2008 BCSC 1589 Hartnett v. Leischner & ICBC

Before: The Honourable Madam Justice Russell

Reasons for Judgment

Counsel for Plaintiff	S.P. Frame
Counsel for Defendant	Non-appearance
Counsel for Third Party	B. Boan
Date and Place of Trial:	May 12, 13 & 16, 2008
	Campbell River, B.C.

INTRODUCTION:

[1] The plaintiff, David Hartnett, claims damages for personal injuries sustained in a motor vehicle accident (the “Accident”) on November 17, 2004, in Ladysmith, B.C. This was a particularly unfortunate Accident as the defendant was impaired by alcohol and the Accident occurred while Mr. Hartnett was in Ladysmith caring for his father, who was terminally ill with cancer.

[2] Prior to the Accident, Mr. Hartnett was a hardworking individual who led a very active life, both at work and outside work. He participated in a wide range of outdoor activities with his family and friends, and was active in the maintenance of the family home.

[3] Mr. Hartnett, 43, was employed by the Canadian National Railway (“CN Rail”) at the time of the Accident, in Smithers, B.C. Mr. Hartnett was qualified to work in two different job positions at CN Rail, in yard service and in road service. The road service position pays a significantly higher salary than the yard service position and it can result in longer periods of time off in between shifts.

[4] Mr. Hartnett contends that as a result of the injuries suffered from the Accident, in particular those to his hips, lower back and shoulders, he is unable to work in road service. Prior to the Accident, Mr. Hartnett consistently chose to work in road service whenever it was available, although due to his seniority level he often had to work in yard service. Further, he contends that he is unable to perform many of the tasks around the family home that he performed prior to the Accident.

[5] The defendant and third party did not formally admit liability at trial. However, no evidence was called at trial to dispute this issue. I find the defendant wholly liable.

ISSUES:

[6] The issues for determination before this Court are:

(a) What damages, if any, should the plaintiff receive for non-pecuniary losses?

(b) What damages, if any, should the plaintiff receive for his diminished capacity at work?

(d) What damages, if any, should the plaintiff receive for lost homemaking capacity?

(e) Is the plaintiff entitled to an award for cost of future care?

FACTS:

Pre-Accident Condition

[7] Mr. Hartnett was born on March 8, 1965 in Edmonton, Alberta and grew up in Winnipeg, Manitoba.

[8] Mr. Hartnett graduated from grade 12 in 1983 and after entering the workforce for one year, attended a community college where he completed a 10-month course in industrial electronics.

[9] Following this course, he worked as a computer technician in Winnipeg, Manitoba for 10 months prior to being laid off. At some point subsequently, he moved to Smithers, B.C. at the suggestion of his older brother.

[10] In 1989, he was hired by CN Rail in Smithers, B.C. where he continues to work as a Conductor Locomotive Operator. This position qualifies him to operate train engines under the supervision of an engineer. During his 19 years at CN Rail, he has worked in two different job classifications: yard service and road service.

[11] Mr. Hartnett continues to lives in Smithers, B.C. with his wife, Diane, and his two boys, Nathan and Adam, aged 12 and 10 respectively.

[12] Prior to the Accident, the plaintiff was in good health and enjoyed an active, outdoor lifestyle with his family and friends. After work, he would often come home and go for a bike ride or perform yard or home maintenance work. He would also socialize with friends or play with his two young boys.

[13] Mr. Hartnett participated in a number of outdoor activities over the years, at varying levels of frequency, including: biking, hiking, running, camping, golfing, downhill and cross-country skiing and snowshoeing.

[14] Mr. Hartnett was particularly active in both mountain and road biking, which he did several times a week. Typically, his bike rides would vary in length between 10 to 60 kilometres. In 1994, Mr. Hartnett and his wife participated in a 180 kilometre race between Terrace and Prince Rupert. In the summer of 2003, he participated in this race alone.

[15] The plaintiff pursued a number of outdoor activities with his wife and children. The family would often go hiking on trails around Smithers. The family also regularly went on camping holidays around the Smithers area, where they would go hiking, canoeing and biking.

[16] The plaintiff was also active around the home, contributing to the general maintenance and upkeep of the family’s home and automobiles. This included yard work, automotive maintenance, fence and deck construction, limited housework, snow shovelling and general repairs around the house.

[17] Prior to the Accident, Mr. Hartnett was in overall good health and did not have any chronic health problems. In 1997, Mr. Hartnett suffered a work-related shoulder injury. The injury caused Mr. Hartnett to miss two months of work, but he has not suffered any residual impacts. He also had a minor medical procedure to remove a small lump from his inner thigh.

The Accident

[18] At the time of the Accident, Mr. Hartnett was on compassionate care leave from work and taking care of his father in Ladysmith, B.C. In 2004, his father’s cancer returned and he was given a short period of time to live. His father wanted to stay at home for his remaining months and Mr. Hartnett took compassionate care leave from his job, left his family in Smithers and moved to Ladysmith into his father’s home to provide full-time assistance. While there, Mr. Hartnett provided care to his father, cooked meals and ran errands. Mr. Hartnett remained in this role for six months, until his father’s death in February 2005.

[19] The Accident occurred on November 17, 2004 at approximately 12:00 p.m. on Highway No. 1 at the intersection of Cedar Road in Ladysmith, B.C. Mr. Hartnett was the seat-belted driver of his father’s car proceeding southbound on a green light, on Highway 1 (known as the “Island Highway”) through Cedar Road. He was returning from the B.C. Ferries terminal in Nanaimo where he was dropping his brother off to return to Vancouver.

[20] The defendant was driving northbound on Highway 1 and made a left-hand turn in front of the plaintiff causing the two cars to collide. This collision subsequently forced the plaintiff’s car into a secondary collision with a lamp standard.

