Spencer v. Hussey

2020 BCSC 631 Spencer v. Hussey

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Spencer v. Hussey, 2020 BCSC 631 Date: 20200427 Docket: M186994 Registry: New Westminster Between: Robert Spencer Plaintiff And Doris Hussey Defendant Before: The Honourable Madam Justice Norell Reasons for Judgment Counsel for Plaintiff: S.D. Ballard Counsel for Defendant: M.A.G. Somers Place and Date of Trial: New Westminster, B.C. March 9-12, 2020 Place and Date of Judgment: New Westminster, B.C. April 27, 2020 [1] On the evening of February 12, 2015 the plaintiff Mr. Spencer was driving on Highway 97 near Quesnel, BC, near the intersection with Barkerville Highway, when a vehicle driven by the defendant Ms. Hussey failed to halt at the stop sign on Barkerville Highway and collided with Mr. Spencer's vehicle. Liability for the accident has been admitted by Ms. Hussey. These are reasons on Mr. Spencer's claim for damages. [2] Mr. Spencer's most persistent injury is a right-sided C6 radiculopathy which causes pain from the base of his skull on the right side, into his shoulder, right arm and two fingers, with associated weakness, numbness and tingling. He also gets headaches and a feeling of poking behind his right eye. [3] Mr. Spencer, three friends and two treating physicians testified in his case. The defence did not call any witnesses. Mr. Spencer Pre-accident [4] Mr. Spencer is now 56 years old. He was 51 years old at the

time of the accident. He grew up in Kelowna, and after graduating high school attended the Northern Alberta Institute of Technology and obtained a power engineering certificate. He is a fourth class power engineer and works on high pressure machinery. He works for West Fraser Mills in Quesnel. His job is running the energy plant which heats thermal oil in a kiln to dry lumber before it is planed. As of this year, he has worked there for 25 years. [5] Mr. Spencer explained that at the time of the accident there was a power engineer who was an "operator", and a power engineer who was an "assistant operator". Mr. Spencer was the "assistant operator". The operator spends more time in the office with computers but is still required to do physical aspects of the work such as climbing ladders and checking valves and gauges. The assistant operator also spends his time "operating" but will fill in as a driver of heavy equipment. [6] Mr. Spencer worked 12-hour shifts, four days on and four days off. He described his typical day. He did light maintenance such as changing bearings. He did rounds every hour to monitor the systems and look at valves and gauges. Once a day this would require him to climb a ladder up to 150 feet in the air, and if necessary address any problems while up at the top. The job also involved critical decision making to address any problems that arose. He described

the job as having high physical and mental demands. It is strict and demanding work with an opportunity to move up if a person makes good decisions. Mr. Spencer said he has a good relationship with management and they rely upon his expertise to run the plant efficiently and safely. His plan was to move to management. Mr. Spencer described himself as a workaholic and a problem solver, and he enjoyed the work. [7] In addition to working full time as a power engineer, on his four days off Mr. Spencer worked one to two shifts as a driver at West Fraser if those shifts fell on a weekend. Starting six to seven years ago (one to two years prior to the accident), the hours and shifts of the regular drivers changed, and overtime shifts on weekends became available for drivers. As Mr. Spencer had seniority he often took those shifts as he had four days off and could work one or two shifts and still have two days off. When his regular work as an assistant operator fell on a Sunday he received time-and-a-half wages. If he took an overtime shift as a driver and worked on a Sunday he received double wages. Wage rates at the time were approximately $37.50 per hour as an operator and $34.50 per hour as a driver. Mr. Spencer testified that in the year prior to the accident, he earned approximately $11,000 in overtime. [8] Mr. Spencer grew up in Kelowna and was very active in outdoor recreation

up until the accident. He did ice and fly fishing, camping with his daughters and grandchildren, mountain biking, hiking, canoeing, snowshoeing, snowmobiling, and went on short hunting trips as well as an annual 10-day hunting trip with friends. The activities varied seasonally. [9] Prior to the accident Ms. Spencer was living by himself in a house on a one-acre property and did all the housework and outside work. When he first bought the property about six months prior to the accident he built a deck. In the past he has re-roofed and renovated his daughter's house inside and out. He estimates he spent 10 hours per week working inside and outside his house. He did his own maintenance on his and his children's vehicles. He visited with friends and family regularly. [10] He described his physical health prior to the accident as excellent. He attended the gym and kept in shape because of the demands of his job and his recreational activities. He denied any major health issues other than a "slow gallbladder" so he avoided fatty foods or took a "bile tablet". In cross-examination, he agreed that his work as a power engineer caused aches and pains prior to the accident. Mr. Spencer said he went to a chiropractor "years before". He said he may have gone if he had an injury or sprain from working but it was nothing significant. Massage records from 2014 were put to him that recorded he

had tight muscles in his upper back and shoulders, and possibly some tingling and numbness in his hands. The records are not clear as to the numbness and tingling and the authors of those records were not called as witnesses. Mr. Spencer does not recall any numbness or tingling in his hands or fingers at that time, but said it was possible if he had pinched a nerve. Post-accident [11] The accident took place when Mr. Spencer was driving home from work, having just finished the last of four shifts. He had his seat belt on. The airbags in his car deployed. His legs hit the dash and "really hurt". His car was a standard shift and he had his right hand on the shifter, and he was jarred. His whole right side and neck ached with a thick feeling, and it went down into his hand and his third and fourth fingers. Someone pushed his car and he steered it off the highway. He was taken by ambulance to G.R. Baker Memorial Hospital in Quesnel, assessed and released after about an hour. A friend came and picked him up. He was not given any medication. [12] After his scheduled four days off work he returned to light duties for six weeks, where he was "strictly operating" in the office on the computer and walking around. He said it was tough. He was not doing any driving. He then went back to his regular assistant operator job which requires some driving and doing the heavy work. He was having

