Harle v. Williams

2020 BCSC 1684 Harle v. Williams

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Harle v. Williams, 2020 BCSC 1684 Date: 20201016 Docket: M194424 Registry: Vancouver Between: Shane Harle Plaintiff And Arika Colleen Williams Defendant Before: The Honourable Mr. Justice Basran Oral Reasons for Judgment In Chambers Counsel for the Plaintiff: M.D. Murphy Counsel for the Defendant: J.J. Hyde Place and Date of Hearing: Vancouver, B.C. September 21-23, 2020 Place and Date of Ruling: Vancouver, B.C. October 16, 2020 Table of Contents Introduction. 3 Background Facts. 3 Credibility Assessment. 6 Quantum of Damages for Pain and Suffering.. 6 Relevant Legal Principles. 6 Plaintiff's Position on Non-Pecuniary Damages. 8 Defendant's Position on Non-Pecuniary Damages. 10 Analysis and Findings of Fact on Non-Pecuniary Damages. 12 Quantum of Damages. 12 Mitigation. 13 Quantum of Damages for Past Income Loss. 14 Entitlement to Damages for Future Loss of Working Capacity. 14 Relevant Legal Principles. 14 The Parties' Position on Future Loss of Working Capacity. 15 Factual Findings and Analysis on Future Loss of Working Capital 15 Quantum of Damages for Cost of Future Care. 16 Relevant Legal Principles. 16 The Parties' Position on Cost of Future Care. 16 Factual Findings and Analysis on Costs of Future Care. 17 Quantum of Special Damages. 17 Relevant Legal Principles. 17 Factual Findings and Analysis on Special Damages.

17 Conclusion. 18 Costs. 18 Introduction [1] THE COURT: On the morning of February 4, 2018, Shane Harle was driving to work with his wife, Jessica Harle, in the front passenger seat and a colleague from work in the back seat. Mr. Harle stopped at a red light in a northbound lane of Denman Street at its intersection with West Georgia Street. When the light turned green, he began turning left onto West Georgia Street. The defendant's vehicle ran the red light westbound on West Georgia Street and collided at full speed with the passenger side of the Harle vehicle that in turn struck another vehicle (the "Accident"). The defendant admits liability for the Accident. Mr. Harle was in good health prior to the Accident, which caused injuries to the right side of his neck, right shoulder and back. Mr. Harle suffers ongoing pain symptoms in these areas and some mood changes because of the Accident. [2] Mr. Harle seeks damages for his pain and suffering, past income loss, loss of future income‑earning capacity and cost of future care. He also seeks special damages. [3] For the reasons that follow, I have concluded that Mr. Harle is entitled to: a) $50,000 for non‑pecuniary damages; b) $200 for past income loss; c) $3,500 for cost of future care; and d) $415 for special damages. [4] Mr. Harle is not entitled to damages for loss of future income‑earning capacity. Background Facts [5] Mr.

Harle was born on March 20, 1991. Prior to the Accident, he was in good health both physically and emotionally. He was quite active. He regularly played recreational league hockey from September to April and golfed during the summer months. [6] Mr. Harle operates a structural and landscaping concrete business. This work is physically demanding. It involves heavy lifting, climbing on uneven footing and operating a large hose that dispenses concrete. [7] Ms. Harle described her husband before the Accident as fun, engaging, tough and rambunctious. He was full of energy, enthusiasm and enjoyed being physically active even after long days of doing demanding work. [8] Cody Wilson is both a friend of Mr. Harle and a massage therapist who treated him after the Accident. He has known Mr. Harle since they began high school together. He described Mr. Harle as happy, energetic and athletic. Approximately five years ago, they began playing on the same recreational hockey team. Mr. Wilson described Mr. Harle prior to the Accident as a tough and aggressive player who enjoyed joking and socializing with his teammates. [9] Trent Marchinkow testified similarly. He is also a friend, massage therapist and hockey teammate of Mr. Harle's. He described Mr. Harle as a talented and aggressive hockey player who enjoyed spending time with his teammates after games. [10] Shortly after the Accident, an

