Taylor v. Grundholm

2010 BCSC 860 Taylor v. Grundholm

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Taylor v. Grundholm, 2010 BCSC 860 Date: 20100617 Docket: M085412 Registry: Vancouver Between: Stephen Taylor Plaintiff And Ebba Grundholm Defendant Before: The Honourable Madam Justice Maisonville Reasons for Judgment Counsel for the Plaintiff: A.K. Khanna Counsel for the Defendant: J.W. Burgoyne D. De Baie Place and Dates of Trial/Hearing: Vancouver, B.C. April 26-30, 2010 Place and Date of Judgment: Vancouver, B.C. June 17, 2010

INTRODUCTION [1] This is an assessment of damages arising out of a motor vehicle accident which occurred on January 31, 2008. Liability for the accident is admitted.

FACTUAL OVERVIEW 1. The Plaintiff [2] Mr. Taylor was 56 years old at the time of the accident. At the time of trial he was 58 years of age. He lives alone in Milner, B.C. in a small basement suite in a house next door to a house he used to own. Mr. Taylor lost both his parents in a plane accident when he was only six years old. He went to live with his grandparents; three years later, his grandfather died. Within another three years, his grandmother died and he went to live in foster care. He completed Grade 11 at Lord Tweedsmuir High School in Langley. [3] He has a strong work ethic, having learned on his grandparents' farm that there was always work that could be done. He had worked as a part-time gas station attendant in his teenage years. [4] Mr. Taylor has been married twice. He first married in his early twenties. That marriage lasted eight years, during which he purchased a house in Milner, B.C. At this time in his life, Mr. Taylor worked as a sales representative with Pacific Builders, a company that sold roof trusses and prefabricated homes. He worked for that company for over twenty years. He has two children from his first marriage: he had custody of Scott from the dissolution of that marriage, and Jessica came to live with him when she was about ten years of age. The children stayed with him until they finished secondary school, and returned to live with him from

time to time. [5] He married again approximately six years after the breakup of his first marriage. This marriage ended in 2001 when his wife left him, according to Mr. Taylor, pregnant with another man's child. [6] At the outset of his second marriage, Mr. Taylor mortgaged his home to assist his wife in purchasing a daycare. He testified he lost the house in foreclosure proceedings at the time of the breakdown of that marriage. He then moved to the house next door, where he currently resides in one of the basement suites. His divorce trial took place in 2001, but that was not the end of legal proceedings with his second wife. He testified she took out a restraining order against him, and made several criminal complaints against him. She made an allegation of dangerous driving (that he tried to run her over with a gravel truck), and on another occasion she alleged he tried to run her over with his vehicle. He was never convicted in relation to any of these allegations, but he indicated that the legal proceedings left him feeling "pretty distraught". He indicated that before that relationship ended, when he was 50 years of age, he became semi-retired. He was doing well financially, emotionally and physically. Mr. Taylor described the breakdown of his second marriage as a period of turmoil which affected all aspects of his life -- his self esteem, his ability to work and to perform his regular activities. This period lasted, more or less, until he commenced his employment with Van Kam Freightways Ltd. ("Van Kam") in 2007.

2. Pre-Accident activities [7] Before the accident, Mr. Taylor enjoyed hunting, fishing and fly fishing in particular. He also collected and restored antiques. He enjoyed spending time with his children and his friends. He has a recreational property on a lake that is only accessible by water and which requires much upkeep. He enjoyed working on that property, including having several cords of wood cut and at the ready. He also enjoyed canoeing, particularly at his lakefront property mentioned above. [8] Mr. Taylor has worked from a young age. As noted above, he worked with Pacific Builders as a sales representative for over twenty years. When that business was closed, which was in approximately 1989, he took six months off and then purchased a one-ton flatbed pickup truck. He started a hauling business with his truck, which grew gradually and lasted for ten years. At that point, he decided to pass the business to some friends of his who were starting a similar business. He wanted to work full-time in the daycare instead. When the daycare was purchased in 1993 only seven children attended; by 2000, there were over 70 children enrolled. [9] Mr. Taylor's daughter Jessica also testified. She is now resident in Tofino, B.C. and operates her own hairdressing business there. She testified she lived with her father from an early age until she finished high school in Langley, B.C. She

described the plaintiff as the "best dad in the world". She indicated he used to do a lot of gardening, and that prior to his purchase of the recreational property, they went camping together. In recent years at the cabin, they would canoe in the summer and skidoo in the winter over the frozen lake. [10] She described how the breakdown of his second marriage shattered Mr. Taylor emotionally. Before, he was active: he had a cartage business, helped at the daycare and lived in a large, comfortable home. Following the breakup, he was crushed and living in a basement suite. It was only after he obtained his employment with Van Kam that, in Jessica's words, "he definitely came back to himself". He was proud of himself and his employment with Van Kam. [11] Although he was away from work for a time because of a knee injury (sustained when he slipped on ice while attempting to put a block under the truck wheel), this was only temporary and I find he intended to return to driving for Van Kam. In fact, he did so until August 4, 2009.

3. Pre-accident employment [12] Mr. Taylor has worked in number of different capacities during his life, but his two main occupations have been in sales and trucking. He worked for the same firm selling roof trusses for over 20 years. In trucking, he owned and operated a cartage business, and then worked for a company as a driver. [13] Mr. Taylor's income tax returns for the years 2005, 2006, 2009, and computer printouts for the years 2007 and 2008 (which were filed electronically) were entered into evidence. He testified that in 2005 he was finishing up managing a chicken farm. He also worked for Smithrite Delivery - he would fly to Québec and drive back to British Columbia in a delivery truck. He earned $4,437.04 in employment income. In that same year he received $5,616.00 in employment insurance. His total income for 2005 was $10,053.04. He eventually moved to Hank's Trucking, where for part of the year he drove a gravel truck, and during springs and summers he drove a tractor that cut grass at the sides of the road. His income tax return for 2006 indicates employment income of $27,512.68 and employment insurance of $2,903 for a total of $30,415.68. He indicated he also earned cash driving a truck for "Don Holmes" (phonetic), but that is not listed in his tax return; in cross-examination, he denied receiving employment insurance when he was being paid in cash. [14] On

October 23, 2007 he started with Van Kam, a job he obtained with the assistance of his brother and cousin. He had considered buying another truck for his own business, and his brother had offered to lend him $12,000, but he could not obtain financing. In 2007 his gross earnings were $20,824 and he received $4,130 in employment insurance benefits for a total of $16,694. In 2008, Mr. Taylor earned $27,269, $32 in other income, and workers' compensation benefits of $16,675. Mr. Taylor stopped working for a period of time as a consequence of a knee injury he sustained when he slipped on ice at work on December 29, 2007 (as previously noted, he was attempting to put a block under the truck wheel). He received workers' compensation benefits ("WCB") as a result of that injury. In 2009 his earnings from all sources, including the Teamsters' National Benefit Plan, amounted to $41,387.14.

