Hilbig v. McHattie, 2022 BCSC 576

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Hilbig v. McHattie, 2022 BCSC 576 Date: 20220408 Docket: M33659 Registry: Chilliwack Between: Reiner Josef Hilbig Plaintiff And Margaret Ann McHattie Defendant Corrected Judgment: The text of the judgment was corrected on the face page on April 13, 2022. Before: The Honourable Mr. Justice Caldwell Reasons for Judgment Counsel for the Plaintiff: D.C. Sliman S.M. Donaldson Counsel for the Defendant: L.M. Grant J.S. Mahil Place and Dates of Trial/Hearing: Chilliwack, B.C. September 20-24 & 28, 2021 Place and Date of Judgment: Chilliwack, B.C.

April 8, 2022 Table of Contents PRIOR TO THE COLLISION .. 4 AFTER THE COLLISION .. 5 THE EXPERTS .. 9 Dr. Ellie Fasihy . 9 Dr. Heather Finlayson .. 11 Dr. Jeremy Quickfall 12 Dr. Gillian Simonett 13 DAMAGES – EXECUTIVE

SUMMARY .. 17 Non-pecuniary damages . 18 Past loss of earning capacity . 19 Future loss of earning capacity . 21 Cost of future care . 26 Loss of housekeeping capacity . 27 Special damages . 28

Damages

summary . 28 [ 1 ] The plaintiff, Reiner Josef Hilbig, was injured in a motor vehicle collision that occurred on January 7, 2016. Liability for the collision has been admitted by the defendant, Margaret Ann McHattie. The injuries caused by the accident and the damages that flow from those injuries are disputed. [ 2 ] The most significant dispute arises with respect to past loss of income, continuing future loss of income, and capacity to earn such income. Mr. Hilbig missed eight days of work after the collision.

He continues to work full-time; however, he alleges that he has lost the capacity to work the significant overtime that is available to him. He says that this began approximately two to three years after the collision, and that it is a permanent and ongoing disability and loss. He says it will continue until his anticipated retirement at age 70. [ 3 ] Mr. Hilbig is 59 years old. He is originally from Germany, has been in Canada since May 1991, and is a fully qualified and certified millwright. Virtually his entire work life has involved the maintenance and repair of heavy equipment.

He is currently employed by CIPA Lumber Co. Ltd. (“CIPA”), has been so employed since July 2013, and currently enjoys a position of considerable seniority with that company. This seniority allows him access to extensive, if not almost unlimited, overtime. [ 4 ] The evidence presented clearly established that the work of a millwright, such as Mr. Hilbig, is often physically demanding; more than occasionally dangerous, to the point of being life-threatening; and benefits greatly from the problem-solving and creativity that comes only from years of experience. [ 5 ] In his current position with CIPA, Mr.

Hilbig deals with a very large worksite, with both indoor and outdoor work. His position involves both very large equipment (conveyors, lathes, bearings, etc.) scaled to deal with whole logs, as well as other smaller equipment. The smaller equipment can be dealt with on a workbench. The larger equipment may well require him to work in contorted positions with parts weighing tens, hundreds, or even thousands of pounds.

The mandate is simple – keep the equipment working, so that we can make money; if the equipment breaks, fix it so that it works and we can get back to making money. [ 6 ] In short, don’t ask how – just get the job done. PRIOR TO THE COLLISION [ 7 ] Prior to the collision, Mr. Hilbig appears to have been able to get the job done on those simple terms. With previous employers, he worked long hours – sometimes 13-14 hours per day, six days per week. His practice was to take such overtime as was available to him. [ 8 ] This continued with CIPA.

During his early years with his employer, his access to overtime, the type of overtime, and the different rates of pay associated with such overtime were somewhat limited. Attrition and employee turnover moved him up the seniority ladder and provided him with access to more and better overtime options. By mid 2016, he had moved from eleventh position in seniority to approximately sixth position. In 2014, he worked 233 hours of “time and a half” overtime (“THO”) and 208 hours of “double time” overtime (“DTO”). In 2015, he worked 280 hours of THO and 205 hours of DTO. [ 9 ] Mr.