ambulance transported Mr. and Ms. Harle to St. Paul's Hospital. Mr. Harle reported radiating pain in the right side of his neck and shoulder to the emergency room nurse. These symptoms, along with upper back pain, have remained consistent since the date of the Accident. [11] Mr. Harle saw his family physician, Dr. Biskupska, on February 6, 2018, two days after the Accident. In her expert report dated March 13, 2019, Dr. Biskupska recalled that Mr. Harle reported pain in the right side of his neck and right shoulder and some limitations in the range of motion in his neck due to pain symptoms. She diagnosed him with a soft tissue neck injury and a potential soft tissue injury of the right shoulder. She recommended he take acetaminophen and ibuprofen as needed. She prescribed Tylenol 3 for a long plane trip he was going on and suggested physiotherapy, massage and acupuncture. [12] Dr. Biskupska next examined Mr. Harle on December 13, 2018. Between these two visits, Mr. Harle received massage therapy treatment on six occasions. Mr. Wilson and Mr. Marchinkow provided this therapy. These treatments provided some temporary relief, but Mr. Harle's pain symptoms persisted. Dr. Biskupska noted that the right lateral rotation of his neck was limited to 45 degrees. She recommended that he continue physiotherapy and massage therapy. To date Mr. Harle has not undergone physiotherapy

treatment. [13] Dr. Biskupska examined Mr. Harle a third time on January 24, 2019. He continued to report pain in the right side of his neck and right shoulder and occasionally in his right arm. He indicated that his pain symptoms had not changed over the previous year. Dr. Biskupska noted that Mr. Harle is not disabled from working because of the Accident but that the physical work he does may cause his pain symptoms to flare. Again, she recommended physiotherapy and massage therapy. Her prognosis was that with appropriate treatment, his symptoms would improve and he would be able to continue with his vocational and recreational activities. [14] Dr. Waseem is a physiatrist. He prepared an expert report dated June 19, 2020, based on an assessment of Mr. Harle conducted on May 26, 2020. During this examination, Mr. Harle reported near constant neck pain at moderate intensity. He described this pain as manageable but an inconvenience. Dr. Waseem recommended a course of active rehabilitation for three months and two to three months of soft‑tissue therapy such as massage therapy, active release, acupuncture and/or intermuscular stimulation. He concluded that if after receiving this treatment Mr. Harle's pain symptoms persist, they will likely linger into the future, but there is unlikely to be any residual disability beyond the nuisance of neck pain arising from the Accident. [15]

Following the Accident, Mr. Harle's demeanour changed because of his pain symptoms. Ms. Harle perceived that he became moodier and somewhat withdrawn. Mr. Wilson and Mr. Marchinkow recall that he became less aggressive on the ice and would occasionally skip shifts because of pain symptoms. Mr. Marchinkow specifically recalled that Mr. Harle often rubbed his shoulder and neck during games, presumably because of ongoing pain symptoms. Mr. Wilson and Mr. Marchinkow also noticed that Mr. Harle did not play with the same drive that he had pre‑accident, and he became quieter and less engaged with his teammates. Credibility Assessment [16] The evidence of Mr. Harle, his wife, Mr. Wilson and Mr. Marchinkow was credible. They testified clearly, thoughtfully and their evidence was internally consistent. All of them recounted that Mr. Harle was outgoing, physically active and enthusiastic prior to the Accident. [17] They all recalled that this changed after the Accident. Mr. Harle is no longer the positive and energetic person that he was prior to the Accident. The details of these changes were specific, consistent and clearly described. Mr. Harle's temperament and outlook are worse than before the Accident, and although he continues to work and play hockey, he does so with pain. There was no indication of exaggeration or embellishment in the evidence of any of the plaintiff's witnesses.