4. Pre-accident health [15] The defendant asserts that Mr. Taylor had numerous pre-existing injuries that impacted on his activities. Prior to the accident, he suffered from gout, arthritis, psoriasis, and mild diabetes. Respecting Mr. Taylor's diagnoses of gout and arthritis, Dr. Leith (an orthopaedic surgeon who testified for the defence) noted that Mr. Taylor's gait on February 16, 2010 was satisfactory. In accordance with the medical opinions of Drs. Gouws and Manchanda (the plaintiff's family physician), I find that gout is a treatable condition. I also agree with Dr. Manchanda's finding that Mr. Taylor's gout is controllable with proper diet and ceasing all alcohol consumption. Mr. Taylor had suffered a significant injury to his left ankle during his teens that the medical evidence disclosed would likely lead to increased possibility of arthritis later in life. [16] Apart from the knee injury in 2007, however, no pre-existing condition kept the plaintiff from working. His work required many physical activities, including detailed truck inspection, freight hook-up, and lowering parts of the truck -- all activities that he performed manually. He attended a pre-employment physical with Dr. Peach on October 9, 2007: no concerns arose and he was cleared for work.

5. The Accident [17] Liability for the accident is admitted. It occurred at approximately noon on January 31, 2008 when the defendant, Ebba Grundholm, was driving her 2000 Chrysler Cirrus eastbound on Fraser Highway in Langley, B.C. just past the intersection with 272nd Street. Mr. Taylor was returning to his 1993 Mercury Topaz, parked at the curb adjacent to the laundromat where he was doing his laundry. Because his dog was sitting in the front passenger seat, he went around the vehicle and opened the driver's side door to reach into the back to retrieve a box of soap he needed for the wash. His left hand was holding the steering wheel and he was leaning into the back seat area when the collision occurred. [18] He described the crash as being like an explosion. His vehicle was later declared a 'write off'. The defendant's vehicle apparently struck him and his vehicle such that he was thrown into his front driver's side door. The damage to the driver's side of his vehicle was visible in photographs that were entered into evidence. These photographs show extensive damage to the driver's side of the vehicle and corresponding damage to the passenger side of the defendant's vehicle. [19] The police reports of the accident were entered into evidence. The reports describe that Mr. Taylor had conversations with both the defendant and the police, but he testified that he has no memory

of that. He retrieved his laundry and sought the assistance of friends to help him get the door to his vehicle shut, which apparently was so badly damaged it could not be shut at the scene, but he has no recollection of any of those activities either. He indicated he was "dazed" and "confused". The plaintiff advised the RCMP officer who attended the scene that he did not want an ambulance and was not injured. This report was put into evidence and Mr. Taylor was cross-examined on this point: he agreed that he likely indicated that he was not injured, but said it was a mistake on his part as he was clearly hurt. He testified that he was not acting normally. I find that Mr. Taylor was indeed in shock, not acting normally, and just wanted to get home -- so much so that he took his laundry home wet and soapy. He then attended a physiotherapy treatment for his knee. Though he mentioned the accident to the physiotherapist, he did not specifically complain of pain in his elbow or arm, and there is no indication in the physiotherapist's notes of bruising or swelling around his elbow area -- but according to the medical evidence, this was not to be expected at that time (insofar as bruising is indicative of a distal biceps rupture). Instead, the medical evidence on bruising (if any) from a distal biceps rupture was that it would not be apparent right away (should that bruising ever occur). [20] After his physiotherapy treatment, Mr. Taylor went home, where he stayed for several days. He testified he was confused and has little memory of this time except for the fact that his brother was very concerned and eventually came and took him for medical attention.

6. Post-accident employment [21] Following the accident, Mr. Taylor continued to receive WCB until he had surgery on his knee and recovered. He returned to work on July 5, 2008. He suffered a further aggravation of his knee injury and was off work (and on WCB) from September 9 to 19, 2008.

7. Treatment and post-accident health [22] Mr. Taylor did not seek medical attention immediately following the accident. He testified that he was confused, in pain and just stayed home until his brother came to get him. Although he attended a physiotherapy treatment, he has no recollection of it. I accept this evidence. [23] On February 5, 2008 Mr. Taylor first sought medical attention from his then family doctor, Dr. Alister F. Frayne. Mr. Taylor testified he had not been happy with Dr. Frayne's treatment and he was in the process of changing doctors. [24] Dr. Frayne gave evidence at trial respecting his notes, which were entered into evidence. His practice is not to question a patient about injuries or symptoms but instead to have him or her describe the injuries and volunteer the information while he simultaneously types notes into the computer. His practice is to follow the "SOAP" method of note taking, which consists of notes under the following headings: Subjective, Objective, Analysis and Plan. [25] There is no issue that on February 5, 2008 Mr. Taylor came to Dr. Frayne's office complaining of pain to his upper left quadrant area, as well as other complaints arising from the motor vehicle accident. Indeed, the note is headed "Examination - mva". Dr. Frayne noted the following on February 5, 2008: Subjective: MVA last Thursday, hit by car - now sore L hip, shoulder,

central chest CLAIM # N2079391 Also some heartburn, brown urine [a portion of the notes was illegible but believed by Dr. Frayne to be "some" followed by the word] insomnia, and nightmares. Objective: Diffuse tenderness Trap [which he testified to mean trapezius muscle], ES, no spasm, lat. dorsii ROM [range of motion] limited by pain, patient reluctant to move. The "Analysis" field of Dr. Frayne's notes was empty, but he testified that it was an examination in respect of a motor vehicle accident. Under "Plan" Dr. Frayne wrote "Mobilize, NSAIDs as required, continue physio" and "Ix: Pathology - Urine Culture". [26] I find that Dr. Frayne's records do not detail all of Mr. Taylor's problems and the overall trauma he suffered. This can be attributed to Dr. Frayne's record keeping style. He had no independent recollection of Mr. Taylor's visit and was unable to describe the mechanism of the accident. [27] I find there is no doubt that Mr. Taylor complained of pain in his left side and his upper left quandrant to Dr. Frayne. [28] There is no evidence before me that Mr. Taylor had ever complained of any difficulties with his upper left quadrant area prior to the accident. [29] Not satisfied with Dr. Frayne, Mr. Taylor attended upon Dr. Velay. Mr. Taylor's initial visit was on February 13, 2008. Dr. Velay noted his presentation of pain and soreness (these notes were in evidence).

Based on Mr. Taylor's clinical presentation, he was sent on an emergency basis to Royal Columbian Hospital to be seen by a neurologist, Dr. Ho, to rule out a transient ischemic attack ("TIA"). Ultimately, a CT scan of his head and a CT angiogram were performed, both of which were normal. [30] Respecting the physical presentation of the biceps injury immediately following the accident, Dr. Manchanda stated that typically when a muscle is no longer used (as when there is a tear of the biceps and it is no longer attached to the bone), it will start to atrophy. The atrophy takes between several weeks and three to four months to show up (visible as a loss of muscle mass). [31] The disablement of Mr. Taylor's left shoulder and upper extremity became more apparent by the time he returned to work in July 2008. During his testimony, Dr. Manchanda was taken through, and he reviewed and explained, some of his clinical entries. On November 13, 2008, he noted the plaintiff's elbow pain: "L arm terrible since back to truck driving. Arm extended, uses L arm for wheel while R arm shifts L arm painful in elbow". [32] Mr. Taylor's upper limb problems continued to worsen with use and resulted in his being unable to continue work as of August 5, 2009. He had tried everything to remain working. [33] Dr. Gouws was accepted as an expert in occupational health and fitness to work. He authored a report dated February 17, 2010, in which he stated as follows:

OPINION ON COMPETITIVE AND FUTURE EMPLOYABILITY Disability has been defined by the American Medical Association (AMA) as "an alteration of an individual's capacity to meet personal, social, or occupational demands, or statutory or regulatory requirements." The World Health Organization (WHO)'s definition of disability is: "any restriction or lack [resulting from an impairment] of ability to perform an activity in the manner or within the range considered normal for a human being." 64. Mr. Taylor continues to have a functional impairment due to the injuries that he sustained in the motor vehicle accident of January 31, 2008. In view of the fact that he continues to have symptoms more than 2 years following his injury, the widespread nature of his pain and his relatively advanced age in the workforce, his prognosis for any significant improvement in his symptoms and function is guarded.

