2005 BCSC 3 Eaton v. Regan

Before: The Honourable Mr. Justice Joyce

Reasons for Judgment

Counsel for Mr. Eaton	G.R. Jackson
Counsel for the defendant	F.D. Corbett
Date and Place of Trial/Hearing:	October 13, 2004
	Victoria, B.C.

NATURE OF THE APPLICATION

[1] On December 8, 1998 Mr. Eaton was injured when the pick-up truck he was driving was struck by the defendant’s vehicle when the defendant, who was coming towards him, suddenly and without warning turned left directly in front of him. The defendant admits liability for Mr. Eaton’s loss and damages.

[2] Mr. Eaton brings this application under Rule 18A to determine the quantum of his damages.

SUITABILITY FOR DISPOSITION UNDER RULE 18A

[3] The defendant submits this case is not appropriate for determination under Rule 18A. He submits there are differences in the evidence of the plaintiff’s witnesses which he would wish to explore through cross-examination although he has not put forward any evidence that contradicts the plaintiff’s evidence.

[4] In my opinion this court is in a position to make the necessary findings of fact to assess the quantum of damages. In my view it is not unjust to determine the matter under Rule 18A. I consider it would be unjust not to do so for the following reasons.

[5] The defendant has conducted a lengthy examination for discovery of the plaintiff. He has had the plaintiff’s medical reports for a long time and could have sought an independent medical examination or sought to cross-examine the doctors on their reports but has not done so. The defendant agreed at a pre-trial conference held on August 13, 2004 that the case was appropriate for summary trial. The only change since that event is that the plaintiff delivered a work evaluation report.

[6] There is no conflict in the evidence in the sense that the plaintiff’s evidence conflicts with that of the defendant. The defendant has not provided any evidence. The conflict alleged by the defendant is that there is some difference of opinion between the plaintiff’s doctors. The court must determine what evidence it accepts and the plaintiff runs the risk that if there is a difference of opinion or difference in degree Mr. Eaton runs the risk that the less favourable evidence may be accepted (Elyk v. John Doe, [1996] B.C.J. No. 535 (S.C.)).

[7] The defendant also submits that the report of the plaintiff’s family doctor, Dr. Malo, is inadmissible on the grounds that he has shown himself to be an advocate for the plaintiff. In my opinion the report is not argumentative nor can it be characterized as a submission in the guise of expert evidence. I conclude it is admissible.

NATURE OF THE INJURIES ALLEGED AND COURSE OF RECOVERY

[8] Mr. Eaton alleges that he suffered soft tissue injuries to his back, neck and shoulders resulting in chronic pain. He also struck his head on something in his vehicle causing pain and subsequent headaches. He also complains of depression and anxiety about driving.

[9] Mr. Eaton went to Dr. Malo, on December 11, 1998 complaining of pain in his neck, back and shoulders as well as headaches and pain in his forehead. Dr. Malo prescribed a muscle relaxant, advised the plaintiff to stay off work and take some physiotherapy treatments.

[10] The lump on Mr. Eaton’s forehead resolved in about a week but the pain in his neck, back and shoulders persisted. Mr. Eaton began physiotherapy on December 16, 1998 and had 11 treatments over a six-week period ending January 22, 1999.

[11] Mr. Eaton returned to his job as a radiator mechanic in late January 1999. The physical activity at work made his symptoms somewhat worse as a result of which he received some further physiotherapy. Mr. Eaton has been able to continue with his regular employment although there have been occasional days or parts of days when he has missed work because of pain due to his injuries.

[12] Mr. Eaton deposes that he continues to experience back and neck pain on an almost daily basis. He says he has a diminished capacity to participate in recreational activities and to perform household tasks. He developed depression for which he took antidepressant medication and attended counselling. Mr. Eaton also complains that he suffers “flashbacks” and at times becomes nervous when driving. He also complains that his social interests and sexual drive have diminished.

[13] Mr. Eaton’s wife has provided an affidavit in which she deposed that “there has been a drastic change in Ken’s physical capabilities since his motor vehicle accident”. She said that before the accident he regularly worked around the house cutting the grass, gardening, painting, moving wood piles, etc. She said that since the accident he requires assistance with everyday tasks and has to hire outside help to perform heavy tasks.

[14] Mrs. Eaton also deposed that since the accident her husband has become much less social and outgoing and has become depressed resulting in his being “grumpy” and causing problems with interpersonal relationships within the family.

[15] The manager at the shop where Mr. Eaton works provided an affidavit in which he deposed that there has been a drastic change in Mr. Eaton’s physical capabilities at work since the accident and that he now requires assistance with the heavy tasks at work.