I accept their evidence unreservedly. Quantum of Damages for Pain and Suffering Relevant Legal Principles [18] Mr. Harle must prove that the Accident caused his injuries. He need not establish that the admitted negligence of the defendant was the sole cause of his injuries, but he must demonstrate a substantial connection between the Accident and his physical and psychological injuries: Thompson v. Helgeson, 2017 BCSC 927 at paras. 28-30. [19] Some of the relevant factors in assessing non‑pecuniary damages include: A. Age of plaintiff; B. Nature of the injury; C. Severity and duration of the pain; D. Disability; E. Emotional suffering; F. Loss or impairment of life; G. Impairment of family, marital and social relationships; H. Impairment of physical and mental abilities; and I. Loss of lifestyle. Stapley v. Hejslet, 2006 BCCA 34 at para. 46. [20] Once causation is established, the burden shifts to the defendant to prove that the plaintiff failed to mitigate some of his loss or injury. If a plaintiff has not pursued a recommended course of medical treatment, the defendant must prove that the plaintiff acted unreasonably in declining the medical treatment and the extent, if any, by which the plaintiff's damages would have been reduced had he acted reasonably: Chiu v. Chiu, 2002 BCCA 618 at para. 57. [21] The question of whether a person has been reasonable in refusing recommended

treatment is one for the trier of fact to decide based on the circumstances of the case, taking into account the degree of risk from the treatment, the gravity of the consequences for refusing it, and the potential benefit to be derived from it: Janiak v. Ippolito, [1985] 1 S.C.R. 146. [22] Mitigation is a subjective objective test. Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para.

56. The first part of the test asks whether the reasonable patient, having all the information at hand that the plaintiff possessed, ought to have undergone the treatment. The second part asks the extent, if any, to which the plaintiff's damages would have been reduced by that treatment: Rhodes v. Surrey (City), 2018 BCCA 281 at para.

66. Plaintiff's Position on Non-Pecuniary Damages [23] Mr. Harle submits that he suffered from pain symptoms in his right neck and shoulder immediately after the Accident. He reported these symptoms at St. Paul's Hospital, and he has consistently reported similar symptoms since that day. At first, Mr. Harle believed that these symptoms would subside over time, but unfortunately, his condition did not improve. [24] Dr. Biskupska recommended physiotherapy and massage therapy. Mr. Harle received six massage therapy sessions in 2018 but ceased them when his wife lost her job because he no longer had access to her benefit plan and could not otherwise afford this treatment. Ms. Harle obtained employment in March 2019 that included a benefits plan. Between December 2019 and June 2020, Mr. Harle received five massage therapy treatments provided by Mr. Wilson and Mr. Marchinkow. [25] Mr. Harle submits that in applying the factors set out in Stapley, the court must consider that he is 29-years-old, has ongoing pain symptoms in the right side of his neck, right shoulder and back. The pain ranges from tolerable to moderate, and his physically demanding work aggravates these symptoms. His condition may improve if he responds to treatment that is more active, but his pain symptoms have persisted for over two and a half years. [26] Mr. Harle submits that the following cases provided guidance

in assessing the amount that should be awarded to him for his pain and suffering: A. Stocking‑Pearson v. Vinette, 2019 BCSC 2182. The 27-year-old plaintiff sustained soft tissue injuries to his neck and back. He worked as a truck driver and crane operator. He missed a few months of work and gradually returned to full‑time duties within nine months of the accident. The plaintiff continued to do physically demanding work to the date of trial. His neck pain resolved within six months, but his back pain continued to affect his activities. Both of the physicians whose evidence was before the court concluded that the plaintiff in that case had permanent injuries that required ongoing symptom management. The court awarded $80,000 in non‑pecuniary damages. B. Gunson v. Sekhon, 2015 BCSC 2491. A 37‑year‑old plaintiff was injured in an accident and suffered chronic intermittent low back pain. He missed four weeks of work immediately after the accident, then returned full time in a physically demanding job. His injuries were unlikely to resolve. The plaintiff received $80,000 in non‑pecuniary damages. C. Lowe v. Johnson, 2019 BCSC 1283. The plaintiff was 26-years-old at the time of the accident that caused injuries to her right neck, back and shoulder. Low back pain, headaches and elbow pain resolved, but her right shoulder injury was unlikely to improve. She missed four months of work