65. Mr. Taylor cannot meet the Physical Activities of his previous occupation of long haul/short haul truck driver. It is my opinion that he is permanently disabled from returning to these occupations. From a vocational rehabilitation perspective, Mr. Taylor's chronic pain condition, associated mood and sleep disturbances as well as his ongoing left upper limb dysfunction is a significant liability for him to continue in his chosen occupational field. FITNESS TO WORK: 66. Mr. Taylor's biggest problem in terms of his physical abilities is his intolerance for physical activity including sustained reaching and handling with the left upper limb, and sustained body positioning. This and his chronic pain would make it very difficult for him to work in any capacity at this stage.

67. Unfortunately, Mr. Taylor has very few transferable skills, although he does seem to have been quite adaptable to different work situations in the past. Mr. Taylor will most likely find that he must seek lighter, lower paying employment where it will be difficult for him to be competitive in view of his reduced ability to work productively. As a consequence of his injuries and ongoing physical impairments, he will most likely be unable to benefit from other employment opportunities that would have been available to him, were it not for the motor vehicle accident of January 31, 2008. [34] Dr. Travlos was accepted as an expert in the area of physical medicine and rehabilitation. Mr. Taylor had seen Dr. Travlos for the purposes of obtaining an assessment, which was tendered as an exhibit. Dr. Travlos' statement with regard to the left biceps injury was similar to Dr. Manchanda's. He stated, and I accept his evidence, that depending on the incident and the rupture, the patient may notice pain, but sometimes the patient does not notice it at the time. [35] Mr. Taylor was assessed by Dr. Travlos on August 19, 2009. He recommended hands-on supervision in physical therapy four days per week, geared towards a progressive program of stretching and strengthening of the left upper extremity. Dr. Travlos' report was provided to Brookswood Physiotherapy on August 28, 2009, following

which therapy began as recommended. From August 28, 2009 to April 20, 2010 Mr. Taylor had attended and been treated at Brookswood Physiotherapy on 93 occasions. [36] Dr. Travlos was questioned about the plaintiff's pre-existing health concerns: gout, psoriasis (which can be indicative of an underlying arthritic condition), diabetes, and arthritis in the knees and ankle from the earlier injury. He indicated that all of these conditions are manageable -- they can flare up and then come under control again. I accept that Mr. Taylor had managed these conditions for many years, and throughout his employment with Van Kam, without any loss of work (except for the knee injury and surgery). [37] Dr. Travlos noted as follows in his report of August 19, 2009: Although Mr. Taylor did return to work, he was clearly having difficulty doing so and although he worked for close to a year after his return to work, he was having great difficulties doing the work. Indeed, when one examines and observes him today, there is no way he would be given clearance to work as a truck driver. At this point, it is difficult to know just how much he has deteriorated over time, but either way, his current level of functioning does not allow for him to be employed as a trucker, and he would not pass his certification to do so. It is my opinion Mr. Taylor is, at this point, fully disabled from his job as a

trucker. It is difficult to know if he will regain the ability to work in that capacity and this remains to be seen. The lack of left arm use and the chronic pain symptoms would preclude him from doing many other jobs at this time, and his presentation today does not allow for gainful competitive employment. To what extent he will be able to in the future remains to be seen and will depend on his improvement over time. [38] Dr. Manchanda provided his opinion in a report dated February 12, 2010, which was entered as evidence. It is notable that all the witnesses who were questioned about Mr. Taylor's injuries considered Dr. Manchanda to be an exceptional family physician, particularly in terms of conscientiousness, the thoroughness of his note-taking, and caretaking of his patients. After Mr. Taylor had undergone four and one-half months of the therapy regime with Brookswood Physiotherapy, Dr. Manchanda noted as follows: In my opinion, Mr. Taylor is not able to work in any job that requires physical strength of his left upper extremity, such as jobs requiring lifting, sweeping, cleaning, pushing, pulling, driving large vehicles, driving for many hours, etc. In my opinion, Mr. Taylor is not able to work as a long haul truck driver given his significant disability in his left upper extremity. ... In my opinion, Mr. Taylor is motivated to work. I recall seeing swelling in his left

wrist and left distal forearm in July 2009. This is documented in my notes of July 19, 2009. I had to put him on Prednisone 60 mg (a very potent anti-inflammatory drug, not commonly prescribed in general practice due to its unwanted side-effects) to manage his swelling and inflammation. In the end, it was determined that the swelling was inflammatory and due to his soft tissue injuries. My note of August 06, 2009 reveals that the swelling in the left hand and arm was subsiding. I understand he was going to work as a truck driver with swelling and tenderness along his left forearm and left wrist in July 2009. He mentioned to me on many occasions that he will continue to work for as long as he possibly can. In my opinion, he stopped working when it was physically not possible for him to continue, and it was likely also not safe for him to continue working in August 2009 because he was unable to operate his big truck with only one hand (since his left upper extremity was essentially non-functional in my opinion). In my opinion, his absence from work since August 05, 2009 is justified and is an essential part of his healing. ...

PROGNOSIS ...

2. Considering the treatments that he has tried and his present condition, in my opinion Mr. Taylor will not be able to do any physically demanding jobs indefinitely. [39] Dr. Manchanda confirmed in his report and on cross-examination that Mr. Taylor is currently not capable of work as a truck driver insofar as it requires strength in the upper extremities. Dr. Manchanda did feel, however, that Mr. Taylor has the ability to perform light or sedentary duties that do not require strength in both upper extremities. [40] Dr. Leith, an orthopaedic surgeon, was qualified as an expert witness in the area of shoulder, elbow, knee, musculoskeletal injuries and general orthopaedic surgery. Dr. Leith prepared a report dated February 16, 2010 and testified he also examined Mr. Taylor on the same day. He testified that his practice is to review only the main heading of the referring letter prior to examining a patient -- that he doesn't look at the file initially to prevent it from biasing his opinion. He relies on the person seeing him for the history. He ensures the person visiting him is aware that the visit is only for an assessment and not a traditional visit for care or treatment. It is, he describes to patients, only to conduct his assessment, which may or may not result in a report -- and if a report is generated, it will be shown to all counsel. [41] On his examination by Dr.

