2008 BCSC 1586 Wilson v. Bird

Before: The Honourable Madam Justice Dillon

Reasons for Judgment

Counsel for the Plaintiff:	G. Collette R. Parsons
Counsel for the Defendant:	L.A.J. Dunn
Dates and Place of Trial:	May 26-30, 2008 and June 2-3, 2008
	Vancouver, B.C.

Introduction

[1] The plaintiff, Kenneth Edward Dale Wilson (“Wilson”), seeks damages for personal injuries suffered in a motor vehicle accident that occurred on November 30, 2002. All aspects of the claim are in issue, except for liability. The defendant says that not all of the plaintiff’s physical conditions were caused by the accident and also says that there are no damages for past loss of income and only minor damages for loss of future income earning capacity and future costs of care.

Facts

[2] The thirty-two year old plaintiff was travelling from Prince Rupert to Terrace as passenger with three children in a car driven by the defendant, Crystal Caroline Bird (“Bird”), when Bird lost control of the vehicle after encountering ice on the highway. The vehicle, a 1998 Toyota van owned by Bird, crossed the centre line of the highway and rolled twenty feet down an embankment, flipping over before it landed. According to Wilson, he lost consciousness briefly in the accident and felt pain in his shoulder, elbow and left knee immediately. He bled from his head, having hit the window. His back hurt. A passing driver was hailed and managed to open the passenger door. Wilson got out of the vehicle and sat, waiting for the ambulance. The vehicle was very significantly damaged.

[3] The ambulance took Wilson to the Terrace hospital where his right scalp laceration was stitched and surgeons performed a closed reduction to his right shoulder dislocation. Due to lack of medical personnel in Terrace, Wilson was ambulanced to Kitimat where doctors repaired his dislocated elbow by closed reduction. The plaintiff remained overnight in hospital and was released the next day. He wore a cast on this left elbow and a sling for his right shoulder. His knees were painful and his ears were bruised and swollen.

[4] In the immediate aftermath of the accident, Wilson returned to his parents’ home in Prince Rupert. He could not care for himself, requiring assistance for personal hygiene. He had trouble with stairs. He went to see his general practitioner after a week, still weak and in pain. The doctor described complaints relating to a right shoulder dislocation and reduction, left elbow dislocation and reduction, right scalp laceration, right facial abrasion, tender medial left knee, and neck pain. He also said that the plaintiff complained that his back hurt more after the accident.

[5] Wilson attended a session of physiotherapy once he felt better, but was dissatisfied with the physiotherapist’s attitude which he described as mean and racially motivated. He did not return until another physiotherapist was available. In February 2003 he found another physiotherapist and continued with physio for about five months, attending sporadically. When that physiotherapist left town, Wilson swam and did exercises on his own at home, rather than attend with the other physiotherapist.

[6] About two months after the accident, Wilson said that he experienced ankle “clicking” and pain in his neck, back and left wrist. The general practitioner noted continuing neck pain in January 2003 but it was improving and appears to have resolved shortly thereafter.

[7] The plaintiff’s general practitioner first noted a complaint of lower back pain in December 2002. In September 2003, his general practitioner noted lower back pain for two days, a condition that he described as “new” and which continued into October. In June 2007, there was a flare-up of the pain and Demerol was given for serious pain. The back was treated again in September 2007. The plaintiff said that the back pain still bothers him from time to time. In March 2008, his general practitioner described the back pain as “persistent”.

[8] The plaintiff’s general practitioner considered the right shoulder improved to the extent of full range of motion by May 2003. However, there was still occasional pain when swimming. The general practitioner referred the plaintiff to an orthopaedic surgeon for review of the left elbow, right shoulder and left knee in June 2003. When Wilson saw the specialist in August 2003, the right shoulder had largely resolved as the specialist noted that there were no complaints regarding the right shoulder or left knee. The same was true in June 2005 when another orthopaedic specialist reported, based upon Wilson’s self report, that these injuries had healed well. However, the plaintiff’s general practitioner testified that these complaints were ongoing.

