2008 BCSC 1035 Bancroft-Wilson v. Murphy

Before: The Honourable Mr. Justice Bernard

Reasons for Judgment

Counsel for Plaintiff	J. D. Boyd
Counsel for Defendant	D. Weinrath
Date and Place of Trial/Hearing:	April 14 – 18, 2008 April 21 – 24, 2008
	New Westminster, B.C.

A. Overview

[1] On December 30, 2005, 25-year old Lawren Bancroft-Wilson was injured in a two-car collision. The collision was the sole fault of Kristen Murphy. She crossed into the path of oncoming traffic while attempting to turn left at an intersection. The front of Mr. Bancroft-Wilson’s car slammed into the front of Ms. Murphy’s car. The impact was significant and the airbags deployed.

[2] Mr. Bancroft-Wilson sustained significant soft tissue injuries in the collision. Some resolved within months of the accident, while others, he asserts, have persisted. He complains of chronic back pain and “debilitating” headaches, and says that these conditions have greatly compromised not only his enjoyment of life, but also the pursuit of a burgeoning career as a writer/director in the film industry.

[3] For his claimed losses, Mr. Bancroft-Wilson seeks, inter alia, non-pecuniary damages of $90,000 and damages for lost future career opportunities of $250,000.

[4] The defendant’s liability is admitted, as is that the plaintiff sustained soft-tissue injuries to his chest, neck, and right shoulder, and that he has suffered from headaches related to the accident. The defendant takes issue with whether the collision was the cause of Mr. Bancroft-Wilson’s back pain and with the “degree” of headaches suffered by the plaintiff.

[5] In relation to the quantum of damages, the defendant says that the primary head of damages in issue is future losses in relation to career opportunities. In this regard, the defendant’s position is that the plaintiff has failed to establish a loss.

B. Evidentiary Synopsis

[6] Immediately prior to the collision in December 2005, Mr. Bancroft-Wilson was a fit, healthy, active, athletic, and very sociable 25-year old man. He was employed in the film industry, having graduated from film school in May 2003. His career aspiration was to be a writer/director for live-action television and movies.

[7] Since March 2004 he had been employed with the production company for the TV series Stargate Atlantis. In late 2005 he was promoted from Office Production Assistant to Executive Producer’s Assistant (“EPA”).

[8] Mr. Bancroft-Wilson testified that in the days following the collision his whole body ached and that the mere act of breathing caused excruciating pain. He saw general practitioner Dr. Dwyer, who prescribed Tylenol 3 for pain in his chest, neck, right shoulder, collarbone, and back.

[9] Throughout January 2006 the focus of Mr. Bancroft-Wilson’s discomfort resulted from the injury to his chest wall, caused by the impact from the airbag. He said that he suffered his first “debilitating” headache in late January 2006, while driving home from Seattle. He described it as an “insane pain from behind the eyes” which forced him to pull off the road for an hour or longer until it subsided enough to continue driving.

[10] Mr. Bancroft-Wilson testified that as his chest pains began to subside within a month or so, he became more aware of the pain in his lower back. He also continued to suffer from varying degrees of headaches, which he distinguished as either “regular” or “debilitating.” When he had the latter he said it was “almost impossible to function, and sometimes these headaches would last for days.” Over time he says that he has experienced very little improvement, although he has noticed some amelioration in warm weather. As recently as two weeks prior to the trial he said he endured a four-day debilitating headache, during which the simple task of moving from his bed to a sofa seemed insurmountable.

[11] Despite his injuries and the related pain, Mr. Bancroft-Wilson said that he continued to work as an EPA following the collision; however, after the collision his employer lightened his duties in recognition of his injuries and headaches. He performed these duties well. His boss, Brad Wright, described him as “the best assistant he has ever had: bright, self-motivated, and with good instincts.” Mr. Wright also noted that Mr. Bancroft-Wilson was “smarter than the job;” that “no-one goes into this business to be an EPA;” and that an EPA position is widely understood to be a career “stepping stone,” presenting a unique and limited opportunity for aspiring writers/directors to make important industry contacts and to have access to very costly editing facilities, cameras, lighting equipment, and expertise.