MEDICAL EVIDENCE

[16] Mr. Eaton sought treatment from Dr. Malo, his family physician. Dr. Malo sent Mr. Eaton to Dr. Bass, a specialist in physical medicine. Dr. Malo also sent Mr. Eaton to a neurologist regarding elevated levels of lead in his body, apparently caused by continual exposure to lead in the course of his employment.

[17] The plaintiff also provided a functional capacity evaluation report.

[18] The following extracts from the reports provide a synopsis of the experts’ findings and opinions:

Dr. Malo – report dated November 25, 2003

He was seen on July 6, 2001 for WCB due to the lead level that he had due to his work.

…

On November 13, 2001 he was seen for follow-up regarding Dr. Shtybel’s report regarding the lead toxicity and leading towards depression. The decision was to start him on Celexa, which is an antidepressant. We also recommended some counselling for him.

…

The diagnosis of Dr. Bass was the same as mine, which was mainly soft tissue injury in the cervicothoracic and lower lumbar area, which is taking a long time to settle. Dr. Bass felt that one of the reasons that the patient was taking a long time to settle was one of his depression. However I have to oppose that myself as I would have to say that his depression has done very well and at this point in time I do believe that the patient is no longer depressed and that there is some confusion with his imperfect demeanor. I am wondering, which I will discuss later, if his depression is not due to the chronic pain that he has developed as a result of the motor vehicle accident. Dr. Bass is also in the belief that the physical findings of this patient are a direct result of his motor vehicle accident and I agree with him. …

In resume, Mr. Ken Eaton is now a 53-year-old man who on December 9, 1998 was involved in a motor vehicle accident. As a result of this motor vehicle accident he has been left with chronic back and neck pain. His current status is one of a great ache in his neck and pain. … I do believe that this patient will not be able to continue with heavy physical demands of his work until the age of 65. …

… prior to the motor vehicle accident this gentleman had never seeked (sic) medical advice for depression…

My prognosis for this gentleman is unfortunately much more guarded than Dr. Bass. I do not believe that after five years we could have any significant improvement of his discomfort and physical limitations.

Dr. Bass – Report dated June 30, 1999

DIAGNOSIS:

1. Fibroligamentous strain cervical spine.

2. Fibroligamentous strain lumbar spine.

3. Fibroligamentous strain thoracic region and evidence of bilateral rotator cuff problems, not related to this accident.

…

OPINION:

This man has made a slow and partial recovery from a mishap that occurred in December 1998. He did incredibly well with Dr. Malo’s prescription of therapy at Summit Rehabilitation but unfortunately he has gone downhill a little since treatment was stopped and he is back into fulltime work.

My feeling at this stage is that this is a man who has a fairly high pain threshold, doesn’t seem to complain a great deal, and such patients are often as difficult to treat as those who are somewhat hypochondriacal.

In this man’s case, I would strongly recommend that he should continue at work, and that some after hours treatment should be arranged for him a couple of times a week….

The outlook at the present time is still uncertain because he has deteriorated slightly since returning to work. …

Dr. Bass – Report dated August 7, 2003

He is back at work, and has been so since I last saw him in 1999, is able to cope, is sleeping well, is a little short tempered, and his weight remains approximately the same but social interests and sexual drive are much diminished. He is quite frustrated.

…

DIAGNOSIS:

I think this man’s problem still remains the same as it was previously, namely a soft tissue injury in the cervicothoracic and in the lower lumbar region, which is taking quite a long time to settle. I feel that probably one of the reasons it’s taking some time is that he is depressed, and until this is dealt with he is going to have problems as patient’s frequently do when reactive depression becomes a problem with soft tissue injury.

OPINION:

I think the man is still suffering from the results of his motor vehicle accident but there is a slight change for the better and I feel at this stage some four and a half years after the accident, that it would be appropriate to seriously consider injection by an anesthetist skilled in injection. …

…

I believe in the absence of serious injury apart from the calcific tendonitis, I don’t believe this man is going to have any serious long term effects and I would have to say that having spoken to him twice now, I get the impression he is a really tough sort of character who does not make a great deal of fuss but simply gets on with what his moderately heavy job requires.

Dr. Shtybel – Consultation report dated

October 18, 2001

History:

This man has been exposed to lead by working in the radiator business for the last 28 years. Your letter indicates that he has a serum lead level of 2.56. His subjective complaints started approximately a year ago. He complains of fatigue, having no appetite, 20 lbs. of weight loss, anorexia and emotional problems. He tells me his emotional problems are that he is more irritable and short tempered and he has nightmares. He then goes on to elaborate that they are not really nightmares but he has “visions”. He says when he is about to fall asleep that he will see himself falling or he sees himself being blown up. He says he is falling from a building.