[9] The plaintiff suffered a sprain in his left knee. Although Wilson testified that this knee had been dislocated in the accident, there is no medical support for this theory. By August 2003 when he saw the orthopaedic surgeon, the plaintiff’s knees were of minor concern, as compared with the elbow. But, in March 2004, the plaintiff had swelling and pain in his knees that brought him to his general practitioner. In direct testimony, the plaintiff could not remember when the pain started but attributed it to the accident. In June 2005, when the plaintiff saw another orthopaedic surgeon concerning his elbow, the specialist reported that his left knee had recovered well. In June 2007, the plaintiff’s general practitioner referred the plaintiff for consultation concerning his bilateral knee pain. At that time, he was diagnosed with generalized ligamentous laxity and chondromalacia patellae. At trial, the plaintiff said that he still had bilateral knee pain and agreed in cross-examination that he had this pain since the early 1990’s.

[10] Problems persisted with Wilson’s left elbow. When he saw Dr. Smith, an orthopaedic specialist, in August 2003, the plaintiff complained of problems with extension but not of pain. It took three years to have necessary surgery. Wilson first saw the surgical specialist, Dr. Reagan, in June 2005. At that time, the doctor confirmed traumatic injury to the bone in the plaintiff’s left elbow with posterior dislocation and a loose chunk of bone and fluid causing stiffness and loss of range of motion. He performed an arthroscopic release and debridement in March 2006 in Vancouver. Between the assessment in June 2005 and surgery in March 2006, the elbow had worsened. Wilson did not attend physiotherapy after the surgery because that meant attending with the therapist whom he disliked. His doctor, however, confirmed that the plaintiff did his own exercises. The elbow is still sore with nagging pain and limited range of motion. Wilson cannot sit in one position for more than fifteen minutes and has difficulty with household chores. He takes medication for pain. He considers it a work in progress almost six years post accident. His general practitioner said that the plaintiff still has a significant amount of pain and loss of function in the elbow which is chronic and will be a discomforting problem throughout his life. Wilson will be limited in his ability to lift and carry heavy objects. The general practitioner disagreed that the pain is only occasional and non-problematic.

[11] The plaintiff has experienced a high degree of personal stress in the last years with the breakup of a relationship and custody battle, the death of his mother with whom he was close, social assistance concerns, and a move from Prince Rupert to Terrace. He has six children. The general practitioner described the plaintiff’s present depression as situational.

[12] Prior to the accident, Wilson described himself as in good shape and athletic. However, he had previous problems and injuries.

[13] His general practitioner described a long history of chronic knee problems. In 1991 he injured both knees, eventually requiring arthroscopic debridement of both knees in 1993. By 1999, his doctor described chronic knee pain for over a year. The plaintiff’s sore knees continued into 2000, requiring repeat visits to his physician, eventual referral to an orthopaedic surgeon, and the wearing of a knee brace. The orthopaedic surgeon said that Wilson had complained of discomfort and pain in both knees for some time. He concluded that the plaintiff had chondromalacia of the patella and recommended a strict rehabilitation programme and physiotherapy in 2000. Wilson attended physiotherapy at the Prince Rupert hospital once, explaining that he preferred to do his own physiotherapy at home. Although the orthopaedic specialist did not consider the condition serious or disabling in 2000, the orthopaedic surgeon reported that Wilson said that he experienced pain in both knees so severe that he could not work. This was also noted by the general practitioner. Although Wilson said in direct examination that there was some recurrent pain in his knees with silvaculture work, he denied that he had recurring knee pain prior to the accident and certainly not to the extent that he could not work. He said that the doctors had misunderstood him in 2000 because his inability to work was related to lack of available work and not to knee pain. He was adamant that he did not complain about it, except to his doctor. In discovery, however, the plaintiff said that he quit work after six days in 2000 because of knee pain. I conclude that knee pain did prevent the plaintiff from working in 2000 because it was reported by both doctors and confirmed at least once by the plaintiff. The plaintiff’s general practitioner testified that there had been ongoing bilateral knee complaints that preceded the accident.

[14] He had previous problems with his right shoulder popping out, requiring surgery in 1994 or 1995. Because he lived in the small community of Hartley Bay at the time, he did not follow up this surgery with physiotherapy. He denied that he had pain in his shoulders prior to the accident. However, at another point in his testimony, he said that only the right shoulder hurt or was problematical before the accident.