[21] Both vehicles were extensively damaged. The plaintiff’s car was written off by the insurer and the defendant’s car was sold to an auto wrecker for scrap, as it lacked collision coverage.

[22] Mr. Hartnett sustained a number of injuries and was taken by ambulance to the Nanaimo Regional General Hospital. He suffered a number of initial injuries, including concussion, cuts to his face, shoulder and legs, and bruising from his seatbelt. He also sustained a number of more serious injuries to his neck, shoulder, hip, lower back, knee, wrist, chest and hands.

[23] Mr. Hartnett left the hospital that day as there was no one else available to take care of his father. Following the Accident, his younger brother came for a short period of time to assist both him and his father. Mr. Hartnett then resumed taking care of his father until his father’s death in February 2005.

[24] Subsequent to the Accident, the defendant was charged under s. 253(a) and (b) of the Criminal Code, R.S.C. 1985, c. C-46, for operating a vehicle while impaired and operating a vehicle with over 80 milligrams of alcohol. On January 5, 2006, the defendant was convicted of contravening s. 253(b) of the Criminal Code and received a conditional sentence of four months, two years probation and a two-year driving prohibition.

Post-Accident

[25] The injuries had, and continue to have in certain aspects, a number of impacts on Mr. Hartnett’s professional and personal life. While many of the injuries sustained in the Accident have largely healed, save for some occasional “flare-ups”, there remain significant injuries to his hip, lower back, right shoulder and right knee which cause Mr. Hartnett considerable pain on a regular basis.

[26] Following the Accident, Mr. Hartnett was treated by his father’s physician, Dr. Britton-Foster, while he remained in Ladysmith caring for his father.

[27] Initially, Mr. Hartnett experienced severe headaches and flashbacks of the Accident on a regular basis and had trouble sleeping. He had significant amounts of pain in his chest area, lower back and neck, as he could not turn more than 30 or 40 degrees.

[28] Mr. Hartnett’s condition only permitted him to walk for short periods of time, which slowly increased as his injuries healed. As well, he was unable to do any heavy lifting at this time. He was forced to call an ambulance when his father fell in his home and he was unable to lift him. The ambulance attendants were required to come to the apartment to pick his father up off the floor and put him back in his bed.

[29] Mr. Hartnett commenced physiotherapy in Ladysmith approximately two weeks after the Accident and continued until he returned to Smithers.

[30] Mr. Hartnett’s father passed away on February 12, 2005. Subsequently, Mr. Hartnett sold his father’s home in Ladysmith and returned to Smithers. He re-commenced work on March 1, 2005 in yard service.

[31] Assignments to yard service or road service positions are made for 3-month terms. An employee is assigned to one of those positions based on two factors: the preference outlined by the employee in a quarterly election and an employee’s seniority. There is a significant difference in the salary between the two positions. The road service position pays approximately $35,000 per annum more than yard service, given the pay and bonus structures.

[32] The quarterly election allows employees to indicate their position of choice for the upcoming three months. Employees then make further choices as to their preferred jobs within each respective position. This process repeats each quarter; employees can change their election if desired. In spite of the employees’ elections, seniority is ultimately determinative of the placement of employees if there are more elections for one position than available jobs.

[33] The yard service and road service positions encompass a variety of duties, many of which are present in both positions. A number of these duties can be physically demanding, which can be amplified by certain factors, including weather conditions, whether the train is in motion, what speed the train is travelling at and the grade of the track.

[34] The yard service position requires employees to “make up” and “take apart” trains in preparation for train travel. Employees assist in servicing and preparing different types of train cars for departure in order to handle the various types of freight that will be transported. This involves various tasks, such as getting on and off trains (either stopped or in motion at speeds up to 10 miles per hour), tying on handbrakes, connecting train cars and air brake systems, switching cars, climbing up train cars (up to 25 feet in height), aligning switches to change tracks, and verifying equipment.

[35] In addition to some of the jobs listed above, the road service position encompasses the duties involved in driving the train and delivering freight from the terminal to the intended destination(s). This often involves picking up additional cars or freight and off-loading cars at various points en route to the destination terminal(s).

[36] The yard service position is paid at an hourly wage and takes place over an eight hour shift. The road service position is paid on a mileage basis. This position often involves longer shifts and, depending on the length of a trip, employees may be required to rest for a certain number of hours before making the return trip to the originating terminal.

[37] In the road service position, once an employee has travelled 4,300 miles in a month, they are not required to work for the remainder of that month. Employees may however elect to go on additional trips, at the normal mileage rate, if there is extra work available. In addition to the mileage rate, there are a number of bonuses that may be paid during road service. These bonuses are contingent on a number of factors, including length of train, length of trip, and picking up additional train cars en route.

[38] Mr. Hartnett stated his preference for road service due to the increased salary and opportunity to have longer periods of time off with his family, due to the structure of the position.

[39] Upon his return to work in March 2005, Mr. Hartnett experienced a number of difficulties resulting from his injuries. The overall physical nature of the yard service position was difficult given the six month break from his employment at CN Rail and the impact of his injuries. In particular, he had difficulties getting on and off the equipment, as well as applying handbrakes, due to pain in his neck, shoulders, knee and hip. He also had pain in his lower back and left hip, which was responsible for the majority of his pain.

[40] All of these injuries impacted his ability to work because he could not perform his job as efficiently as before. This adversely affected his relationship with some of his co-workers as they would have to stop the train to enable him to get off, instead of simply jumping off the train while it was still in motion.