due to her injuries. The court awarded $60,000 in non‑pecuniary damages. D. Ohri v. Aminie, 2020 BCSC 270, the 67‑year‑old plaintiff suffered injuries to the left side of his head, lower back, left hip and shoulder. The injury to his left shoulder persisted to the date of trial but did not interfere with his work. The other injuries resolved, but two orthopedic experts agreed that the plaintiff's shoulder function plateaued at approximately 70 percent of its former functioning and was unlikely to improve. The plaintiff received $65,000 in non‑pecuniary damages. [27] Based on these cases, Mr. Harle submits that he should receive $70,000 to $75,000 in non‑pecuniary damages. Defendant's Position on Non-Pecuniary Damages [28] The defendant relies on the following cases with respect to the quantum of Mr. Harle's non‑pecuniary damages: A. Hoang v. Smith Industries Ltd., 2009 BCSC 275. In this 2009 decision, the plaintiff was fit and active. He suffered soft tissue injuries to his neck and back as well as headaches. These injuries affected his ability to play hockey, but he did not miss any time from work. To address his pain symptoms, the plaintiff underwent physiotherapy, massage and chiropractic treatment and took prescription medication. The court awarded $19,000 in non‑pecuniary damages. B. Sun v. Sukhan, 2012 BCSC 365, in this summary trial from 2012, the plaintiff suffered soft

tissue injuries to his neck and back as well as numbness in his left arm and leg. His symptoms largely resolved within 21 months. He had some ongoing complaints and limitations because of fear of pain flare‑ups. The plaintiff underwent physiotherapy, acupuncture and he exercised. Prior to the accident, he snowboarded and golfed. He had not resumed golf before the trial. The plaintiff received $20,000 in non‑pecuniary damages. C. Statton v. Haller and Haller, 2006 BCSC 676. In this 2006 decision, the plaintiff suffered soft tissue injuries to her neck and back as well as migraine headaches because of a low-impact collision. Prior to the accident she suffered from headaches and lower back pain. She was active in competitive soccer, running and baseball. After the accident, she continues to participate in these sports, but at a reduced level. The plaintiff received physiotherapy, massage treatment and took prescription medication for her pain symptoms and migraine headaches. Three years after the accident the medical evidence was that her problems would not resolve. The court awarded $26,000 in non‑pecuniary damages. D. Sidhu v. Brassel, 2005 BCSC 347, in this 2005 decision, the court found that the plaintiff sustained a moderately severe cervical, upper trapezius and thoracic strain. She was disabled for more than five months as a care aide and completed one month of

physiotherapy, but then discontinued due to lack of funds. Her pain symptoms were lingering and intermittent at the time of trial. The plaintiff received $19,000 in non‑pecuniary damages. E. Currie v. McKinnon, 2012 BCSC 1165. In this 2012 decision, the court found that the plaintiff suffered soft tissue injuries to his neck and back. He was off work for three weeks and switched to lighter duties when he returned. The plaintiff continued to complain of pain symptoms five years after the accident. Although he did not see his general practitioner for a year after the accident, he received chiropractic and massage therapies. Within one year of the accident, the plaintiff had substantially recovered from the injuries he sustained in the accident. The court found that to the extent that he continued to experience occasional neck and back pain, it was unrelated to the accident. The court awarded $22,000 in non‑pecuniary damages. [29] Based on these cases, the defendant asserts that an appropriate range for Mr. Harle's non‑pecuniary damages is $25,000 to $27,500. [30] The defendant referred to Mr. Harle's failure to obtain physiotherapy treatment for the injuries he sustained in the Accident. He submits that Mr. Harle failed to properly mitigate his damages by not obtaining this treatment and that his damages should be reduced by ten percent. Analysis and Findings of Fact on

Non-Pecuniary Damages Quantum of Damages [31] I accept that Mr. Harle was in good health physically and emotionally prior to the Accident. His wife and friends, whose evidence I have accepted without reservation, described him as outgoing and active with no physical restrictions. [32] Both Dr. Biskupska and Dr. Waseem concluded that the Accident caused Mr. Harle's injuries. The evidence of the other witnesses clearly demonstrates that Mr. Harle had no physical limitations prior to the Accident. I am satisfied that the Accident caused his injuries. [33] From 2014 to 2019, Mr. Harle's net income as reported to the CRA averaged $26,818. I am satisfied that without access to a benefits plan, he could not afford to pay for more of the therapy recommended by Dr. Biskupska. [34] Mr. Harle's pain symptoms are ongoing after almost three years. However, he continues to do physically demanding work, and he has been able to continue playing hockey and golf, albeit at a reduced capacity. I am satisfied that Mr. Harle feels compelled to continue working to support his family and wants to continue playing the sports he enjoys. I accept that he does these things with pain that he did not have prior to the Accident. [35] Mr. Harle's wife and friends testified that Mr. Harle's personality changed following the Accident. He became withdrawn, somewhat short-tempered and less sociable than he was

