2008 BCSC 988 Raper v. Barrow

Before: The Honourable Mr. Justice Metzger

Reasons for Judgment

Counsel for the Plaintiff:	R.J.A. Cardinal and S. Klinger
Counsel for the Defendants:	M.F. O'Meara
Date and Place of Trial/Hearing:	20080616-20080618
	Victoria, B.C.

[1] In a motor vehicle accident ("MVA") on April 8, 2006, the plaintiff, Mr. Raper, suffered injuries to his left shoulder, right wrist, right foot and the right side of his lower back. As liability is admitted, damages are the only issue.

[2] I award the following damages:

DAMAGES	AMOUNT
1. Non-pecuniary	$ 35,000
2. Past Wage Loss	11,674
3. Loss of Earning Capacity	55,000
4. Future Care	750
5. Specials	6,500
TOTAL	$108,924 plus costs

BACKGROUND

[3] At the time of the accident Mr. Raper was 50 years old and the working manager of his own small framing company called JR The Reno King Ltd. ("Reno King"). The major client of Reno King was Garside Construction, for whom it performed primarily siding applications and framing work.

[4] Prior to the MVA, Mr. Raper led an extremely active lifestyle of heavy physical work, hiking, mountain climbing, motorcycle racing, skiing, golfing and fishing. This was despite a back operation on January 15, 1999. He remained intensely active by diligently maintaining a regular exercise regime, coupled with massage and physiotherapy when needed.

NON-PECUNIARY DAMAGES

[5] Mr. Raper submits that he suffered primarily a low back injury in the accident of April 8, 2006, and despite time and treatment, pain persists today. He states that his symptoms continue to limit the frequency and intensity of his hikes and mountain climbs. I am satisfied that he has worked hard to regain as much of his former life as physically possible but has not regained all of it.

[6] Mr. Raper’s physician, Dr. David Attwell, is of the opinion that the plaintiff’s injuries, limitations and treatments since the motor vehicle accident of April 8, 2006 were the direct result of the MVA. I accept his prognosis that:

Mr. Raper continues to experience low back discomfort and his prognosis is guarded because of the prolonged duration of his symptoms and the nature of his work which is expected to result in intermittent exacerbations. I anticipate that he will experience intermittent exacerbations of his symptoms related to his back and as a result I expect that he will require ongoing physiotherapy, chiropractic and home exercises for maintenance and additionally to deal with anticipated intermittent exacerbations.

[7] The defendants have questioned the credibility of the plaintiff. I do not.

[8] The defendants pointed out discrepancies in the plaintiff’s evidence regarding his mountain scrambling times, his use of orthotics, and the cost and profit of the renovation he did for his former girlfriend, and passenger at the time of the accident, Ms. Martin.

[9] I found Ms. Martin’s recollection of the details of the renovation to be hazy, inaccurate and speculative. Her observations of Mr. Raper post-accident were consistent with those of Mr. Garside.

[10] The other inconsistencies in Mr. Raper’s evidence were of no consequence.

[11] The evidence of Mr. Garside, who has known the plaintiff for 40 years and worked with him for 20 years, was particularly compelling. His descriptions of Mr. Raper before and after the accident came across as objective and fair. I have absolutely no doubt that Mr. Raper continues to have low back pain as a result of the MVA.

[12] The plaintiff's current girlfriend, Ms. Shaughnessy, met Mr. Raper post-accident. I accept her evidence that Mr. Raper has lower back pain when physically active, and that he is not a complainer by nature. Her evidence was consistent with that of the former employees and co-workers of Mr. Raper.

[13] J.B. Harvie, physiotherapist, confirmed that Mr. Raper would continue to require the service of physiotherapy regardless of the MVA.

[14] I am satisfied that within seven to ten months of the accident, the plaintiff recovered from any significant discomfort or effect of injuries to his shoulder, wrist, right foot and right side. Although Mr. Raper's low back pain does not prevent him from working, or from mountain scrambling, I am satisfied that his physical ability in these pursuits has been compromised. His ability to perform his work to his previous standards and to enjoy his sports activities has been decreased.

[15] The plaintiff has referred to: Showler v. Viveiros, 2003 BCSC 1294; Kipling v. Richmond, 2004 BCSC 1446; and Hicks v. GMAC Leasco Ltd., 2001 BCSC 1091. The defendants have referred to: Berndsen v. Sunner, 2002 BCSC 990; Jensen v. Felker, 2008 BCSC 541; Hall v. Day, 2006 BCSC 874; Kailey v. Dhaliwal, 2007 BCSC 759; and Qualizza v. Lee, 2007 BCSC 303.

[16] The plaintiff's non-pecuniary damages are set at $35,000.

PAST WAGE LOSS

[17] The last full year that Mr. Raper earned income prior to the MVA was 2005 when he earned $54,561. The plaintiff’s claim for past loss of income is based on his 2005 income and limited to the three months and nine days when he could not work.

[18] The defendants submit that on a gross basis, the evidence warrants past wage loss damages of $6,000 gross, less a 20 percent reduction for purposes of taxation. The defendants submit that the plaintiff's past wage loss is $4,800 net. I disagree.

[19] The plaintiff's monthly income for 2005 was $4,546.75. He was off work from April 8, 2006 until July 17, 2006. Thus, $4,561 X 3.25 months, less income tax at 21 percent, indicates a net wage loss of $11,674.

LOSS OF EARNING CAPACITY AND LOSS OF OPPORTUNITY

[20] I accept Mr. Raper’s testimony and the conclusions of the work capacity assessment by Mr. Fred Vandenboer that the plaintiff can no longer do general carpentry on a full-time basis.

