2008 BCSC 1520 Williams v. Nekrasoff

Before: The Honourable Mr. Justice Nathan H. Smith

Reasons for Judgment

Counsel for the plaintiff	M.J. Thornton
Counsel for the defendants	J.R. Filek
Date and Place of Trial:	October 6-10, 2008
	Chilliwack, B.C.

[1] The plaintiff is a 23-year old student who seeks damages for injuries in three motor vehicle accidents, the first of which took place when he was 10 years old. Liability for all of the accidents is admitted.

[2] The first accident occurred on August 6, 1995. The plaintiff was a passenger in his father’s pick-up truck, which collided head on with a vehicle driven by the defendant Trina Nekrasoff. The plaintiff says that in the weeks following that accident, he had soreness in his neck, upper back and shoulders, which he treated with ice. He also had headaches on a regular basis. His mother took him to the family doctor about three weeks after the accident and again in October 1995. The doctor recommended stretching, keeping active and using heat and ice as necessary. The plaintiff’s mother also took him for two chiropractic treatments during that period.

[3] The plaintiff testified that, after some initial improvement, his symptoms plateaud and remained constant for the next 10 years. However, that pain did not prevent him from doing all of the normal activities of a child or teenager his age and, in fact, he was very active. He played hockey until he was about 14 without difficulty, but began to experience more discomfort when he reached a level that allowed body checking. He took up officiating minor hockey games, an activity that he now describes as his passion, although it sometimes caused neck and shoulder pain.

[4] Although his neck and shoulders would become sore when he did homework on the computer for long periods, for which his mother would often massage him, the plaintiff’s injuries did not have a major impact on his education. He worked in a store and a pizza restaurant, even though certain tasks caused pain in his neck and shoulders. He had another course of chiropractic treatment in late 1996 and 1997, and occasional chiropractic or massage therapy treatments in later years.

[5] The second accident occurred on October 20, 2005. The plaintiff was driving on Highway 1 and came to a stop behind a line of stationary vehicles. Another car stopped behind him, but was struck from the rear and pushed into the rear of the plaintiff’s car. The back of the plaintiff’s car was forced up onto the hood of the car behind.

[6] That accident increased the plaintiff’s symptoms and caused a new problem of low back pain and spasms. In the fall of 2005, the plaintiff enrolled at the University College of the Fraser Valley (now called the University of the Fraser Valley). He continued to attend classes, but found prolonged sitting and writing painful. He started college with a reduced course load but hoped to increase it after getting more accustomed to the new environment. He did try to increase it in subsequent semesters, but he has never been able to take a full load of five courses at a time.

[7] With physiotherapy and a program of exercises and stretches, the plaintiff says his symptoms decreased to a more tolerable level, but he continued to have daily pain of varying intensity. The plaintiff continued to officiate at hockey games and would be sore when he came home from a game, but said he was willing to make sacrifices because it was something he loves to do.

[8] In 2006, the plaintiff began a new job as a hockey league co-coordinator at an ice rink. That job involved extensive sitting, which the plaintiff found painful, primarily in the low back. He continued to attend college, but still did not feel able to take a full course load because of his ongoing pain.

[9] The third accident was a rear-end collision on July 20, 2007. That accident caused only a minor and short-lived increase in the plaintiff’s symptoms.

[10] During the summer of 2007, the plaintiff was taking an intensive program to increase his fitness for hockey officiating. He was working with a professional referee and put on an additional 20 pounds of muscle. The plaintiff has continued his hockey officiating although it is often painful, particularly when he works at a tournament and must do a number of games in a short time.

[11] The plaintiff is currently taking three third-year business classes at the University of the Fraser Valley. He thinks three classes is all he can manage due to the pain he suffers while sitting in class, studying or driving from his home in Chilliwack to classes at the University’s Abbotsford and Mission campuses. At the current rate, he expects to graduate in December 2010 or April 2011. If he had been taking a full course load throughout his time at the University, he would graduate in April 2009. The plaintiff hopes to go to law school, but believes he will have to take a reduced course load there as well, taking five or six years to get his degree instead of the usual three.

[12] The plaintiff’s mother, Irene Williams, testified that in the years following the first accident, her son regularly complained of pain and she would frequently massage his neck and shoulders, but she always encouraged him to remain active. After the second accident, she said his complaints became more pronounced, with his discomfort most apparent when he came home from school or from a hockey game. On those occasions, he would stretch a lot, ask for heat packs, and be more vocal about his pain.