[15] Wilson had also injured his lower back in a fishing incident in the first year that he fished, probably in 1990. In direct testimony, he denied that this bothered him again until after the accident. When his discovery evidence was put to him in cross-examination, Wilson said that his lower back pain had not started again until June 2007. Medical information showed that Wilson complained of recurrent lower back pain in 1999 and in August and June 2001.

[16] Prior to the accident, Wilson said that he played basketball, floor hockey, rollerblade, hiked, hunted, and biked. Primarily, he rollerblade and hiked. Although he testified that he tried rollerblading after the accident but his knees were too sore, his former girlfriend said that he did rollerblade afterwards. Family commitments have prevented him from playing basketball and floor hockey and licensing requirements have discouraged him from hunting.

[17] Wilson is a First Nations person of the Txaixgiu band from Hartley Bay. Growing up in a town with a boardwalk and no cars offered limited opportunity for work, but Wilson learned to trap, hunt, fish, and operate boats and chainsaws. He moved to Prince Rupert for grades eleven and twelve, completing high school in 1990 at age nineteen. Following high school graduation, Wilson worked seasonally for several years as the shore man on seiners, returning to Hartley Bay in the summers. He worked seasonally part time for salmon enhancement as a fisheries observer and eventually obtained full time employment as a maintenance man for Hartley Bay in 1995 and 1996. Although Wilson completed courses in environmental recycling and landfill management and in refrigeration and air conditioning in 1996, he lacked the confidence from these one to three day courses to start a career in these industries.

[18] A life changing opportunity arose for Wilson when he took a forestry courses in 1995 and 1996, first on surveying and then on chainsaws. He loved the work and quickly gained summer employment in silvaculture, girdling alders. His next employment, in 1998, was sponsored by the Hartley Bay band and involved working in a training programme as a spacer for Patrick Smith (Smith) who testified. Smith said that Wilson was an average worker in a hard trade. The following year, Wilson worked as a boat operator and quality checker, performing very well according to Smith. Wilson enjoyed this work, happily boating daily to work at remote locations and checking trees on steep terrain. Smith said that Wilson told him that the work was hard on his knees that had been previously injured and had a tendency to “pop out”, but everyone weathered pain with this work. After the seasons ended, he returned to Hartley Bay.

[19] There was an issue as to whether Wilson quit work in 2000 after six days because of pain in his knee. I concluded that this was indeed the reason for stopping work in silvaculture because of his reports to his doctors as described above. However, there is a record of employment that indicates that Wilson was terminated for a shortage of work. Although Smith testified that there was a shortage of work in forestry in 2000, he could not recall whether Wilson left because of his sore knees. He knew that Wilson had sore knees, but thought that he left because of shortage of work. Wilson supplemented his brief silvaculture work in 2000 with fishing during the season and got a job shelving at Zellers. In direct testimony, Wilson said that the on-call nature of the Zellers job, minimum wage, and indoor work did not suit him, so he obtained work again as a fisheries observer in 2001. However, in cross-examination, it appeared that the Zellers job ended because he did not show up for work. He passed the observer certification examination to gain status as a domestic salmon observer. This, however, was not an easy job as the observer, who counts and notes the species of the catch, is not particularly welcome onboard. Also, the fishing industry was in decline. Wilson also worked briefly as a flag person and as a fisheries shoreworker for three weeks in 2001 earning minimal amounts. Unfortunately, Wilson has not worked since 2001.

[20] Wilson earned $18,253 in 1999 from employment, the highest amount that he ever earned by a considerable margin. This was, however, lower than the average earned by a spacer/quality controller in the silvaculture industry. He earned $4,268 from employment the following year and supplemented heavily with employment insurance. He earned $7,772 from employment in 2001, the last year in which he received any income from employment or employment insurance. Prior to 1999, he earned maximum $4,400 from employment insurance benefits. The record reveals that, most often, Wilson’s income was heavily supplemented by employment insurance benefits. These benefits ended in 2002 prior to the accident. Since then, he has received social assistance.

[21] Wilson testified that he had no trouble physically working in the demanding forestry labour positions, but work was drying up and often given to neighbouring bands. The fishing industry was also suffering hard times in 2000-2002 and continues to do so. Wilson dreams of starting a small business chartering boats for tourism, fishing, ferrying, and freight. However, the business plan that he started in 2001 remains unfinished and the dream is still just that. He applied to join the navy in 2001 but did not complete the application requirements that had been asked for in October 2001. Although Wilson explained that the injuries sustained in the accident prevented him from going further with this application, he had not followed up on the matter for over a year before the accident occurred. He said that he did not look for work in 2006 because of medical appointments, litigation matters including custody issues, and depression. He moved to Terrace in April 2007 with the hope that he would find work. This has not happened.