[41] Upon his return to Smithers, Mr. Hartnett attended the gym for a short period of time in order to improve his strength. However, he soon found this to be too difficult to do in conjunction with his work. In order to relieve some of the pain from work, he would stretch after each shift. He was unable to take any pain medication at work because CN Rail has a zero tolerance drug policy.

[42] Mr. Hartnett elected and was placed on road service from May to November, 2006. While a number of his injuries were improving at this time, his lower back and hip continued to bother him. The pain to these two areas increased once he commenced road service, in comparison to yard service. The duties of the position were physically demanding for Mr. Hartnett, given his injuries. In particular, it was difficult for him to sit for long periods of time, as required in road service. The chairs provided to employees were bolted to the frame of the engine and provided no cushion or support from all of the bumps of the tracks and constant vibrations generated as the train travels. Further, getting on and off the train was difficult as the grade of the tracks was generally steeper outside the terminals, in order to allow run off, making the distance from the train to the ground up to three feet. Often, he was required to jump on and off the train while it was in motion.

[43] All of this significantly affected the speed at which Mr. Hartnett could perform his duties. This in turn led to difficulties with his co-workers. Mr. Hartnett was called “lazy” and “slow” by some co-workers because he was unable to perform jobs as quickly as other employees, which impacted the overall productivity of the crew and could ultimately affect remuneration. It is to be noted that such duties posed no difficulties to Mr. Hartnett prior to the Accident. He testified that he would regularly jump off the train, at speeds up to 10 miles per hour, while it was still in motion in order to perform his job more efficiently.

[44] After work, Mr. Hartnett would have to stretch at home for up to two hours in order to relieve the pain resulting from his shift.

[45] The physical impacts of the road service position affected Mr. Hartnett’s personal life. He did not socialize to a great extent because he was unable to sit for long periods of time. He was unable to go on long bike rides because it was uncomfortable and bothered his hip and wrists. Finally, he was not able to play with his children to the same degree because it was difficult to make movements involving his back or requiring much flexibility.

[46] From November 2006 to March 2007, Mr. Hartnett returned to yard service because he did not have the seniority to maintain road service. The return to yard service corresponded with a decrease in hip and back pain, along with right shoulder pain. The other injuries had largely healed, save for minor amounts of intermittent pain. In order to deal with the pain, Mr. Hartnett continued to stretch at home following his shifts.

[47] In November 2006, Mr. Hartnett injured his knee at work while crossing equipment. As a result he missed three days of work. Following that, he returned to his normal work duties. This injury, along with a shoulder injury sustained in 2005, did not impact Mr. Hartnett’s work abilities or productivity upon Mr. Hartnett’s return to work.

[48] Mr. Hartnett returned to road service, through his election, from May to September, 2007. There was a marked increase in pain upon Mr. Hartnett’s return to road service. This was in contrast to yard service where his pain reached a certain level and would “plateau”.

[49] The pain in his hip, lower back and shoulders increased and became difficult to handle. He continued to have difficulties sitting for long periods of time, as well as walking on the rough ballast.

[50] Mr. Hartnett stated that the injuries to his lower back and hip were responsible for preventing him from working at the style and speed at which he was able to prior to the Accident; his shoulder injury caused pain, but did not hinder him from working. Due to his lower back and hip injuries, he could not get off moving equipment or walk quickly to perform inspections, both of which angered his co-workers as it reduced productivity and efficiency. The problems with his co-workers continued to escalate from his previous shift in road service and one conductor told him to “get off the job” if he could not do the work required.

[51] In October 2007, Mr. Hartnett elected to return to yard service because of the difficulties he was having with road service and he currently remains in this position. Overall, Mr. Hartnett prefers yard service, despite the fact that it is a more physically demanding and active shift in comparison to road service, because the pain levels caused by this position are less severe and therefore more manageable. The recovery time following a yard service shift is significantly shorter in comparison to a road service shift. Further, given the pay structure of yard service, Mr. Hartnett’s co-workers are not financially impacted by his reduced capacity, which, for example, now requires the trains to be stopped in order for him to get off.

[52] Mr. Hartnett did return to physiotherapy in Smithers, approximately 6 or 8 times, within the last year for his shoulders. He stated that while the physiotherapy sessions did provide some initial relief, it did not improve the underlying pain which continued to affect him intermittently. He has not attended any physiotherapy for his lower back or hips since 2005.

[53] On a personal level, Mr. Hartnett is currently unable to participate, to the same level or degree, in the many outdoor activities that were part of his life prior to the Accident. He finds it painful to play with his children, to the same degree as he did prior to the Accident. He is also unable to perform automotive maintenance and is limited in his abilities to perform yard and home maintenance without experiencing a “fair amount of pain”.

Positions of the Parties

[54] Mr. Hartnett claims that as a result of the Accident, he suffers from a number of ongoing injuries, particularly to his left hip, lower back and right knee. As well, he continues to experience pain in his shoulders, but not to the same degree as his other injuries. He argues these injuries have, and will continue to have, a significant impact on both his work and personal life.

[55] As a result of the ongoing injuries, Mr. Hartnett claims that he is unable to perform road service without significant pain and discomfort in his hip, lower back and shoulders. Since the Accident, he has elected road service for two periods of time and in both instances the pain from these injuries was worsened, substantial and difficult to handle. In particular, it is difficult for him to walk on the steeper terrain of the railway tracks outside the terminal, get on and off moving equipment and sit for longer periods of time in the train car.

[56] Based on this, Mr. Hartnett states he had to elect yard service due to the debilitating effects of the road service position on his injuries. While he still experiences pain when working yard service, the pain is more manageable due to the nature of the position. In contrast, the road service position aggravates his injuries and results in increased levels of pain. This is evidenced by the fact that the pain and discomfort resulting from a road service shift lasts for up to a “couple of days”; whereas in yard service, the pain only persists for a couple of hours after a shift.