[13] The plaintiff currently lives at his mother’s home, although Ms. Williams says she mostly sees him when he returns in the evenings. The first thing he generally does on getting home is to lie on the floor and do stretches. She said he frequently takes pain killers.

[14] In October, 2005, shortly before the second accident, the plaintiff was examined by Dr. Watt, an occupational and sports medicine physician. For the purpose of his assessment, Dr. Watt reviewed the results of functional capacity testing performed in his office by Mr. Nguyen, a kinesiologist. Dr. Watt concluded that the plaintiff’s headaches and neck and upper back pain were caused by the accident of August 6, 1995, and were likely to be permanent, although treatment could provide some symptomatic relief.

[15] Dr. Watt assessed the plaintiff again in March 2008 and Mr. Nguyen once again performed functional capacity assessments. Dr. Watt repeated his opinion that the neck and upper back pain and headaches were caused by the first accident, adding that those symptoms were temporarily made worse by the two subsequent accidents. He said the second accident was the sole cause of low back pain. While the third accident exacerbated all symptoms, Dr. Watt said that exacerbation was brief and the third accident did not affect the plaintiff’s condition in any permanent way. His report states:

44. Neck, upper back, headaches – it is my opinion that his neck and upper back pain and headaches are now at maximal medical improvement. It has been over 10 years since the original accident, which caused these injuries, and he has not experienced any significant change of these symptoms in the past 12 months. It is my opinion that he has a permanent impairment with respect to his neck and upper back pain.

45. It is my opinion that he is probably at maximal medical improvement with respect to his low back pain. It is now over two years since the accident and despite adequate trials of various appropriate treatments (physiotherapy, Early Intervention program, chiropractic, massage, medication, and an ambitious strength training program which saw him gain about 20 pounds of muscle) he continue [sic] to experience significant low back pain causing functional restrictions. He has not had any improvement in his symptoms over the past 6 months. Below, I make several treatment suggestions that may provide some measure of symptomatic relief, but it is unlikely they will lead to any sustained improvement in his current functional level. Therefore, in my opinion, he has a permanent impairment of his lower back.

[16] On the question of the impact of the injuries on the plaintiff’s future employability, Dr. Watt said:

57. … He will be unable to tolerate or routinely perform work that requires repetitive, continuous, or heavy lifting, bending, carrying, or overhead reaching. Although he may be able to perform some of these activities for brief periods he is also now at increased risk for exacerbation or aggravation of his neck and back impairments.

[17] Dr. Watt said that the plaintiff should remain active, maintain core strength and avoid excessive weight gain. He also said the plaintiff will probably have acute exacerbations of his pain in the future, requiring physiotherapy, chiropractic or other treatment.

[18] The defendants rely on the opinion of Dr. McGraw, an orthopaedic surgeon. Dr. McGraw says that the plaintiff suffered soft tissues injuries in the first and second accidents and accepts there are ongoing complaints, but believes the plaintiff can become relatively pain-free through an intensive, professionally supervised exercise program. In cross examination, Dr. McGraw said:

Because somebody is going to the gym and exercising doesn’t mean they’re doing it right. There are subtleties in how to do it and I am a strong believer that it has to be supervised.

Non-Pecuniary Damages

[19] The opinions of both Dr. McGraw and Dr. Watt are based primarily on the plaintiff’s description of his subjective symptoms. There have been few objective physical findings. However, I found the plaintiff to be a forthright, intelligent, highly motivated young man and I accept his evidence that he has suffered ongoing, although not disabling, pain for 13 years as a result of the first accident, with increased pain and discomfort as a result of the second accident that lasted three years. It is to the plaintiff’s credit that he has been willing to accept that pain and carry on with most activities.

[20] The major difference between Dr. Watt and Dr. McGraw is the extent to which they believe a supervised exercise program will improve the plaintiff’s condition. Dr. Watt says that the plaintiff has been through several programs, including the very aggressive one in the summer of 2007 and is still having symptoms.