[12] Mr. Bancroft-Wilson testified that he had intended, prior to the collision, to take full advantage of the opportunities presented through his position as EPA. He planned to write scripts, to direct them, and to build a portfolio, all of which would allow him to “pitch” for paid directing jobs and to retain an agent; however, he says that after the collision his chronic headaches and back pain made it virtually impossible to capitalize on his position as an EPA.

[13] Since the collision Mr. Bancroft-Wilson’s income has been limited to what he is paid as an EPA. He has earned no additional income from script-writing and/or directing. He thinks that but for his injuries it is likely that he would have written and sold animation scripts ($7,000 to $15,000 per script) and secured minor directing jobs ($10,000 to $20,000 per job).

[14] Mr. Bancroft-Wilson testified that after writing animation scripts his intention was to write “live action” scripts for Stargate, at $65,000 to $75,000 per script. He said his intermediate goal was to become a junior writer with Stargate. He testified that junior writers earn $250,000 per year, and within five years they may earn as much as $1,000,000 per year.

[15] Mr. Wright corroborated Mr. Bancroft-Wilson’s evidence in relation to opportunities and potential to earn considerable extra income while working as an EPA. He testified that Mr. Bancroft–Wilson could have earned “well over $100,000” in his first year if he wrote and directed just one script for Stargate. He said that directing assignments for television pay $50,000+ per episode; that increases in income happen quickly and are substantial in the film business – one can go from a low salary to earning several hundred thousand dollars per year; that the film business is about taking advantage of opportunities presented at any given moment; that Mr. Bancroft-Wilson had told him of his desire to direct; that he offered to help Mr. Bancroft-Wilson and expected that he would make a film; that he has noted many times how Mr. Bancroft-Wilson has suffered as a result of injuries from the collision; that he hopes that Mr. Bancroft-Wilson will be able to capitalize on the opportunities he has in his position as EPA, through his writing; and, that although there are no guaranties of success in the film business, typically if one has some success (e.g., selling a script) then there will be more success.

[16] Mr. Bancroft-Wilson summarized the effect of his headaches as similar to suffering from Attention Deficit Disorder. He said that he is unable to put in the long hours which screenwriting and directing demand. He describes writing as a sort of mental marathon and he says that his headaches preclude him from going the distance. In relation to directing, he said that it has been, and remains, unthinkable that he could withstand the several consecutive 15- to 18-hour days usually required to direct a film. He noted that with all which must be put into place to film it is not a viable option to stop mid-stream, yet he would not be able to continue if he had a debilitating headache.

[17] Alex Levine, a colleague and former EPA, writes scripts and has directed films. He testified that script-writing is “very difficult – one of the hardest things to do because it is so open-ended, with no clear answers.” He said that script-writing takes considerable effort, concentration, focus, and creativity. He said that directing requires one to be able to work long days during filming, up to 18 hours at a time.

[18] John Lenic is a Stargate Atlantis producer who knows Mr. Bancroft-Wilson from the workplace, but has little to do with him on a daily basis. He testified that he has never discussed with the plaintiff the collision and its effects, but he has seen Mr. Bancroft-Wilson in his office with the lights out and his head down. He believes that Mr. Bancroft-Wilson is regarded as a “great asset” to the production company. In his opinion, although one must work hard and have talent to succeed in the film industry, one also must be “in the right place at the right time” and “all the stars must align.”

[19] In relation to Mr. Bancroft-Wilson’s personal life and leisure pursuits, prior to the collision Mr. Bancroft-Wilson and other witnesses say that he was physically fit, strong, and very active in sports and social interaction. He skied, surfed, played squash and tennis, golfed, played volleyball, and worked out at a gym regularly. He enjoyed a very active social life. Since the collision, his friends describe Mr. Bancroft-Wilson and his lifestyle as dramatically changed. The only sport he has been able to resume is golf, and this is not without modification to his swing and some pain and exhaustion afterwards. His friends have noted that he has changed physically and socially: he has lost weight and muscle mass, he makes token appearances at social events, and he no longer plays sports. His former roommate testified that it was clear, after the collision, that Mr. Bancroft-Wilson suffered from bad headaches and physical complaints, and that he did not have these problems prior to the collision. When cross-examined about his personal relationships, Mr. Bancroft-Wilson said that the longest romantic relationship he had been in since the collision lasted three weeks. He explained: “I am a pretty irritable person with my headaches – it is difficult just to keep the friends I have.”

