2008 BCSC 622 Thorp v. Gerow

Before: The Honourable Mr. Justice A.F. Wilson

Reasons for Judgment

Counsel for the Plaintiff:	J.A. Vanstone
Counsel for the Defendant:	D.A. Nuyts
Date and Place of Trial:	April 22-24, 2008
	Nanaimo, B.C.

I. Introduction

[1] The plaintiff, Nicholas Thorp, was a backseat passenger in a vehicle which left the road and hit a tree near Ucluelet on September 7, 2004. Liability for the accident has been admitted.

[2] At the time the vehicle left the road, Mr. Thorp was holding onto the handle above the window with his right hand, and bracing himself. He suffered an injury to his right wrist which resolved within approximately two weeks. His major injury was a posterolateral dislocation to the right elbow.

[3] Mr. Thorp claims he has a permanent partial disability which disables him from doing the type of physical work which he did before the accident, and which has affected his daily activities. The defendant submits that he was substantially recovered by the end of 2004, with only minor symptoms after that time.

II. Effect of Injuries

[4] At the scene of the accident, Mr. Thorp said that his wrist was sore, and “My forearm was hanging off my bicep”. A friend took him and the other person injured in the accident to the hospital in Tofino. He said that was one of the most painful rides he had ever taken, and that he blacked out during it.

[5] Mr. Thorp says that at the Tofino hospital x-rays were taken, and several attempts made to reduce the fracture, which was eventually successful. The arm was put in a one-half plaster case, from the wrist to the bottom of the bicep. It was also in a tensor bandage and sling to keep it at a 90 degree angle.

[6] The next day, when he woke up, Mr. Thorp says that he was in considerable pain. However, a friend gave him a ride back to his home in Ucluelet.

[7] Mr. Thorp says that after the initial treatment at the hospital, he was under the care of his family doctor, Dr. Killins. However, Dr. Killins referred him to Dr. Gutmanis, an orthopaedic surgeon in Nanaimo. The first record in Dr. Killin’s chart after the accident is dated October 5, 2004, indicating that Mr. Thorp’s elbow was still in a splint, and that he referred him to physiotherapy to increase his range of motion. However, Dr. Gutmanis’ report of January, 2008, indicates that he first saw Mr. Thorp on September 22, 2004, and that, on September 23, he discontinued the splint and sent him for physiotherapy. Mr. Thorp says that he had the original cast on until he saw Dr. Gutmanis, who sent him to the hospital in Nanaimo, where he was fitted with a plastic brace to keep his arm as 90 degrees. In cross examination, he said he had the brace on for almost a year, taking it off only to exercise and to bathe. That is not reflected in the medical report of Dr. Gutmanis. However, in a consultation report dated September 24, 2004, he does refer to sending Mr. Thorp for a celluloid posterior splint “which he should wear when he is out and about but start a gentle range of motion”.

[8] Mr. Thorp says that when he first got the cast off, he had only limited movement, that he could flex to only 35 degrees. That is not reflected in any of the clinical records or medical reports. However, in Dr. Gutmanis’ consultation report of September 23, 2004 he did say that he had told Mr. Thorp that he would never get back the “last 5 degrees or so of full extension”.

[9] Mr. Thorp did attend physiotherapy following the accident. He says that the physiotherapist gave him exercises to do at home, and monitored his rehabilitation. According to the hospital records, Mr. Thorp attended for physiotherapy four times between October 26, 2004 and February 9, 2005.

[10] Dr. Gutmanis saw Mr. Thorp again on November 10, 2004. His progress report on that date states as follows:

Mr. Thorp is now a couple of months following the posterolateral right dislocation and is doing surprisingly well. He has a minor “rubbery” block across the last 3 or 4 degrees of full extension but essentially has a full range of motion. He is still complaining of some minor dysesthesia in the distribution of his ulnar nerve, although motricity is normal. He also complains of some minor discomfort with supination and pronation at the level of the wrist.

I have told him that these are relative details and I think he is very likely to have an essentially normal outcome from this injury, which might well have given him a stiff elbow. I have discussed the desirability of further physiotherapy but the avoidance of any impact activities with right elbow/arm, across the next 6 weeks or so.

Mr. Thorp did not see Dr. Gutmanis again until November 2, 2006.

[11] Dr. Killins did see Mr. Thorp on May 2, 2005. In his report dated July 8, 2005, he indicated that, at that time, the right elbow had full extension and flexion, and near full supination, with minimal discomfort on the extremes of movement. He anticipated full recovery, and cleared Mr. Thorp for return to work. On cross-examination, Dr. Gutmanis said he considered Mr. Thorp clear for some work before May, 2005, that he could do clerical work by November, 2004.

[12] Mr. Thorp said that he had a high level of pain for approximately one year after the accident. He says that he continued to do the exercises at home, on a daily basis, until the end of 2007. He also said that he used ice regularly after exercising, which he still does after repetitious work or a long day.

