2008 BCSC 1324 Reyes v. Pascual

Before: The Honourable Mr. Justice McEwan

Reasons for Judgment

Counsel for the Plaintiff:	A. Price-Stephens
Counsel for the Defendants:	K.P. Serné
Date and Place of Trial/Hearing:	September 2 & 3, 2008
	Vancouver, B.C.

[1] This trial was heard under Rule 66. At the outset, counsel sought to have it removed from Rule 66 because it then appeared that the matter would take longer than two days. The issue on removal was primarily a matter of costs and there was no adjudication on the motion. The matter did complete in under two days, and accordingly, for the record, that motion is struck.

[2] The action is for damages arising out of a motor vehicle accident which occurred on August 9, 2005. There is no issue as to the liability of John Gregory Dennison, as the operator, and Toyota Credit Canada Ltd., as the owner, of a motor vehicle that struck a vehicle operated by Edna Pascual, in which the plaintiff was a passenger. The action had been discontinued as against Mrs. Pascual before the trial commenced.

[3] The plaintiff is a registered nurse. She was born and educated in the Philippines, where she obtained a nursing degree in 1994. In 2002, she obtained a position at a hospital in New Jersey. A classmate of hers had moved to British Columbia, and in 2005, she moved to Canada to take up an offer of employment in the Emergency Department at Surrey Memorial Hospital, and to live with Mrs. Pascual, whom she describes as her partner.

[4] One attraction of work at Surrey Memorial Hospital was the opportunity to work a great deal of overtime. Once the plaintiff accepted this offer, the Fraser Health Authority applied to Immigration Canada for a work permit. This effectively restricts her to the specific position she accepted within the hospital. She cannot work in any other capacity within the health care system or in any other occupation.

[5] The plaintiff was also obliged to undertake a 6-month cardiac subspecialty course. Her work permit did not come through until September 23, 2005. In the interval, the plaintiff could not work and had no medical coverage. She had very limited resources and relied on Mrs. Pascual to support her. The accident occurred during this period.

[6] Before the accident, the plaintiff was in good health. She had had to pass a medical examination in order to apply for a work permit. She was able to work at her physically demanding occupation in New Jersey, missing only a handful of days of an 8-hour per day work schedule with little overtime. She had a history of some migraine headaches, allergies, and gastric complaints.

[7] The plaintiff suffered after the accident from a range of complaints including pain in her neck, right shoulder, and low back, and a significant increase in the frequency of her migraine headaches, which she experienced as significantly more disabling than before.

[8] Because the plaintiff had no medical coverage at the time of the accident, she feels she did not attend physicians to the extent that she might have otherwise, owing to the expense. On the other hand, she and her partner are trained nurses and attempted a course of self medication and self help that was certainly better informed than an untrained person’s efforts might have been. She did see Dr. Muncey, Mrs. Pascual’s doctor, immediately after the accident and also a chiropractor for relief of her several complaints between August 25, 2005 and November 2006.

[9] In January 2007, Dr. Muncey recommended massage and physiotherapy and gave the plaintiff a prescription for her injuries.

[10] When the plaintiff started to work at Surrey Memorial Hospital on September 23, 2005, she says she did not discuss her injuries because she wanted to make a good impression.

[11] Mrs. Pascual testified to her observations of the plaintiff both before and after the accident. She noticed a significant change. Until the plaintiff’s headache medication changed in March of 2008, she said she occasionally had to pick the plaintiff up from work because she was complaining that her headaches made it impossible to keep going.

[12] The opportunity to work at Surrey Memorial Hospital and to work significant amounts of overtime was important to the plaintiff because of her role in her own family and her desire to help improve their circumstances in the Philippines by sending approximately 30% of her income home. She says that her desire to work as much as possible has been frustrated by the injuries, by reducing the amount of overtime she was able to accept and by taking away some of her ability to work as much as she would have, which is reflected in lost shifts, and a certain amount of sick leave.

[13] The plaintiff also claims that, on the basis of the medical evidence, the court should find a future loss of earning capacity.