difficulty in that role. However, shortly after that, one of the full-time operators became ill with a terminal illness. Mr. Spencer has been working in that employee's position as a full-time operator since that time. He has not driven any equipment except when he has taken an occasional overtime shift as a driver. [13] For the first six months following the accident until August 2015, Mr. Spencer described his injuries as a "huge tooth ache" from the right side of his head to his shoulder, arms and fingers. He always had numbness in his right arm and right bicep. He hardly slept because the ache was there 24 hours a day, seven days a week. He had a constant headache. His legs were painful and blue from bruising and itchy on the shins. He used to jog to the mailbox two kilometres away, but now he walked and the jarring of walking bothered his neck. His mental state was "skewed" because of the pain. He was questioning himself. His family physician sent him for physiotherapy which made his condition worse. He tried sleeping pills but they did not work. He took Tylenol and ibuprofen about once every two weeks, and when the pain was severe, Tramadol. His recreational activity was "minimal to none". His social life was minimal because it used to involve doing something. Instead he went for coffee and talked. He was not doing household chores. He had friends help him do that twice

in the six months. People brought him food a half dozen times. [14] Shortly after the accident, his daughter, her husband and their children moved in to share his home. He did not say this was a result of the injuries he suffered in the accident. When they moved in, his daughter and son-in-law took over many of the household and outdoor chores. [15] A sports medicine physiotherapist recommended he see Dr. Mills, a chiropractor in Prince George, whom he understands has a specialty in the cervical spine. In August 2015, Mr. Spencer saw Dr. Mills, who made adjustments to align his neck. This treatment took pressure off the nerves and provided some relief. Mr. Spencer has continued to see Dr. Mills once a month from that day forward. His condition is better for about two weeks after the treatment and then starts to decline until his next treatment. His family physician recommended that he stop physiotherapy when he first started seeing Dr. Mills. Recently, he has again tried physiotherapy and has had three sessions. [16] For the next six months, from August 2015 to February 2016, Mr. Spencer still had headache and right sided pain. Cold weather made it worse, and once his neck tightened up, it was like a toothache down his arm. When he went ice fishing, he wore high collars to make sure his neck did not get cold. Emotionally, he felt depressed because he is a problem solver and

"go-getter". The pain affected his thinking. It was difficult to see a solution to a problem. His recreational activity was "very minimal". [17] From February 2016 to present, Mr. Spencer has continued to have numbness and ache in his right arm. Once he gets numbness and right sided ache, it feels like a finger pressing against the back of his right eye and there is a sharp ache there. He can see, but it feels like the eye is not working normally. His pain level in general is 3/10. He can identify a spot on the right side of the base of his head which, if poked, creates numbness in his bicep, to the top of his forearm and into two fingers. It feels like hot coffee in the hand. The numbness starts two hours into a 12-hour work shift. Now, when he sleeps, he does so for four hours and then he wakes up. His right and left arms and hands are asleep and he shakes them to get circulation back into them and then goes back to sleep. He has not had eight hours consecutive sleep in years. He takes Tylenol or ibuprofen once every two to three months. He states he has learned to recognize signs of when pain is starting. He has gone through about 30 Toradol pills in five years. [18] He continues to feel sad and depressed. He likes to problem solve and that has been affected. He feels he cannot get out of the hole he is in. He almost feels like giving up because he has tried so many ways to

get out of that hole. [19] He has resumed some activities, but says they are "minimal". He goes fishing, but holding and casting the fly fishing rod causes his whole right side to ache. If he goes fishing with his grandchildren, it is more him watching. If he kicks a ball with his grandchildren, it is for 10-15 minutes and not one hour. He camps with his daughter and grandchildren but he is less active and more a supervisor. His activities with his grandchildren have dropped off because he is scared to pick them up. At a certain height he loses strength in his arm and he is afraid he will drop them. He has gone hunting, but not as often. Last year he went for one day only, although he got a moose the first day. He tried to go to the gym twice, but it was "useless" because it is hard to lift weights without involving the shoulder muscles. When he tried, it instantly triggered a headache and pain down his shoulder and arm. He does not jog, mountain bike or snowmobile because the jarring irritates his neck and gives him a headache. Hunching over on the mountain bike also caused both arms to go numb, especially the right hand. He tried snowshoeing in the back yard but it was difficult. He is now 30 pounds heavier and his shoulders are narrower. His social activities are still minimal with "very minor" activities and are more visits and coffee. [20] He can do minor car repairs like

changing a spark plug, but not any significant repairs or renovations such as re-shingling a roof. He bought a snow blower to clean his sidewalk. He holds the machine with his left hand because the shaking bothers his neck, and he is "exhausted" afterwards. He bought a rake to pull behind his tractor to rake the lawn. His son-in-law also does the snow blowing and the lawn. Currently, his daughter and son-in-law do about one half of the 10 hours of housework and outside work he used to do and he "picks away" at the other half such as doing laundry. [21] He saw Dr. Matanaj, a neurosurgeon in Kamloops, in December 2016. He had an MRI. Dr. Matanaj discussed possible surgery. Mr. Spencer says he will continue without surgery as long as he can until the pain becomes unbearable and then will have surgery. Mr. Spencer's plan for the future is to continue to see Dr. Mills once per month as long as the treatment is working, until he needs surgery. [22] As for his work, he is "strictly operating" and does not do any driving outside of occasional overtime shifts as a driver. He avoids climbing ladders, but has to do this once a month. He has difficulty climbing because his right hand tires easily and loses "its ability and strength" and he cannot hold onto anything. He drops a lot of things. Half way up the ladder he loses grip in his right hand and he starts to feel a headache. He is more

