the pre-existing migraines, which she suffered from
one to two times a month.  Her prognosis was poor, and she was unable to return
to work and perform at her previous level, many areas of her life were affected. 
The court considered these factors, taking into account her pre-existing
conditions and awarded $65,000 for non-pecuniary damages.

[128]     In Kuskis,
a 38-year-old female was involved in a motor vehicle accident.  Prior to the
accident, she suffered regularly from migraine and tension headaches and neck
and shoulder pain due to stress and postural strain.  She had a high stress job
working as the operations manager for a travel agent.  Her pre-existing
conditions caused pain but she was able to function without major compromise in
her work, social or recreational life.  The accident significantly aggravated
her pain conditions.  By the time of the trial, she still had a significant
increase in the frequency of her migraine headaches and had developed a chronic
neck and shoulder pain problem with persistent low grade pain.  She could no
longer keep up the pace at her job and had to quit and take a lower paying job. 
Her prognosis was for some improvement in the future but that she would have a
permanent increase in her pre-accident symptoms and pain levels.  She was
awarded $65,000 in non-pecuniary damages.

[129]     In Rahim,
a 41-year-old, male, aircraft structural mechanic was rear ended.  He had been
injured in several prior motor vehicle accidents, but those injuries had mostly
resolved at the time of the motor vehicle accident that was the subject matter
of the case.  His ongoing symptoms included neck and shoulder pain that were
continuing to improve over time.  He suffered an upper body whiplash type
injury in the subject accident.  By the time of trial, he had occasional pain
in his neck, shoulders and back along with headaches, and though his condition
was improving slowly, he was no longer working in the area he loved, and his
social and family life had been affected.  He was ultimately awarded $50,000 in
non-pecuniary damages which took into consideration the fact that he enjoyed
some pain-free periods and had found a job that did not exacerbate his pain.

[130]     In Antoniali,
a-33-year old female, who worked as a medical office assistant, was a passenger
in a vehicle that was rear ended.  Her pre-existing conditions included neck
and back pain and depression, but she was functioning well at the time of the
accident.  The accident caused a significant aggravation of her neck and back
injuries.  Her prognosis was that she was unlikely to return to her
pre-accident level of function.  Due to the injuries, she was unable to engage
in most of the recreational pursuits that she enjoyed prior to the accident,
and she found greater difficulty in performing fully at work, although she had
returned to working four days per week.  She was awarded $50,000 in
non-pecuniary damages.

[131]     Here, the
plaintiff’s pre-existing right shoulder injury was continuing to cause him pain
and discomfort at the time of the MVA.  The MVA caused him to suffer an upper
body soft tissue injury which continues to persist.  His prognosis for recovery
continues to be unknown.

[132]     After
having considered all of the foregoing evidence, the submissions of counsel and
the case authorities they have cited, I consider that, subject to an adjustment
for his failure to mitigate, which I will deal with in the paragraphs that
follow, an award of $75,000 fairly compensates the plaintiff for his pain and
suffering and loss of enjoyment of life and amenities.

Mitigation

[133]    
The test for failure to mitigate was set out in Chiu v. Chiu,
2002 BCCA 618 at para. 57

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

[134]     The
mitigation test is a subjective/objective test, that is, “whether the
reasonable patient, having all the information at hand that the plaintiff
possessed, ought reasonably to have undergone the recommended treatment”: Gregory
v. Insurance Corporation of British Columbia
, 2011 BCCA 144 at para. 56.

[135]     The
plaintiff attended a walk-in clinic on November 21, 2011, January 5 and
February 24, 2012, and saw his family doctor on April 18 and June 22, 2012.  On
each occasion, he was given a prescription for pain medication and advised to
undergo a program of rehabilitation under the direction of a physiotherapist. 
The plaintiff chose not to follow this advice. 

[136]     In more
than four years since the MVA, the plaintiff saw a physiotherapist only twice,
once on June 25, 2012 and once on November 17, 2015.  Instead, he opted for a
self-prescribed exercise program which he testified consisted of stretching at
home and attendances at the gym two or three times per week despite it not
providing relief of his pain symptoms.  I find it is unlikely that the
plaintiff performed the self-prescribed exercise program or any other exercise
program as often as he said he did prior to January 2014, when Ms. Gibson moved
in with him and began to motivate him to exercise.