[22] However, the plaintiff expressed optimism that he would find work in the future, especially now that work within the native bands is increasing. There is no medical opinion that has established that the plaintiff is completely unable to work because of the accident. Wilson said that he could no longer perform the work required in silvaculture because of his elbow and back pain and uncertainty. He gave up an opportunity to give it a try because of medical appointments. Smith said that there would have been work for Wilson in previous years if his knees, back and shoulders were strong, but the industry is declining again this year.

[23] Wilson still wants to start his boat tourism business but has taken no further steps to accomplish that goal. He considers that he could operate a boat and feels that this work would suit him because nobody would have control over him. He has also considered doing excavating and bobcat work but explained that he had been unable to take courses because medical appointments arise. He is also interested in mining and railroad opportunities in his community.

[24] In the general practitioner’s medical report of March 2008, he said that the plaintiff initially complained in late 2002 of right shoulder, left elbow, left knee, and neck pain. He had a right scalp laceration and facial abrasion. In March 2008, the plaintiff complained of depression secondary to stress from financial concerns, mild to moderate back pain, bilateral knee pain, right rotator cuff tendonitis, persistent left elbow pain and decreased range of motion, and mild strain injury to his left wrist. It was not established which of these conditions the doctor attributed to the November 2002 accident. However, he said that the laceration was healed with a slight scar, the facial abrasion had healed, the left knee pain had returned to its pre-accident condition in about January 2008, and there were no further complaints of neck pain. The elbow continued to be a problem. The doctor also said that the plaintiff’s lower back pain developed shortly after the accident and had increased in intensity with periodic flare-ups. The right rotator cuff caused difficulty lifting but was expected to improve. The depression was attributed to financial concerns and this litigation. No medication was required. The wrist was no longer a problem. The plaintiff’s general practitioner concluded in his report of March 31, 2008 that the plaintiff is likely to suffer chronic pain in his left elbow and lower back. He considered that these conditions would likely prevent him from seeking and maintaining work that is labour intensive. He also described bilateral knee pain but said that this should not preclude the plaintiff from seeking gainful employment and acknowledged in cross-examination that this ongoing pain was consistent with the pre-accident pain. The doctor was unaware when he wrote the report that the plaintiff had not worked since 2001 and was not aware of the limitations previously imposed upon the plaintiff by his chronic bilateral knee condition.

[25] Dr. Reagan, the orthopaedic specialist who performed surgery in March 2006, testified that Wilson suffered post-traumatic arthrofibrosis after dislocation of his left elbow in the accident. By June 2005, his right shoulder and left knee had settled. Although the surgery improved the range of motion and reduced pain in the elbow, range of motion was permanently affected to the extent that the plaintiff lost about 10 percent of the arc of motion required for daily activities. Although the surgeon recommended physiotherapy after the operation, he testified that he did not think that physiotherapy was absolutely necessary as long as the plaintiff did exercises at home. He would, however, have expected a better recovery had the plaintiff attended physiotherapy.