careful. He is slower when he walks around. He does less physical tasks than what he should be doing. He has looked for other jobs. He feels his prospects of moving into management are not good because he is neglecting his complete tasks and "it is not going unnoticed." [23] He still works four on and four off 12-hour shifts as an operator, but he has done much less overtime as a driver since the accident. On average, he has earned between $1,500 and $2,000 per year taking overtime shifts as a driver. He estimates he would be earning $10,000 in overtime per year as a driver were it not for the injuries. The driving work is almost all in forklifts over rough terrain. This requires driving backwards and twisting to drive. The jarring and bouncing is too great and the turning aggravates his injuries. The pain increases within two hours and he "barely makes it through" a shift. He ends up with numbness and ache down the side. [24] If the accident had not happened he had planned to retire at age 65. He thought that once retired, he possibly would work on a contract basis as a consultant to bring mills up to standard. He is now not sure what he is going to do. His plan is to continue at West Fraser until he needs surgery or, if he can, change jobs. He is always looking to better his career. He wants to finish his career at West Fraser but at the same time if an opportunity were to

come about, he would consider it. He has applied for supervisor roles at other employers. Friends and co-worker [25] Mr. Richard Martel, Mr. Stephen McGilloway, and Mr. Matt Ziemer were called as witnesses. They are all friends of Mr. Spencer. Mr. Martel also worked with Mr. Spencer up until 2017. All three corroborated Mr. Spencer's evidence regarding the fishing, hunting, canoeing, and other activities they did with him prior to the accident, and the decline in his activities since the accident. A consistent theme in their evidence was that Mr. Spencer takes a less active role in things they do together, is less energetic, more careful in what he does, appears to be in pain, and relies on others to do the heavier work. For example, he let others field dress the moose that was killed, whereas previously he would have done that. When helping with car repairs he will instruct more rather than actively do the work along with his friend. Mr. Martel said whereas previously Mr. Spencer was his mentor, now Mr. Spencer is less confident and becomes upset more easily. Medical evidence [26] Defence counsel did not object to the admissibility of the expert reports. Other than for the diagnosis of cervical radiculopathy and the opinion that surgery is likely in the future, the reports were of less assistance than they could have been because of the sparsity of the factual bases and

reasoning with respect to the opinions expressed. [27] Both Dr. Moussa and Dr. Matanaj opine that Mr. Spencer had a pre-existing degenerative condition in his cervical spine, and that it was aggravated by the accident. The physicians were not asked to opine regarding the extent to which this degenerative condition resulted in symptoms, if any, prior to the accident, or whether it would have resulted in symptoms regardless of the accident. There was no evidence regarding the nature of the surgery, when it might take place, how long Mr. Spencer may be off work, the likely success of the surgery, and what symptoms it is intended to alleviate. There was no evidence regarding the prognosis, or how surgery might affect function or ability to work. [28] As a result of the sparsity of the expert evidence, I have relied upon Mr. Spencer's description of his functional limitations and the persistency of those difficulties in assessing the probability of them continuing in to the future. [29] Neither Dr. Moussa nor Dr. Matanaj were provided with Mr. Spencer's clinical records that pre-date the accident and which in 2014 refer to about two months of complaints of neck, shoulder, and upper back tightness, and possibly some numbness and tingling. However, both physicians refer to an aggravation of Mr. Spencer's pre-existing condition, and Dr. Matanaj refers to the pre-existing degenerative

disc disease. Dr. Matanaj said that pre-existing massage records would not have affected his opinion. Dr. Ferdinand Matanaj [30] Dr. Matanaj is a treating neurosurgeon and provided an expert report dated December 7, 2019. Dr. Matanaj saw Mr. Spencer on one occasion on December 5, 2016. Dr. Matanaj's report states: In my opinion, this patient's most appropriate diagnosis is aggravation of right cervical radiculopathy and a new onset of cervicogenic headaches. The term radiculopathy refers to "a set of conditions in which one or more nerves are affected and do not work properly." On the other hand, "cervicogenic headache" is a secondary headache, which means it is caused by another illness or physical issue. In my opinion, it is more likely than not that Mr. Spencer's aggravation of his radiculopathy and new onset cervicogenic headaches are a direct consequence of the motor vehicle collision In my opinion, this patient will suffer some limitations in the future. These limitations would include repetitive lifting, bending, twisting motions, or fixed head and neck positions for prolonged periods of time. The patient will also be at risk for further deterioration if he is involved in contact sports or sports at risk for falls. In my opinion, the patient is more likely than not to require or ask friend/family for help with yard work or heavy physical tasks such as lifting more than

10 pounds. These restrictions depend on the patient's symptoms and may be present for several years. ... In my opinion, the patient is more likely than not to require assistance or help in the future with respect to heavier and/or seasonal household and/or yard work. It is difficult to predict for how long. It is more likely than not that this patient will require surgical intervention to improve his right arm symptoms in the future. It is difficult to predict the timing of this intervention at this point in time. Mr. Spencer was involved in a motor vehicle collision on February 12, 2015. He sustained injuries to his neck that have aggravated his right arm, hand and finger pain and numbness. He was been diagnosed with right arm radiculopathy and cervicogenic headaches. The fact that Mr. Spencer has evidence of chronic degenerative changes in his spine has made him more prone to new injuries and further aggravation to his known symptoms. It is more likely than not that this incident has made his symptoms worse. He is also more likely than not to need surgical intervention in the future. [31] In testimony, Dr. Matanaj stated that Mr. Spencer had degenerative disc disease, spondylosis, nerve compression, and conditions that were in keeping with the aging process. As for "aggravation", he meant that Mr. Spencer had increased neck pain, headaches which were new, and increased