prior to the Accident. [36] The change in Mr. Harle's physical and psychological condition is noticeable as compared to his pre‑accident state. Prior to the Accident he had no health issues relating to his neck, shoulder or back; his physical ability was unrestricted; and he was outgoing and optimistic. [37] Now he suffers from ongoing pain, and his mood and outlook are reserved and somewhat guarded. He is no longer the outgoing and optimistic person he was prior to the Accident. His wife and friends have noticed these changes. He worries about his future, and he is disappointed that his pain symptoms are persisting. [38] Dr. Biskupska and Dr. Waseem suggested that these symptoms may improve with the benefit of active therapy over a few months. However, Mr. Harle's condition may not improve even with the benefit of this treatment. Almost three years post‑accident, a complete resolution of his pain symptoms is uncertain. [39] The cases cited by the plaintiff involve injuries that were generally more serious and objectively permanent as compared to the circumstances faced by Mr. Harle. The cases cited by the defendant are 8 to 15 years old and refer to less serious circumstances than those affecting Mr. Harle. [40] Having considered all of the relevant cases referred to by the parties and Mr. Harle's circumstances and prognosis, I conclude that he is entitled to $50,000 in

non‑pecuniary damages for pain and suffering. Mitigation [41] Mr. Harle did not fail to mitigate his damages. He attended 11 massage therapy appointments and found them to be only temporarily helpful. He reasonably undertook one of the treatments recommended by Dr. Biskupska from friends whom he trusted. I accept Mr. Harle's explanation that he did not seek further massage therapy treatments or physiotherapy because he could not afford them. [42] In my view, Mr. Harle forthrightly described his symptoms to the professionals who treated him and took reasonable steps to follow their advice. Aside from one occasion when he obtained physiotherapy for an unrelated injury, he did not receive this type of therapy for the pain symptoms attributable to the Accident. However, there is no evidence to suggest that physiotherapy would have reduced his damages. The defendant has not discharged its onus to establish that Mr. Harle failed to mitigate his damages. Quantum of Damages for Past Income Loss [43] Mr. Harle was on his way to work at the Royal Vancouver Yacht Club on the day of the Accident. He was unable to work his ten‑hour shift on that day, but he did not miss any further days of work. His rate of pay was $20 per hour. The parties therefore agree that Mr. Harle is entitled to damages for past income loss of $200. Entitlement to Damages for Future Loss of Working Capacity Relevant

Legal Principles [44] The principles applicable to the assessment of future loss of working capacity are: A. To the extent possible, a plaintiff should be put in a position he would have been in absent the Accident. B. The court should compare the plaintiff's likely future working life absent the Accident to what is likely to occur with the Accident having happened. C. The assessment must be based on evidence but is not a mathematical calculation. D. The court can employ the earnings approach or the capital asset approach in assessing the loss. E. A plaintiff must prove that there is a real and substantial possibility of various future events leading to an income loss. See: Thompson at para. 119; Gregory at paras. 32 - 33. [45] Mr. Harle's own perception that he is at a diminished capacity to earn income in the future is insufficient. He must show that there "is a realistic possibility [that] he will be less able to compete in the marketplace with economic consequences, not merely psychological ones": Kim v. Morier, 2014 BCCA 63 at para.

8. The Parties' Position on Future Loss of Working Capacity [46] Mr. Harle is concerned that he will not be able to continue doing physically demanding work in the future. He has witnessed the toll that this type of work took on his father, and he is concerned that in the future he will be unable to sustain the effort necessary to do this work because of the Accident. [47] He submits that the capital asset approach is appropriate to quantify his damages. He believes that he should receive three to four years of his net earnings, an amount of $80,454 to $107,272. [48] The defendant submits that Mr. Harle has not established that there is a real and substantial possibility that he will lose income in the future. He notes that with the exception of the date of the Accident, Mr. Harle has been working full time at his physically demanding job. Factual Findings and Analysis on Future Loss of Working Capital [49] In my view, Mr. Harle has not discharged the onus on him to establish that there is a real and substantial possibility that he might lose income in the future because of the Accident. His concerns in this regard are understandable, but they are largely a product of his own perception and concern. As the court held in Kim, subjective concerns are insufficient. [50] Dr. Biskupska's prognosis is that Mr. Harle will be able to continue with his recreational and vocational