[20] Mr. Bancroft-Wilson’s general practitioner, Dr. Dwyer, prepared a report, dated June 22, 2007, which concluded with a summary as follows:

Mr. Lawren Bancroft-Wilson was involved in a motor vehicle accident on December 30, 2005, during which he suffered a musculo-skeletal sprain to his neck and back. He has had considerable difficulty with this injury, and continues to the present time to have problems with the discomfort in his neck and back, which prohibits him from participating in sports and in his career choice. He is currently working as a producer’s assistant.

During the course of his treatment he has attended chiropractic, massage and physiotherapy, and has some benefit from all. He was also reviewed at the Specialty Referral Clinic in January, 2007, by Dr. Schweigel, who noted at that time that he suffered from a chest wall injury, right shoulder soft tissue injury, and neck, mid-back and low-back mechanical pain.

The prognosis for Mr. Bancroft-Wilson is guarded, as he continues to have ongoing problems with his neck and back as a result of the accident. If an injury such as this has not resolved by twelve months, the chances of this becoming a chronic condition increase. Mr. Bancroft-Wilson has adjusted his career to a light-duty job. He has applied himself diligently to his rehabilitation as noted above, and this augers well for recovery in the future.

[emphasis added]

[21] In relation to Mr. Bancroft-Wilson’s headaches, Dr. Dwyer testified that he saw nothing indicating that there was a “sinister” cause and no reason, therefore, to refer the plaintiff to a neurologist. Dr. Dwyer’s opinion was that the cause of the headaches was the trauma to the neck caused by the collision. He noted that “even normal headaches are disabling depending on what one is doing – the requirement to focus – but, these are not necessarily disabling from a clinician’s perspective, thus requiring referral to a neurologist.”

[22] In relation to Mr. Bancroft-Wilson’s back pain, Dr. Dwyer testified that degenerative disease of the back would be one explanation for it; however, he said that “the probability here is that the trauma (from the collision) is the cause of the pain”. He agreed that “the later the onset of the pain after the trauma, the more likely that the cause is not the trauma.” Dr. Dwyer’s clinical notes indicate that Mr. Bancroft-Wilson reported back pain on his first post-collision examination, four days after the event.

[23] As for Mr. Bancroft-Wilson’s prognosis, Dr. Dwyer testified that soft-tissue injuries which have not resolved within two years are likely to take several more years to resolve.

[24] Two reports of Robert Schweigel, orthopaedic surgeon, were tendered into evidence. Dr. Schweigel examined Mr. Bancroft-Wilson on January 10, 2007 and recommended, inter alia, an MRI. He reviewed the MRI and on May 16, 2007 reported the following:

Mr. Bancroft-Wilson has been identified as having a disc protrusion at L5-S1. Additionally, he has degenerative changes noted with the loss of disc height. These findings were at the L5-S1 level. At L4-5, he has some disc bulging also. These findings indicated that Mr. Bancroft-Wilson is having a degenerative process in his lumbar spine. This degenerative process is probably not caused by the car accident. The disc protrusion, however, may be an incidental finding or is possibly caused by the motor vehicle accident December, 2005. The fact that the disc is wearing out is probably a pre-existing problem. It means that the disc was probably more prone to injury. It is probable that the motor vehicle accident aggravated this pre-existing degenerative condition. The accident may have weakened the disc, resulting in a protrusion causing low back pain two or three months later. The fact that he didn’t have significant back pain until two or three months after the accident probably just means that there was just an aggravation of a pre-existing condition as a result of the accident.

[emphasis added]

[25] Dr. Schweigel testified that a spine degenerates over time and he noted that it is not unexpected to find degeneration in a patient who is asymptomatic. He noted that if a disc is degenerating then it is prone to injury. He opined that the findings in relation to Mr. Bancroft-Wilson’s back suggest that an acute trauma is the cause of his pain.

[26] Gordon Robinson, neurologist, examined Mr. Bancroft-Wilson on November 28, 2007. The following are excerpts from his report:

Headache is a common symptom following soft tissue injury to the neck. The head pain may have various characteristics that are similar to primary headaches such as migraine and tension type headache.