[13] There is a period when there were no attendances on medical practitioners, from May, 2005, until July, 2006. On July 18, 2006, Mr. Thorp went back to see Dr. Killins. At that point, Dr. Killins’ chart indicates pain and weakness of the right arm. His physical examination indicated good flexion and extension, but reduced supination. He thus referred Mr. Thorp back for physiotherapy to improve the range of motion and strength. The physiotherapy records indicate that Mr. Thorp did return for physiotherapy, but not until August 9, 2006. He had further physiotherapy sessions on August 17 and 31. On August 21, Dr. Killins noted continued pain in the elbow, and limitation on all activities, and referred Mr. Thorp for a further review by Dr. Gutmanis. However, he apparently did not see Dr. Gutmanis again until November 2, 2006. In the meantime, he was discharged from physiotherapy on September 14, with further exercises to perform, and instructions to return as needed.

[14] Mr. Thorp saw Dr. Gutmanis on November 2, 2006, as a result of the ongoing symptoms. In his consultation report of that date, Dr. Gutmanis noted that he was surprised to see Mr. Thorp, as, when he saw him on November 10, 2004, “he was missing only about 4 or 5 degrees of extension and a very few degrees of full flexion”. On examination, he noted that Mr. Thorp was still lacking about 5 degrees of extension and 5 degrees of flexion. Dr. Gutmanis reviewed x-rays of Mr. Thorp, and noted two flecks of dystrophic calcification. He thus sent Mr. Thorp for a C.T. arthrogram. It confirmed the fleck of dystrophic calcification in the annular ligament, but showed no post-traumatic osteoarthritis of the joint or looseness within the joint.

[15] On the last time he saw Mr. Thorp, on January 26, 2007, Dr. Gutmanis concluded that surgery “would not necessarily improve his relatively modest residual symptoms”. On cross examination, Dr. Gutmanis said that the calcification is a possible cause of the pain. He said that calcium is typically absorbed into the body, but that sometimes takes years or even decades. However, he said the flecks in Mr. Thorp’s elbow will likely go away over time.

[16] Dr. Killins did see Mr. Thorp again on December 4, 2006, when he caught his hand in a car door, and twice in May, 2007, for complaints unrelated to the motor vehicle accident.

[17] Mr. Thorp says he has had ongoing problems since the accident. He says that the elbow is sore if he does repetitive activity, or lifts things like a laundry basket or groceries, or does any activities such as pushing and pulling. He says that when he is jogging, swinging his arms makes the elbow sore. He says that when he is resting he doesn’t now notice the elbow. However, if he uses it extensively, even writing for extended periods or lifting something, he does have discomfort, which he puts at 4 on a scale of 1 to 10. He said that, as a result, he doesn’t play hockey, do trap or skeet shooting, throw darts or go fishing anymore. Around the house, which he shares with his brother, he says his brother does all the yard work, and helps by moving stuff when he is vacuuming, or doing heavy housework. He says that, as a result, he ices the elbow four or five days a week, on days when he does exercises, goes jogging, or strains it from such things as carrying laundry. He says he is still missing the last 5 degrees of flexion of the elbow, that when he stretches it, it becomes tight and sore inside the elbow. He says it has affected the strength of his arm. He is able to lift less than he could before the accident, and predominantly uses his left arm. He says that such activities as driving, when he has to do a lot of gearing up and down of the standard transmission, causes the elbow to become sore, and it is necessary to ice it. He says he is affected in pushing and pulling, so that he does not push a lawn mower, and was unable to start a chain saw, something he had done all his life. He also has problems with reaching, so that putting dishes up into a cupboard causes pain. Other activities he is no longer able to do, or is restricted in, are playing foosball, skiing and playing golf.

[18] The only medical/legal report filed is that of Dr. Gutmanis, dated January 10, 2008. In it, he gave the opinion that Mr. Thorp’s function had stabilised “at least for the short term”. He concluded that the symptoms referable to the right elbow are due solely to the dislocation sustained in the motor vehicle accident. He considered further treatment, but did not feel it was likely to offer any real benefit. He noted that the injury sustained by Mr. Thorp “is notorious for causing subsequent diminished range of motion”. He did not think that there would be arthritic changes in the elbow if Mr. Thorp continues with a job which does not involve physical labour, so that the arm is largely non-weight bearing. However, he considered the likelihood of the development of post-traumatic arthritis of the right elbow to be greater if Mr. Thorp pursued more physical work.

[19] On his physical examination on January 26, 2007, Dr. Gutmanis noted that the circumference measurement of both of Mr. Thorp’s arms was equal. He indicated that normally a person’s dominant arm, the right arm in Mr. Thorp’s case, is larger in circumference, particularly in the upper arm. He indicated that the measurements might indicate that his right arm was no stronger than his left arm, but, on the other hand, it should also not be weaker.

[20] In summary, Dr. Gutmanis concluded that Mr. Thorp “has sustained legitimate and objective long-term sequelae as a result of his motor vehicle accident”.