[26] Wilson attended with Dr. Gouws, an occupational health physician, for an independent medical assessment in August 2006. At that time, Wilson complained of right sided headaches, neck pain, low back pain, left shoulder pain, left elbow stiffness, bilateral knee pain, and left ankle pain. The plaintiff said that the left shoulder was the most painful and that this shoulder had not hurt prior to the motor vehicle accident. However, he agreed that the pain started just before he saw Dr. Gouws but was not sure just when it started. Dr. Gouws knew some of these conditions to pre-date the accident. Dr. Gouws identified the following signs and symptoms of impairment, meaning reduced capacity with pain, at the independent medical assessment of the plaintiff in August 2006: weak grip strength in his hands, general deconditioning and pain with activity, reduced tolerance for above shoulder reaching, neck and shoulder pain with reduced tolerance for prolonged activity, bilateral knee pain, and restricted range of motion of the left elbow. He concluded that these conditions would make it difficult to perform jobs that require sustained and heavier reaching and lifting, especially above shoulder height and that the plaintiff was less capable of working competitively in the open job market without accommodation. He concluded in his report that all of Wilson’s current physical and mental complaints were directly related to the motor vehicle accident because the complaints did not exist for two years prior to the accident according to the plaintiff’s personally reported history. Unfortunately, Dr. Gouws did not have all of the previous medical records pertaining to the plaintiff and was unaware of continuing complaints regarding the knee and lower back prior to the accident. I find the doctor’s conclusions as to causation unreliable for this reason. The doctor said in 2006 that the plaintiff had permanent functional impairment due to injuries sustained to his left elbow, neck, shoulders and knees. He distinguished “impairment” from “problem,” and said that there was no impairment at the time of the accident. He also asserted that the plaintiff had not returned to work since the accident, had expected to do so, but could not operate a chainsaw. In cross-examination, he said that he was aware that the plaintiff had quit work in silvaculture because of knee pain, a significant vocational impairment if continuing. He agreed that if recurring lower back, knee or shoulder pain had prevented the plaintiff from working, it would require further assessment.

[27] Dr. Gouws saw the plaintiff again in March 2008. At that time, he had improved such that the doctor’s only significant findings related to flexion deformity of the left elbow and fatigability in left grip strength. The doctor described the incapacity of the left elbow as mild, leaving the plaintiff still with a good range of motion. The plaintiff had not undertaken recommended rehabilitation procedures following surgery, thereby limiting recovery of range of motion and contributing to pain and stiffness. Based on this, the doctor thought that it would be difficult for the plaintiff to return to his former occupation in silvaculture. As a result, the plaintiff was less employable than he had been prior to the accident. The doctor said that the plaintiff was depressed and at risk of developing a chronic pain condition. He needed vocational assessment and psychological support to guide him into reintegration into the workforce. This would be more difficult now, given the length of time that the plaintiff had been out of work because of delayed surgery on the left elbow and the significant impairment that continued. In cross-examination, Dr. Gouws thought that the knee problems should not prevent the plaintiff from working in silvaculture with rehabilitation. He did not consider the plaintiff to have impairment in the lower back. In conclusion, Dr. Gouws found that the plaintiff could perform up to heavy physically demanding work except that the left elbow would restrict repetitive flexion and extension.

[28] The plaintiff was seen by Dr. Kokan, a semi-retired orthopaedic surgeon, on March 19, 2008 for an orthopaedic assessment. From a review of the medical records and Wilson’s self reports, the doctor concluded that the plaintiff had suffered a mild sprain of the cervical spine, contusion and sprain of the left knee, dislocation of the right shoulder and left elbow, and multiple contusions and bruises in the November 30, 2002 motor vehicle accident. He identified three broad pre-existing injuries: chronic chondromalacia of the patella of the right and left knees which caused intermittent pain, recurrent dislocation of the right shoulder which was asymptomatic prior to the accident but vulnerable, and chronic intermittent low back pain caused by degenerative changes and deconditioning. He concluded that the tenderness and restricted extension in the left elbow was entirely due to the motor vehicle accident. It would have better movement if the plaintiff had undergone physiotherapy. There would be some soreness with repetitive lifting but the plaintiff could perform most activities. Gradually, there would be further changes and vulnerability to reinjury would continue. Although the right shoulder had full function, it was sore at the extremes of motion and more vulnerable to injury as a result of the accident. It would cause problems if the right arm was used above the shoulder for extended periods of time. The left knee was temporarily aggravated by the accident but the problem was largely related to the pre-existing condition. Dr. Kokan did not consider the plaintiff to be disabled from work as a result of the injuries sustained in the accident except for residual difficulties with the left elbow in heavy work activity. There was temporary interference with the activities of daily living but nothing residual. He recommended a personal trainer for 16 sessions to start a desired exercise programme. This would help the plaintiff to reach the point of maximal medical improvement.