Although most patients recover within weeks to months there is a substantial minority (10 to 15%) that continued to have headache neck pain for years.

The underlying cause of the development of chronic pain following neck injury is unknown. Although the term “soft tissue injury” is often used, there is no evidence that the soft tissues (muscles and ligaments) sustain any permanent damage.

The treatment of headache related to head and neck trauma is usually difficult. As yet there is no physical therapy that has been found to be curative.

(Mr. Bancroft-Wilson) has experienced substantial improvement in his headaches with the use of chiropractic manipulation, massage therapy, and exercise. I believe it is reasonable for him to continue with these treatments, however they will probably become unnecessary within the next 1-2 years. After this time a self-directed stretch and exercise program will probably be effective in continuing his overall improvement.

Medications are often unhelpful in treating chronic post-traumatic headache.

(Botox) injections may be helpful in headache related to head and neck trauma . . . The cost may be prohibitive ($400 plus) . . . If there is a substantial response the treatments will be required every three months.

It is now two years since the motor vehicle accident. He continues to have frequent headache and constant discomfort in his neck and right shoulder.

I believe that he will have headache, neck and shoulder pain for many years to come. It is probable that there will be gradual improvement over the next 3-5 years, although I doubt he will become pain free during this time. He should be able to increase his physical activity although probably will not be able to return to highly active sports such as running and tennis.

The main impact of his accident related difficulties is that of a reduction in his quality of life. I do not believe that these symptoms will have a negative impact on his eventual career path.

[emphasis added]

[27] Bernard Tessler, neurologist, saw Mr. Bancroft-Wilson on February 25, 2008. In preparing his report, Dr. Tessler considered, inter alia, the earlier report of Dr. Robinson. His relatively brief opinion included the following:

[Mr. Bancroft-Wilson’s] initial headaches can be attributed to the MVA as a result of a cervical injury, but subsequent increase in headaches is likely related to other factors. Although the patient has headaches they have not interfered with his employment activities. When he does have a headache he finds he can’t be as productive in writing but would have to take some analgesic medication.

The headaches attributed to the MVA have improved but the delay in accentuation of the headaches would indicate that other factors are operant in the accentuation of the headaches 20 months after the MVA.

[28] A report of Dr. Kendall, orthopaedic surgeon, in the form of three letters, was tendered into evidence. In the final letter, dated March 2, 2008, Dr. Kendall said:

It is my conclusion that this gentleman did not sustain any back injury at the time of the original accident. In fact, his symptoms, as noted, began several months later. It is evident that he also had pre-existing degenerative disease. I don’t think that the present symptoms are in any way related to the accident in question.

[29] In relation to whether the collision was the likely cause of Mr. Bancroft-Wilson’s headaches and back pain, Dr. Kendall testified that if the onset of symptoms is not temporally proximate to the collision then the collision is unlikely to be the cause. In relation to the headaches he said that “not unusually, neck strain causes headaches.” Based upon Dr. Dwyer’s clinical notes indicating that the plaintiff was suffering headaches within the first month of the collision, he opined that Mr. Bancroft-Wilson’s headaches were likely related to neck strain caused by the collision. In relation to the plaintiff’s complaint of back pain, he agreed that if the onset of back pain were within days of the collision, then there may be a causal connection between the back pain and the collision.

[30] Chiropractor John Ly treated Mr. Bancroft-Wilson six times, in the autumn of 2005, for a shoulder complaint. During one of the sessions Mr. Bancroft-Wilson reported “a little bit of back pain” for which the chiropractor administered an unspecified one-time treatment.

C. Findings and Analysis

[31] It is evident that Mr. Bancroft-Wilson’s injuries, caused by the high impact collision, have had a profoundly negative impact on his life, both personally and professionally.

[32] Immediately prior to the accident life was relatively good for Mr. Bancroft-Wilson. He was on a promising career path and uniquely poised to capitalize on opportunities, presented by his employment, to advance his aspirations to become a writer/director in the film industry; an industry for which the phrase “carpe diem” is apparently particularly apt. He was a fit, athletic, and social young man. He actively pursued many sports and enjoyed a busy social life.

[33] All the foregoing came, quite literally, to a crashing halt with the defendant’s negligence.