[21] Mr. Thorp was referred by his counsel for a functional capacity evaluation. The assessment took place on December 20 and 21, 2007 with a resulting report dated December 31, 2007. That report was reviewed by Dr. Gutmanis. In his report, he stated: “…in general terms, I would support the conclusion of the Island Assessment Group regarding Mr. Thorp”. However, in cross examination at trial he tended to disparage the results of the testing in the functional capacity evaluation. He said, for example, that he gets as much from his measurement of the arms and forearms as the 30 pages of tests in the functional capacity evaluation. He also said there was no structural explanation for the difference between the strength of Mr. Thorp’s hands, in particular in the tip pinch test. He suggested that the occupational therapist had not engaged Mr. Thorp to the extent possible. Dr. Gutmanis also said that there is no structural explanation for the difference in the carrying capacity of Mr. Thorp’s right hand and his left hand on the tests, or in pushing and pulling. However, he agreed that if those activities were causing pain, or the apprehension of pain, that might explain the difference.

[22] The conclusion of Mr. Vanderboer, the occupational therapist who did the functional capacity evaluation, is that Mr. Thorp has “pain related limitations in (his) right upper extremity strength and activity endurance/tolerance”. He noted that Mr. Thorp had demonstrated capacity to perform medium and some heavy physical demand level activity with his left arm, but was limited to light physical demand activity with his right arm. Specifically, he noted restrictions relating to the level of functional loading of the right upper arm for generating force or working against resistance; repetitive and/or prolonged use of his right upper arm; repetitive and/or prolonged right hand gripping/releasing of objects; repetitive and/or prolonged right upper arm reaching; and lifting, carrying and pushing/pulling. He thus concluded that Mr. Thorp is not physically capable of manual labour type occupations on a safe and durable basis. He said Mr. Thorp would likely be best suited to a job that requires only occasional sedentary to light physical demand level activity. He concluded that Mr. Thorp is capable of meeting the job demands of his present positions in radio broadcasting and sales, and on the town council, but would not be able to do the heavy work in occupations such as construction labouring.

[23] The results of the tests in the functional capacity evaluation were attacked in cross examination of Mr. Vanderboer. He agreed that Mr. Thorp, on the self assessment, rated himself at the bottom of the range of physical abilities, as sedentary, whereas the testing showed that he had the ability to do light physical work. However, Mr. Vanderboer did not agree that Mr. Thorp was overstating his disability. He suggests that was as a result of a lack of understanding by Mr. Thorp of the extent of his disability, or a low scoring due to anticipation of pain on activities he would be physically able to do. He did agree with Dr. Gutmanis that there was no mechanical reason why Mr. Thorp would have reduced strength in the elbow. However, it was his opinion that the weakness exhibited by Mr. Thorp was pain-related. On the pinch strength test, he did not agree with Dr. Gutmanis that such activity did not cause any loading of the muscles in the area of the elbow. He demonstrated that a pinch activity compresses the elbow joint by constricting the ligament. Although it was submitted that Dr. Gutmanis was better qualified to give opinions in the area of physiology, I do not accept that that is necessarily so in the specific area of functional capacity evaluation. In fact, I accept that an occupational therapist trained in performing functional capacity evaluations may well have more expertise with respect to the mechanisms involved than would an orthopaedic surgeon.

[24] There were anomalies in the results which Mr. Vanderboer was not able to explain. For example, in tests administered at the beginning of the first day, Mr. Thorp had an average score of 38 pounds right hand grip strength. When the test was repeated at the end of the second day, the average score was 70 pounds. Normally that score would be expected to decrease, due to pain and fatigue.

[25] Notwithstanding those anomalies, I generally accept the conclusions of Mr. Vandenboer, as did Dr. Gutmanis. Specifically, I accept his evidence that there are a number of safeguards built into the testing procedure in order to determine if the subject is performing to the full extent of his ability. Those are summarized in the report under the heading “Maximum Voluntary Effort Testing”. All of the validity testing indicated that Mr. Thorp did put forth a maximum and consistent effort. I accept that opinion in preference to that of Dr. Gutmanis that some of the results which he could not explain may have been brought about by Mr. Thorp not giving maximum effort.

[26] In the result, then, I conclude that Mr. Thorp sustained a minor injury to his wrist which had cleared up within two weeks. I also conclude that he sustained a posterolateral dislocation of the right elbow. Although Mr. Thorp did well in his recovery in the initial period, he continues to have some restriction on range of motion and ongoing discomfort, particularly in performing physical activities. Although the pain may be due to the calcification in the elbow which might go away over time, he can expect to have that for a considerable period of time. I accept the opinion of Mr. Vanderboer that Mr. Thorp does have pain-related limitations in the strength of his right arm, and his endurance and tolerance for activity. I thus accept Mr. Vanderboer’s opinion that he is not physically capable of manual labour-type occupations, and the opinion of Dr. Gutmanis that if he chose to pursue more physical work, he would have greater likelihood of the development of post traumatic arthritis. I also accept Mr. Thorp’s evidence that, as a result of the ongoing pain, he has restricted many of his previous physical activities.

III. Non-pecuniary Damages

[27] With respect to non-pecuniary damages, counsel for the defendants submitted they should be assessed on the basis that the injury was a straightforward elbow dislocation, with no associated fractures and no evidence of ligamentous or neurological injury. He referred to Dr. Gutmanis’ progress report on November 10, 2004, that Mr. Thorp was “doing surprisingly well”. He submitted that Mr. Thorp had virtually full range of motion, and only minor symptoms after that time. He said that Mr. Thorp has exaggerated his complaints such as in his statement that he still had a 35 degree of restriction in his range of motion of his elbow in November, 2004. He submitted that Mr. Thorp’s evidence was not consistent with the clinical record, and that the long intervals between medical visits indicates either that Mr. Thorp was not as disabled as he stated, or that he has failed to mitigate his damages by seeking appropriate medical assistance.