Leith, Mr. Taylor said that he had neck pain, pain over the posterior aspect of his shoulder girdle region on the left side, laterally sided elbow pain, and that he was unable to move his left hand. He also indicated that his right shoulder was becoming more painful because he was using it more than the left. Dr. Leith observed much voluntary guarding, which Dr. Leith testified was "pain behaviour". He saw the noticeable deformity to Mr. Taylor's distal biceps, which is the result of a rupture of the distal biceps tendon. He testified that it would be unusual for this injury to result from the accident without Mr. Taylor hearing a tearing sound (or feeling the same) or experiencing a popping sensation. The defendant submits, accordingly, it is necessary for the plaintiff to have heard a popping sound, or to have felt a tearing, popping, or burning sensation. However, given the crash of metal from the collision, and what Mr. Taylor described as an "explosion", his failure to note this sound or feeling is neither remarkable nor indicative that it did not occur. [42] I find the injury to Mr. Taylor's biceps tendon and to his upper left quadrant did occur as a result of the accident. Nowhere in the medical records is there a note of this injury -- now described by Dr. Leith as a "noticeable deformity" -- prior to the accident. The evidence from the physicians was that there would

have to have been a significant event to cause this type of injury. [43] The biceps tendons are attached to the bone, which anchors the muscle. When flexed, the muscle will appear to be at about the middle of the upper arm. If an individual has sustained a biceps tendon tear near the elbow (distal), the muscle is no longer anchored and will bunch up proximally, appearing much like the cartoon character Popeye's arm. This is a noticeable deformity. [44] Dr. Leith concluded there was no history given consistent of a biceps rupture given at the time of the accident. However, on cross-examination he agreed that being struck while holding the steering wheel (and hence having the bicep in flexion) is a likely way the injury could happen. Dr. Leith noted that there may be bruising with this kind of injury, but that it does not become visible right away. The distal biceps is also the muscle that enables one to turn his palm up. While an injury to that muscle may not affect a desk worker, testified Dr. Leith, such an injury would affect someone who had to supinate i.e. turn his palm facing up during his work. He testified that although one would not expect to find disability, one would find weakness in some activities - and as Dr. Leith noted, this weakness results from the distal biceps rupture alone. He concluded that no structural injuries or fractures had resulted from the accident.

He found that Mr. Taylor had full range of motion, but that was on relaxation. In his report, Dr. Leith noted of distal biceps rupture: "[t]his injury can result in up to 30% loss of elbow flexion strength and up to 40% loss of supination strength". [45] On cross-examination, Dr. Leith agreed that people can suffer soft tissue injuries that can be ongoing and debilitating. He said that such injuries are, in his words, "more a manifestation of our system than reality". He agreed that people can have prolonged pain that cannot be measured and which is disabling. He noted the distinction between people with soft tissue injuries and those who have objectively viewable fractures or injuries. He testified that in his practice, the people with soft tissue injuries that do not recover are people with WorkSafeBC matters or who have been involved, for instance, in rear-end collisions resulting in whiplash injuries. He indicated that those people do not recover as readily as others. He denied that this was a jaded view; rather, he indicated that it was a fact noted in the literature. He testified that such people do not get better. Their pain is real, he noted, based on what they describe to their physicians. [46] Dr. Leith agreed that if the accident occurred when the plaintiff was pulling on the steering wheel (thus creating active flexion in the muscle at impact) this event could cause

a ruptured biceps tendon. Dr. Leith agreed that people who typically suffer from distal biceps ruptures are older (excluding younger people on steroids). He agreed there could be a variety of reasons why Mr. Taylor went home after the accident and stayed there -- including that he was traumatized and did not want to go out -- although it was unusual and not consistent with the behaviour Dr. Leith typically sees. [47] In general for his reports, Dr. Leith relies on the accuracy of notes from other physicians and assumes that they have properly examined the patient. He assumes that the physicians would be asking detailed questions about the accident, and that there would be a detailed exam on the date of presentation. Dr. Leith quoted from Dr. Frayne's notes in his report, but testified he had no idea to what Dr. Frayne was referring when he wrote, amongst other things, "ES". He assumed that Dr. Frayne may have been referring to muscles because of the context. "ES," however, was not shorthand for any muscle known to Dr. Leith. Insofar as Dr. Leith relied on Dr. Frayne's notes over the plaintiff's evidence, I find that the plaintiff had, in fact, presented with injuries to his left upper quadrant and the distal biceps muscle tear when he saw Dr. Frayne on February 5, 2008. [48] Although the absence of an evidentiary basis for Dr. Leith's opinion does not undermine his opinion

entirely, it affects the weight to be given to that opinion. I find that Dr. Leith's inferences respecting the plaintiff's complaints to Dr. Frayne are not correct given Dr. Frayne's evidence respecting his manner of taking notes and the important omissions to which he admitted (such as the nature of the accident). Dr. Frayne testified that while not likely, it was possible that Mr. Taylor spoke of the injuries to his left biceps or elbow. I find it more probable than not that the plaintiff complained of these injuries and, as noted, he complained of pain in the general region. Still, Dr. Frayne's notes were one of the bases for Dr. Leith's opinion that the plaintiff only suffered from soft tissue injuries and that the distal biceps rupture did not occur at the time of the accident. [49] Dr. Leith further testified that a distal biceps tear is almost never repaired unless it is acute because people with this injury usually have no problems with function; rather (as noted), they will have problems with strength. Mr. Taylor is thus left with a lifelong cosmetic deformity in addition to the attendant loss of strength.

8. Videotape evidence [50] Mr. Taylor had been placed under surveillance and videotaped by investigators retained by the defendant on certain days in March and April of 2010. I find he was not shown to be doing anything inconsistent with his statement that he sustained an injury and was in pain. At one point, he was shown seated in the driver's seat of his vehicle and reaching to about ear level with his left arm to grab the seatbelt. It was not a movement where he had to twist his body in any way, significantly arch his back or lift his arm directly over his head. Similarly, he was shown removing his hat with his right hand and smoothing his hair down with his left. I do not find those motions to be inconsistent with his injury. He was not directed by his physicians to cease using his left arm. The fact that he did not show obvious signs of distress when doing these movements is not inconsistent with his injury. He was not observed to be lifting anything. Accordingly, I do not find the videotape surveillance inconsistent with the evidence of the plaintiff and his physicians.

ISSUES 1. The Plaintiff's claims [51] The plaintiff's claims are as follows: 1. non-pecuniary loss of $115,000; 2. income loss of $54,900 (before income tax); 3. future income loss and loss of earning capacity of $555,000; 4. special damages of $6,348.60; 5. future care costs of $20,000 for physiotherapy; and 6. future care costs of $15,000 for loss of housekeeping capacity. I will consider each of these claims, in turn, after addressing the issue of causation.

2. Causation [52] The defendant says, firstly, that causation has not been proved -- that it has not been shown that Mr. Taylor's injuries resulted from the accident. Secondly, the defendant submits that the injuries the plaintiff suffered in the accident were minor and in the nature of soft tissue injuries which should have resolved shortly after the accident. With respect to his ruptured biceps tendon, the defendant argues this predated the accident. Thirdly, the defendant says Mr. Taylor has failed to mitigate his losses in that he failed to engage in physiotherapy until July 2009 (18 months after the accident). [53] The test for causation is found in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R.