…

… He has no problems driving. He denies any problems performing his duties at work. …

…

He denies depression. He does not feel that he has any problems concentrating but he says that he stopped watching TV series because he cannot remember what he watched the next day. His sex drive is diminished. He tells me that over the last year his potency has diminished. He says he is sleeping poorly and he has initial insomnia and will often wake up in the night and turn the TV back on. He says he has lost interest in puttering around in his basement the last two years and says he has become a “couch potato” and just wants to go to bed and watch TV at 8 or 9 o’clock.

…

Neurovascular examination is normal.

…

Muscle bulk, power and tone are normal.

PRECIS:

This man presents with a constellation of symptoms developing over the last year or two including anorexia and weight loss, anhedonia, insomnia, decreased sex drive, fatigue and probable hypnagogic sleep hallucinations. I believe that his primary problem is that of a depression. I find no evidence on elemental neurologic examination or systematic cognitive function testing of any neurotoxicity from lead involving the peripheral or central nervous system.

[19] In addition to the foregoing medical intervention, Mr. Eaton underwent a functional capacity evaluation. The report, dated August 12, 2004 sets out the results of a large number of tests (28) and provides a rather general opinion concerning Mr. Eaton’s functional limitations. It does not expressly correlate the results of the testing to the demands of Mr. Eaton’s job. The report concludes that Mr. Eaton demonstrated the ability to function at an overall physical demand level of light (to just below medium) by both CCDO (Canadian Classification and Dictionary of Occupations) and NOC (National Occupation Classification) standards.

CAUSATION AND EXTENT OF INJURIES

[20] Counsel for the defendant submitted that Mr. Eaton’s high level of lead in his body is the most probable cause of his ongoing physical and emotional or psychological complaints. The medical evidence does not support this submission. Dr. Malo referred Mr. Eaton to Dr. Shtybel because of concern whether lead toxicity was causing symptoms of aggression, poor concentration, poor short term memory and headaches. Dr. Shtybel found no evidence of any neurotoxicity from lead involving the peripheral or central nervous system. He was of the opinion that Mr. Eaton was suffering from depression but there is nothing in his report to suggest that the depression was caused by lead toxicity. It appears to me that the opinion is to the contrary.

[21] I am satisfied that the defendant’s negligence was the cause of Mr. Eaton’s injury, loss and damage. I am satisfied that Mr. Eaton suffered a mild to moderate soft tissue injury to his neck, and back, which has continued to cause some pain and discomfort to date.

[22] Dr. Malo’s prognosis is guarded. He doubts whether Mr. Eaton will see much improvement. The specialist, Dr. Bass, on the other hand is more optimistic. He is of the opinion that Mr. Eaton should not have any serious long-term effects.

[23] In my view, Dr. Bass is not saying that Mr. Eaton will not continue to have symptoms from time to time as a result of the injury. On the basis of the whole of the evidence, I expect that he will. My reading of Dr. Bass’s report is that, given the kind of robust man that Mr. Eaton is, he does not expect that the symptoms will hold him back from being able to continue with his present occupation.

[24] It appears to me that Dr. Malo and Dr. Bass share the view that Mr. Eaton has suffered some reactive depression as a result of the pain and discomfort. In his report of November 25, 2003 Dr. Malo expresses the opinion that Mr. Eaton is no longer depressed. I accept this evidence.

[25] I am also satisfied that Mr. Eaton’s loss of interest, socially and sexually, was caused by the accident.

NON-PECUNIARY DAMAGES

[26] Mr. Eaton’s primary injury was of a soft tissue type to his neck and back from which he still experiences symptoms some six years later. In my view his injuries fall within the mild to moderate category. The injuries have affected Mr. Eaton’s ability to enjoy recreational pursuits and social activities, have caused him to become depressed and have interfered with his relationships with his wife and other family members.

[27] I accept the evidence that Mr. Eaton was generally a fit person prior to the accident.