[28] I agree with those submissions, to some extent. Specifically, the extent of the limitation of movement, and the degree of pain and discomfort which Mr. Thorp indicates he experienced, is not reflected in the clinical records. I do find that Mr. Thorp tended to overstate the effect of his injuries, such as his statement that he had a brace on for almost a year, taking it off only to exercise and to bathe, as compared to Dr. Gutmanis’ consultation report indicating he should wear it “when he is out and about”. However, I do not consider that there was deliberate exaggeration by Mr. Thorp. I also do not accept that the lack of visits to the doctor indicate that there were no problems. In that regard, I agree with the comments of Gropper, J., in Myers v. Leng, 2006 BCSC 1582 at paragraph 50, that the purpose of seeing a doctor is not to create a record of complaints for the purpose of proving an ongoing injury, and that if there is not a need for continuous medical treatment, there is not a need to continuously go to a doctor. I accept that, in Mr. Thorp’s case, he was given exercises to do at home, that he did those exercises for an extended period, and that it was only after a year when he was not progressing that he returned to see the doctor.

[29] Both counsel commented on the difficulty in finding cases with injuries similar to those of Mr. Thorp. Mr. Thorp’s counsel referred to four cases: Bumby v. Dumaine, 2007 BCSC 905; Borth v. Lee, 2005 BCSC 1517; Mawji v. Henry, 2007 BCSC 1880; and Star v. Alice & Reach, 207 BCSC 512. Only one involved an injury to the elbow, Bumby v. Dumaine, in which an award of $18,000 non-pecuniary damages was made. However, that case did not involve a dislocation of the elbow; the plaintiff was able to snowboard, including carrying her own snowboard within two months of the accident; and full recovery was anticipated within two years. Borth v. Lee and Mawji v. Henry involved wrist injuries, for which there were awards for non-pecuniary loss of $35,000 and $45,000 respectively. However, in both cases the prognosis was good for full recovery. In Starr v. Alice & Reach the plaintiff sustained a broken finger with an injury to his right wrist and hand. He had a permanent mild deformity, and was unable to fully extend the wrist, but the injury was considered to be “not very debilitating” (at paragraph 15). However, there were psychological sequelae of the injury. Non-pecuniary loss was assessed at $55,000.

[30] Counsel for the defendant referred to Foreman v. Moratz & Avco Financial Services Canada, 2001 BCSC 95. That case involved a plaintiff who received a shoulder dislocation which left a small but permanent restriction in movement. However, there was not the evidence of the effect on his activities which there is with respect to Mr. Thorp. The award for non-pecuniary damages in that case was $25,000, which counsel for the defendant submits is an appropriate award in this case.

[31] As noted, I conclude that Mr. Thorp did sustain a dislocation of his elbow. After the initial period of good recovery, I accept that he has had ongoing problems, even if not to the extent of which he complained. However, I do accept that there is what is likely a partial permanent disability. As an active person, involved in many physical activities requiring the use of his elbow, the injuries have undoubtedly affected Mr. Thorp more than they would many other people. I thus assess non-pecuniary damages at $50,000.

IV. Past Wage Loss

[32] Mr. Thorp was born on January 14, 1982, and was thus age 22 at the time of the accident, and is age 26 now.

[33] Mr. Thorp has lived in Ucluelet since age 5, and is obviously very attached to the community. He has been active in volunteer work in the community, and is presently on the town council. He lives in the former family home with his brother. He does not wish to leave Ucluelet either for further training or other employment.

[34] Mr. Thorp did most of his schooling in Ucluelet, going as far as grade 12, but being one course, English 12, short of graduation. He left school in 2000, and has had no further formal education since then. His marks in school, particularly in the last two years, were bare passes.

[35] During summers while he was in high school, Mr. Thorp worked for the District of Ucluelet’s Parks Department as an outside labourer, doing such work as digging ditches, mowing lawns, pruning trees, and clearing brush.

[36] After leaving school, Mr. Thorp was not employed in the work force for approximately two years. During that time he did some travelling, and volunteer work in the community. He also made three attempts to become elected to the town council, and ran in the 2001 provincial election.

[37] Mr. Thorp’s first employment after leaving school was through a father of a friend, who had a furniture store in Ucluelet, The Place. That started in June, 2003. Although he was a furniture sales person, he was also involved in doing deliveries and setting up furniture and appliances in customers’ homes, as well as handling stock in the store. I accept his evidence, and that of Mr. Taron, the owner of The Place, that it is physical work.

[38] Mr. Thorp left that job in 2004, to take a position as the manager at the Ucluelet Lodge Hotel. Although he was involved in overseeing the staff, there was also a physical aspect to that job, such as moving kegs of beer and other supplies off the delivery trucks. However, he was laid off from that employment as a result of legal difficulties which the owner had, effective August 31, 2004.