Hilbig testified that prior to the collision, he was able to do most of the normal work around his home without any significant limitation. He replaced the shingles on his roof more than once. When he was not working, he enjoyed hiking with his dog, camping, and canoeing. [ 10 ] His coworkers testified that prior to the accident Mr. Hilbig was a “good millwright”. [ 11 ] Sean McKee is a millwright and has worked with Mr. Hilbig since 2013. Although often working opposite shifts, he has also worked alongside Mr.

Hilbig and described him as upbeat, agreeable, and a “go-getter” with no physical or interpersonal problems. According to Mr. McKee, Mr. Hilbig had no trouble keeping up with the other millwrights in their day-to-day tasks. Mr. McKee also testified as to the availability of almost unlimited overtime, especially for millwrights with seniority. He testified to being aware of several millwrights who had worked to age 65 and beyond. [ 12 ] Warren Williams retired in January 2021. He was a Red Seal millwright and welder, as well as an award winning first aid attendant. He worked with Mr.

Hilbig from approximately 2013 or 2014, and they actually became partners at work in 2016. He described Mr. Hilbig as “strong as an ox” prior to the accident and noted that he had a good personality and a great laugh. He also testified to the availability of overtime, using himself as an example. He is 63 years old and had a desire to retire early. In order to accomplish that he worked a

schedule that saw him work 40 days consecutively, take one day off, and then repeat. He had no difficulty filling that

schedule with available overtime. He was able to retire early as a result. He also testified about knowing several millwrights who did not retire early, but rather kept going well beyond the age of 65. In that regard, Mr. Williams noted that “the old guys know the tricks” and, as a result, can often get the jobs done more creatively and quickly given their years of experience. [ 13 ] Both Mr. McKee and Mr. Williams as well as Mr.

Raju, another co-worker, testified that they were aware of and had worked with other millwrights at CIPA who had worked into their seventies; at least one of those people was still working. None of those people gave evidence at the trial. [ 14 ] William Barron, the maintenance superintendent at CIPA, also testified. He deals with the assignment of overtime. He confirmed that there is generally lots of overtime available, that it is available based on seniority, and that overtime shifts are often left unfilled as all overtime is strictly voluntary.

He confirmed in direct and cross-examination that while many millwrights retire in their mid sixties, he is aware of at least one who continues to work at the age of 74.

AFTER THE COLLISION [ 15 ] Mr. Hilbig was driving a Smartcar when he was struck from behind by the defendant’s vehicle. He testified to a short memory gap following the event and said that “something seemed off”. Shortly after the collision, he developed pain in his neck, shoulders, upper back, and down his arms into his hands. He also began experiencing headaches of different types: Sometimes they would develop slowly; other times they came on very quickly and were very severe but only lasted a couple of minutes. [ 16 ] Mr.

Hilbig went to his family doctor following the collision but refused her suggestion of opioid pain management and instead, undertook a regime of physiotherapy, massage, and muscular stimulation by electrodes and vibration. He did take, and continues to take, Advil and Tylenol for pain. He described experiencing gradual overall improvement, which hit a high point in March or April 2017, when he felt that things were really getting better. The insurer discontinued paying for physiotherapy at about this time; he continued with these treatments but paid for them privately.

COVID-19 subsequently interfered with his physiotherapy regime and, during that time, his symptoms worsened. Mr. Hilbig has attended approximately 193 physiotherapy sessions and approximately 145 active rehabilitation sessions. [ 17 ] The overall improvement stopped in about the spring of 2017, and Mr. Hilbig testified that he became depressed about the lack of further progress. He began taking anti-depressants and anti-anxiety medications as prescribed by his doctor. He began seeing a psychologist, Dr. Wesley Buch, in 2019 or 2020. Mr. Hilbig had attended approximately 36 sessions up to mid April 2021. Dr.

Buch did not testify. [ 18 ] Since the collision, Mr. Hilbig’s ability to do chores around the home has been curtailed. He can no longer do the heavy lifting that he did before, but he is able to cut the lawn and undertake similar light duty tasks. He no longer goes on extended hikes, camping excursions, or canoe trips. [ 19 ] In or about April 2017, Mr. Hilbig began a personal relationship with Linda Mae Bradley; they currently live together. They had known each other over 20 years ago, but reconnected in 2017. In 2019 or 2020, Mr. Hilbig decided to sell his house, and Ms.