333. In that decision the Court affirmed that the basic test for determining causation remains the "but for" test. The burden is on the plaintiff to show that "but for" the actions of the defendant, the injury would not have occurred. Chief Justice McLachlin stated the test as follows at paragraphs 22-23: [22] This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati, at para. 14, per Major J., "[t]he general, but not conclusive, test for causation is the 'but for' test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant." Similarly, as I noted in Blackwater v. Plint, at para. 78, "[t]he rules of causation consider generally whether 'but for' the defendant's acts, the plaintiff's damages would have been incurred on a balance of probabilities." [23] The "but for" test recognizes that compensation for negligent conduct should only be made "where a substantial connection between the injury and defendant's conduct" is present. It ensures that a defendant will not be held liable for the plaintiff's injuries where they "may very well be due to factors unconnected to the defendant and not the fault of anyone": Snell v. Farrell, at p. 327, per Sopinka J. [54] According to the defendant, the evidence of Drs. Frayne and Leith is key to the

issue of causation. According to the plaintiff, the evidence of Drs. Manchanda, Gouws and Travlos should be preferred: they were of the opinion that the injury to the biceps tendon and the other soft tissue injuries to the left upper quadrant arose from the accident. I find on all of the evidence that the accident of January 31, 2008 caused these injuries to the plaintiff. With regard to Dr. Leith's opinion that there should have been some audible sound, I believe the plaintiff when he describes the accident as having been like an explosion. I make the inference that, given the sound of crushing metal (which result was apparent from the photographs) any tearing or popping noise would have been impossible to hear in the circumstances. [55] I also find that Mr. Taylor continues to have difficulties arising from his injuries sustained during the accident. I accept, however, that Mr. Taylor has many additional health problems (such as diabetes, arthritis and gout) which are unrelated to the accident injuries. In particular, the plaintiff suffered an injury in which he described his left foot being "crushed" when he was 17 years of age -- all the doctors questioned about this agreed that such an injury could increase the likelihood of future arthritis in his foot. In fact, it was apparent in the video evidence (taken in late March early April 2008) that Mr. Taylor was limping while

swinging his right arm to compensate. However, I accept Dr. Manchanda's evidence that insofar as this limp could be attributable to gout, such a symptom can be transient and can be controlled by proper diet and ceasing alcohol consumption. Indeed, when he observed Mr. Taylor on February 16, 2010, Dr. Leith noted he had a normal gait. [56] The defence states that the appropriate range of damages to compensate the plaintiff for his injuries is between $20,000 and $45,000. [57] The defendant disputes the plaintiff's claim for past loss of income and all future loss of income. The defence also disputes all of the plaintiff's claims for special damages and future care costs. ANALYSIS OF THE PLAINTIFF'S CLAIMS 1. Non-pecuniary loss [58] The defendant submits that non-pecuniary damages should be in the range of $20,000 to $45,000, but that the amount should be reduced for a failure to mitigate. The defendant relies on the following cases: · Johnson v. Sarty, 2006 NSSC 69, [2006] N.S.J. No. 172 57-year-old male who suffered a biceps tendon rupture, partial thickness tear of rotator cuff, and pain in his shoulder and wrist was awarded $20,000. · Fata v. Heinonen, 2010 BCSC 385, [2010] B.C.J. No. 522 59-year-old male who suffered soft tissue injuries to his left arm and shoulder was awarded $45,000. · Filsinger v. Insurance Corporation of British Columbia, 2009 BCSC 232, [2009] B.C.J.

No. 331 50-year-old male suffered soft tissue injuries to his left hip, both ankles, lower back as well as a rotator cuff injury to his right shoulder which required surgery. He was awarded $52,000, $20,000 of which was attributed to his shoulder injury. [59] The plaintiff submits an award of approximately $115,000 is appropriate, citing the following cases: · Dycke v. Nanaimo Paving and Seal Coating Ltd., 2007 BCSC 455, [2007] B.C.J. No. 2961 33-year-old woman suffering whiplash injuries was awarded $125,000. · Fox v. Danis, 2005 BCSC 102, [2005] B.C.J. No. 137, aff'd 2006 BCCA 324 28-year-old woman suffered injury to her lower back and neck, as well as permanent nerve injury. She was awarded $100,000. [60] There is no issue that the plaintiff has suffered a debilitating loss. He will no longer be able to look after his cabin and it will have to be sold. He will no longer be able to enjoy the activities that he enjoyed with his friends and family. Additionally, Mr. Taylor was nearing retirement. As Griffin J. noted in Fata v. Heinonen at para. 88: The retirement years are special years for they are at a time in a person's life when he realizes his own mortality. When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other

interests in life. Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age. The impact an injury can have on someone who is elderly was recognized in Giles v. Canada (Attorney General), [1994] B.C.J. No. 3212 (S.C.), rev'd on other grounds (1996), 21 B.C.L.R. (3d) 190 (C.A.). [61] The defendant submits that the plaintiff has failed to mitigate his losses, and that such failure should be factored into any award for these injuries. [62] Every plaintiff has the duty to mitigate his losses. The burden of proving failure to fulfil that duty rests with the defendant, and the standard of proof is on the balance of probabilities: Janiak v. Ippolito, [1985] 1 S.C.R. 146. [63] In Graham v. Rogers, 2001 BCCA 432, leave to appeal to S.C.C. ref'd, [2001] S.C.C.A. No. 467, Rowles J.A. succinctly described the role of mitigation in personal injury cases as follows: [35] Mitigation goes to limit recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss. A plaintiff in a personal injury action has a positive duty to mitigate but if a defendant's position is that a plaintiff could reasonably have avoided some part of the loss, the defendant bears the onus of proof on that issue. [64] In this case, the defendant

submits that the plaintiff failed to mitigate his loss by failing to continue with physiotherapy when it was initially recommended, and by failing to immediately return to a program of physiotherapy treatment when it was recommended a second time. [65] In Antoniali v. Massey, 2008 BCSC 1085, [2008] B.C.J. No. 1526, Mr. Justice Preston describes the test for establishing a failure to mitigate as follows: [31] In order to conclude that Ms. Antoniali's damages should be reduced by application of the principle that a plaintiff has a positive duty to mitigate his or her injuries, I would have to find that the defendant has established: 1. that a program of stretching and conditioning under the guidance of a personal trainer would have reduced or eliminated the effect of the injuries; 2. that the reasonable plaintiff in Ms. Antoniali's circumstances would have followed such a program; 3. that Ms. Antoniali unreasonably failed to follow such a program and; 4. the extent to which Ms. Antoniali's damages would have been reduced if she had followed such a program. [66] The defendant submits it is clear that physiotherapy would have been effective. Insofar as the plaintiff's own doctors testified there was no doubt he could have benefitted from earlier intense physiotherapy (as had been the recommendation), I agree. I find that the plaintiff had a positive duty to mitigate his injuries by attending physiotherapy as directed by his physicians at an earlier time. [67] In all the circumstances, I award the plaintiff $90,000 in non-pecuniary damages, less 10% for failure to mitigate by attending rehabilitation in the form of physiotherapy as recommended by his treating physicians at an earlier time. The award for non-pecuniary damages will therefore be $81,000.

2. Past loss of income [68] The defendant submits that, if this Court finds causation, that an award for past income loss should not exceed the plaintiff's historical earnings -- approximately $16,000 gross per annum (when all the years for which income tax returns existed are averaged). The defendant agrees that the plaintiff should be compensated for the period from August through to December 2009, when he was assessed by Dr. Leith. Alternatively, this could be extended to February 2010 (to which date Dr. Manchanda says he was able to work) or to the present, taking into account the plaintiff's current and significantly improved physical function, and allowing a period of adjustment to seek employment (assuming that his recovery could have occurred earlier had he mitigated his losses). [69] The defendant goes further, submitting that Mr. Taylor is now and has always been wholly unsuited to long-haul trucking. It was submitted that he is a hazard on the road due to having possibly sustained TIAs and vision problems, and the mention of fainting spells found in Dr. Frayne's clinical records of February 13, 2007, where he wrote "Fainting spells, 10x since last Dec 22. no apparent cause. Seems postural. No CP, no seizure activity". This note was listed under the heading ["Syncope/pre-syncope".]. Dr. Frayne testified he did nothing in the nature of follow-up or investigation in