[34] The evidence establishes that Mr. Bancroft-Wilson suffered debilitating headaches after the collision, and that they have continued to plague him. The evidence shows that the source of these headaches is the neck injury Mr. Bancroft-Wilson sustained in the collision. There is no other reasonable explanation for them. There is no pre-collision history of similar headaches and there is temporal proximity between the collision and the onset of his debilitating headaches.

[35] I accept Mr. Bancroft-Wilson’s evidence in regard to the onset of the headaches, and their intensity, frequency, and endurance. Efforts to discredit him with alleged inconsistencies in doctors’ clinical notes were, in my view, not successful. It must be borne in mind that the primary objective of physicians’ clinical notes is to refresh their own memories as to what transpired during a clinical examination, for the purposes of medical treatment. These notes are not made for investigative and litigation purposes. If this were the purpose then it would, in my opinion, be important for physicians to ensure that they have accurately recorded full and detailed accounts of what a patient said during a clinical visit and then have the patient verify the accuracy of the notes.

[36] Physicians are not investigators. They are neither trained to accurately record what a person says nor to draw out a fulsome account for litigation purposes. The use of clinicians’ notes, made hastily during a clinical visit and never reviewed for accuracy by the patient, may operate unfairly to the patient as plaintiff or witness. It should also be borne in mind that when a patient sees his or her physician with a complaint of significant pain, the circumstances are far less from ideal for obtaining full and accurate information.

[37] I do not suggest by any of the foregoing that it is impermissible to use clinical notes to challenge a plaintiff’s credibility, but the frailties inherent in such recordings should be recognized. In the instant case, I find that the clinician’s notes do not have sufficient accuracy and reliability to undermine the plaintiff’s evidence where the notes allegedly differ from the plaintiff’s testimony at trial.

[38] In relation to Mr. Bancroft-Wilson’s persistent back pain, I am satisfied that the evidence establishes that the collision was its cause. The plaintiff was very fit and active prior to the collision, unhampered by back troubles. There is no evidence from which one could reasonably conclude that the back pain of which he now complains is not directly linked to the collision.

[39] One casual complaint of unspecified back pain while in chiropractic treatment for a shoulder problem is insufficient to undermine Mr. Bancroft-Wilson’s testimony; moreover, his friends corroborate the absence of a pre-collision back problem. Most persons actively engaged in strenuous sport suffer various intermittent aches and pains; however, one must distinguish between these ordinary and transient complaints and the disabling and chronic pain of which Mr. Bancroft-Wilson complains.

[40] In relation to the temporal proximity which Dr. Kendall regarded as key, I am satisfied that it exists. Dr. Dwyer’s clinical notes show that the plaintiff complained about his back within four days of the collision. I accept Mr. Bancroft-Wilson’s explanation for the scant evidence of complaint of back pain in the period immediately following the collision, i.e., that the intense pain he suffered from his chest wall injury overwhelmed and distracted him from other aches and pains until the chest pain began to subside.

[41] As for the effect of Mr. Bancroft-Wilson’s headaches and back pain on his career, I accept the plaintiff’s testimony that it was pervasive. It prevented him from capitalizing on the unique opportunities presented to him. Although he was able, with some concessions, to competently perform his job as EPA, this neither was the purpose of securing the position nor was it consistent with the general understanding in the industry that the position was to be exploited for the opportunities it afforded aspiring film writers and directors.

[42] To advance his career, it was fundamentally important that the plaintiff write creative and marketable scripts to build a portfolio and pitch for directing jobs. I accept Alex Levine’s evidence that creative writing is very difficult and demanding “because it is so open-ended.” The ability to focus for extended periods of time is essential. It is physically taxing when one feels well. When one is in significant pain, it is an almost insurmountable task. If one is suffering from severe headaches I would think it would be virtually impossible to be effective as a creative writer.

[43] In relation to whether Mr. Bancroft-Wilson had the ability to be effective as a creative writer and director, but for his injuries, I am satisfied that it is more likely than not that he did. While such an assessment may pose some challenges when a person is at the earliest stages of a creative career, due to the inevitable absence of a large body of work, this should not preclude making a determination if reasonable inferences may be drawn from other sources. In this case there is evidence that Mr. Bancroft-Wilson had successfully completed film school and that he had written and directed an award-winning short film. He had secured a relatively desirable position within the industry, one which was well-recognized for the unique opportunities it offered to further a career in film. He was well-regarded by persons with considerable experience and success within the film industry; in particular, his boss, the executive producer of a hit television series, who praised Mr. Bancroft-Wilson’s intelligence and acumen (“nothing but smart things come out of him”) and who said that he had good instincts for film. From this and other evidence consistent with it, I infer that prior to the collision Mr. Bancroft-Wilson had the requisite talent, desire, and determination to be successful in writing scripts and directing films.