[57] Further, Mr. Hartnett claims that the injuries have impacted his abilities to contribute around the family home, as well as in his personal life. His abilities to perform home and yard maintenance have been severely affected, which have forced his wife and children to assume many of the responsibilities he previously performed. Similarly, he is unable to participate in many of the outdoor recreation activities that assumed a large part of his family and social life. He submits that in both cases his participation in those activities aggravates his injuries to such an extent that he is unable to perform many of those jobs or activities without considerable pain.

[58] The position of the defendant is that Mr. Hartnett’s injuries do not prevent him from working road service. They argue this on a number of grounds. First, Mr. Hartnett did not complain to his doctors about the effects of his lower back and hip pain for a significant length of time following the Accident. Second, Mr. Hartnett did not take reasonable steps to help improve his injuries, such as seeking out the advice of a doctor or attending additional physiotherapy sessions. Third, Mr. Hartnett worked a number of road service shifts in 2006 and 2007, which is significant for a person claiming to be in considerable pain. Finally, the expert reports indicate a healthy prognosis for Mr. Hartnett and an overall improvement in his injuries. They do not indicate that he is, or will be, unable to perform road service.

[59] Further, the defendant questions the causal link between the left hip injury and the motor vehicle Accident based on the expert report of Dr. Leith and the conduct of Mr. Hartnett following the Accident, namely that he did not initially identify any pain in his left hip after the Accident, nor in some subsequent medical appointments.

EXPERT EVIDENCE:

Dr. Leith

[60] Dr. Leith evaluated Mr. Hartnett on January 24, 2008. Prior to issuing his report, Dr. Leith examined the medical records of Mr. Hartnett, both before and after the Accident, information from the Accident and a job description outlining the physical requirements for a conductor at CN Rail. Mr. Hartnett also provided an account of his medical history as well.

[61] At the time of the examination, Mr. Hartnett complained to Dr. Leith about ongoing bilateral shoulder pain and left hip pain. Mr. Hartnett described the left hip pain as intermittent in nature, and localized to the lateral aspect of the left hip in the trochanteric region. Mr. Hartnett stated that initially physiotherapy did help with his shoulder pain to a certain degree. However subsequent physiotherapy resulted in improvements to the range of motion, but not with respect to pain.

[62] In Dr. Leith’s examination of the hip, he concluded everything appeared normal, except some mild tenderness over the left greater trochanter. Dr. Leith was informed by Mr. Hartnett that during the evaluation his symptoms were relatively pain-free, but that he could wake up tomorrow in significant pain.

[63] Dr. Leith concluded that Mr. Hartnett sustained soft tissue injuries to the chest, left ribs, right knee, right hip and right shoulder. He found no obvious structural damage to those areas. The left hip injury was most likely a soft tissue injury to the left greater trochanter region of the hip. Dr. Leith found that the symptoms were likely the result of the motor vehicle Accident given the temporal relationship to the Accident and the fact that Mr. Hartnett had no pre-existing conditions in those areas.

[64] Dr. Leith went on to conclude that there was no objective evidence of any structural injury to the musculoskeletal system, nor any structural damage to the impacted areas. He assessed Mr. Hartnett’s prognosis as “good”, but stated he may have ongoing intermittent symptoms depending on his activity level and that the symptoms are aggravated by several aspects of Mr. Hartnett’s employment.

[65] Based on his findings, Dr. Leith concluded surgery would not be required. Dr. Leith was unable to determine if Mr. Hartnett’s symptoms were permanent, but noted that three years had passed since the Accident and Mr. Hartnett still experiences problems. Consequently, he concluded that it was likely that Mr. Hartnett would have problems related to his employment, recreation and home maintenance duties.

Dr. Gilbart

[66] Dr. Gilbart conducted a physical examination of Mr. Hartnett on February 18, 2008. Prior to issuing his report, he examined some of Mr. Hartnett’s medical records, both before and after the Accident, as well as Mr. Hartnett’s account of his medical history.

[67] Mr. Hartnett outlined to Dr. Gilbart the extent of his injuries in both shoulders and hips, and advised that he continues to suffer pain in both of his shoulders and hips. In his right hip, the pain is located in the anterior aspect of his right hip, as well as lateral hip pain. Further, he has a progressive amount of pain in his left hip, to the anterior superior aspect of the groin. The pain in his left hip has progressively worsened since the Accident. The pain in his hips is activity related and increases with walking and activity, as well as sitting for prolonged periods of time.

[68] Dr. Gilbart concluded that Mr. Hartnett suffered a mild soft tissue strain in his shoulders. However, he stated Mr. Hartnett would not require any further treatment or surgery for his shoulder or lower back; that the overall prognosis is “good”. Dr. Gilbart also concluded that Mr. Hartnett suffered a soft tissue injury to his right hip, evidenced by the progressive pain developing in his contralateral left hip. However, there was no objective sign of pathology in either hip and no objective reason for his ongoing hip symptoms; no surgery would be required for either hip.

[69] Dr. Gilbart found that there were no structural abnormalities in either hip, which would preclude Mr. Hartnett from performing road or yard service. He could however benefit from more physiotherapy.

[70] Dr. Gilbart stated that there were no inconsistencies in Mr. Hartnett’s self-reported history and no non-organic findings were noted on the examination.

[71] I note that while Dr. Gilbart did not link the pain in Mr. Hartnett’s hips to the Accident, his report did not give any indication as to other possible causes based on his review of Mr. Hartnett’s medical history.