relation to this note. I find that he did not believe Mr. Taylor was in serious medical jeopardy: the "Seems postural" comment suggests as much. Nothing in his notes revealed a concern that Mr. Taylor would lapse into unconsciousness. [70] As Dr. Manchanda testified, a complaint of "Fainting spells" is extremely vague -- too vague upon which to make a diagnosis without more. Respecting TIAs, Dr. Manchanda noted there had been a CT scan of Mr. Taylor's head and an angio CT, neither of which revealed evidence of acute traumatic arterial injury. He stated that it was probable that if in fact Mr. Taylor had suffered from TIAs that he would likely now be dead or possibly paralyzed as TIAs are highly indicative precursors to a stroke. Insofar as the defendant argues that this note describes unconsciousness, I find that it does not -- even as noted above Dr. Frayne noted ["Syncope/pre-syncope"], which indicates uncertainty about the nature of the dizziness. I find it is impossible to conclude, on the basis of that note, that Mr. Taylor was at a risk of unconsciousness to the extent that (as the defendant suggests) he should not have been driving. [71] Mr. Taylor's evidence respecting the fact that he had used cocaine in the past (he testified that he had once ingested cocaine to enable him to drive a truck without resting) does not disqualify him from trucking, nor do I find (as the

defendant submits) that he should never have been a trucker at all as a consequence of that one incident. [72] The physicians were cross-examined on cocaine use, and expressed concern for a more frequent user. Mr. Taylor was questioned extensively on this point, and as well on his alcohol use. There was no evidence of any such incidents while he worked for Van Kam. I do not agree that Mr. Taylor should never have been driving. Further, although Beverley Stewart, Director of Line Haul Operations at Van Kam, testified that cocaine use would prohibit someone from driving, she had no such concern with Mr. Taylor. [73] The Van Kam payroll sheets, and Ms. Stewart (who gave evidence on behalf of Van Kam), detailed Mr. Taylor's pre-accident work history. He was primarily doing line haul work to areas such as Prince George and Princeton. [74] In the context of Dr. Manchanda's comment that Mr. Taylor was fit to work only in jobs that involved light or sedentary duties, it is important to note that such a description could not be applied to line haul work. [75] The plaintiff was receiving WCB at the time of the accident and I find that he would have remained disabled by reason of his knee injury until he underwent and recovered from corrective surgery. He returned to long haul driving on July 5, 2008, with the exception that he received WCB from September 9 to 19, 2008 due to a flare-up

of his knee injury. Mr. Taylor experienced increasing difficulty with his left upper extremity on his return to work. He ceased working entirely on August 5, 2009. [76] According to the plaintiff, taking the average 20.3 weeks calculation, the award for past loss of income should be $46,956. He says that this amount represents what additional income he could have earned but for the accident and comprises a series of estimates based on Mr. Taylor taking on routes after a period of time working different routes from the Princeton route which gave a "per mile" premium. [77] An award for past loss of income in these circumstances must reflect a likely scenario. Mr. Taylor was on the Princeton route from October 6, 2008 until he stopped work. I find that but for the accident he would have continued on that route up until the time of trial. [78] Mr. John W. Struthers, consulting economist, was qualified as an expert to provide opinion evidence on potential earnings, losses, income multipliers and cost of care multipliers. He created various tables which were entered into evidence. He noted in his report that the multipliers he used were calculated using a discount rate of 2.5% per year from the trial date, as required by s. 56 of the Law and Equity Act, R.S.B.C. 1996, c.

253. He also noted these multipliers were adjusted for survival but did not incorporate statistical allowances for other contingencies. [79] Also, it is important to note that any award for past loss of income must be reduced as required by sections 95 to 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, which limits the liability of designated defendants for claims for income loss arising out of motor vehicle accidents to "net income loss". [80] Mr. Struthers reviewed the plaintiff's employment records from his years with Van Kam. He noted that for approximately 50% of the time Mr. Taylor was doing the long hauls -- for which mileage is paid in addition to an hourly rate. When he started with Van Kam in October 2007, he spent 26 out of 30 days doing long hauls. Then he sustained his knee injury. After he returned to work in July of 2008, he worked 33 of 36 days doing long hauls. Then, following his return to work after aggravating his knee in September of 2008, he worked seven trips getting the mileage premium for doing long hauls. After October 16, his work pattern changed. Over his last 43 weeks with Van Kam, he increased his days of work but only earned a 1.7% premium for long hauls. Given this evidence, the testimony of Ms. Stewart that the Princeton route was a good fit for him and the company, and Mr. Taylor's evidence in cross-examination (he stated that he was

given shorter runs with no mileage premium, i.e. the Princeton run), I find Mr. Taylor's loss of income from August 4, 2009, until trial was $35,561. [81] I find that Mr. Taylor's past income loss, after deducting for income tax, is $30,831.38 ($35,561 x (1 - 0.133)). [82] After stopping work with Van Kam, Mr. Taylor received weekly indemnity payments through the Teamsters. This continued until approximately January 24, 2010. A Third Party Liability Reimbursement Agreement was tendered into evidence. As that claim is subrogated, it is not deductable by the defendant. Following the weekly indemnity payments through the Teamsters, he then received E.I. disability benefits. Those benefits are not deductible from the award for past income loss. (Bracchi v. Roberts (1990), 51 B.C.L.R. (2d) 257 (S.C.)). Mr. Taylor now qualifies for Long Term Disability benefits ("LTD") from the Teamsters of $1,000 per month. His first payment will be on May 23, 2010. These benefits are also subject to the Reimbursement Agreement noted above.

3. Future loss of income [83] The doctors were of the opinion that in order to reduce his symptoms related to gout, Mr. Taylor needed to stop drinking entirely -- something he has yet to do. Additionally, they agreed that the existing arthritis will likely worsen, particularly with respect to the injury he sustained to his foot as a teenager. [84] Mr. Taylor claims that he cannot work as a consequence of his chronic pain and soft tissue injuries. Even if this Court finds that the ruptured biceps predated the accident, Mr. Taylor submits that he is still unemployable. He testified that he will never be able to perform the activities required of a long haul driver, such as putting the landing gear of the truck down, hooking up trailers, or performing the necessary vehicle inspections. The pain causes him sleep problems, which in turn, he testified, leads to daytime drowsiness. He finds his left eye is light-sensitive, and he continues to have difficulty with his neck, back, left shoulder and elbow. [85] The defendant says that there is no future income loss, as the plaintiff has failed to show a loss of earning capacity resulted from the injuries he sustained in the accident. Further, the defendant submits that Mr. Taylor is capable of working at a variety of light and sedentary occupations, some of which would generate a salary similar to what he earned as a long haul truck

driver. The defendant submits the plaintiff should have been seeking such employment months ago. The defendant disputes the plaintiff's claim that he is unable to work in any capacity because it is based on the plaintiff's testimony (which the defendant says is unreliable), and the report of Louise Craig, which the defendant submits should be afforded little weight. [86] Louise Craig was accepted as an expert in functional capacity assessments. Her background includes a physiotherapy degree followed by courses in specified methods of functional evaluation (notably the Matheson courses). During cross-examination, she agreed that on matters of medical opinion, she would defer to the physicians, but only if they observed Mr. Taylor perform the task in question. She found the plaintiff unable to perform the tasks required of him as a trucker. While I accept this evidence, I do not find it to be inconsistent with Dr. Manchanda's evidence that Mr. Taylor could perform sedentary or light duties. [87] Damages for a loss of future earning capacity can be awarded on the basis that one is less capable overall of earning income from all types of employment -- and furthermore, less valuable to him or herself as a person capable of earning income in the competitive labour market -- as a consequence of the injuries caused by the defendant's negligence: Brown v. Golaiy (1985), 26 B.C.L.R. (3d)