[137]     I accept
the prognosis opinions of Drs. Bowlsby and Boyle that, had the plaintiff
initiated and maintained physiotherapy treatments as he was advised to do, it
is probable that he would have been able to return to work as a heavy duty
mechanic at the Port within twelve months of the MVA.  Indeed, Ms. Andrews
shared that sentiment and made recommendations in that regard.  However, the
plaintiff continues to ignore that advice.  Rather, he has decided to await the
outcome of what he described as “nuclear MRI testing” currently scheduled for
August 2016.

[138]     While I
accept that the plaintiff is not a malingerer and that his injuries are
persisting, the defendants have satisfied me that the plaintiff ought to have
followed the advice of his medical practitioners and undergone a program of
rehabilitation under the direction of a physiotherapist.  They have also satisfied
me that it was unreasonable for the plaintiff not to have done so and that, if
he had done so, it is more probable than not that there would have been some
significant recovery from his MVA-related injuries within twelve months of the
MVA.

[139]     The defendants
are entitled to an adjustment in the plaintiff’s damages to account for my
finding of fact that he would have recovered from his MVA-related injuries
sooner if he had implemented and maintained the recommended physiotherapy
programs.  I am satisfied that a deduction of 20% is appropriate. 

[140]     Accordingly,
the plaintiff is entitled to an award for non-pecuniary damages equal to
$75,000 x 80% = $60,000.

Past Income Loss

[141]     A claim
for past income loss is to be addressed on the basis of a lack of capacity rather
than as a mathematical formula: Liu, at para. 135.  An assessment of past
income loss is based on lost opportunity and as with all hypothetical events,
requires that the plaintiff demonstrate a real and substantial possibility that
the income would have been earned: Fell at para. 53.

[142]     It is
clear that the plaintiff was passionate about his work as a heavy duty mechanic
and derived significant enjoyment and satisfaction from it.  Throughout his
life, he was committed to that trade and had a strong work ethic while engaged
in it. 

[143]     The
evidence demonstrates that, prior to the MVA, the plaintiff worked full time at
the Port until he obtained his teaching position at VCC in April 2009. 
Thereafter, until the MVA, he worked full time at VCC and as many night shifts
at the Port as he wished.  The unique nature of the BCMEA job gave the
plaintiff significant flexibility regarding when and how many hours he would
work there. 

[144]     The
relevant totals are:

2009

 

1025 hrs

2010

 

423 hrs

2011

 

465.5 hrs

2012

 

25 hrs

 

 

[145]     The number
of hours that the plaintiff worked at the Port during 2009 and 2010 were lower
than they otherwise would have been as a result of his right shoulder injury
from the VPD incident.  Although the plaintiff worked very little at the Port
during the latter part of 2011, his hours at the beginning of that year put him
close to the 500 hour threshold.  I find that, but for the MVA on November 18,
2011, there was a real and substantial possibility that the plaintiff would
have worked the additional 34.5 hours (approximately 5 shifts) during the
remaining 6 weeks left in 2011 required to achieve his goal of 500 hours.

[146]     The MVA
deprived him of that opportunity.  I find that, but for the MVA, the plaintiff
would have worked 500 hours per year at the port ongoing.  He agreed on
cross-examination that most of the shifts that would have generated these hours
would have been night shifts, which could be strategically chosen such that the
tasks he would be required to perform were flexible and not onerous.

[147]     Instead, he
worked a total of only 25 hours since the MVA (5 shifts).  The plaintiff’s
evidence is that his average at that time was $50.37 per hour.

[148]     I assess the
plaintiff’s past income loss resulting from his MVA-related injuries from the
date of the MVA to December 31, 2012 at 510 hours x $50.37 per hour = $25,689
rounded to 25,700.

[149]     Using Mr.
Peever’s Table 3 and a premium of 52% rather than 55% for night shift pay, I
assess the plaintiff’s past income loss resulting from his MVA-related injuries
for the period from January 1, 2013 to the date of trial as follows:

2013

 

$27,958

2014

 

$28,850

2015

 

$29,669

2016 to Trial

 

$5,958

 

$92,435

 

 

[150]     In my
view, the plaintiff’s determination in August 2012 that his career as a heavy
duty mechanic working at the Port had come to an end was precipitous.  In the
ten months between the date of the MVA and the time he came to his conclusion,
he had had only three visits to a walk-in clinic, three consultations with Dr. Bowlsby,
only one physiotherapy session and had worked only five shifts at the Port. 
Much, if not all, of his rehabilitation was self-directed despite the
recommendations from his various physicians that he attend physiotherapy.  He
did not seek any medical advice until September 19, 2012, more than one month
later after his determination that his career as a heavy duty mechanic was over.