severity in his right arm pain. Although he did not say so in these words, Dr. Matanaj made it clear he was not expressing an opinion on the magnitude of the increase in symptoms. [32] In cross-examination, Dr. Matanaj explained the comment in his report that: In my opinion, the patient has not required any partial disability from work. Dr. Matanaj meant that Mr. Spencer was self-restricting activities at work because of his symptoms. Dr. Medhat Moussa [33] Dr. Moussa became Mr. Spencer's family physician after the accident. He provided a report dated December 18, 2019. He reviewed the previous GP's chart and could not find a visit for neck pain. In Dr. Moussa's opinion, the most appropriate diagnosis of Mr. Spencer's symptoms is C6 radiculopathy, which is when the spine is compressed and irritates the nerve. This affects the muscles supplied by the nerve and leads to tingling and weakness. It is likely the injuries will affect Mr. Spencer's recreational activities because he gets severe pain after doing activities. He opined that Mr. Spencer "might suffer long-term symptoms or restrictions with some types of employment opportunities and types of recreational activities" due to pain; and that Mr. Spencer "might require assistance" with respect to regular and heavier household and yard work in the future, for an "unseeable time frame". No details were given of these

opinions. Adverse inference [34] Defence counsel submits that an adverse inference should be drawn against Mr. Spencer that Dr. Mills' evidence would not be helpful to his case because he did not call Dr. Mills as a witness. As a treating chiropractor, the defence could have equally called Dr. Mills as a witness. There was no issue raised with respect to the treatment Dr. Mills was providing. Mr. Spencer said the treatment assisted him. I therefore decline to drawn any adverse inference. Financial records [35] Mr. Spencer's tax returns were filed in evidence. They show income as follows: 2010: $71,991 2011: $76,930 2012: $80,596 2013: $89,967 2014: $98,170 2015: $92,244 2016: $88,280 2017: $102,402 2018: $92,847 2019: $108,567 [36] No yearly pay slips or wage rate tables were in evidence. As a result, there was no documentary evidence of how much of the income was a result of overtime as a driver as opposed to work as an operator. Credibility and reliability [37] Defence counsel argues that Mr. Spencer's evidence should be treated cautiously for the following reasons: a) in completing a form in May 2018 for Dr. Mills, Mr. Spencer said he had not received chiropractic care before, but he had. Mr. Spencer said this was an error, but at first said it was a different kind of chiropractic care; b) when asked if he recalled any numbness or tingling in his hand or fingers in 2011 or

2014, Mr. Spencer said "nothing off the top of my head right now". However, the massage records from January and December 2014 show he had symptoms in his shoulders and arms; and c) Mr. Spencer did not recall reporting to his family physician on February 27, 2018 that he had landed hard onto his back after falling out of a loader. [38] Defence counsel refers to the review of credibility assessment in Bradshaw v. Stenner, 2010 BCSC 1398, aff'd 2012 BCCA 296, leave to appeal ref'd [2012] S.C.C.A. No.

392. In my view, none of the above are necessarily inconsistent or material. Mr. Spencer agreed he had aches and pains over the years from working. Other than the massage records for two months in 2014, there was no evidence of any other complaint of similar symptoms. The massage records are far from clear that there was any significant difficulty, or that Mr. Spencer actually had numbness and tingling in his arms at that time. One record suggests that the massage treatment was the cause of the tingling in the arms. Dr. Moussa was not asked regarding the February 2018 entry regarding a fall from a loader. Absent any context for this fall or evidence that it resulted in a major or continuing problem, Mr. Spencer's lack of memory of the incident does not lead me to doubt his reliability or credibility. There was no evidence that this was a continuing problem. Non-pecuniary damages [39] The purpose of non-pecuniary damages is to compensate for pain, suffering, loss of enjoyment of life and loss of amenities. While awards in other cases provide guidance, each case must be determined on its own facts. Factors to consider in determining the award were set out in Stapley v. Hejslet, 2006 BCCA 34: [46] The inexhaustive list of common factors cited in Boyd that influence an award of non-pecuniary damages includes: (a) age of the plaintiff; (b) nature of the injury; (c) severity and

duration of pain; (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). [40] Mr. Spencer's counsel submits that the range of non-pecuniary damages is $155,000 to $175,000 and refers to Sirak v. Noonward, 2015 BCSC 274; Jafferi v. Hardcastle, 2018 BCSC 486; and Chawla v. Lambright, 2017 BCSC 1884. Defence counsel submits that the range of non-pecuniary damages is $70,000 to $75,000 and refers to Suc v. Skelton, 2019 BCSC 1765; Dueck v. Lee, 2019 BCSC 1936; and Sahota v. Slupsky, 2019 BCSC 2215. [41] In Sirak, the plaintiff was 45 years old at the time of the accident and a painter. He had disabling neck and back pain, headaches, and bilateral numbness, tingling and pain in his arms, hands, and legs as a result of disc protrusions and nerve root compression in the cervical and lumbar spine. His symptoms were getting worse over time, and it was recommended that he have surgery on his lower back and possibly on his neck, although this would not eliminate the pain. He had become

moody and withdrawn. He could only work part time ten years after the accident. He was awarded $160,000 in non-pecuniary damages ($176,090 today's dollars). [42] In Jafferi, the plaintiff was 53 years old at the time of the accident and worked in his own family business. He had shoulder pain that spread to his left arm and neck, and numbness and pins and needles in his lower arm and some fingers. He was diagnosed with a shoulder injury, cervical radiculopathy and underwent cervical surgery, which improved the arm pain, but not the tingling and numbness. The neck pain worsened and the shoulder pain remained, and he suffered altered mood. There was a possibility of further future surgery. He was receiving injections for pain. He was not able to be as active in his business. He was awarded $150,000 in non-pecuniary damages ($155,000 in today's dollars). [43] In Chawla, the plaintiff was 29 years old at the time of the accidents and a police officer. He was off work four months before a graduated return to work. Since then, he had been able to carry out his duties at work with some discomfort. He had continuing back and neck pain and radiating pain, numbness and tingling down his right arm and right leg. He developed a ruptured spinal disc and lumbar and cervical radiculopathy. He had cervicogenic headaches. Surgery for the lower back was recommended. He was awarded $125,000 in