353 (S.C.). A plaintiff must always first prove that, due to the injuries caused by the defendant's negligence, there is a real and substantial possibility of a future income loss: Perren v. Lalari, 2010 BCCA 140. [88] In Parypa v. Wickware, 1999 BCCA 88, after analyzing the cases on loss of earning capacity stated, the Court of Appeal stated: [67] These cases demonstrate that the trier of fact, in determining the extent of future loss of earning capacity, must take into account all substantial possibilities and give them weight according to how likely they are to occur, in light of all the evidence. However, in calculating such likelihoods, the plaintiff is not entitled to compensation based solely on the type of work she was performing at the time of the accident. There is a duty on the plaintiff to mitigate her damages by seeking, if at all possible, a line of work that can be pursued in spite of her injuries. If the plaintiff is unqualified for such work, then she is required, within the limits of her abilities, to pursue education or training that would qualify her for such work. If the plaintiff claims she is not able to mitigate by pursuing other lines of work or by retraining, she must prove this on a balance of probabilities. The requirement for mitigation is addressed by this court in Palmer, supra, at 59: A plaintiff is not entitled at the cost of the defendant to

say, "The only sort of work I like is such and such. I cannot do that. Therefore, you must give me sufficient capital to replace the income I cannot earn on that sort of job". What the respondent proved in this case was that he had lost his capacity to follow the sort of occupation he was pursuing at the time of the accident. But that did not prove, on a balance of probabilities, that he could not earn by pursuing some other sort of occupation, as much as before. [89] The defendant characterizes the plaintiff's claim as a claim for capital without a requirement on his part to mitigate. The plaintiff did admit that if he could not work at Van Kam, he did not want to work. Dr. Manchanda expressed the opinion, however, that Mr. Taylor has the ability to perform light duties that do not require strength in both upper extremities. Dr. Manchanda also gave evidence that the long-term consequences of the plaintiff's other illnesses would impinge on his employability, and concluded that he could probably work for only "a few more years". When pushed on that point, he extended this to seven years (i.e. when the plaintiff reaches sixty-five years of age). [90] Ms. Stewart testified that Van Kam employs approximately 250 line haul drivers, 10 to 20% of whom are over age 65. There is no question that some individuals are able to work as trucker until 70: indeed, the plaintiff called a

witness (Mr. Art Canning) who had just retired from Van Kam at age 70 and who had worked full-time despite his diabetes. [91] Van Kam is a union company; Mr. Taylor is a member of Teamsters Local 31. Work availability is based on seniority. Ms. Stewart testified that Mr. Taylor was number 18 of 28 drivers working out of Surrey. He had some seniority in his position. He had worked steadily since being hired, and there would be work available for him at Van Kam if he were able to work. [92] In order to obtain the position with Van Kam, Mr. Taylor had an interview with Ms. Stewart, a medical examination and drug testing, and submitted a driver's abstract. Ms. Stewart testified regarding the importance of the driver's abstract, and said that the number of points accumulated and number of violations were important in the hiring process. When asked specifically about two 24-hour suspensions, she denied that these would have been of much import -- and I accept her evidence on this point. The medical examination by Dr. Peach (tendered into evidence) noted a healthy 56-year-old man. The drug testing was negative. Van Kam also conducted random drug testing and driver's abstract checks. Ms. Stewart was clear that her concern or hiring is not a person's life history, but rather his or her health and drug test at the time of hiring. I accept that evidence. [93] Ms. Stewart described Mr.

Taylor as punctual, accommodating, valued, that he had good reputation, and said, "he did a good job for us". [94] The work available for Mr. Taylor consisted of a variety of routes. The Princeton route was paid a straight 10-hour rate: $19.99 per hour or $199.90 per shift. All other routes are paid both a mileage rate and an hourly rate (as noted in the payroll records), resulting in a significantly higher rate of pay than on the Princeton route. [95] The plaintiff's evidence in chief was that he had requested the less demanding Princeton route from his employer in October 2008; however, on cross-examination he admitted that he was given that role because its former driver had left the company. Furthermore, Ms. Stewart testified that it was "a good fit for both him and the company", and made no mention of him requesting it. [96] In Perren v. Lalari, the Court of Appeal reviewed the two approaches to future loss of earning capacity. The first is what Finch J., as he then was, referred to in Brown v. Golaiy as the "real possibility" approach. This approach is appropriate in a situation where the pecuniary loss is quantifiable. However, even though the loss is quantifiable, it is still the loss of capacity that is being compensated. The second approach -- sometimes called the "capital asset" approach -- is applicable where the loss, though proven, is not easily quantifiable (see

Perren v. Lalari, at paras. 12, 30 and 32). In the case at bar, the first approach is more appropriate given Mr. Taylor's history of employment at Van Kam. [97] As noted, Mr. Taylor was assessed by Ms. Craig on January 18, 2010. Mr. Taylor was also assessed by John Lawless, an expert in vocational rehabilitation and vocational assessment. [98] Mr. Lawless' report, dated February 25, 2010 states, in part, as follows: The question now turns to what if anything Mr. Taylor can do for work. Whatever he does will need to be very easy - sedentary activities with the opportunity to alternate between sitting and standing. There are occupations like that but the vast majority are more skilled and need more education and better abilities, so they can't be considered. There are a very few sedentary, unskilled service jobs like Parking Lot Attendants, Ticket Takers, Self Serve Gas Station Attendants (part of the occupation of Cashiers), and Recreation Facility Attendants, though Mr. Taylor might still have physical limitations for such positions and thus may need sympathetic employers. Wages for these jobs are normally little more than minimum, and only about a quarter of positions have full-time hours for a full-year. Irregular shifts (evenings and weekends) are also common. As well, these positions are more often found in urban centres, since there is little call for services like pay

parking lots in areas like Langley. These also tend to be "dead end" jobs with little durability and prospects for advancement, so it's likely Mr. Taylor will be needing to find new positions fairly often until he does retire. My final concern for Mr. Taylor is that his difficulties put him at greater risk for future unemployment. It's impossible to accurately quantify anyone's risk for this, although it's been well established in research that disabled persons on a whole are less attached to the workforce, especially if they're older and have less education. In fact, considering the paucity of vocational options described above, Mr. Taylor may be without work more often than not to the end of his working life. To conclude, Mr. Taylor is restricted from his prior work as a Truck Driver along with every other occupation he has accessed. His employment prospects now are marginal, consisting of just a few elemental service occupations that are not gainful and for which he will still likely be limited and require sympathetic employers. He also has a greater risk of unemployment and underemployment in the few remaining working years he has, and may be challenged to get back into the workforce entirely. [99] Mr. Lawless could not find a single suitable job for Mr. Taylor out of an extensive list of occupations from Statistics Canada. He rejected every one ─ even a desk clerk position

because he said it had a significant physical component. Under cross-examination Mr. Lawless did concur that the plaintiff's vocational prospects will improve with increased function and mobility (which the defendant submits the plaintiff has enjoyed since the reports relied upon by Mr. Lawless were authored) and that there are a wide range of unskilled and sedentary jobs in the marketplace. [100] The plaintiff argued that the issue is not that there might be a job that he could perform for a period of time, but rather that the issue is competitive employability. As Mr. Lawless stated, Mr. Taylor's prospects are slim: older workers trying to find new positions face an uphill battle, and Mr. Taylor is unskilled in anything but physically demanding occupations. While it was suggested to Mr. Lawless in cross-examination that the plaintiff did have a background in sales, that was many years ago. It will be very difficult to find something very light and easy, without requiring much skill or aptitude, for an older worker with limited experience and few transferable skills. He is not completely unemployable, but in his remaining working years he is not going to be able to do much, if anything at all. [101] I find that there is a "substantial possibility" Mr. Taylor would have been able to continue with his job at Van Kam but for the accident. However, there are other reasons