[28] Counsel for the plaintiff submits that an appropriate award for non-pecuniary damages is in the $35,000 to $45,000 range. He provides a number of cases in support including:

Baas v. Jellema [1998] B.C.J. No. 918 (C.A.) $40,000

Miscisco v. Small 1999 CarswellBC 168 (S.C.) $40,000

Varnes v. Warawa [1999] B.C.J. No. 766 (S.C.) $35,000

Gill v. Moore 1999 CarswellBC 1334 (S.C.) $35,000

Lane v. Ford Credit Canada Leasing

Limited et al., 2003 BCSC 701. $40,000

[29] Counsel for the defendant submits that the plaintiff’s injuries had substantially resolved by early 2000 and that any continuing problems are due to the plaintiff’s failure to engage in further physiotherapy or to maintain an appropriate exercise program. He submits that an appropriate award for non-pecuniary loss is in the range of $8,000 to 12,000, citing the following cases:

Bigger v. Dadswell, {1998] B.C.J. No. 718 $ 7,500

Gill v. Chen, [2001] B.C.J. No. 2753 $10,000

Machala v. Roodenburg, [2002] B.C.J. No. 557 - $11,000

Kovacevic v. Leschner, [2000] B.C.J. No. 2039 $12,000

Dowell v. Knight, [2002] B.C.J. No. 2547. $12,000

[30] With regard to the alleged failure to mitigate, Mr. Eaton attended physiotherapy following the accident as recommended. He received further physiotherapy treatments as recommended when he experienced increased pain brought on by his work activities. It is true that he did not attend for further physiotherapy in August 2000 but he continued to remain active by working. Mr. Eaton also employed regular hot tub therapy to aid in relaxation to lessen his symptoms. I am not satisfied the defendant has proven any failure to mitigate warranting a reduction in the plaintiff’s damages.

[31] I have reviewed the authorities cited by counsel. I do not intend to summarize the facts of each case in these reasons but note that all of the cases cited by the defendant involve plaintiffs whose injuries were considerably less severe than those that Mr. Eaton suffered. For example, in Machala the plaintiff was fully recovered within about 7 months and in Dowell the plaintiff was fully recovered within a year.

[32] The circumstances in this case are much more similar to those in Varnes, where the plaintiff continued to suffer back pain more than 5 years after the accident, and Lane, where the plaintiff still experienced near constant backache with flare-ups 4 years after the accident. In both of those cases the plaintiffs had returned to work within a month of the accident.

[33] In my view, an award of damages of $37,500 will provide appropriate compensation for Mr. Eaton’s non-pecuniary damages for pain, suffering, and interference with his daily activities, including his recreational, family and social pursuits. This figure includes an allowance of $2,500 on account of Mr. Eaton’s reduced capacity to perform household chores which other family members, particularly his wife, have had to make up for.

PAST WAGE LOSS

[34] The parties are agreed that the plaintiff gross past wage loss is $4,992. From that figure must be deducted the income tax he would have paid. I prefer to use the plaintiff’s rate for 2000 (23.5%) as submitted by the defendant over the slightly lower rate for 2001 (19.5%) as submitted by the plaintiff. I therefore allow the past wage loss claim in the amount of $3,818.88.

LOSS OF EARNING CAPACITY

[35] Mr. Eaton’s soft tissue injuries did not prevent him from returning to his job as a radiator mechanic by the end of January 1999, although they affected his ability to perform his job somewhat in that he now requires assistance from co-workers with the heavy tasks.

[36] Dr. Malo is of the opinion that Mr. Eaton has suffered a permanent injury which will likely affect his future employment. The specialist, Dr. Bass, is far less pessimistic about the future. He expects the plaintiff will be able to carry on with his job and work through any residual pain and discomfort because Mr. Eaton has a tough psychological makeup.

[37] The functional capacity evaluation paints a rather negative picture of Mr. Eaton’s capacity. However, it must be viewed in light of the fact that Mr. Eaton has been able to function at his job since January 1999.

[38] Considering the whole of the evidence, it is my view that Mr. Eaton’s injuries have resulted in a diminished capacity to perform his job. He now requires more assistance and he has less strength and stamina. In my opinion the plaintiff has established the criteria set out in Brown v. Golaiy [1985] 26 B.C.L.R. (3d) 353:

(a) he has been rendered overall less capable from earning income from all types of employment;

(b) he is less attractive as an employee to potential employers;

(d) he is less valuable to himself as a person capable of earning income in a competitive labour market.

[39] While I conclude that Mr. Eaton has suffered some diminishment in his earning capacity, I am not satisfied the quantum of that loss is as great as suggested by his counsel. Mr. Eaton’s has maintained his regular employment for over 5 years now albeit with more assistance than he had before he was injured. In quantifying the loss I must attempt to assess the risk of diminished earnings in the future. I am not satisfied that an award in the range of $30,000 to $40,000, equivalent to the loss of a year’s income, as suggested by the plaintiff’s counsel, is justified in these circumstances. Recognizing that the exercise is somewhat like gazing into a crystal ball, I conclude that a more modest award of $10,000 under this head is appropriate.