[39] As a result of losing that job, Mr. Thorp approached Mr. Grozell of A.G. Project Management, a construction company which puts in underground services and roads. Mr. Grozell offered Mr. Thorp a job as a labourer on a construction project to commence September 15, 2004. Mr. Thorp was unable to take that job as a result of the injuries received in the accident on September 7, 2004.

[40] According to Mr. Grozell, the work as a labourer is heavy physical work, involving a lot of raking and shovelling, lifting and barring of pipe into place, driving pipe into the ground, and prying pipes together. He said at that time there was a 30-day probationary period for new employees (now increased to 90 days), during which they would be paid $12 per hour. After the probationary period, there is then a 90-day training period, during which employees are paid $15 per hour. That will then increase to $18 per hour, with a $2 per hour increase each year to a maximum of $22 to $25 per hour. His crews typically work a 40-hour week.

[41] On cross examination, Mr. Grozell said he had never seen Mr. Thorp work on a job site. He said that he told Mr. Thorp that the job was a very physical one, that he would be on the end of a shovel or bar. He also said that there was a high turnover with construction labourers, that, “some guys try it, and don’t like it…some people are suited, and some not”. He said that he would not know if a person was suited until they were on the job, but that “younger guys with energy” had a better chance. He said it is not normally a matter of him having to fire employees, but that they make a decision themselves, usually within the 90-day probation period. He noted, in particular, that people who came from high paying jobs in the fish plant, who were mostly in their 30s, usually “lose interest real quick”.

[42] Mr. Thorp did undergo a vocational assessment by Mr. Nordin of the Vocational Consulting Group in February, 2008. Mr. Nordin interviewed Mr. Thorp, had him complete a vocational test battery, and reviewed documents provided by counsel. Included was the functional capacity report, indicating that Mr. Thorp is not physically capable of manual labour-type occupations on a safe and durable basis.

[43] With respect to Mr. Thorp’s pre-injury earning potential, Mr. Nordin stated:

In terms of Mr. Thorp’s pre-injury earning potential, while he did not actually work in physically labouring jobs prior to his accident, I am of the view he was capable of doing so. Having said that, however, Mr. Thorp’s interest results in this vocational area (jobs within the realistic theme) were not particularly high. However, given he has less than a high school education, he may well have chosen the path of labouring work, as jobs within field can be relatively high paying in spite of limited education and/or training.

He thus suggested that occupations potentially available to Mr. Thorp included those of constructions labourers, who have average earnings, full-time, full-year in British Columbia and the Yukon of $38,200; public works and maintenance labourers with average earnings of $43,100, and longshore workers, with average earnings of $73,700, among others. He considered those options no longer suitable to Mr. Thorp, given his residual physical limitations.

[44] Counsel for the defendant submitted that Mr. Thorp was not likely to follow those occupations, and, in particular, not likely to remain with A.G. Project Management as a construction labourer, in any event. He based that on the career assessment inventory given by Mr. Nordin. That indicated a low, or very low, interest in occupations within the “realistic theme”, that is “hand-on” type of occupations, such as construction and trades. In particular, in the category of “manual/skilled trades”, Mr. Thorp’s interest fell close to the “very low” range. In his report, Mr. Nordin noted that Mr. Thorp’s interests are more in the artistic and enterprising themes. The artistic theme includes writing, the creative arts, and performing. The enterprising theme includes public speaking, law/politics, and sales. The only areas in which Mr. Thorp fell in the “high” range on the scale were public speaking and law/politics. As Mr. Nordin noted, those interests are consistent with Mr. Thorp’s current careers, as a radio talk-show host and town councillor.

[45] After the accident, Mr. Thorp’s first employment was when he was elected as a town councillor in Ucluelet, in November, 2005. However, that is not full-time employment, involving a council meeting each Tuesday evening and committee and other meetings, most out of normal business hours. He noted that all of the other council members have day-time jobs. His pay as a councillor for the full year of 2007 was $6,788.

[46] Mr. Thorp also became employed at the local radio station starting in April, 2007. He is the on-air announcer for four hours a day, for which he is paid $10 an hour. In addition, he does sales, from which he receives 20% of the sales revenue. He thus earns approximately $800 per month for a broadcaster, and an additional $500 to $600 per month for sales work, for a total of $1,300 to $1,400 per month. His total monthly income is thus approximately $1,900.

[47] Counsel for Mr. Thorp submits that, as a young person who had yet to establish a career and had no settled pattern of employment, “quantifying a loss is more at large”: Sinnott v. Boggs, 2007 BCCA 267 at paragraph 16 (although the court in that portion of the judgment was dealing with a claim for loss of earning capacity). He notes that the Court of Appeal in Smith v. Knudsen, 2004 BCCA 613 at paragraph 31, referred to Athey v. Leonati, [1996] 3 S.C.R. 458 and Gill v. Probert, 2001 BCCA 331 at paragraphs 8 to 9, that the standard for proof for hypothetical loss for both past and future loss of earnings is only simple probability

…hypothetical events need not be proved on a balance of probabilities, and they are simply to be given weight according to their relative likelihood. In assessing hypothetical events, there is no reason to distinguish between those before trial and those after trial….