[21] I agree that Dr. McGraw does not appear to have been fully informed about the nature of the program in 2007, during which the plaintiff was able to add 20 pounds of muscle, and I accept Dr. Watt’s opinion that, given the length of time symptoms have persisted in this very active plaintiff, complete recovery is unlikely. At the same time, I accept Dr. McGraw’s view that there is probably still room for considerable improvement with continued focussed and supervised exercise. Dr. McGraw acknowledges that this would be a long-term commitment.

[22] Both counsel submitted cases on the range of award for non-pecuniary damages. I will refer to three that I find provide useful comparisons.

[23] In Foran v. Nguyen et al., 2006 BCSC 605, a 31 year old plaintiff had multiple soft tissue injuries to the cervical spine. She suffered and was expected to continue to suffer from chronic pain that prevented her from participating in activities she enjoyed before the accident. Madam Justice Sinclair Prowse awarded non-pecuniary damages of $90,000.

[24] In Bafaro v. Jiang et al, 2007 BCSC 686, the plaintiff was found to have chronic mid-back pain, with ongoing discomfort that would continue to limit his ability to sit for long periods, and a risk of debilitating flare-ups of pain. Macaulay J. awarded non-pecuniary damages of $60,000.

[25] Cooper et al. v. Apland et al., 2002 BCSC 931, concerned a plaintiff who was injured at the age of 11 and again at the age of 13. She was 17 at the time of trial. The plaintiff suffered from back pain and headaches, but continued to play soccer at a high level. Hutchinson J. concluded that the plaintiff’s symptoms would ultimately resolve, but not until she stopped playing soccer and followed a rehabilitation program. He awarded non-pecuniary damages of $25,000.

[26] I find the plaintiff’s injuries in this case to be more serious than those in Cooper, less serious than those in Foran and most comparable to those in Bafaro. However, a factor that sets this case apart from all of those is the long period that has elapsed between the first accident and the date of trial. The plaintiff has had to live with pain and adjust to it throughout his adolescence and well into his young adulthood, with the prospect of significant, but probably not complete, relief in the future. Considering all of the relevant factors, I find the appropriate award for non-pecuniary damages to be $75,000.

Mitigation

[27] After the second accident, the plaintiff attended an early intervention program funded by the Insurance Corporation of B.C. At the conclusion of that program, he was offered a continuing gym membership, but he did not take advantage of that offer. The defendants argue that he has failed to mitigate his damages.

[28] The burden of proving a failure to mitigate is on the defendants. There is no doubt that regular exercise is important, but I accept the plaintiff’s evidence that, although he did not join a gym, he has continued to do the exercises and stretches he has learned from various trainers and therapists over the years. That does not amount to the focussed, professionally supervised program Dr. McGraw recommends, but there is no evidence that a gym membership alone would, in itself, have provided any improvement over what the plaintiff has been doing on his own. I find there has been no failure to mitigate.

Loss of Income and Earning Capacity

[29] The parties have agreed on past wage loss of $698. The plaintiff also seeks damages for loss of future earning capacity. Dr. Watt says he will not be able to do jobs that require continuous, repetitive or heavy lifting, bending, carrying or overhead reaching. He is therefore limited in his ability to pursue a variety of physical jobs and trades. However, neither the plaintiff’s interests, nor his likely career paths have ever run in that direction. He is currently taking a university business administration program and hopes to go to law school. Testing by Mr. Nordin, the vocational rehabilitation expert called by the plaintiff, indicates that goal of becoming a lawyer is well within the plaintiff’s capabilities.

[30] The frequently cited criteria for awarding damages for loss of future earning capacity were set out in Brown v. Golaiy, 26 B.C.L.R. (3d) 353 at para. 8:

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.

[31] In Palmer v. Goodall (B.C.C.A.), 53 B.C.L.R. (2d) 44 Southin J.A. said at 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.

[32] In order for the Brown v. Golaiy criteria to apply, there must be cogent evidence to trigger them. (Marcelino v. Francesutti, 2002 BCSC 1711. Ongoing symptoms alone do not mandate an award for loss of earning capacity. (Moore v. Cabral, 2006 BCSC 920.

[33] The fact that the plaintiff will not be able to perform a variety of physically demanding jobs does not represent a significant loss to him. He frankly admits that he never had any interest in work of that kind as he intends to pursue higher education and an eventual career in either law or business. At most, his injuries may limit his choice of summer or part-time employment while he is in university.