[44] As for the task of directing a film, I accept Mr. Bancroft-Wilson’s evidence that it is physically and temporally demanding. In respect of the former, Mr. Bancroft-Wilson’s back pain was a significant limitation. As to the latter, I accept his evidence that considerable resources (human and otherwise) must be assembled for filming; that once filming begins everyone must work long hours until the filming is concluded; and that stopping the process midstream because of a debilitating headache is simply not feasible.

[45] Notwithstanding the nature, effect, and cause of the injuries sustained by Mr. Bancroft-Wilson, the evidence strongly suggests that they are not likely to be permanently disabling. I accept the evidence of the physicians who predict substantial improvements, if not full recovery, within three to five years, with various treatments, therapies and exercises.

D. Assessment of Damages

Non-pecuniary losses

[46] The defendant’s submission is that the award for non-pecuniary damages ought to be in the $20,000 to $25,000 range. This range is, however, premised in the defendant’s position that: (a) the plaintiff’s debilitating headaches and persistent back pain were not caused by the collision; and (b) that the effect of the collision-related injuries were limited to temporary interference with the plaintiff’s recreational pursuits. These premises differ from the findings of this court.

[47] The plaintiff’s position is that the appropriate range for the award is $80,000 to $100,000. In support of this position the plaintiff cites, inter alia, Foran v. Nguyen, 2006 BCSC 605, Prince-Wright v. Copeman, 2005 BCSC 1306, Lee v. Metheral, 2006 BCSC 1841, and Krznaric v. Harada, 2006 BCSC 1421. The defendant submits that Foran is factually most similar to the case at bar.

[48] In Foran, the 31-year old plaintiff sustained multiple soft-tissue injuries to her cervical spine in a significant impact motor vehicle collision. She developed chronic and severe headaches, neck pain, and upper back pain, which had a pervasive effect upon her quality of life. It affected her sleep, limited her physical activities, caused emotional problems, and reduced her self-esteem. Her prognosis for significant improvement was poor. The court awarded $90,000 in non-pecuniary damages.

[49] In Prince-Wright, the 39-year old plaintiff sustained serious soft-tissue injuries in a serious motor vehicle collision. She developed chronic pain and clinical depression. Her injuries had a major impact upon her enjoyment of life. Her prognosis for improvement was poor. The court awarded $100,000 in non-pecuniary damages.

[50] In Lee, the 32-year old plaintiff sustained soft-tissue injuries in a rear-ender motor vehicle collision. She developed chronic and severe neck pain and headaches which affected the quality of her life. She was a very active person prior to the collision. There was some prospect of improvement with treatment. Non-pecuniary damages were assessed at $75,000.

[51] In Krznaric, the plaintiff sustained soft-tissue injuries in a low impact motor vehicle collision. She developed chronic neck pain and migraine headaches. The prognosis was that she would experience improvement in the next five years. Non-pecuniary damages were assessed at $70,000.

[52] There are material similarities between the instant case and the cases cited by the plaintiff; however, in the instant case the prognosis for improvement and a resumption of an active lifestyle is reasonably good, with the passage of time and appropriate treatments. Nonetheless, Mr. Bancroft-Wilson’s headaches and back pain have had a significant impact on his quality of life and will continue to do so, perhaps for several years to come, and for this he deserves compensation. Taking into account the cases cited and the fairly drastic and negative changes to Mr. Bancroft-Wilson’s life, post-collision, I assess non-pecuniary damages at $70,000.

Special damages

[53] The plaintiff claims for reimbursement for travel to and from medical/therapy appointments, therapy/chiropractic fees, an exercise ball, and over-the-counter medications. The cost of these expenses is alleged to be $5,894.54. Evidence of mileage and receipts for treatments was tendered in proof. No evidence was tendered regarding the cost of the medications.