non-pecuniary damages ($132,046 in today's dollars). [44] In Suc, the plaintiff was 37 years old at the time of the accident and working in a metal fabrication shop, but as a result of his injuries ultimately became employed as a support worker. He suffered soft tissue injuries to his lower back with a lumbar disc bulge. Pain radiated to the top of his leg and hip. There was an aggravation of a pre-existing degenerative condition, which the court found would not have been symptomatic but for the accident. At the time of the trial, the back pain was not too bad, activity related, and he would likely remain symptomatic. The court awarded non-pecuniary damages of $70,000. [45] In Dueck, the plaintiff was 52 years old at the time of the accident and self-employed part-time as a piano teacher and had a small catering business, neither of which were impacted by her injuries. The plaintiff suffered injuries to her neck, back, shoulders, left arm, left thumb and left leg, and had headache. Her main ongoing injuries were pain in the lower back, headaches and sleep issues due to the pain. The court awarded non-pecuniary damages of $75,000. [46] In Sahota, the plaintiff was 33 years old at the time of the accident and a teacher. The plaintiff had a pre-existing soft-tissue injury which caused intermittent pain. The accident caused further soft-tissue injury to her neck and back, which was

stubbornly persistent but waxing and waning. The court awarded non-pecuniary damages of $75,000. [47] I find that Mr. Spencer had a pre-existing degenerative condition in his spine and that if he had any symptoms prior to the accident, they were minimal. There is no evidence any symptoms would have become worse or disabling absent the accident. The pre-existing condition did not prevent Mr. Spencer from working more than full time and having a very active life outside work. I find that the accident caused him to have headache and pain and numbness going from his neck to his shoulder and right arm and fingers. For the first six months his symptoms were constant, and they continue intermittently but consistently today. He suffers from pain and numbness in his neck and numbness into his right bicep, top of the forearm, and two fingers of his right hand which starts within two hours of him working. His arms become numb when he sleeps and he is awoken nightly to shake out his arms and restore feeling. He feels less sharp mentally because of the pain, and feels down and discouraged. His previous very active lifestyle has been significantly curtailed by his symptoms. He socializes less because he used to socialize while doing activities. His relationships with his friends and family have been impaired. I find it likely he will have surgery to the neck to relieve arm symptoms at some

point in the future, likely sometime before he retires. The extent of the expected improvement from the surgery is unknown, as well as the effect it will have on his ability to work. However, I assume surgery would not be undertaken unless there were a net benefit, so I find there will likely be some improvement after the initial period of recovery. [48] Awards in other cases are guidelines only, and each case must be decided on its own facts. In my view, the injuries in Sirak and Jafferi were more functionally disabling, and the injuries suffered by the plaintiffs in the cases cited by defence counsel were less significant and less functionally disabling. In my view, the effect of the injuries in Chawla is the most similar. I award Mr. Spencer $130,000 in non-pecuniary damages. Past and future loss of capacity [49] Mr. Spencer is entitled to be put in the position he would have been in had the accident not occurred. The test to be applied for both past and future hypothetical events, is whether there is a real and substantial possibility that the events in question would occur. They are given weight according to their likelihood: Rousta v. MacKay, 2018 BCCA 29 at paras. 13-16. [50] In Shongu v. Jing, 2016 BCSC 901, Mr. Justice Sewell summarized the principles for assessment of future loss of capacity: [186] The applicable principles in assessing loss of future income earning

capacity have been the subject of a number of recent decisions of our Court of Appeal. In Parker v. Lemmon, 2012 BCSC 27, at para. 42, Savage J, as he then was, succinctly summarized the principles set out in Perren v. Lalari, 2010 BCCA 140: (1) A plaintiff must first prove there is a real and substantial possibility of a future event leading to an income loss before the Court will embark on an assessment of the loss; (2) A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation; (3) A plaintiff may be able to prove that there is a substantial possibility of a future income loss despite having returned to his or her employment; (4) An inability to perform an occupation that is not a realistic alternative occupation is not proof of a future loss; (5) It is not the loss of earnings but rather the loss of earning capacity for which compensation must be made; (6) If the plaintiff discharges the burden of proof, then there must be quantification of that loss; (7) Two available methods of quantifying the loss are (a) an earnings approach or (b) a capital asset approach; (8) An earnings approach will be more useful when the loss is more easily measurable; (9) The capital asset approach will be more useful when the loss is not easily measurable. [187] In Jurczak v. Mauro, 2013 BCCA 507, the Court

explained that while assessing an award for future loss of income is not purely mathematical, if available the Court should use factual mathematical anchors as a starting foundation to quantify the future loss of income. [51] In this case, Mr. Spencer had an established pattern of income as a power engineer working as an assistant operator. He had worked overtime as a driver, but this was a less established pattern as Mr. Spencer testified that the driver overtime had been available for the past six or seven years, which is only one to two years prior to the accident. This evidence appears consistent with his income up to 2014. An earnings approach is appropriate in this case. [52] Mr. Spencer advances a claim for lost overtime as a driver based on $10,000 per year less the $1,500 and $2,000 per year he now earns doing that job. Mr. Spencer is claiming $8,250 per year, or $687.50 per month for the past 61 months since the accident for a loss before taxes of $41,937.50. Counsel have agreed that the tax rate is 22% and must be deducted pursuant to s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c.