[21] Mr. Raper is presently employed as a construction crew supervisor for Oceanview Construction. I am satisfied that the construction industry is cyclical in nature and that continuous employment for most construction workers is not guaranteed. Thus, the plaintiff's inability to return to full-time carpentry, should the need occur, amounts to a loss of a capital asset.

[22] I accept that Mr. Garside was grooming Mr. Raper for a management position with his construction company that would have paid from $9,000 to $10,000 per month in addition to a car and a credit card for gas and lunches. Because of the changes Mr. Garside saw in Mr. Raper after the accident, however, he would not hire him today.

[23] Damages for a plaintiff’s loss of earning capacity may be assessed by considering the plaintiff’s annual income prior to injury and awarding an amount equivalent to one or more year’s income. In Pallos v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260 (B.C.C.A.), Finch J.A., for the majority, said the following:

[24] In addition to those cases cited by counsel, I would also refer to Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.). There Mr. Justice Taggart quoted with approval from Brown v. Golaiy (supra) as follows (at p. 399):

"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."

[25] In Palmer v. Goodall (supra) Madam Justice Southin said at p. 59:

Because it is impairment that is being redressed, even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensation for the impairment. He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income earning ability.

...

[38] It is not to be forgotten that the plaintiff has continued in full-time employment since his return to work in March 1989, and, as counsel for the defence points out, he has earned more per year since the accident than he did in any pre-accident year.

[41] … I would conclude that his earning capacity has been reduced, even though he presently earns more than he did before he was injured.

...

[43] ... One method is to postulate a minimum annual income loss for the plaintiff's remaining years of work, to multiply the annual projected loss times the number of year (sic) remaining, and to calculate a present value of this sum. Another is to award the plaintiff's entire annual income for one or more years. Another is to award the present value of some nominal percentage loss per annum applied against the plaintiff's expected annual income. In the end, all of these methods seem equally arbitrary. It has, however, often been said that the difficulty of making a fair assessment of damages cannot relieve the court of its duty to do so. ...

[24] A plaintiff’s pre-accident job earnings may be used as a benchmark for assessing the loss of future earning capacity, as noted in Summers v. Boneham (1994), 45 B.C.A.C. 306 (B.C.C.A.), [1994] B.C.J. No. 1237 (B.C.C.A.), at para. 22. However, past earnings are not the only factor to consider. Donald J.A. in Summers quoted Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (B.C.C.A.), at p. 59, where Southin J.A., for the Court, said:

When a judge or jury must gaze into a crystal ball to compensate a plaintiff who has not suffered a catastrophic injury, the task is even more difficult than when the plaintiff, by all reasonable standards, can never work again.

[25] According to Huddart J.A. in Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158:

[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 (S.C.C.). 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.

…

[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.); Parypa v. Wickware, supra. The overall fairness and reasonableness of the award must be considered taking into account all the evidence.

[12] ... Even if Mr. Rosvold were able to earn the same amount of income from alternative employment, he would still be entitled to compensation for that loss …

[26] The Court must consider the individual characteristics and circumstances of the plaintiff: Terracciano v. Etheridge, [1997] 7 W.W.R. 185, 33 B.C.L.R. (3d) 328 (B.C.S.C.), at para. 77.

[27] The assessment of future income loss is not a science and the Court should not slavishly adhere to actuarial assessments: Harrison v. Biggs (1992), 74 B.C.L.R. (2d) 164, 20 B.C.A.C. 118 (B.C.C.A), at para. 68.

[28] The defendants submit that the plaintiff's business, Reno King, continues to do renovation work separate from the plaintiff’s employment with Oceanview Construction and the plaintiff gave no evidence of specific jobs lost or cancelled because of the accident. The separate work done by the plaintiff is of no consequence as is the lack of a list of lost jobs.

[29] I am satisfied that the plaintiff is a valuable employee for Oceanview Construction and his employment is not currently in jeopardy. The plaintiff's current earnings of $35 per hour put his yearly income on a full-time basis in excess of $60,000. This amount is greater than the plaintiff's management fees that he paid himself through Reno King prior to the accident.

[30] The defendants submit that there is no real possibility that the Mr. Raper has sustained a loss of earning capacity into the future. I disagree.

[31] I am satisfied that the plaintiff’s earning capacity has been damaged and that he has lost an opportunity to obtain a management position. As well, his inability to return to full-time carpentry constitutes a loss of a capital asset. Having considered Mr. Raper's characteristics and circumstances, I award damages in the amount of $55,000.

FUTURE COST OF MEDICAL CARE

[32] It appears that Mr. Raper will continue to require therapy for his ongoing pain symptoms. He is now receiving physiotherapy and chiropractic treatments once every two weeks. He used treatments as maintenance before the accident. Given the expenses Mr. Raper has incurred over the last two years, $750 would be a reasonable amount to cover some of the extra treatments, due to the MVA.

SPECIALS

[33] As a result of discussions between counsel, the plaintiff's claim for special expenses has been reduced. There is still some disagreement regarding some of the physiotherapy treatments prescribed by Dr. Attwell. I find that special damages should be allowed in the amount of $6,500.

COSTS

[34] The plaintiff will have his costs. Each party is at liberty to apply to settle any disagreement between them on this issue.

"R.W. Metzger, J."

The Honourable Mr. Justice Metzger

Citation:	*Raper v. Barrow,*
	2008 BCSC 988