CAUSATION:

[72] The defendant argues that Mr. Hartnett’s hip injury is not causally related to the Accident, principally on two grounds: the conclusion drawn by Dr. Gilbart in his report and Mr. Hartnett’s failure to immediately identify and discuss his hip injury, and its corresponding impact on his ability to work in road service, to his physicians.

[73] The Supreme Court of Canada recently re-articulated the principles surrounding the law of causation: Resurfice Corp. v. Hanke, 2007 SCC 7. The “but-for” test remains the proper test for causation, which requires the plaintiff to demonstrate, on a balance of probabilities, that the injury would not have occurred but-for the negligence of the defendant. A substantial connection must exist between the act(s) of the defendant and plaintiff’s injury: see paras. 18-28.

[74] The defendant argues that the plaintiff did not establish causation with respect to his hip injury. They highlight Dr. Gilbart’s conclusion at page 9 of his report: “On physical examination there is no objective sign of any pathology in either hip. I could find no objective evidence of any reason for his ongoing hip symptoms”. However, Dr. Gilbart also concluded that there were no inconsistencies in Mr. Hartnett’s self-reported medical history and he found no non-organic symptoms in his examination. The report of Dr. Gilbart and the evidence at trial do not outline or identify any other potential sources for Mr. Hartnett’s hip injury.

[75] The findings of Dr. Leith indicate a causal connection between the plaintiff’s hip injury and the Accident. Dr. Leith found that Mr. Hartnett’s left hip injury is a soft tissue injury to the left greater trochanter region of the hip. Dr. Leith concluded, at pages 4 and 5 of his report, that Mr. Hartnett’s hip symptoms are “most likely the result of the subject MVA based on the temporal relationship to the Accident and the fact that there is no indication that Mr. Hartnett had any pre-existing conditions to these areas”.

[76] Dr. Leith’s finding that Mr. Hartnett had no prior injuries to his hip is consistent with the evidence led at trial. The evidence did not disclose that Mr. Hartnett had any hip problems, or physical limitations in performing road service prior to the Accident. Further, the evidence of Mr. Hartnett and his wife demonstrates Mr. Hartnett’s willingness to work through pain and his stoic nature. Mr. Hartnett’s reluctance to disclose his hip injury to his physicians does not indicate a lack of connection between the Accident and the injury. Rather, it simply demonstrates that Mr. Hartnett was reluctant to complain about his hip injury based on his personality and his hope that it would gradually heal on its own.

[77] I find Mr. Hartnett’s hip injury is casually related to the Accident since the evidence demonstrates, on a balance of probabilities, that he would not be suffering a hip pain but for the Accident.

FUTURE PROGNOSIS:

[78] The reports of Drs. Leith and Gilbart both indicate the prognosis for Mr. Hartnett’s injuries is positive and that surgery will not be required. Neither examination finds any substantive problems in Mr. Hartnett’s hip, which is his principal, ongoing complaint, along with his shoulder and lower back. Based on an initial review of these reports, it may seem that the severity of Mr. Hartnett’s injuries is minimal and any corresponding impacts on his work and personal life would also be negligible. However, I am persuaded, based on the evidence of Mr. Hartnett and his wife, that the injuries to his hip, lower back and shoulder are in fact significant and continue to cause him considerable pain during various physical activities, especially certain aspects of his employment, recreation and home maintenance activities. I found that both Mr. Hartnett and his wife gave their evidence in a straightforward and honest manner with respect to their recollections and assessments of the Accident and its impact on Mr. Hartnett and the family. I also agree with the conclusion reached by Dr. Leith, that given the time elapsed since the Accident and the extent of Mr. Hartnett’s pain, it is likely that these injuries will continue to affect him in the future.

[79] It is clear that Mr. Hartnett experiences greater amounts of pain while working road service, as compared to yard service. He has twice attempted to work road service since the Accident, for a total of 12 months, and found the job duties resulted in a significant increase in pain. As a result, he was forced to elect yard service because the job requirements in that position, while still painful, were more manageable. Based on all of the evidence, I find these injuries will continue to adversely affect Mr. Hartnett for the foreseeable future.

DAMAGES:

Non-Pecuniary Damages

[80] The purpose of non-pecuniary damage awards is to compensate the plaintiff for “pain, suffering, loss of enjoyment of life and loss of amenities”: Jackson v. Lai, 2007 BCSC 1023, B.C.J. No. 1535 at para. 134; see also Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Kuskis v. Tin, 2008 BCSC 862, B.C.J. No. 1248. While each award must be made with reference to the particular circumstances and facts of the case, other cases may serve as a guide to assist the court in arriving at an award that is just and fair to both parties: Kuskis at para. 136.

[81] There are a number of factors that courts must take into account when assessing this type of claim. Justice Kirkpatrick, writing for the majority, in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19, outlines the factors to consider, at para. 46:

The inexhaustive list of common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life.

I would add the following factors, although they may arguably be subsumed in the above list:

(g) impairment of family, marital and social relationships;

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff's stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54 (B.C. C.A.)).

[82] The authorities presented by both parties involving similar soft tissue injuries support a damage award ranging from $28,000 to $75,000. Based on my findings and upon reviewing these cases, I find an award for non-pecuniary damages in the amount of $60,000 as an appropriate and fair amount.