[14] The medical evidence includes a report from a Dr. Andrew Travlos that was commissioned as an independent medical report by the defence. He saw the plaintiff on October 1, 2007. His opinion, after taking a history and performing an examination, was as follows:

It is my opinion that Ms. Reyes’ low back pain will improve to the point of beginning negligible. She will prudently avoid any heavy lifting to prevent causing herself any pains, but overall, her symptoms should improve to a level of not being symptomatic for most day-to-day activities. It is possible that she will continue to have ongoing back symptoms such as she now has, and it is possible that she may experience a deterioration of her back symptoms given the physical nature of her work, but I think that is less likely than likely.

I would not restrict Ms. Reyes’ physical activities and would encourage her to gradually increase all her activities as she chooses. Ms. Reyes is capable of participating in all recreational activities available to her. Ms. Reyes is capable of participating in all chores around the home. Again, she should avoid the heavier ones.

Ms. Reyes is capable of gainful, full-time employment and has been working full-time since September of 2005. The period of lost initially after the accident was primarily related to the fact that she had to sort out her immigration and find new work. The fact that she choose not to work overtime initially after the accident was prudent, but she is now capable of continuing to work regular hours and overtime.

It is my opinion that Ms. Reyes’ low back symptoms are residual from the accident as she complained of back symptoms immediately thereafter. It is difficult to know to what extent the neck and shoulder symptoms are a result of the accident. If one accepts her history, Ms. Reyes has had the neck and shoulder symptoms from the beginning. Assuming her history to be correct, then her current symptoms would be residual from the accident. However, there is an absence of complaints of pain after the accident in regards to the neck unless there is documentation in the chiropractic records after the accident that she was indeed complaining of neck and shoulder pains back then. The first complaint of pain in the records that I have reviewed affecting the neck appears in the massage therapy records of January 24, 2007, based on Dr. Muncey’s letter of referral dated January 16, 2007, which must have arisen following the CL-19 assessment. That report, however, notes complaints of back pain and not neck pains although the neck examination revealed some tenderness.

[15] Dr. Gordon Robinson, a neurologist, examined the plaintiff on May 13, 2008. Dr. Robinson addressed the plaintiff’s reported increase in the frequency and severity of headaches, set against a past history of occasional headaches. His prognosis was as follows:

It is now well over two years since the motor vehicle accident. Over this time there has been substantial improvement in her neck, shoulder and low back pain. The headaches have become less frequent but have continued to be substantially more than prior to the motor vehicle accident. I do not believe that her pre-existing headaches would have worsened had the accident not occurred.

It is possible that there will be continued improvement in her headaches over the next 3 – 5 years. However, it is also possible that, with the persistence of neck pain (even mild), her increase in headache will be present indefinitely. The impact of the headaches on her life could be improved should she respond favourably to the treatment suggestions.

[16] The plaintiff did not take time off for sickness for the first two months after she obtained her work permit on September 23, 2006. She has, since that time, taken over 30 sick days which she says are related to headaches. The plaintiff’s earnings in 2006 and 2007 were $81,716 and $72,310 respectively. Her case for past income loss is based on a theory that, but for the accident, she would have had work available for four 11-hour shifts and three 7.5 hour double time shifts in each nine day (4 on, 5 off) cycle she worked, or a little over 3600 hours per year. This is taken down by her economist to around 3300 hours, assuming some respite from this pattern, which he characterizes as two months without overtime. The mathematics yields rather large numbers which, reduced by notional tax paid, hover near $50,000 over the 2005-2007 period.

[17] It is certainly clear that the plaintiff’s injuries did not significantly interfere with her ability to work regular shifts once she was legally able to work in the September following the accident. Starting in January 2006, the plaintiff did take overtime (she was not able to do so in October of 2005 for reasons unrelated to the accident). Apart from the assessment for pain and suffering and loss of enjoyment of life, the issues in the case revolve around the degree of interference there has actually been to the plaintiff’s employment and what that suggests about the future.