231. The net past loss claimed is $32,711. [53] Defence counsel submits that past lost of capacity should be based on comparing actual earnings over the past five years to the 2014 earnings. In the three years leading up the accident, Mr. Spencer's average income was $89,577. With the exception of 2018, Mr. Spencer's income since 2015 has been greater. With a tax rate of 22%, he submits the net past loss is $12,400. Defence counsel makes detailed calculations, based on Mr. Spencer's evidence as to his current hourly rate from his regular job as an operator (approximately $39.00 per hour) and adds the amount Mr. Spencer says he is now working overtime as a driver, and compares this to reported income in the tax returns. Defence counsel argues it doesn't add up and "raises some questions". Mr. Spencer's 2019 income is $108,567 but when all of the shift differential and admitted overtime is taken into account, there is still approximately $14,000 in unaccounted for income that Mr. Spencer earned at West Fraser. Defence counsel argues that Mr. Spencer did not produce any pay stubs or other records regarding his earnings. The implication is that Mr. Spencer is working more than he admits. [54] The difficulty with this argument is that there was no evidence before the court of a request or refusal by Mr. Spencer to produce any paystubs or overtime records, nor were defence counsel's

calculations, or this position put to Mr. Spencer in cross-examination. I agree defence counsel's calculations show a discrepancy. However, to accede to this argument is contrary to the principal in Browne v. Dunn, 1893 CanLII 65 (Eng. C.A.) that counsel should put evidence they say contradicts a witness to that witness during cross-examination to allow the witness to explain any inconsistencies. In the absence of having put these to Mr. Spencer, I am not prepared to conclude that he has been untruthful as to the amount of overtime he is currently working. The calculations of defence counsel may be correct, but the assumptions underlying those calculations are not reliable unless both sides have had a chance to comment on them. There could be many reasons why Mr. Spencer's income is greater than defence counsel's calculations, and which have nothing to do with the claims in this lawsuit. I find Mr. Spencer has suffered a past loss of capacity of $32,711 and I award that amount. [55] Mr. Spencer claims future loss of capacity based on what he would have earned from overtime until age 65 based on a lost earnings approach plus an additional award based on a lost capital asset approach. With respect to the earnings approach, he extends his calculation for past loss of capacity and claims $6,435 (net of tax per year) for the next nine years, discounted to present value, for a total

of $53,796. Future loss is not calculated on a net of tax basis. I have therefore substituted the before tax amount as an initial calculation, and the resulting figure is $68,974. [56] Mr. Spencer's counsel also argues there is a real and substantial possibility Mr. Spencer will not continue at his current position. He argues the position is "accommodated" and Mr. Spencer "is able to get away with" not doing driving, and the job is "tenuous". The evidence does not support this argument. There is no evidence from his employer to this effect. Mr. Spencer is working full time as an operator rather than an assistant operator, and has been doing so for the past almost five years. Mr. Spencer is motivated and someone who likes to keep busy. Further, there is no admissible evidence that depending on the outcome of the surgery, Mr. Spencer may not be able to continue in his job. Dr. Matanaj's evidence was that surgery would be done to improve his right arm symptoms. Other than that, there was no admissible evidence of prognosis from the surgery. [57] Mr. Spencer's counsel refers to the factors in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) for assessing a plaintiff's loss of earning capacity on a capital asset approach. Those factors are: 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. [58] Mr. Spencer's counsel submits that Mr. Spencer meets every one of the above factors. He argues Mr. Spencer is 15-25% disabled from his earning capacity before the accident. Counsel takes a net tax figure of $82,862 from Mr. Spencer's T4 last year, adds net lost overtime of $6,435, and applies a present value multiplier for the next nine years until Mr. Spencer is 65, and then applies a 15 or 25% discount factor. The resulting figures are between $112,000 and $187,000. I note that adding in the lost overtime is a duplication if he is going to add this to the already calculated amount of lost overtime. If a gross income figure were used, those figures would be $136,000 to $227,000. Alternately, Mr. Spencer's counsel argues that many cases have awarded loss of capacity on a multiple of between one and three years salary. [59] Combining both approaches, counsel for Mr. Spencer takes the $53,796 from net of tax lost overtime and adds it to the $112,000 figure at the low end of his calculations based on a 15-25% net of tax loss, for a total claim of $53,796 plus

$112,000 = $165,000 rounded. [60] Mr. Spencer's calculations did not include an argument that he has lost an opportunity to go into management, and in the absence of any evidence of whether there are such positions available, and what qualifications would be needed, or the salary, such a claim would be speculation. [61] As for future loss, defence counsel extends his argument on past lost of capacity and argues the income tax returns show greater income than what Mr. Spencer was earning prior to the accident and therefore no loss, or at most one year of overtime, being $8,000. [62] I have considered negative and positive contingencies. Mr. Spencer has continued in his position as an operator for the past five years, and so is likely to be able to continue. Although it is likely he will have surgery at some point in the future, there is also the possibility he may not. Any surgery would be intended to improve his arm symptoms, and if he has surgery, it is expected he would improve to some degree. There is a possibility that overtime as a driver may not always be available, although it has been for the past six or seven years, but it was not available to this extent prior to then. Mr. Spencer explained that West Fraser had changed the shifts of its regular drivers which resulted in overtime driving work. If he has surgery, he will lose time from work, and there is a possibility

the surgery may not improve his symptoms or all of his symptoms. He may become worse and reach a point where he is having more difficulty doing his job, or his condition may be further aggravated. I have also considered general labour market contingencies, for example, whether he may be away from work for another illness or injury or may decide to retire earlier. I have considered this for both pre and post accident scenarios. Given that Mr. Spencer was working more than full time and in his own words is a workaholic, I consider the likelihood of him retiring early to be small. In my view, the most likely scenario is that Mr. Spencer will continue working for West Fraser in his current job until he is 65, he will eventually have surgery, likely before he retires, and he will return to that job. In my view, that is also the most likely scenario (except for the surgery and lost overtime) that would have occurred if he had not been injured in the accident. [63] I find Mr. Spencer does meet the four factors in Golaiy, but there is no evidence to support in particular a 15-25% reduction in capacity in his job as power engineer, although I find there is a loss in his capacity generally. If there is an award for loss of overtime from driving under an income approach, then there must not be a duplication with any loss considered under a lost asset approach. In other words, if it is