[83] Mr. Hartnett argues that he sustained moderate soft tissue injuries that have become chronic in nature. Based on his evidence and that of his wife, Diane Hartnett, the plaintiff submits that given the nature and extent of the injuries suffered from the Accident and the continued impacts on both his personal and professional life, an appropriate award in this case ranges from $40,000 to $75,000. He presents a number of cases in support of this argument: Prevette v. Cusano, 2001 BCSC 489, B.C.J. No. 640 ($50,000); Kahle v. Ritter, 2002 BCSC 199, B.C.J. No. 285 ($50,000); Kerr v. Macklin, 2004 BCSC 318, B.C.J. No. 455 ($75,000); Jackman v. All Season Labour Supplies Ltd., 2006 BCSC 2053, B.C.J. No. 3559 ($40,000); Klein v. Dowhy, 2007 BCSC 1151, B.C.J. No. 1741 ($75,000); Peterson v. Ram, 2008 BCSC 252, B.C.J. No. 332 ($55,000).

[84] The defendant submits that an appropriate award in this case should be in the range of $28,000 to $40,000. They rely on the following cases in support: Littlewood v. Prendergast, 2004 BCSC 1321 B.C.J. No. 2115 ($28,000); Nicholson v. Pham and Nguyen, 2005 BCSC 1527, B.C.J. No. 2446 ($30,000); Ible v. Chirag, 2006 BCSC 1624, B.C.J. No. 2859 ($35,000); Laroye v. Chung, 2007 BCSC 1478, B.C.J. No. 2155 ($40,000); Hamilton v. Vance, 2007 BCSC 1001, B.C.J. No. 1495 ($38,000); Kailey v. Dhaliwal, 2007 BCSC 759, B.C.J. No. 1169 ($36,000).

[85] A number of Mr. Hartnett’s injuries have gradually healed since the time of the Accident, by his own admission. Although some of these injuries, namely his neck and right knee, occasionally flare-up and cause a degree of pain and discomfort, their impacts appear minimal. However, the injuries to his left hip, lower back and shoulders continue to affect Mr. Hartnett on a substantial and regular basis; over four years have passed since the Accident. The severity and impact of these injuries is seen in both his work and personal life, which I have previously outlined.

[86] Overall, these injuries have resulted in significant changes to Mr. Hartnett’s life. The evidence of his lifestyle prior to the Accident demonstrates a significant contrast to that following the Accident. Previously, Mr. Hartnett was a very active individual who pursued a wide variety of outdoor activities with his family and friends. He was also very active in contributing to the maintenance of the family home. This has largely changed since the Accident and his abilities to participate both in recreation and home maintenance activities have been significantly reduced. While he is still able to participate in many activities, he cannot do so to the same degree nor without considerable amounts of pain in a number of those activities. In particular, he cannot play with his children as he once did, or participate in activities with them anymore, without experiencing considerable pain.

[87] Additionally, Mrs. Hartnett’s testimony provides some insight into the Accident’s effects on her relationship with her husband and the family in general. She testified that she noticed a number of changes in her husband following the Accident, in addition to his limitations with respect to extra-curricular activities and home maintenance, including the manner in which he interacted with the children, desire to socialize with friends, and becoming less talkative. This is a substantial loss to Mr. Hartnett, for whom the evidence indicates that his relationship with his children is very important to him.

[88] I also note the evidence of Mr. Hartnett indicates that he is a hard-working individual who enjoyed his job and active lifestyle and, at the same time, is reluctant to complain about his injuries. His reluctance to complain about, or discuss, his injuries to medical practitioners does not detract from the obvious pain and discomfort that has resulted from these injuries. It is clear that Mr. Hartnett made considerable efforts to work through his injuries on road service, but due to the demands of that position and the nature of his injuries, he is unable to do so without significant work and health related problems. Furthermore, his attempts to re-engage in various personal activities have, in many instances, similarly resulted in considerable amounts of pain. He is a fairly stoic individual who did his best to return to work and “soldier on”, despite his pain.

[89] It is clear that these injuries have had and continue to have significant effects on Mr. Hartnett and his family. Taking all of these factors into account, an award of $60,000 is appropriate in the circumstances.

Loss of Future Income-Earning Capacity

[90] The parties agree that in order to be successful under this head of damages, Mr. Hartnett must prove a substantial possibility of future income loss: see Parypa v. Wickware, 1999 BCCA 88, 169 D.L.R. (4th) 661; Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133, B.C.J. No. 1158 (C.A.); Steward v. Berezan, 2007 BCCA 150, 64 B.C.L.R. (4th) 152.

[91] In support of his claim, Mr. Hartnett provides cases where courts awarded damages in the range of $150,000 to $300,000: Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44, B.C.J. No. 1158 (C.A.) ($150,000); McKelvie v. Ng, 2000 BCSC 121, B.C.J. No. 133 ($210,000); Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158 ($300,000).

[92] The purpose of this head of damages is to compensate the party for the loss of earning capacity as a capital asset, not to compensate for the lost earnings themselves: see Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44, B.C.J. No. 16 at 59 (C.A.); Parypa at para. 63.

[93] In considering this claim, a court must determine the extent of future loss of income-earning capacity by taking into account all substantial possibilities and assessing the likelihood of their occurrence, based on the evidence: Parypa at para. 67; Steward at para. 17.

[94] That there are inherent difficulties in assessing such damages was recognized by Dickson J. (as he then was) in Andrews, where he stated at 251:

We must now gaze more deeply into the crystal ball. What sort of career would the accident victim have had? What were his prospects and potential prior to the accident? It is not loss of earnings, but, rather, loss of earning capacity for which compensation must be made [citation omitted]: A capital asset has been lost: what was its value?

[95] To assist in this assessment, there are four considerations which are often cited in determining the value of the loss and are set out in the decision of Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353, B.C.J. No. 31 at para. 8 (S.C.):

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.

[96] Previous decisions have stated that while a first step in this determination may involve some element of mathematical calculation, “the law is clear that in these cases the task of the court is to assess damages not to calculate them on some mathematical formula”: Mulholland (Guardian ad litem of) v. Riley Estate (1996), 12 B.C.L.R. (3d) 248, [1995] B.C.J. No. 1823 at para. 43 (C.A.).