activities with the benefit of appropriate treatment. Dr. Waseem concluded that Mr. Harle's pain symptoms may persist despite treatment, but he is unlikely to have any residual disability from the Accident. [51] Aside from missing one day of work on the day of the Accident, Mr. Harle has continued to work full time since the Accident. I accept that he has done so with some pain, and an award of non‑pecuniary damages will compensate this. However, Mr. Harle has not proven that there is a real and substantial possibility of any economic consequence of the Accident on his future income‑earning capacity. Accordingly, Mr. Harle is not entitled to damages for future loss of working capacity. Quantum of Damages for Cost of Future Care Relevant Legal Principles [52] The principles applicable to the assessment of costs of future care are: A. Providing adequate damages for future care for an injured plaintiff is of paramount importance. B. The purpose of such an award is to provide for assistance directly related to the injuries caused by the Accident. C. The test for determining an appropriate award is an objective one based on medical evidence. D. The focus should be on the plaintiff with fairness to the other party being achieved by ensuring that the expenses are legitimate and justifiable. E. The plaintiff needs to show: (a) medical justification for the items claimed; and (b) that

the amount claimed is reasonable. F. "Medical justification" is broader than "medically necessary". G. Common sense should be employed in this assessment. See: Thompson at para. 149 The Parties' Position on Cost of Future Care [53] With reference to the recommendations of Drs. Biskupska and Waseem, Mr. Harle seeks $3,000 to $3,500 for the costs of future care. Specifically, this amount is for three months of active rehabilitation and two to three months of soft tissue treatment recommended by Dr. Waseem and massage and physiotherapy recommended by Dr. Biskupska. [54] The defendant submits that there is no reliable evidence to ground a calculation for cost of future care and that Mr. Harle has received benefits from the Insurance Corporation of British Columbia within the last three months. He suggests that any award under this head of damage should be nominal. Factual Findings and Analysis on Costs of Future Care [55] In my view, the recommendations of Dr. Biskupska and Dr. Waseem are medically justified and reasonable. In particular, I find that the massage therapy, physiotherapy and active rehabilitation recommendations meet this two-pronged test. I accept Mr. Harle's evidence that his massage therapy cost $100 per session, and in my view, this is a reasonable estimate of the cost of the therapies recommended by the medical professionals. I am also satisfied that Mr. Harle

will obtain this treatment once provided with the means to do so. [56] Mr. Harle is entitled to $3,500 for the cost of future care. Quantum of Special Damages Relevant Legal Principles [57] The principles applicable to the assessment of special damages in this case are as follows: A. Claims for special damages are subject to a consideration of reasonableness, taking into account the nature of the injuries sustained once causation is established. B. Mileage to attend treatment at 50 cents per kilometre is reasonable. See: Hancott v. Barnes, 2015 BCSC 1308 at para. 164; Liu v. Thaker, 2012 BCSC 612 at para.

72. Factual Findings and Analysis on Special Damages [58] The parties agree on the quantum of special damages except the defendant is not prepared to agree to the rate of 50 cents per kilometre to account for the costs associated with Mr. Harle driving to his therapeutic appointments. In my view 50 cents per kilometre is entirely reasonable in approximating the actual cost of operating a vehicle. [59] Mr. Harle is entitled to special damages of $415 attributable to the Accident. Conclusion [60] Mr. Harle is entitled to: A. $50,000 for non‑pecuniary damages; B. $200 for past income loss; C. $3,500 for cost of future care; and D. $415 for special damages. [61] Mr. Harle is not entitled to damages for loss of future income‑earning capacity. Costs [62] If the parties wish to make submissions on costs, they must either request a hearing or provide written submissions not to exceed 10 pages within 30 days of the date of this judgment. If there are no requests or submissions within this period, the plaintiff will have his costs at Scale B. "Basran, J."