[48] Mr. Thorp’s counsel submits that the past loss in this case is more than hypothetical, that Mr. Thorp had a job he was to start in the immediate future. He submits Mr. Thorp would have been employed continuously from September 15, 2004 to the present as a labourer by A.G. Project Management. He notes that he had worked as a labourer while in school, and that his employment before the accident was in jobs requiring heavy physical work. While he concedes that Mr. Thorp’s vocational interest profile is not high for that type of work, he submits that it is reasonable to conclude that he would have remained in that employment into the indefinite future given his education, his previous work history, his limited job opportunities in Ucluelet, his attachment to the community, the relatively high income the employment afforded, and the freedom outside of his working hours to pursue his interests in the community, such as on town council. On that basis, he calculates that Mr. Thorp would have earned $144,360 from September 15, 2004, to the date of trial. Instead, he has earned approximately $11,890 on town council, and $12,924 at the radio station. He submits that Mr. Thorp would have been elected to council in any event, so the only amount to be deducted from the potential loss of earnings at A.G. Management is the amount earned at the radio station, leaving a net loss of $123,757. He concedes that an award of past loss income is an assessment rather than a calculation, but submits that is a realistic estimate, noting that work has been available throughout with A.G. Project Management, and that, in his calculations, he went only to a top rate of $22 per hour, rather than a possible rate of $25 per hour.

[49] Counsel for the defendant takes objection to that approach, and the foundation upon which it is based. The defendant does concede that Mr. Thorp was completely incapacitated from work from September 7, 2004 until November 10, 2004. However, counsel notes that it was the opinion of Dr. Gutmanis that Mr. Thorp could have done clerical work by November, 2004, and that he should only avoid “impact activities…across the next 6 weeks or so”. He thus submits that he should have been able to do physical work by December 24, 2004. If he had worked for A.G. Project Management for that period, he submits that he would have earned $6,640. However, he submits that is not likely, that Mr. Thorp would likely have found construction labouring unsuitable, and not lasted that long. He thus submits that amount should be discounted for that probability.

[50] I have already found that, after the initial good recovery, Mr. Thorp has had, and continues to have, ongoing problems. I note that Dr. Killins, in his report dated July 8, 2005, indicated that Mr. Thorp was cleared to return to work on May 2, 2005. I consider that to represent his period of total disability from employment. After that, I accept that he would have been capable of some sedentary work. That leaves a gap until November, 2005, when he was elected as a town councillor, and until April, 2007, when he was employed at the radio station. Mr. Thorp said that in the spring of 2005, after Dr. Killins cleared him to return to work, he would still not have been able to do the physical work involved with A.G. Project Management or The Place. He said that he did seek employment at the fish unloading dock, and at a grocery store, but was not able to do the physical work required for both jobs. He noted that Ucluelet is a small town, with no fast-food restaurants, so said that all the work available involved heavy labour. However, there has also been evidence that tourism is an important industry in the Ucluelet area. In fact, tourism is an area in which Mr. Nordin suggested Mr. Thorp may wish to consider further education. I am thus not satisfied that Mr. Thorp made all reasonable efforts to obtain sedentary employment, the type of work which he could have done after May, 2005, until he got the job with the radio station in April, 2007.

[51] I also do not accept that, even if Mr. Thorp had not been injured, that there is any certainty that he would have stayed in the construction labouring position with A.G. Project Management. Although he would fit in the class of “younger guys with energy” Mr. Grozell considered would have a better chance of making it with that work, it is not an occupation in which he displays any interest as a career. To attempt to put a percentage on the probability that Mr. Thorp would have remained with that employment up to the date of trial is very difficult. Balanced against his lack of interest are the factors noted by his counsel, including the limited job opportunities in Ucluelet, the high income such employment would have provided, and the freedom which it would have left him to pursue other activities. As Mr. Nordin noted, people whose interests are highest in the artistic area often cannot make a living in that area, and thus have jobs in which they have little interest but can earn a higher income, and follow their interests in their spare time. Mr. Thorp may well have been able to do that by working as a construction labourer, and also being a Ucluelet town councillor.

[52] Taking into account all of those factors, I assess past wage loss in the amount of $80,000.

V. Loss of Future Earning Capacity

[53] Many of the same issues which arise with respect to the claim for past loss of earnings arise regarding the claim for loss of future earning capacity. However, when looking into the future the uncertainties increase. There is some cause for optimism. While I have found that Mr. Thorp is presently disabled from physical labour, both Dr. Gutmanis and Mr. Vandenboer consider that is due to pain-related limitations, rather than any mechanical problem. Dr. Gutmanis opined that the pain may be due to the flecks of calcification in the elbow, which may be absorbed over time (although indicating that may take decades). Further, Mr. Thorp himself, in his direct examination, indicated that his future plans are to rehabilitate his arm, and get work in the construction industry. That indicates some belief on his part that he will be able to do that.

[54] Counsel for Mr. Thorp submitted that $150,000 would be an appropriate award under this head of damages. He noted that the standard of proof is simple probability, that a plaintiff need only establish a real and substantial risk of future pecuniary loss: Smith v. Knudsen, 2004 BCCA 613 at paragraph 31. He notes that it is now three and one-half years after the accident, and that notwithstanding Mr. Thorp doing the exercises prescribed to him, and icing the elbow after activity, he still has limitations, limiting him to light physical work. Specifically, he is not able to do the heavy physical labour type occupations which are available in Ucluelet, and which Mr. Thorp’s counsel submits he would likely have pursued had he not been injured.