assumed he will continue until age 65 in his present occupation and an award for loss of capacity based on lost overtime is made, then to large extent the loss of his capital asset has already been compensated. In my view, it is not appropriate to simply add the two figures together. [64] Taking into account all of the above, the lost overtime, and that Mr. Spencer will likely have surgery and be off work for a period of time, and considering the overall fairness and reasonableness of an award, I assess Mr. Spencer's future loss of capacity at $75,000. This is based primarily on lost overtime and the time he may be away from work if he has surgery which I find is the most likely scenario of loss. Loss of housekeeping capacity [65] Mr. Spencer seeks an award based on 2.5 hours per week at a rate of $25.00 per hour. The 2.5 hours per week is based on Mr. Spencer's evidence that he spent 10 hours per week prior to the accident on household and outside chores, and that since the accident and his daughter and her family moving in with him, his duties have been reduced to five hours per week. His counsel argues that "common sense" dictates that Mr. Spencer's daughter and family would have contributed to household chores to some extent in any event. There was no evidence of the cost of housekeeping assistance, but counsel submits this hourly rate can be justified on the basis of

Broomfield v. Lof, 2019 BCSC 1155 at para. 109, where there was no evidence of an hourly rate but the court found this was a reasonable amount. Mr. Spencer claims a past loss of $16,500 based on $25/hour for 2.5 hours/week for 265 weeks since the accident. Using the same formula, and claiming expenses until the end of his life, Mr. Spencer claims a future loss of housekeeping capacity of $67,500. [66] Defence counsel submits loss of housekeeping capacity should be accounted for in non-pecuniary damages. Defence counsel refers to Riley v. Ritsco, 2018 BCCA 366, where the Court stated: [96] The judge found that Mr. Riley was not incapacitated from doing routine housework or cooking, and declined to award an amount for diminution of housekeeping capacity. Mr. Riley points to evidence that he was unable to do certain home renovation work on his own, and seeks a "segregated" head of damages for loss of housekeeping capacity of $10,000.00. [97] In my view, the judge made no error in rejecting the idea of a segregated damages award in this case. [98] There was no evidence that any incapacity on the part of Mr. Riley would result in actual expenditures, or of family members or friends routinely undertaking functions that would otherwise have to be paid for. If it existed, such evidence could have supported a segregated award of pecuniary damages on the basis of Kroeker v. Jansen

(1995), 123 D.L.R. (4th) 652; (1995) 4 B.C.L.R. (3d) 178 (C.A.). [99] In Kroeker the Court briefly considered the question of whether a segregated award of non-pecuniary damages could have been made. Justice Gibbs said: [27] Having found no error in classification it is not necessary to decide whether it is open to a trial judge to segregate non-pecuniary awards into separate heads, although there would appear to be no reason why that should not be done if the special facts of a case warrant it. [100] In Liu v. Bains, 2016 BCCA 374, the Court again upheld a claim for pecuniary damages for loss of housekeeping capacity. It said: [25] Since the decision in Kroeker, it has been well-established in this province that domestic services have value and an injured party may justifiably claim for loss of housekeeping capacity, even if these services are provided gratuitously by family members: McTavish v. MacGillivray, 2000 BCCA 164 at para. 63. [26] It lies in the trial judge's discretion whether to address such a claim as part of the non-pecuniary loss or as a segregated pecuniary head of damage. In McTavish at paras. 68-69, the Court suggested that treating loss of housekeeping capacity as non-pecuniary loss may be best suited to cases in which the plaintiff is still able to perform household tasks with difficulty or decides they need not be done, while remuneration in pecuniary

terms is preferable where family members gratuitously perform the lost services, thereby avoiding necessary replacement costs. [101] It is now well-established that where a plaintiff's injuries lead to a requirement that they pay for housekeeping services, or where the services are routinely performed for them gratuitously by family members or friends, a pecuniary award is appropriate. Where the situation does not meet the requirements for a pecuniary award, a judge may take the incapacity into account in assessing the award for non‑pecuniary damages. [102] I acknowledge what was said in Kroeker about segregated non-pecuniary awards "where the special facts of a case" warrant them. In my view, however, segregated non-pecuniary awards should be avoided in the absence of special circumstances. There is no reason to slice up a general damages award into individual components addressed to particular aspects of a plaintiff's lifestyle. While such an award might give an illusion of precision, or suggest that the court has been fastidious in searching out heads of damages, it serves no real purpose. An assessment of non-pecuniary damages involves a global assessment of the pain and suffering, loss of amenities, and loss of enjoyment of life suffered by a plaintiff. By its nature, it is a rough assessment and not a mathematical exercise. [67] Mr. Spencer did not testify that he could

not do housekeeping activities. However, he did say there were certain heavier tasks he could not do, such a re-roofing or heavier mechanical work on a car. I find that he had handy skills and prior to the accident did many repairs and chores himself that others would have to pay for. He has lost that capacity, and now must pay for those services or ask friends to do it for him or help him. He has adapted to some extent, for example by purchasing a snow blower and a pull-behind rake for lawns. His daughter and son-in-law also do housework and outdoor work, but other than manual shoveling and raking, there was no evidence that Mr. Spencer could not do the work they are now doing. Dr. Matanaj opines that Mr. Spencer will require assistance with respect to heavier and/or seasonal household and/or yard work. [68] I am satisfied there should be a separate award but only for these heavier tasks that Mr. Spencer is incapable of doing and which he now has to rely upon family or friends to do, or pay for. There should not be a separate award for discomfort Mr. Spencer may feel in carrying out lighter tasks and which his family chooses to do for him. The pain associated with this is accounted for in the award of non-pecuniary damages. I also do not accept that an award for these heavier tasks should be calculated on the basis that Mr. Spencer would do these tasks for the rest of his