[151]     I find
that, had the plaintiff undertaken the rehabilitation that was recommended to
him, there is a real and substantial possibility that he would have been able
to resume his part-time work at the Port within 12 months.  Accordingly, the
defendants are entitled to an adjustment in the plaintiff’s award for past loss
of income for the period 2013 to the date of trial.  I am satisfied that a
deduction of 20% is appropriate.  Accordingly, the award for this period is
reduced to $73,948.

[152]     The
plaintiff is entitled to a gross total award for past income loss of $25,700 +
$73,948 = $99,648.

[153]     An award
for past income loss must be reduced for provincial and federal income taxes as
well as for employment insurance premiums.  Percentage deductions for taxes
and/or Employment Insurance premiums may be calculated using a “year-by-year”
approach: Laxdal v. Robbins, 2010 BCCA 565. 

[154]     Mr. Peever
has helpfully provided the court with a means of estimating the resulting net
past loss of earnings.  For a premium of 52%, the net earnings is approximately
76.3% of the gross earnings.

[155]     Accordingly,
the plaintiff is entitled to an award for past income loss equal to $99,648 x 76.3%
= $76,031 rounded to $76,000.

[156]     In August
2012, the plaintiff received $19,200 from ICBC in respect of his past wage
loss.  As a result, the plaintiff’s net award for past income loss is equal to
$76,000 – $19,200 = $56,800.

Loss of Future Earning Capacity

[157]    
The relevant legal principles relating to loss of future earning capacity
were recently reiterated by Justice Voith in Liu at para. 140 as
follows:

a) To the extent
possible, a plaintiff should be put in the position he/she would have been in,
but for the injuries caused by the defendant’s negligence; Lines v. W &
D Logging Co. Ltd.
, 2009 BCCA 106 at para. 185, leave to appeal ref’d [2009]
S.C.C.A. No. 197;

b) The central task of
the Court is to compare the likely future of the plaintiff’s working life if
the Accident had not occurred with the plaintiff’s likely future working life
after the Accident; Gregory v. Insurance Corporation of British Columbia,
2011 BCCA 144 at
para. 32
;

c) The assessment of
loss must be based on the evidence, but requires an exercise of judgment and is
not a mathematical calculation; Rosvold v. Dunlop, 2001 BCCA 1 at para. 18;

d) The two possible
approaches to assessment of loss of future earning capacity are the “earnings
approach” and the “capital asset approach”; Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at para. 7 (S.C.); and Perren v. Lalari,
2010 BCCA 140 at
paras. 11-12
;

e)  Under either
approach, the plaintiff must prove that there is a “real and substantial
possibility” of various future events leading to an income loss; Perren
at para. 33;

f) The earnings
approach will be more appropriate when the loss is more easily measurable; Westbroek
v. Brizuela
, 2014 BCCA 48 at para. 64. Furthermore, while assessing an
award for future loss of income is not a purely mathematical exercise, the
Court should endeavour to use factual mathematical anchors as a starting
foundation to quantify such loss; Jurczak v. Mauro, 2013 BCCA 507 at
paras. 36-37
.

[158]     While I
accept the functional capacity evaluation opinions of Ms. Andrews as accurately
reflecting the plaintiff’s ability to function on December 8, 2014, I find that
they are not reflective of his capacity today.  By the plaintiff’s own
admission, his symptoms and physical condition have improved significantly over
the course of the past year.

[159]     The court
would have benefitted greatly by an updated functional evaluation.

[160]     I agree
with counsel for the defendants that, in this case, the plaintiff’s future loss
of earning capacity is best addressed using the “capital asset approach”,
primarily because an assessment of his loss is hard to predict and is significantly
constrained by his failure to undergo the rehabilitation programs that were
recommended.

[161]    
As was stated by Justice Finch in Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353 at para 8 (S.C.):

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

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

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

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

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

[162]     I am
satisfied that each of these considerations is applicable to the plaintiff. 
Until such time as he recovers from his MVA-related injuries, the plaintiff
will be rendered less capable of working at the Port.  Moreover, he will be
less marketable or attractive as an employee to potential employers in that he
will be less competitive in terms of his work efficiency.  Finally, I accept
the plaintiff’s evidence that his inability to work at the Port has made him
feel less worthy as a person.