[55] Counsel notes that Mr. Nordin made recommendations for further training to ameliorate Mr. Thorp’s loss, in real estate, broadcasting or related fields, or tourism management. However, real estate, the area Mr. Thorp’s mother works in, has little interest for him. It involves a 6 or 8 month training course, time to develop a client base, a high dropout rate during that period because a person is not allowed to work elsewhere, and greater opportunities only if he were to move to a larger community.

[56] With respect to broadcasting or related fields or tourism, that would require a two-year program at B.C.I.T., removing him from the work force for that period. Using employment as a construction labourer as a base, counsel submits that indicates Mr. Thorp would have a loss of income for the two years of $88,000, plus costs for tuition and books, and additional and living costs while living in the lower mainland. He submitted $100,000 should be awarded for that part of the claim. Even then, he submits that Mr. Thorp will have residual physical limitations which restrict the occupational options available to him, for which he should be awarded an additional $50,000.

[57] In his economists report dated February 22, 2008, Mr. Carson states:

In many and probably most instances, males with incomplete high school educations earn relatively high wages by doing physically demanding work, or they gain access to well paid jobs by doing physically demanding work in the years following initial entry to the labour market, and progressing from physically demanding to less physical work as knowledge, experience and seniority are acquired. An injury imposing some degree of limitation on an individual’s ability to do physically demanding work would be expected to increase the risk of being out of work and to interfere, to some degree, with career progression, from physical to less physical work, over the period of work life.

[58] Mr. Carson has provided a table for average lifetime earnings of British Columbia resident males with incomplete high school educations to age 65. It indicates an average income, net of labour market contingencies, with a present value of $947,078. He also provided multipliers to determine the present value of a stream of income from the date of trial until retirement at age 65, indicating that for each $1,000 lost per year over that period, the present value is $24,182. Mr. Carson was not required for the purpose of cross examination.

[59] Thus if Mr. Thorp has a loss of $2,000 per year over the course of his normal working life expectancy as a result of the injuries received in the motor vehicle accident, the present value of that loss would be approximately $50,000.

[60] Counsel for Mr. Thorp referred to Prevette v. Cusano 2001 BCSC 489, in which an award for loss of future earning capacity was made in the amount of $40,000 (in addition to an award for non-pecuniary loss of $50,000). That case involved a warehouseman/sales person at Home Depot, who missed only “a couple of days of work”. However, he had ongoing pain from sacroiliac joint injury which was exacerbated by heavy lifting. He had the physical strength to do physical jobs, but it caused him considerable pain. However, there was a better than 50% chance that his symptoms would resolve with treatment. Notwithstanding a finding that, with treatment, the disability may have a minimal effect (paragraph 60) and that “the limitation is not a huge impairment” (paragraph 62), the judge held that the plaintiff was rendered somewhat restricted in his occupational options, and thus his capacity to earn was impaired.

[61] Counsel for Mr. Thorp also referred to Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.), in which the Court of Appeal reduced a jury award of $494,000 for loss of future earning capacity to $150,000. That case involved a young supermarket clerk who was unable to follow his planned career as a stereo installer. However, the court determined that there was no evidence suggesting that he could not be retrained for some job as remunerative as his clerk’s job, while taking into account that some occupations would be closed to him.

[62] For the defendant, counsel submitted that in this case the evidence has not established a likelihood of loss, so the claim for loss of earning capacity is not made out. In that regard, he relied on the result of the testing done by Mr. Nordin, showing that Mr. Thorp has very little interest in labouring or construction work. He noted Mr. Nordin’s evidence on cross examination that if Mr. Thorp had started on the construction and labouring job, that he most likely would have “bounced off”, unless he found himself “financially trapped”. Counsel noted also that in his interview with Mr. Vandenboer, Mr. Thorp did not indicate a desire to work as a construction labourer, but rather reported his future occupational goals to include completing his grade 12 graduation requirements, then pursuing possible careers in film acting, political science or business. He thus submitted that any impact on Mr. Thorp’s earnings as a construction labourer would be adequately compensated in the past wage loss award.

[63] Counsel for the defendant relied on the decision of the Court of Appeal in Steward v. Berezan 2007 BCCA 150. In that decision, the Court of Appeal allowed the appeal and deleted an award of $50,000 for diminished future earning capacity. At paragraph 17, Donald J.A. noted:

The claimant bears the onus to prove at trial a substantial possibility of a future event leading to an income loss, and the court must then award compensation on an estimation of the chance that the event will occur: Parypa v. Wickware (1999), 169 D.L.R. (4^th) 661 at paragraph 65.

However, that case did involve the plaintiff who was age 65 at the time of trial. The claim for loss of earning capacity related to work as a carpenter. The evidence was that he had left that occupation 20 years before the trial, to work as a realtor. There was no evidence suggesting that he intended to return to carpentry. The court thus held that, on those facts, there was no basis for a substantial possibility of diminished earning capacity.