[54] The defendant objects to reimbursement for massage therapy and chiropractic treatments on two bases: (a) that the medical evidence does not support a finding that they were medically necessary or helpful; and (b) that at least some of these treatments were for lower back pain not caused by the collision. In short, the defendant submits that the special damages claim should be reduced to $710.

[55] I am satisfied that all the expenses claimed, save for medications (due to the absence of evidence of their cost) ought to be allowed. After the collision Mr. Bancroft-Wilson was in significant pain and discomfort. He sought relief, understandably, wherever he could find it. Given the nature of his injuries the treatments he chose were reasonable and, according to him, provided at least some relief. It is significant that massage, physiotherapy and chiropractic are mainstream therapies. There is no suggestion that any of these treatments were entirely inappropriate or that he was specifically advised against them. When Mr. Bancroft-Wilson opted for the now impugned treatments he did not have the benefit of the various opinions of the efficacy of these treatments, tendered into evidence at trial, upon which the defendants now rely.

[56] The plaintiff was, at the time of the treatments, the person in the best position to say which treatments offered some relief to him, and there is no suggestion that these treatments were undertaken for any reason other than to seek relief from the pain caused by injuries sustained in the motor vehicle collision.

[57] Special damages are assessed at $5,642.

Loss of opportunity

[58] The plaintiff submits that but for his injuries, he would have been able to take advantage of the unique opportunities presented through his employment as an EPA with Stargate. He would have written and directed scripts, and developed a portfolio of his creative work which would have enabled him to pitch for paid work. He would have earned money from selling scripts and directing films and would have been well-positioned to become a well-paid junior writer. Instead, his career has been stalled. He submits that for the inability to advance his career from the date of the collision and into the future, he has suffered a loss for which he should be compensated. He submits that the range of damages is $200,000 to $300,000, and that a fair award in his circumstances would be $250,000.

[59] In support of the legal principles which govern the making of such an award, the plaintiff cites Parypa v. Wickware, 1999 BCCA 88, 65 B.C.L.R. (3d) 155. In relation to “the inability to tap into creative energy” as a compensable loss, and the quantification of that loss, the plaintiff relies upon Franklin v. Aviscar Inc. (1996), 27 B.C.L.R. (3d) 181 (C.A.).

[60] The defendant’s position is that this claim must be dismissed because the plaintiff has failed to show a substantial possibility that his injuries have prevented him from obtaining paid work as a writer and/or director.

[61] In Parypa, at ¶62 to 70, Cumming J.A. reviewed the well-established principles relevant to determining the quantum of damages for future loss of earning capacity, which I will attempt to summarize as follows:

(a) The determination is not a precise or mechanical exercise;

(b) It is not future lost earnings, but rather the future loss of earning capacity, as a capital asset, which requires compensation;

(c) In determining whether there is a loss and the value of it, consideration may be given to, inter alia, the following factors:

(i) whether the plaintiff has been rendered less capable overall from earning income from all types of employment;

(ii) whether the plaintiff is less marketable or attractive as an employee to a potential employer;

(iii) whether the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him or her, had he or she not been injured; and,

(iv) whether the plaintiff is less valuable to him/herself as a person capable of earning income in a competitive labour market;

(d) In assessing the loss, the court must take into account all substantial possibilities and give them weight according to how likely they are to occur, in light of all the evidence; future events need not be proven on a balance of probabilities;

(e) A plaintiff has a duty to mitigate his or her future losses by seeking work which can be done within the limitations created by the injuries;

(f) Once a loss of income earning capacity has been found, the loss is quantified on a judgmental basis rather than by mathematical calculation.

[62] Applying these principles to the instant case, I am satisfied the plaintiff has shown a substantial possibility that, but for his injuries, he would have taken advantage of the unique opportunities offered by his employment to write scripts, direct films, build a portfolio of work, and earn increasingly greater sums of money while he advanced his career. Instead, he has suffered a setback in his career.

[63] The evidence establishes that, at the time of the accident, Mr. Bancroft-Wilson was well-positioned and motivated to make considerable strides in the film industry. He had the education, intelligence, instinctive ability, and opportunity to do so. The absence of past financial successes when one is at the earliest stages of a writing/directing career should not be fatal to a finding of a substantial possibility of future success. Other factors such as the ones here, may establish it.