[163]     The
calculation of loss may be aided by some mathematical calculation, but there is
no particular formula.  The assessment of loss is a matter of judgment: Jurczak
v. Mauro
, 2013 BCCA 507 at para. 35. 

[164]     Again, Mr.
Peever’s calculations provide helpful guidance to determining the plaintiff’s
loss of earning capacity.  For example, a loss of 250 night-shift hours per
year to age 50 (11 years) applying “risk only” contingencies equates to a loss
of income of approximately $150,000.

[165]     Having
considered the foregoing, as well as the contingencies (both positive and
negative) of the plaintiff being able to return to work at the Port after a
proper rehabilitation program, and having taken into account a 20% reduction
that should be applied for the plaintiff’s failure to mitigate, I find that a
global award for the plaintiff’s loss of future earning capacity of $120,000
($150,000 x 80%) is appropriate.

Loss of the BCMEA Pension

[166]     The
plaintiff maintains that, but for the MVA, he would have become a member of the
BCMEA and thus, entitled to a pension.  He argues that, had he worked these
hours, he would have become a member of the union and thereafter become
entitled to the union pension.

[167]     I accept
the plaintiff’s evidence that, once he obtained his fulltime position at VCC,
it was his intention to continue to work at the Port, become a member of the
union and maximize his pension entitlement under the BCMEA pension plan. 
However, I do not accept that he would have become a union member by January 1,
2014 as he suggested.

[168]     As noted
above, prior to January 1, 2016, casual employees who did not work a minimum of
800 hours annually did not earn “pensionable years”.  It is clear that, as a
result of the VPD incident, the plaintiff was forced to reduce his shifts at
the Port from 800 to 500 hours per year.  He conceded that this change was the
new reality in his life.  Accordingly, the evidence is that the plaintiff would
not have earned pensionable years prior to January 1, 2016.

[169]     Also as
noted above, effective January 1, 2016, the pension scheme for workers at the
BCMEA changed such that a full year of pensionable service is credited once the
worker earns a threshold of $67,902 in a year.  Pensionable credit for earnings
less than the threshold ($67,902) are earned on a pro rata basis.

[170]     Assuming
that, but for the MVA, the plaintiff would have worked 500 hours per year at
the Port on the night shift, it is clear from Mr. Peever’s Table 6 that the
plaintiff’s annual earnings from that work, even without the application of
contingencies, would have been approximately $30,000, well below the $67,902
threshold.  At best, once he became a member of the union, he would have earned
pensionable credit on a pro rata basis.

[171]     But, as
the evidence makes plain, a casual member will not become a member of the union
unless an existing member of the union either retires or dies, and the casual
member is first in seniority when that happens.  No statistical evidence was
presented regarding the ages of existing union members, their typical
retirement age, or what the plaintiff’s seniority among the casual ranks would
have been but for the MVA.

[172]     Counsel
for the plaintiff’s answer to this lack of evidence was that there was no
evidence that the plaintiff would not have become a union member.  With
respect, it is the plaintiff who has the onus of establishing a real and
substantial possibility that he would have been.

[173]     In my
view, the evidence as to how and when the plaintiff would have become a member
of the union, thereby becoming entitled to participate in the pension plan, is
simply too unclear and speculative for the court to be able to determine
whether there was a real and substantial possibility of it occurring and, if
so, when.

[174]     The
plaintiff’s claim for loss of the BCMEA pension is dismissed.

Conclusion

[175]     In summary, the plaintiff is entitled to judgment
against the defendant in the following amounts:

a)

non-pecuniary damages:

$60,000

 

b)

past income loss:

$56,800

 

c)

loss of future earning capacity:

$120,000

 

d)

loss of pension

$0

 

 

TOTAL

$236,800

 

 

 

 

[176]     The investment income generated by an award of costs
for future care will likely increase the income tax to be paid by the plaintiff
over the years.  Accordingly, a “tax gross-up” is required to offset the taxes
that this investment income will attract.  There will be calculation of the
necessary tax gross-up to offset any income tax paid on any investment of these
sums.

[177]     Subject to any submissions the parties wish to make,
the plaintiff is entitled to his costs of the action at Scale B.

“G.C. Weatherill J.”