[64] Huddart J.A. provided a useful review of the principles relating to an award for loss of earning capacity in Rosvold v. Dunlop, [2001] B.C.J. No.4 (C.A.) at paragraphs 8 to 11:

[8] The most basic of those principles is that a plaintiff is entitled to be put into the position he would have been in but for the accident so far as money can do that. An award for loss of earning capacity is based on the recognition that a plaintiff’s capacity to earn income is an asset which has been taken away: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Parypa v. Wickware (1999), 65 B.C.L.R. (3d) 155 (C.A.). Where a plaintiff’s permanent injury limits him in his capacity to perform certain activities and consequently impairs his income earning capacity, he is entitled to compensation. What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset. In some cases, projections from past earnings may be a useful factor to consider in valuing the loss but past earnings are not the only factor to consider.

[9] Because damage awards are made as lump sums, an award for loss of future earning capacity must deal to some extent with the unknowable. The standard of proof to be applied when evaluating hypothetical events that may affect an award is simple probability, not the balance of probabilities: Athey v. Leonati, [1996] 3 S.C.R. 458. Possibilities and probabilities, chances, opportunities, and risks must all be considered, so long as they are a real and substantial possibility and not mere speculation. These possibilities are to be given weight according to the percentage chance they would have happened or will happen.

[10] The trial judge’s task is to assess the loss on a judgmental basis, taking into consideration all the relevant factors arising from the evidence: Mazzuca v. Alexakis, [1994] B.C.J. No.2128 (S.C.) (Q.L.) at para.121, aff’d [1997] B.C.J. No.2178 (C.A.) (Q.L.). Guidance as to what factors may be relevant can be found in Parypa v. Wickware, supra, at para. 31; Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 126 (C.A.); and Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J. They include:

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

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

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

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

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

[65] In paragraph 12, Huddart J.A. noted that, even if a plaintiff is able to earn the same amount of income from alternative employment, he would still be entitled to compensation for loss if occupations previously available were closed to him, referring to Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 at 59 (C.A.).

[66] In Pallos v. I.C.B.C. (1995), 100 B.C.L.R. (2d) 260 (C.A.), Finch J.A. also considered the issue of whether the plaintiff must prove that the future loss is “a real possibility”, and that there is “a reasonable chance” such loss will occur, the test in Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 (C.A.), leave to appeal to S.C.C. refused: (1991), 51 B.C.L.R. (2d) xxxv. At paragraph 29 he stated:

In my respectful view, a consideration of this issue should not have been limited to the test established in Steenblok v. Funk (supra). The plaintiff’s claim in this case, properly considered, is that he has a permanent injury, and permanent pain, which limit him in his capacity to perform certain activities and which, therefore, impair his income earning capacity. The loss of capacity has been suffered even though he is still employed by his pre-accident employer, and may continue to be so employed indefinitely.

[67] In this case, I am satisfied that Mr. Thorp has established that the loss of earning capacity is more than a mere possibility. I accept that he has met the onus on him to prove a substantial possibility of future events leading to income loss. In particular, while there is a considerable chance that he would not have remained in the construction industry even to this time, there is also a substantial possibility that he would have still been in that work.

[68] Even if his disability is not permanent, I accept that for a significant period of time Mr. Thorp will be restricted in his ability to earn income from any employment involving heavy labour. He has thus been rendered less capable overall from earning income from all types of employment. He is also less attractive as an employee to potential employers, if the work involves any physical labour. He has thus lost the ability to take advantage of job opportunities which might otherwise have been open to him had he not been injured. I do not consider it unreasonable to think that those losses may cost him $2,000 per annum over the course of his working life expectancy. However, in his evidence, Mr. Thorp showed no inclination to leave Ucluelet to upgrade his education, or to seek employment in the occupations recommended by Mr. Nordin. An award to cover a period out of the workforce and expenses for tuition, books and increased living costs is not appropriate. I thus award $50,000 for loss of future earning capacity.

VI. Special Damages

[69] The plaintiff’s claim for special damages is in the amount of $995.90. Apart from one prescription, it all relates to the cost to attend for medical treatment with Dr. Killins, Dr. Gutmanis, physiotherapy, and for the C.T. scan and Arthrogram. Counsel for the defendant takes the position that the mileage claimed for the C.T. scan and Arthrogram, and the visit to Dr. Gutmanis on January 26, 2007, were not medically necessary. However, the trip to Dr. Gutmanis was on referral from Dr. Killins, and the C.T. scan and Arthrogram were recommended by Dr. Gutmanis. I find that it would not have been necessary to incur expenses relating to them had it not been for the injuries incurred in the motor vehicle accident, and that it was reasonable to incur those expenses. I thus allow the claim for special damages in the amount of $995.90.

VII. Summary

[70] In summary, I award damages as follows:

· Non-pecuniary damages: $50,000.00

· Past wage loss: $80,000.00

· Loss of Future Earning Capacity: $50,000.00

· Special damages: $ 995.90

· Court order interest.

[71] Unless there are Offers to Settle of which I am not aware, the plaintiff will be entitled to his costs on Scale B, subject to the limitation in Rule 66(29).

“A.F. Wilson, J.”

Citation:	*Thorp v. Gerow,*
	2008 BCSC 622