life. There should be a cut-off date prior to the end of Mr. Spencer's life where he would not be doing such heavy tasks as renovations. I have considered negative and positive contingencies as to Mr. Spencer's conditions as discussed above, that he may not always live on a one-acre property, and his capacity will be more greatly affected for a time following surgery, but that surgery will likely improve some symptoms. I assess the loss for the past and future together on the basis of approximately $1,000 per year for the past five years and until Mr. Spencer is 75 years old, and making some allowance for extra assistance in the time surrounding the surgery. I assess the loss at $25,000. Special damages [69] Claims for special damages must be reasonable. In Redl v. Sellin, 2013 BCSC 581, the court stated: [55] Generally speaking, claims for special damages are subject only to the standard of reasonableness. However, as with claims for the cost of future care (see Juraski v. Beek, 2011 BCSC 982; Milina v. Bartsch (1985), 49 BCLR (2d) 33 (BCSC)), when a claimed expense has been incurred in relation to treatment aimed at promotion of a plaintiff's physical or mental well-being, evidence of the medical justification for the expense is a factor in determining reasonableness . [70] Mr. Spencer claims the cost of travelling to see Dr. Mills every month for the past 61 months, plus the

cost of the treatment. Dr. Mills is in Prince George. Mr. Spencer testified there is no chiropractor closer who has the expertise Dr. Mills has. Mr. Spencer has also attended physiotherapy recently on the advice of his treating physician. [71] Defence counsel disputes the reasonableness of the distance Mr. Spencer travels to see Dr. Mills each month, and submits the claim for travel should be one‑half this amount, except for the travel to attend Dr. Matanaj and to have imaging. Defence counsel submits the appropriate amount is $6,920, which is the resulting figure when the travel costs are halved. [72] In my view, the expenses claimed by Mr. Spencer are reasonable and medically justified. Mr. Spencer attended Dr. Mills on the advice of a sports medicine physiotherapist, and the treatment provides him with relief. I award the $9,341 as claimed. Cost of future care [73] In Dzumhur v. Davoody, 2015 BCSC 2316, the court summarized the principles applicable to the determination of cost of future care awards: [244] The principles applicable to the assessment of claims and awards for the cost of future care might be summarized as follows: · the purpose of any award is to provide physical arrangement for assistance, equipment and facilities directly related to the injuries; · the focus is on the injuries of the innocent party... Fairness to the other party is achieved by ensuring that

the items claimed are legitimate and justifiable; · the test for determining the appropriate award is an objective one based on medical evidence; · there must be: (1) a medical justification for the items claimed; and (2) the claim must be reasonable; · the concept of "medical justification" is not the same or as narrow as "medically necessary"; · admissible evidence from medical professionals (doctors, nurses, occupational therapists, et cetera) can be taken into account to determine future care needs; · however, specific items of future care need not be expressly approved by medical experts...... It is sufficient that the whole of the evidence supports the award for specific items; · still, particularly in non-catastrophic cases, a little common sense should inform the analysis despite however much particular items might be recommended by experts in the field; and · no award is appropriate for expenses that the plaintiff would have incurred in any event. See Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Krangle v. Brisco, 2002 SCC 9; Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), aff'd (1987), 49 B.C.L.R. (2d) 99 (C.A.); Aberdeen v. Langley Township, 2008 BCCA 420; Gregory v. ICBC, 2011 BCCA 144; Jacobsen v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63 (S.C.); Penner v. ICBC, 2011 BCCA 135; Shapiro v. Dailey, 2012 BCCA 128. [74] An assessment of future care

costs also includes an accounting for negative and positive contingencies: Morlan v. Barrett, 2012 BCCA 66 at para. 76; Tsalamandris v. McLeod, 2012 BCCA 239 at paras. 64-72. [75] Mr. Spencer claims future costs based on $200 per month for the rest of his life. This includes the cost of chiropractic, travel to chiropractic, physiotherapy and occasional medication. Applying a present value multiplier, the resulting figure is $49,696, which he has rounded to $50,000. [76] Defence counsel argues that Dr. Matanaj's report provides extremely limited information regarding the possible surgery, the success rate, any recovery time, or the impact of the surgery, and relies on his previous arguments regarding travel to attend Dr. Mills for treatment. [77] In my view, the physiotherapy, which has just started, is unlikely to continue for the rest of his life. It was not helpful in the past. There was no evidence whether chiropractic care would be recommended or needed after neck surgery. At least for the short term until Mr. Spencer likely has surgery, the evidence establishes the cost is $160 per month. I have again considered the positive and negative contingencies regarding Mr. Spencer's future condition, as discussed above. In my view the most likely scenario is that Mr. Spencer will have surgery sometime in the next five to nine years and regular chiropractic care will probably not

continue after that. I choose five to nine years because Mr. Spencer may delay his surgery until he is closer to retirement. Using a discount rate, the resulting figures are between $9,050 and $15,671. I have also considered that he may incur increased costs for appointments to travel to Dr. Matanaj and the surgery as well as medication and other treatment costs surrounding the surgery. I assess Mr. Spencer's cost of future care at $13,000. Conclusion [78] Mr. Spencer will have judgment against Ms. Hussey in the following amounts: a) Non-pecuniary damages: $130,000 b) Past loss of work capacity: $32,711 c) Future loss of work capacity: $75,000 d) Loss of housekeeping capacity: $25,000 e) Special damages: $9,341 f) Cost of future care: $13,000 Total: $285,052 [79] In the absence of any settlement offers that would affect the award of costs, Mr. Spencer is entitled to his costs at Scale B. If there are submissions on costs, the parties may provide written submissions on costs of no more than five pages through Supreme Court trial scheduling. The plaintiff shall provide written submissions within two weeks of the release of these reasons. The defendant shall provide written submissions within two weeks of receiving the plaintiff's submissions. The plaintiff may submit reply submissions of no more than two pages within one week of receiving the defendant's submission. "Norell J."