[18] The defence suggests that the case is highly speculative. Some mild inconsistencies in the plaintiff’s evidence have been noted (when she first began to work overtime, for example) and a lack of correlations between sick days and her reports of pain to medical professionals and therapists has been suggested. The defence further submits that the pattern of the plaintiff’s sick time is suspicious in that it tends to fall on or about weekends when Mrs. Pascual, the plaintiff’s companion, is not working.

[19] In bringing a trial pursuant to Rule 66, the parties effectively cooperate to forego the most complete case possible, trusting that the impression left at the end of the evidence will be sufficient for the court to make an appropriate estimate of the damages suffered.

[20] It is not my sense that the plaintiff is purposely inaccurate or misleading. I think she honestly holds the view that, but for the aches and pains she has suffered, she would have worked even more overtime than the impressive amount she has. I think the occasional evidentiary discrepancies the defence has highlighted show a bit of an elevated sense of the consequences of the accident. This is not entirely unexpected in the circumstances of a court proceeding.

[21] The defence’s effort to show a pattern in the sick days is not altogether convincing, although I have no doubt that in an environment where overtime makes it possible to work virtually every day, the sick leave “entitlement” might at times be used as a way of balancing or adjusting time off.

[22] The calculations provided by the plaintiff’s economist are useful in establishing the theoretical outside limit of available overtime.

[23] The purpose of an award of damages was set out in Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 32:

.... The essential purpose and most basic principle of tort law is that the plaintiff must be placed in the position he or she would have been in absent the defendant's negligence (the "original position"). However, the plaintiff is not to be placed in a position better than his or her original one. It is therefore necessary not only to determine the plaintiff's position after the tort but also to assess what the "original position" would have been. It is the difference between these positions, the "original position" and the "injured position", which is the plaintiff's loss. …

[24] I accept the plaintiff’s evidence that she was injured in the August 9, 2005 motor vehicle accident. In this regard, I note that while the physicians who examined the plaintiff also accepted the plaintiff’s assertions, the fact that they did so does not assist the court in making that finding. Their observations thereafter are of considerable assistance in assessing the possible course of the plaintiff’s recovery, however. It does appear, taking account of what is before me, that the plaintiff recovered functionally very quickly although she may suffer some minor aches and pains that will occasionally interfere with her activities.

[25] The plaintiff has suffered some moderate interference with her life due to pain and suffering. The cases advanced as comparables by the parties are of some assistance in locating this case on an appropriate scale. I assess her damages for pain and suffering and loss of enjoyment of life at $25,000.

[26] The plaintiff’s past loss of income is not arithmetically determinable because she has not lost employment, as such, but only the option of working overtime on days when she might have said “yes”, but does not now feel up to doing so. Damages in the circumstances must be arrived at by doing an assessment not a calculation. The plaintiff already works considerable overtime. She lost more in the early going that she does now.

[27] I do not think it reasonable to attribute all available overtime to the plaintiff as a measure of her loss. I accept that she might occasionally have worked more but felt less like doing so because she was not feeling as good as she might have before the accident. This is not a question of incapacity but of some loss of stamina. Doing the best I can, I assess the sum of $20,000 for past income loss to the date of trial. This is net of tax.

[28] The plaintiff’s claim for loss of earning capacity is advanced on the principle set out in Rosvold v. Dunlop (2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1, at paras. 8-9, per Huddard J.A.:

… 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.

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.

[29] Ms. Reyes presently works in a very strenuous profession. She is capable of doing her work and of working considerable overtime. On the basis of the medical evidence there is good reason to expect that she will fully recover in the next few years, with a modest chance of some limited impairment further into the future. I think some allowance must be made for the possibility that the plaintiff may occasionally suffer losses into the future that are related to the injuries she has suffered. I think the evidence suggests that these losses will be incurred, for the most part, in the next few years. I fix the sum of $15,000 for loss of future earning capacity.

[30] I understand special damages are agreed at $864.66.

[31] I expect there may be some requirement for prescription medications related particularly to headaches. I allow $1,000 under this heading.

[32] Costs shall be assessed in accordance with Rule 66.

“McEwan J.”

_______________________________

The Honourable Mr. Justice McEwan

Citation:	*Reyes v. Pascual,*
	2008 BCSC 1324