[29] A vocational rehabilitation consultant assessed the plaintiff in September 2006. He concluded that the plaintiff was no longer competitively employable but not completely unemployable. Unfortunately, the vocational rehabilitation consultant had limited pre-accident health or employment information, relying only on what the plaintiff told him. For example, he was unaware that the plaintiff had not worked at all in 2002 and only minimally in 2001. He found that the plaintiff was capable of only light to medium strength occupations. This is not consistent with the findings of Dr. Gouws. When viewed in light of Dr. Gouws’s report and taking the combined reports into account, I conclude that the plaintiff had a poor vocational prognosis prior to the accident. From a review of the employment barriers identified by the vocational rehabilitation consultant, it is clear that most pre-dated and have continued since the accident, including lack of recent work experience, poor math skills, location of residence, chronic pain, and subtle cognitive deficit. The remaining effect of the accident, the problem with the left elbow, was not found by Dr. Gouws to preclude physically heavy work, although the nature of that work could not involve repetitious elbow movement. This is not a major change from the situation of the plaintiff prior to the accident. The vocational consultant said that improvement of functional mobility in the left elbow would not make a great difference in the plaintiff’s competitive employability if the plaintiff had been out of the workforce for more than a year, had not proven capable of steady employment, was pre-occupied with personal stresses in life, and suffered chronic knee pain.

[30] The vocational rehabilitation consultant recommended that the plaintiff retrain with the assistance of a job coach for a cost of $4,000-$5,000, a wage subsidy to an employer of $4,000-$5,000, and a heavy equipment course for a cost of $4,000-$5,000. Although he concluded that the plaintiff was probably not competitively employable, he thought that this was worth a try.

Assessment of Damages

(a) Non-pecuniary Damages

[31] The plaintiff suffered a dislocated right shoulder, dislocated left elbow, contusion and sprain of the left knee, mild sprain of the cervical spine, and multiple contusions and bruises in the motor vehicle accident of November 30, 2002. I accept Dr. Kokan’s assessment that the plaintiff’s left knee was not dislocated in the accident but was probably sprained and has fully recovered. The right shoulder had largely resolved by August 2003 but remains vulnerable to re-injury. The left elbow has been the greatest problem, heightened by the lengthy wait for surgery. The plaintiff has lost about ten percent of the movement in this elbow and has residual tenderness. The incapacity is, however, mild and the plaintiff still has a good range of motion in the elbow. The left knee had largely resolved to its pre-accident state by June 2005. It is difficult to ascribe continuing lower back pain to the accident. I conclude that there was some accerbation of the historical back pain in the accident but do not find that continuing problems can be attributed to the accident. The plaintiff’s scalp laceration and facial abrasions have healed.

[32] The plaintiff’s depressive condition was not caused by the accident. The condition is not medicated and arose from a personal situation characterized by financial and custody problems, bereavement, and chronic health conditions, independent of any injury suffered in the accident. There is no medical opinion that the depression would not have occurred but for the accident.

[33] In Thorp v. Gerow, 2008 BCSC 622 (Thorp), a case cited by both parties, the plaintiff suffered a right elbow dislocation that did not require surgery and that resulted in 5 degrees lost extension with continuing discomfort. A wrist injury cleared in a couple of weeks. The elbow injury restricted previous physical activities. The plaintiff was awarded $50,000 in non-pecuniary damages. In Foreman v. Moritz & Avco Financial Services Canada, 2001 BCSC 95 (Foreman), the plaintiff suffered a shoulder dislocation which left a small but permanent restriction in movement. The non-pecuniary damage award was $25,000.

[34] Wilson’s injuries here are more significant that in either Thorp or Foreman. The plaintiff required two surgeries for the left elbow dislocation (including a closed reduction) and a closed reduction of the dislocated right shoulder, among other injuries described above. Wilson has greater permanent restriction in movement of the left elbow than did the plaintiff in Thorp and still has nagging pain. He is stoical about the continuing pain and discomfort. Although I do not find that the permanent elbow restriction hinders recreational activity, the plaintiff’s right shoulder injury caused pain when swimming until June 2005. The plaintiff suffered while he waited for surgery between 2003-2006. I assess non-pecuniary damages at $85,000.