[64] The collision brought Mr. Bancroft-Wilson’s burgeoning career to a halt. The manifestation of his injuries as debilitating headaches and back pain precluded him from doing the very challenging tasks of creative writing and directing. The tasks are not routine; they require enormous concentration and considerable dedication – abilities which are in short supply when one is in considerable pain.

[65] As a result of his injuries Mr. Bancroft-Wilson’s earning capacity, as a capital asset, has been diminished through a loss of opportunities. The diminishment began immediately after the collision and is, on the medical evidence, likely to continue for the next three to five years. Throughout this period, the advancement of his career in the film industry has been, and will likely continue to be, stalled. Opportunities for the financial successes enjoyed by writers and directors in the film industry have been postponed. In this period Mr. Bancroft-Wilson has likely lost, and will likely continue to lose, opportunities. In this period he has been, and will be, less valuable to himself as a person capable of earning income, and less valuable to others as an employee.

[66] Assessing the likelihood of these losses and quantifying them is difficult. In Franklin, the 42-year old plaintiff/respondent was at the early stages of a creative writing career when she sustained, inter alia, brain damage in a motor vehicle accident. Ms. Franklin permanently lost the capacity to concentrate and to organize her thoughts. The court noted that at the time of the accident Ms. Franklin was “still in the process of substantial change in her lifestyle and there was no assurance of her economic success even at Jane Rule’s level” ($20,000-$30,000 per annum). Notwithstanding the court’s observation that the plaintiff had no track record of success in creative writing or skills directly related to remunerative work, the court set future loss of earning capacity at $250,000.

[67] Mr. Bancroft-Wilson has no history of financial success from writing marketable scripts and securing paid directing jobs. There is also a dearth of work which has garnered critical acclaim, and from which future financial successes might readily be inferred and measured. Witness Brad Wright, a successful executive producer, observed that if one has some financial success in writing or directing, then it is very likely that there will be more. The evidence only establishes that Mr. Bancroft-Wilson is regarded as a person with the potential to be a successful writer and/or director, but he has yet to live up to that potential.

[68] In relation to quantifying the loss the evidence is somewhat thin; however, it does establish that if there are successes in writing or directing then the remuneration is often generous. The evidence also establishes that one can advance relatively quickly within the industry and that a junior writer may earn between $250,000 and $1,000,000 per year.

[69] I am satisfied that it is very likely that Mr. Bancroft-Wilson would have enjoyed some degree of financial success in relation to script-writing and directing, and that his success would have likely increased as time passed and he built upon past successes. Even with moderate success, over the course of five to seven years he might have earned $200,000 or more from the script-writing and directing and have been positioned to obtain highly paid positions. The foregoing is, however, far from certain, and there are a myriad of contingencies which must be taken into account in determining fair compensation for his loss.

[70] In light of all the foregoing, I assess his loss of opportunities, discounted for contingencies, at $125,000.

Costs of future care

[71] The plaintiff continues to suffer debilitating headaches and back pain. He wishes to continue chiropractic, massage, and physiotherapy 40 times per year for the next two years. The total cost would be $14,520. The plaintiff finds these treatments helpful and Dr. Robinson supported continuing the treatments for up to two more years. Dr. Kendall disagrees with the efficacy of such treatments except for temporary relief from pain. On balance, I am satisfied that it is appropriate that these treatments continue and that their costs be paid by the defendant. If the plaintiff finds even temporary relief and the treatments are not counter-productive, then they should be available to the plaintiff.

[72] In relation to other costs, the plaintiff continues to take six or more over-the-counter pain tablets, per day; however, there is no evidence of the cost of these medications. Also, the plaintiff did not indicate a desire to take the costly Botox injections described by Dr. Robinson as a treatment option.

[73] In light of the foregoing, the costs of future care are assessed at $14,520.

E. Summary of Damages Awards

Non-pecuniary $70,000

Special $5,642

Loss of Opportunity $125,000

Future Care $14,520

F. Costs

[74] No submissions were made. Liberty is granted to set the matter down to address costs, if necessary.

“The Honourable Mr. Justice Bernard”

Citation:	*Bancroft-Wilson v. Murphy,*
	2008 BCSC 1035