[34] Of greater significance is the fact that he has been, and will continue to be, unable to take a full course load, which means that his graduation and entry into his ultimate career will be delayed. The plaintiff has produced economic calculations showing how delayed entry into the workforce can have a lifetime impact on earnings. For example, the plaintiff’s economist calculates that if the plaintiff were to graduate from law school in 2016 instead of 2012, the present value of his loss would be in the range of $400,000.

[35] Those calculations assume not only an immediate loss from delayed entry, but also a continuing loss, because the plaintiff will always be earning less than others of the same age who entered the profession earlier. I do not accept the latter assumption because, once the plaintiff enters his chosen profession or career, his income will depend on a variety of factors that would have been present in any case. For example, he may demonstrate abilities or have employment opportunities that result in earning more than the average for his age peers, even though he has less experience.

[36] However, I am satisfied that the plaintiff has suffered impairment of earning capacity in that he clearly will still be in school at a time when, but for these injuries, he would have had the opportunity to already be working in and earning income in his chosen career. Of course, his entry into the work force could also have been delayed for other reasons. The Court’s task in cases of this kind is not to apply a mathematical formula, but to assess damages that are fair and reasonable on the basis of all the evidence. Considering the delayed entry into the workforce and, to a small degree, the reduced opportunities to earn income while in school, I award the plaintiff $100,000 for lost earning capacity.

Cost of Future Care

[37] The plaintiff is currently seeing a massage therapist once a week and a chiropractor once every two weeks. He expects to reduce each to once a month, which, at current rates will amount to an annual expenditure of $1,210. Based upon an agreed multiplier, the plaintiff seeks $27,830 for the cost of that future care.

[38] I accept Dr. McGraw’s evidence that ongoing exercise and fitness training will be of greater benefit to the plaintiff than these “passive therapies,” and the plaintiff has not demonstrated a medical need to continue them on a permanent basis. However, I accept there will likely be some periods in his life when such therapy will be a benefit to him and, doing the best I can with evidence, award $5,000 for chiropractic and massage treatments in the future.

[39] In rejecting the need for ongoing chiropractic treatment and massage therapy, Dr. McGraw stressed the need for a professionally designed and supervised exercise program. He estimated that would initially involve seeing a university trained kinesiologist or personal trainer twice a week, for an hour and 15 minutes at a time, for four months, followed by periodic review. There was evidence that consultation with a kinesiologist costs $60. After the initial sessions suggested by Dr. McGraw, it would be reasonable for the plaintiff to follow up approximately three times a year. I therefore award the initial cost of $2,550 plus $4,100 as the present value of the follow up sessions.

[40] The plaintiff also has ongoing costs for pain killers and muscle relaxants of about $50 a year. I find that to be reasonable expenditure, although the need for these medications is likely to decrease as the plaintiff benefits from an exercise program. I award $1,000 for the present value of the ongoing expense.

[41] The total of the above items is $12,650, which I award for the cost of future care.

Special Damages

[42] The plaintiff claims special damages of $4,290, including mileage to and from medical appointments and therapy sessions. The defendants take serious issue with only one item — the cost of the plaintiff’s intensive training sessions with a professional hockey referee. I agree that expenditure of $720, while beneficial, did not arise from any medical recommendation and would likely have been incurred in any event because of the plaintiff’s desire to officiate at higher levels of hockey. I therefore award the plaintiff $3,570 for special damages.

Summary of Damages

[43] In summary, I award the plaintiff damages as follows:

Non-pecuniary damages $ 75,000

Loss of Earning Capacity $100,000

Cost of Future Care $ 12,650

Special Damages $ 3,570

Past Income Loss $ 698

Apportionment of Damages

[44] In apportioning damages as among the different defendants, I note that the third accident resulted in only a temporary aggravation of symptoms. Dr. Watt says it had no permanent effect. Thus, while the third accident added to the plaintiff’s non-pecuniary damages, it did nothing to affect any of his future losses. As between the other two, the second accident was somewhat more serious, but the plaintiff has lived with the injuries from the first accident for 13 years and it has contributed to his future losses.

[45] Accordingly, I attribute 10 per cent of the plaintiff’s non-pecuniary damages to the third accident, with all other damages divided equally between the first and second accidents.

[46] The plaintiff will have costs, unless there are matters I am unaware of that counsel need to speak to.

Nathan H. Smith J.