[97] A court must consider all evidence that is reasonable in the circumstances in assessing such an award. Reference to projections, calculations and formulae may be useful insofar as determining what is “fair and reasonable”: Parypa at para. 70. It is important for courts to “look at all relevant factors, especially general incapacity, before fixing an amount”: Morris v. Rose Estate (1996), 23 B.C.L.R. (3d) 256, 75 B.C.A.C. 263 at para. 24. A court should also be guided, to some extent, by the claimant’s actual earnings prior to the accident: Smith v. Knudsen, 2004 BCCA 613, 247 D.L.R. (4th) 256, at para. 34.

[98] The parties take different positions with respect to Mr. Hartnett’s future employment capabilities. The defendant submits that Mr. Hartnett has not experienced any diminished earning capacity.

[99] Mr. Hartnett submits that he is entitled to an award for loss of future income-earning capacity due to the impact of his injuries on his ability to perform road service. I find Mr. Hartnett’s claim reasonable and he should be entitled to damages for his reduced capacity to work, subject to certain contingencies.

[100] Mr. Hartnett’s testimony outlines the significant problems created by his injuries with respect to the requirements of road service work. He is unable to sit for prolonged periods of time, walk on rough and steeply graded ballast, and get on and off moving train equipment without significant amounts of pain. All of these functions are essential to perform the road service position.

[101] The evidence of Mr. Hartnett and his wife make clear that he prefers road service work, due to the increased salary and the ability to have longer periods of time off with his family. Furthermore, the evidence demonstrates that given the choice prior to the Accident, Mr. Hartnett consistently elected road service, despite the fact that road service was not always available due to his seniority level.

[102] Following the Accident, evidence suggests that Mr. Hartnett would have been able to elect road service on a more frequent basis. According to the testimony of Larry Johnston, Assistant Superintendent of Transportation at CN Rail, an employee lower in seniority than Mr. Hartnett had continuously worked road service in the seven months preceding trial. At the time of trial, the employee, Garth Turner, remained employed in the road service position. There was no evidence to suggest Mr. Hartnett would not have increasingly been entitled to work road service, given his increasing seniority. Further, Mr. Johnston testified that 60 new conductors had been hired to work out of the CN yard in Smithers due to CN’s aging workforce, which would further increase Mr. Hartnett’s seniority and opportunity to work road service. I note however that some of those new conductors had been temporarily laid off at the time of trial.

[103] Based on all of the evidence, I find there is a substantial possibility that Mr. Hartnett would continue to elect road service work, absent his present injuries. I also find there is a substantial possibility that road service would have been increasingly available to him, given the seniority-based system for allocating unionized positions at CN Rail. I find as well that the increase in pain from the injuries caused by the Accident, makes it untenable for him to elect road service.

[104] This finding must of course be balanced against certain contingencies. First, there are job-related factors that must be assessed. Both Mr. Johnston and Mr. Hartnett testified of the possibility of layoffs or job restructuring at the Smithers terminal. Second, Mr. Hartnett’s injuries could improve in the coming years, which would allow him to return to road service. As well, Mr. Hartnett could also suffer an injury which would impact his ability to perform road service.

[105] In consideration of all of these factors, I award Mr. Hartnett $150,000 for loss of income-earning capacity.

Lost Home Maintenance Capacity

[106] Mr. Hartnett seeks $10,000 for past and future lost home maintenance capacity. I note at the outset that no breakdown was offered with respect to past and future amounts. The defendant submits Mr. Hartnett should not be entitled to such an award as he has performed “very heavy physical work” since March 2005.

[107] The BC Court of Appeal in McTavish v. McGillivray, 2000 BCCA 164, B.C.J. No. 507, recently outlined the law with respect to this head of damages. This award is intended to compensate the plaintiff for a total or diminished loss of capacity with respect to home maintenance activities. It is not designed to compensate the plaintiff for a specific expense or loss incurred: McTavish at para. 63. Furthermore, the plaintiff does not have to prove that someone will be hired to perform such services or to establish any actual expenses incurred or monetary loss: Deglow v. Uffelman, 2001 BCCA 652, 96 B.C.L.R. (3d) 130 at para. 27; see also Kroeker v. Jansen (1995), 4 B.C.L.R. (3d) 178, 123 D.L.R. (4th) 652 (C.A.).

[108] Any award that is granted must be reduced against any sums paid under special damages: Tombe v. Stefulj, 2002 BCSC 154, B.C.J. No. 505 at para. 80. It is important to remember the caution given in Kroeker: “[i]t will be the duty of trial judges and this court to restrain awards for this type of claim to an amount of compensation commensurate with this loss”: at 189.

[109] The onus is on the plaintiff to establish a real and substantial possibility that they will not be able to perform all of their usual and necessary household services in the future. Further, the plaintiff must show that they will be forced to hire someone to perform such services or have someone perform such services gratuitously: Menhinick v. Lobsez, 2008 BCSC 1285, B.C.J. No. 1824 at para. 55.

[110] Mr. Hartnett presents a number of cases which support awards for past and future lost home maintenance capacity. These cases indicate that in order to arrive at a reasonable award, courts should look at the nature and the number of hours of household services that the plaintiff provided prior to the injury and assess the future impact of these injuries with respect to this contribution.

[111] Courts should also be alive to the possibility that other factors may change in the plaintiff’s life, including the size of their house and garden, as well as their overall living situation: see Deglow at para. 32; Kitnikone v. Watt, 2000 BCSC 1452, B.C.J. No. 2071 at para. 63.