unrelated to the accident that make it unlikely that Mr. Taylor would have worked to 70 years of age. Mr. Taylor's gout, diabetes and arthritis would likely have had an impact on his ability to work regardless of the accident, and it is likely he would only have worked until 65 years of age. There was also the possibility that his ailments could have forced retirement earlier than 65. [102] I find that had Mr. Taylor been able, he likely would have worked as a short haul trucker in 2010, continuing on the Princeton route. Due to his seniority, however, it is likely that he would have commenced doing long haul again, and I find this would have commenced in 2011 and carried on to 2016 (when he would turn 65). [103] Working as a short haul trucker, he would make $49,000 per year, and as a long haul trucker, he would make $56,400 per year. The present values of those incomes, according to the calculations provided by Mr. Struthers, are as follows: $49,000 x 0.677 ($677/$1000) = $33,173 $56,400 x 4.951 ($4951/$1000) = $279,236.40 Total: $312,409.40 [104] Mr. Struthers' report also was concerned with non-wage benefits. Employment Insurance ("EI") and Canada Pension Plan ("CPP") contributions account for an additional 6.42% at the $50,000 per year salary. Mr. Struthers noted that in the transportation, warehousing and wholesale trade sector the average amount of about 11.7% of gross

payroll was spent on voluntary, non-taxable, non-wage benefits. Mr. Struthers estimates that because Van Kam was in part governed by a Teamsters' Agreement, the non-wage benefits with pension plan, CPP, EI and WCB would exceed 20% of employment incomes. [105] If the non-wage benefits were 15% on top of employment income, then the calculation would be $312,409.40 x 1.15 = $359,270.81. [106] Mr. Struthers' numbers have been adjusted for survival, but not for other contingencies such as unemployment or part-time work. I find, however, that there are other contingencies that must be factored into an assessment for future income loss: both general contingencies and contingencies specific to Mr. Taylor's pre-existing health concerns. There is also the possibility that he could find other employment. [107] An assessment of future income loss is, however, not a simple calculation -- it is rather compensation for loss of a capital asset. I find there are other occupations that could be available to Mr. Taylor. Although he has meager prospects, his duty to mitigate is nonetheless engaged. There are occupations which he could still perform -- for example, minimum wage positions involving light duties, such as a parking lot attendant. [108] Following the first method noted in Perren, I fix damages for future income loss at $180,000.

4. Future care costs [109] The plaintiff claims $20,000 for future physiotherapy costs and a further $15,000 for loss of housekeeping capacity. Mr. Struthers prepared a report on the present value of such an award. There is no question that ongoing physiotherapy is required. Mr. Taylor does not require surgery for the ruptured biceps tendon. [110] Mr. Taylor's family physician (Dr. Manchanda) has written a report with respect to loss of housekeeping capacity indicating, in part, as follows: In my opinion, Mr. Taylor is mostly independent with his household chores but will likely have a significant worsening of his pain with heavier household chores such as vacuuming, lifting laundry, sweeping, cleaning dishes, etc. He will likely have to take breaks and divide his bigger chores into smaller one (sic). He may not be able to do some heavier household chores. [111] Dr. Manchanda wrote the following respecting future care:

TREATMENT RECOMMENDATIONS 1. In my opinion, Mr. Taylor will likely need to continue with physiotherapy for 1 - 2 months more on a regular basis (3-4 times a week) and thereafter intermittently.

2. Mr. Taylor will likely need analgesic medications for quite some time (several months or longer/indefinitely).

3. I recommend he enroll in a gently tapered active rehabilitation program to achieve the maximum potential of his upper extremities. Thereafter Mr. Taylor should continue independently in the gym to maintain his strength.

4. I recommend Mr. Taylor participate in regular, preferably daily, aerobic, cardiovascular exercise program (e.g. treadmill, exercise bike, stairmaster, etc). He should choose exercises that do not worsen his pain. Regular aerobic exercise will likely reduce his pain and headaches, and improve his general condition and mood.

5. Currently, there is still significant pain with movements of his left shoulder. Along with his current physiotherapy he can start on a general active rehabilitation program. He may require another steroid injection and possibly also trigger point injections to the left shoulder girdle. At this stage, I do not think surgery will be beneficial but I leave this decision in the hands of his orthopaedic surgeon, Dr. Kostamo.

6. Mr. Taylor will likely need to be retrained for another job. Fortunately he is right handed and right upper extremity works well. In my opinion, he is now able to tolerate jobs that are classified as light work or sedentary that do not require strength of both upper extremities (e.g. security guard, gas station attendant). Currently and for the foreseeable future I do not see his left upper extremity improving enough to allow him to drive a big truck. He may be able to drive a truck depending on how much he recovers in the next 1-2 years. This remains to be determined.

7. Mr. Taylor will likely benefit from some sessions of counseling and pain education given his low mood, constant pain and disability. He has expressed low mood and frustration from time to time. [112] The defendant submits that the plaintiff has not proven a need for future care or housekeeping assistance and submits that the claims under these heads of damages should be dismissed. [113] I accept Dr. Manchanda's evidence. I find that the plaintiff has shown some loss under both heads. For future care costs to cover physiotherapy as set out by Dr. Manchanda ─ to cover two more months of physiotherapy and intermittently thereafter ─ and analgesic medications to cover pain which may continue indefinitely, I will award $4,000. For future housekeeping costs, I accept that Mr. Taylor is unable to do the heavy household chores required. As noted already, this loss of ability will require him to sell his recreational property. Under the heading of housekeeping capacity, I award $2,000.

5. Special Damages [114] The plaintiff claims $5,197.97 for physiotherapy treatment for his upper left quadrant and $545.15 in mileage to attend to Brookswood Physiotherapy during 2009 and 2010. There was no issue that Mr. Taylor derived medical benefit from that treatment. The plaintiff has proven that this expense was reasonably or medically necessary, and so I allow this claim. [115] The plaintiff claims $129.21 in compensation for prescription medications, and I find that these are reasonable and were medically indicated. I allow $255 for doctors' notes. There is also an "injection fee" of $10.00, again related to his treatment, and I find this was reasonably or medically necessary. I will also allow the associated parking costs and BC transit costs which total $166.25 and $9.00 respectively, for a total of $6,312.58 in special damages. An amount was claimed for GST, but the evidence does not allow me to determine what this amount is or relates to; accordingly, I find it is not proven on a balance of probabilities.

CONCLUSION [116] The plaintiff's award is as follows: Non-pecuniary loss: $90,000 less 10%: $81,000.00 Past loss of income: 30,831.38 Future loss of income: 180,000.00 Future care (physiotherapy): 4,000.00 Future care (housekeeping): 2,000.00 Special damages: 6,312.58 TOTAL: $304,143.96 [117] The plaintiff will have interest in accordance with the Court Order Interest Act, R.S.B.C. 1996, c. 79, and costs at Scale B. Costs are subject to submissions within 45 days in the event that Rule 37B applies. "Maisonville J." _______ The Honourable Madam Justice Maisonville