[35] As for mitigation, the defendant argued that the plaintiff should have taken physiotherapy and would have improved had he done so. The fact is that the plaintiff did physiotherapy immediately after the accident and continued exercises at home. While it is true that the plaintiff refused to attend with a certain physiotherapist, this must be assessed in light of the fact that this was the only therapist in a small town, leaving the plaintiff with no recourse. The number of sessions attended is consistent with the ability to perform the designated exercises competently at home, according to Dr. Kokan. Dr. Reagan was not certain that physiotherapy would have helped the plaintiff’s elbow but expected more improvement if the plaintiff had undergone a rehabilitation programme as recommended. The plaintiff testified that he performed the exercises as recommended at home. The improvement in his elbow from 2006-2008 supports that this was done. In all of these circumstances, I do not find that the defendant’s failure to undergo physiotherapy after the 2006 surgery was unreasonable.

(b) Loss of Opportunity Pre-Trial

[36] The plaintiff argued that there was a real possibility that he would have worked odd jobs to make ends meet in 2003, 2004 and 2005 and that he would have worked in silvaculture in 2006, earning $20,000-$25,000 per year. Given the real earnings to date of trial, the plaintiff sought $35,000 for past loss of opportunity to earn income. The defendant said that the plaintiff is entitled to nothing because there were no opportunities for the plaintiff in silvaculture and the plaintiff chose for his own reasons not to work.

[37] Because it is hypothetical whether the plaintiff lost employment opportunities prior to trial, the question is, first, whether it was a real possibility that the plaintiff would have gained employment but for his injuries and, second, what the actual likelihood was of it occurring (Smith v. Knudsen, 2004 BCCA 613 at paras. 28-29). What is the relative likelihood that Wilson would have been employed but for the injuries? What would he have been able to earn but for the accident prior to trial? Was the plaintiff’s failure to work at gainful employment the result of causes unrelated to his injuries?

[38] One factor to consider is past work history (Vaillancourt v. Molnar, 2002 BCCA 685 at para. 72). The plaintiff’s past record of earnings prior to the accident indicates no employment income in 2002 and an average income of about $10,000 per year in the three years prior to that for an overall average of $7,573 per year prior to the accident. This represents work for about 25 percent of a year according to the vocational rehabilitation expert. The plaintiff never worked full time for a full year or even for a full season, except in 1999. His employment record was sporadic. He did not follow up on opportunities that he was interested in, particularly the boat tourism business and the military. His past employment in the retail sector ended because he did not show up for work. The failure to work at all in 2002, the sporadic work history, and termination for failure to show up for work indicate a lack of connection to the workforce and a poor prognosis with respect to return to work according to Dr. Gouws.

[39] There was no real possibility that Wilson would have found work in silvaculture in the years after the accident and prior to trial. In the 1999 season that Wilson worked in silvaculture, he mostly operated the boat and coastal work of that nature subsequently dried up. Other work required a relationship with other First Nation bands. The silvaculture operator with whom Wilson worked said that funding dried up in 2002 and he reduced his crew to five or six. There was funding in 2007 and 2008 and the operator could have used more people, but he could not find them, and did not want inexperienced workers. He said that workers had to be able bodied with good knees and shoulders, otherwise they could not “take space in the bus”. At the time of trial, there was not a lot of work and competition was stiff. Although the operator said that he would have hired Wilson, the fact is that Wilson stopped work in silvaculture because of his knees in 2000 and only worked one day in 2001. Wilson did not try to gain employment with other operators.

[40] There were other jobs that Wilson could have applied for but he did not like them for one reason or another. He did not want to be a fisheries observer because of the connotation of that position among fishermen. He did not want to work in retail because he did not like indoor shift work. He said that there were other opportunities to work in the forest but he gave the jobs to others because he had medical appointments. Although this explanation seems implausible, the vocational rehabilitation consultant explained that this is indicative of poor coping mechanisms, possibly due to preoccupation with stressors in life. He said that Wilson did not work because he was primary caregiver for his infant daughter and then involved in a custody battle, because he lived in a secluded area, and because he wanted to wait for this trial to end. Significantly, Wilson acknowledged that no doctor ever told him that he was unable to work.

[41] In all of the circumstances, I do not find that it was a real possibility that the plaintiff would have gained work but for his injuries in the years since the accident and prior to trial. The plaintiff lacked motivation to work unless it was exactly what he wanted. He made no effort to retrain and did not apply for any jobs. He did not attempt to pursue work that he could have done in spite of his injuries even though he had a duty to do so (Parypa v. Wickware, 1999 BCCA 0088 at para. 67 (Parypa)). I have considered all substantial possibilities that the plaintiff would have worked and conclude that they are so unlikely to have occurred as to be negligible.