[112] The evidence disclosed that Mr. Hartnett was largely responsible for all outdoor yard maintenance, automotive maintenance and general repair duties around the home. He also made minor contributions inside the home: occasional vacuuming, cooking and doing his own laundry. Mrs. Hartnett was responsible for the rest of the maintenance within the home.

[113] Following the Accident, Mr. Hartnett continues to assist with yard maintenance, but not at the same intensity or scope as prior to the Accident due to the pain that results from such activities. Mrs. Hartnett states that she and their two boys have largely taken over these duties. She estimates that they perform approximately 90-95% of the yard maintenance activities.

[114] Presently, Mr. Hartnett is unable to perform any automotive maintenance and now takes his cars to a garage for such services.

[115] After the Accident, Mr. Hartnett did replace two decks with the assistance of his wife. In order to deal with the pain however, he was forced to take a day off for each day worked because of the effects on his body.

[116] Mrs. Hartnett testifies that her husband’s contributions inside the home have also decreased. He does not vacuum or cook anymore and she does more of his laundry.

[117] However, the difficult issue with this claim is that no evidence was led with respect to the number of hours of work Mr. Hartnett performed prior to the Accident, the cost of replacement services or the cost of having the family automobiles serviced at a garage. This situation is similar to that in Ufimzeff v. Brown, 2008 BCSC 1188, B.C.J. No. 1664, where Justice Barrow declined to make an award based on a pecuniary loss because the plaintiff had not tendered sufficient evidence to quantify her claim. However, Barrow J. was satisfied that the plaintiff had demonstrated a loss of home maintenance capacity and held that the plaintiff should be compensated under an award of non-pecuniary damages: at para. 37.

[118] At the same time, I accept the evidence, that the plaintiff requires recovery time after completing his substantial physical job in the CN Rail yard. To add home and automotive maintenance to his tasks during his down time places an additional burden on his body that he cannot manage. To earn a living for his family is where he has put his priority and he continues to do this by pushing through his pain and then doing stretching exercises at home. He can now do low-level yard work only unless he takes more of his leisure time as recovery time. I do not find this a reasonable consequence which he should have to bear, given the negligence of the defendant, and I award $10,000 as damages for lost homemaking capacity. I have taken into account the possibility that he will improve over time and I have limited the award to $2,500 per year for four years following trial.

Past Wage Loss

[119] The parties take different positions with respect to this damage award. The defendant submits that Mr. Hartnett is not entitled to any damages for past wage loss, as he was not disabled from working at CN Rail. They highlight two factors in support of their argument: his past work record and lack of treatment.

[120] Mr. Hartnett’s claim is that but for the Accident, he would have continued to elect and work in road service, if eligible, in the seven months leading to trial. Therefore, he argues that he should receive the difference between the road service and yard service salaries in compensation from October 2007 until the time of trial.

[121] A claim for past wage loss is a claim for the value of work that the plaintiff would have performed, but was unable to due to the injuries suffered in the accident: Rowe v. Bobell Express Ltd., 2005 BCCA 141, 39 B.C.L.R. (4th) 185 at para. 30.

[122] The essence of Mr. Hartnett’s claim is that due to his injuries, he was unable to continue working road service after attempting to work in this position on two separate elections. As stated earlier, the evidence supports Mr. Hartnett’s claim that he preferred road service and predominantly elected to work road service prior to the Accident. Given this, and the evidence that road service would have been available to him from October 2007 until the time of trial, I am satisfied that Mr. Hartnett would have elected and received road service work during the seven months leading to trial and find he has suffered a loss of wages. He is entitled to be compensated for that loss.

[123] In respect of calculating the loss, the parties take different positions as to the actual loss. Mr. Hartnett submits the net amount of $18,084.21 is correct, based on the difference between Tony Lapadat’s income (a co-worker who worked exclusively in road service) and Mr. Hartnett’s income from yard service.

[124] The defendant, without supporting such a claim, argues that the gross amount of approximately $22,000 is correct. This amount is based on the difference in salaries between yard service and road service, approximately $35,000, which Mr. Hartnett outlined in his examination-in-chief and Mr. Lapadat in his affidavit, and adjusting this amount to reflect seven months of lost road service.

[125] Based on the tax calculations used by Mr. Hartnett, the defendant’s net figure is $16,280.

[126] I prefer the approach of the defendant and I find that Mr. Hartnett has proven a past income loss of $22,000 (gross) and $16,280 (net). But I leave the tax deductions in general to be agreed on by counsel.

Future Cost of Care

[127] Mr. Hartnett seeks an award of $1,000 for future cost of care to cover the costs of physiotherapy, as suggested in Dr. Gilbart’s report. Mr. Hartnett’s evidence indicates each session costs $50. In the year preceding trial, Mr. Hartnett had 6-8 physiotherapy sessions, which had been covered by ICBC. The defendant has not rebutted this claim and I award $1,000 for cost of future care, as even the temporary relief Mr. Hartnett receives from physiotherapy is something he should be entitled to if his pain flares up.

CONCLUSION:

[128] Based on my reasons above, Mr. Hartnett is entitled to the following amounts:

· Non-pecuniary damages: $60,000

· Loss of income-earning capacity: $150,000

· Loss of home maintenance capacity: $10,000

· Past wage loss: $16,280

Future cost of care: $1,000

[129] In reaching the award totalling $237,280, I have assessed all of the evidence and determined that such an award represents a fair and reasonable amount in this case. Without a doubt, Mr. Hartnett suffers from ongoing injuries as a result of the defendant’s negligence, which will continue to have significant impact on his personal and professional life.

COSTS:

[130] Subject to any submissions by counsel, the plaintiff is entitled to his costs.

____________________________________________

Madam Justice Loryl D. Russell