LOSS OF HOUSEKEEPING CAPACITY

[40] The plaintiff seeks an award of $2,000 per year for each of the past 6 years to compensate for his lack of ability to contribute to work in and around the house, including mowing the grass, gardening, painting, and moving furniture. He also seeks an amount of $1,800 which he paid to obtain assistance in putting a new roof on his house.

[41] In Kroeker v. Jansen (1995), 123 D.L.R. (4^th) 652 (B.C.C.A.) the Court of Appeal recognized that “housekeeping and other spousal services have economic value for which a claim by an injured party will lie even where those services are replaced gratuitously from within the family”. In Kroeker, Gibbs J.A. recognized the need for caution in making awards for this kind of loss “lest it unleash a flood of excessive claims”.

[42] In McTavish v. MacGillivray, [2000] B.C.J. No. 507 (C.A.) the court held that an appropriate method of compensating for loss of housekeeping capacity is on a replacement cost basis, even if the services in question were replaced voluntarily by other family members.

[43] Counsel for the plaintiff submits that an amount of $2,000 per year for 6 years would be conservative. The difficulty with this submission is that there is a lack of evidence as to how many hours were spent by other family members performing services that would otherwise have been performed by the plaintiff and no evidence as to the market value of those services. The plaintiff deposed that

… there are many household tasks that I am no longer able to perform. For example, my wife now has to cut the grass, because leaning forward to (sic) any period of time cause me pain.

I am no longer able to cut my own firewood. Previous to the accident I could cut two cords per year:

I can no longer perform any task which requires stretching, such as painting, changing lightbulbs, etc.

[44] The only specific cost that the plaintiff set is in relation to replacing the roof on his house. He deposed that he “had to pay $1,800 in labour to obtain assistance in performing this task” (emphasis added). There is no supporting invoice or evidence describing precisely what assistance was provided by the contractor and what work he did himself. There is insufficient evidence to persuade me that the plaintiff would have done the roofing without this outside assistance if the accident had not occurred.

[45] The plaintiff’s wife similarly provides only the most general evidence, saying:

… Ken requires assistance with everyday tasks and is forced to hire outside help to assist with home maintenance and to perform any heavy tasks that may be required.

Due to Ken’s injuries, I now perform many more household tasks than I did prior to the Plaintiff’s motor vehicle accident, including mowing the lawn regularly, all gardening and outside maintenance, power-raking the grass, moving wood piles, painting, moving furniture and so on.

[46] As I read Kroeker v. Jansen and McTavish v. MacGillivray it is open to a trial judge to compensate for this loss as a factor in the assessment of the non-pecuniary loss. Given the lack of evidence with regard to replacement cost, that is the most appropriate way to compensate the plaintiff in this case and the one I have chosen.

COST OF FUTURE CARE

[47] Counsel for the plaintiff submits Mr. Eaton is entitled to an award for the future cost of physiotherapy and/or chiropractic treatments and/or massage therapy and/or an exercise facility. He also submits that Mr. Eaton should receive compensation for loss of future housekeeping capacity. He submits that a global award of $5,000 to $10,000 would be appropriate.

[48] Mr. Eaton’s medical advisors have recommended that he maintain his fitness. The specialist, Dr. Bass, suggests Mr. Eaton consider injection by an anaesthetist and the involvement of an expert in pain management. No costs are provided for this treatment and there is no indication the plaintiff intends to pursue it. Dr. Bass does not appear to recommend physiotherapy, massage or chiropractic treatment.

[49] In my opinion the plaintiff has failed to establish this head of damages.

SPECIAL DAMAGES

[50] The largest claim under this head (apart from the cost of roof repairs, which I have disallowed) is the $2,400 cost of a special bed. I accept that as an allowable item of special damage. I also accept the user fees and mileage as set out in the plaintiff’s affidavit, totalling $183.60.

SUMMARY

[51] I assess the plaintiff’s damages in the total amount of $53,902.48, under the following heads:

Non-pecuniary damages $37,500.00

Past wage loss $ 3,818.88

Loss of income earning capacity $10,000.00

Special damages $ 2,583.60

$53,902.48

=========

[52] Unless there are any circumstances of which I am not aware, the plaintiff will be entitled to his costs at scale 3.

“B.M. Joyce, J.”
The Honourable Mr. Justice B.M. Joyce