[42] The factors to consider when assessing whether a plaintiff has suffered a loss or impairment of his capital asset, the ability to earn income, have been set out in Parypa at para. 31 and Rosvold v. Dunlop, 2001 BCCA 1 at para. 10. They include:

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

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

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

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

[43] Dr. Gouws and Dr. Kokan both testified that the restriction in motion in the plaintiff’s left elbow will prevent him from work of a heavy nature that requires repetitive flexion and extension or lifting above the shoulder. This condition precludes a return to silvaculture work that requires use of a chainsaw. This situation is directly attributable to the accident. From the evidence of Drs. Reagan, Gouws, and Kokan and from the general practitioner, I conclude that the plaintiff’s knee condition, while troublesome at times, had not rendered him completely disabled from work either prior to or since the accident. Unknown to Dr. Gouws, the condition did, however, prevent him from continuing in silvaculture in 2000 and will restrict him from performing work of that nature. The question is whether this pre-existing knee condition also prevents the plaintiff from work of a heavy nature generally. The evidence established that the plaintiff has a chronic intermittent disorder of the knees that is progressive and that will escalate in deterioration with heavy work. In the end, I find that the plaintiff’s capacity to perform work of a heavy nature, while substantially circumscribed prior to the accident, has been completely eroded as a result of the injury to the left elbow.

[44] Both Dr. Gouws and the vocational rehabilitation consultant concluded that the plaintiff is no longer competitively employable. This does not mean that the plaintiff will never be employed again. However, both were unaware that the plaintiff had not worked since 2001. The plaintiff’s employment barriers pre-dated the accident, except for the limited restriction on heavy work imposed by the condition of the left elbow. The vocational rehabilitation consultant testified that the restriction of mobility in the left elbow would not greatly affect the plaintiff’s employability given that the plaintiff had been out of the workforce for more than a year prior to the accident, had not proven capable of steady employment, had personal stresses that were pre-occupying, and suffered chronic knee problems. The injury to the elbow is a minor reason why the plaintiff is out of the workforce. Nonetheless, the plaintiff has been rendered less attractive as an employee as a result of the elbow injury.

[45] The plaintiff did not have the earning potential of the average BC male and was not rendered competitively unemployable as a result of this accident. The statistical data supplied by the plaintiff is not helpful. I find the plaintiff’s suggestion that he will lose an average $15,000 per year as a result of the elbow injury to be unrealistic. The plaintiff is again plagued with his previous employment history as a fair indicator of future prospects. However, he said he wanted to work and was unhappy receiving social assistance. His personal stress should be reduced into the future. He expressed interest in becoming a heavy equipment operator or working in mining or on the railway. These are realistic possibilities given that the plaintiff is not incapacitated from work by non-accident related conditions and only limited in a minor way for heavy labour by the permanent injury to the left elbow.

[46] In Foreman, the plaintiff was awarded $10,000 for loss of earning capacity following left shoulder dislocation which left him with a permanent but minor disability. In Thorp, there was a substantial possibility that the plaintiff would have still worked in construction. He was awarded $50,000 for loss of future earning capacity in consideration of the permanent restriction on extension caused by the dislocated elbow.

[47] In all of the circumstances, an award of $25,000 for loss of income earning capacity is appropriate.

(d) Cost of Future Care

[48] Dr. Kokan recommended a personal trainer for conditioning and improvement of elbow function. Both parties agreed that this was an appropriate expense. $3,000 is awarded for this cost.

[49] The vocational rehabilitation consultant recommended a job coach, an employer subsidy, and retraining to operate heavy equipment. Wilson expressed an interest in this type of employment. I have concluded that this was a realistic possibility into the future. The elbow injury put the plaintiff over the top in terms of inability to perform heavy work. It is reasonable that he receive appropriate retraining. $15,000 is awarded for this purpose.

[50] The total damages for cost of future care is $18,000.

Summary

[51] In summary, the plaintiff is awarded the following:

(a) $85,000 for non-pecuniary damages,

(b) $25,000 for loss of future earning capacity,

“Dillon J.”

________________________________

The Honourable Madam Justice Dillon

Citation:	*Wilson v. Bird,*
	2008 BCSC 1586