Bradley decided to sell her condominium; and in early 2021, they purchased a home together. The house is approximately 2,500 square feet in size and has a tenanted suite in the basement. [ 20 ] Early in their relationship, both Mr. Hilbig and Ms. Bradley testified that they had an active and satisfying sexual relationship. They both indicated that by approximately 2019, this was no longer the case. There was no clear evidence as to whether this change involved actual impotence or simply a reduced interest in sexual relations. Mr.

Hilbig attributed this change to the collision and the medications that he started taking in 2019. Ms. Bradley agreed with the timing but indicated that the selling of their respective homes, the purchase of a new home together, and the onset of COVID-19 were also serious stresses that arose during the same time period. [ 21 ] Ms. Bradley testified to observing various indicators of pain and limitation in Mr. Hilbig – he moves slowly, moans, groans, or winces, and has great difficulty reaching above shoulder height.

She has observed him to have a generally reduced lust for life; he often withdraws into watching television or working on his model railroad set on his own. If he misses his medications, he becomes irritable. She does most of the work around the home, particularly the indoor housework, but she indicated that this is partly because Mr. Hilbig works full-time, while she is retired. They hire outside help for yard work other than lawn cutting. For recreation, they travel, mostly by car, and stay in “B&Bs”. When they travel, Mr. Hilbig insists on doing the driving. They do not hike, but do go on flatland walks.

They have taken up birdwatching and photography. [ 22 ] Mr. Hilbig only remained off work for eight or nine days following the collision but then returned to work on a full-time basis and with overtime. [ 23 ] In 2014 and 2015, Mr. Hilbig was only able to work the overtime previously detailed, as that was all that was available to him given his lack of seniority. In 2016, he had a significant bump up the seniority ladder and worked a total of 405 hours of THO and 154 hours of DTO. In 2017, it reached a peak of 520 hours of THO and 274 hours of DTO.

In 2018, his overtime total was down to 290 hours of THO and 183 hours of DTO, and has steadily declined to a 2021 total of 85 hours of THO and 90 hours of DTO through September. [ 24 ] Mr. Hilbig indicated that it was his intention to get back to work, including overtime, as soon as possible following the collision. The evidence confirms that he did just that. As indicated above, he amassed more overtime hours and more overtime income in the two years immediately following the collision than he had ever done previously.

He testified that he simply worked through the pain and discomfort in hopes that it would get better over time. He says that this did not happen and that by mid to late 2017, he had begun to come face-to-face with his ongoing physical limitations. This realization resulted in depression and anxiety for which he sought professional help and ultimately, medication.

By 2018, he realized that he could not keep pace and, although overtime continued to be available to him, he was simply unable physically or emotionally to work the number of overtime hours that he had in the previous two years. [ 25 ] This is supported by the evidence of Mr. Hilbig’s coworkers. [ 26 ] Sean McKee, in his evidence, testified that Mr. Hilbig was more stressed, less agreeable, and notably more easily frustrated with both management and coworkers after the collision. Physically, Mr. McKee noted the little difference in Mr.

Hilbig immediately following the collision; however, he said that over time, Mr. Hilbig became more easily and more deeply tired, and that he much more frequently exhibited grunts, groans, and moans while working. In his observation, Mr. Hilbig seemed exhausted and glad to be done at the end of his shift; this had not been the case prior to the collision. [ 27 ] Warren Williams also provided evidence of Mr. Hilbig after the collision. By mid 2016, they were working as partners. The person whom he had previously described as “strong as an ox” was now “physically different”.

He couldn’t climb into tight spaces and although “he continued to have my back”, lifting was now clearly a problem and his overall physical performance had decreased.

Mr. Williams observed clear indications of Mr. Hilbig working in pain – he was often pale, sweated profusely; by the end of his shift, he was “played out” – his shoulders were slumped, his laugh was gone, and his gait was more of a shuffle than a stride. He described Mr. Hilbig as still mentally sharp, but said that he had lost his “get up and go”. He testified that he found the deterioration to be sad. [ 28 ] A striking feature of Mr. Williams’ evidence was that he clearly considered the millwrights to be a team. Each member “has the others’ back”.

They help each other out – physically with lifts and the like; and tactically, with experience born of their years of practice. Each has their strengths and uses them for the benefit of the team. The closing comment in his evidence was “we are brothers; nobody struggles in my presence”. THE EXPERTS Dr. Ellie Fasihy [ 29 ] Dr. Fasihy is Mr. Hilbig’s family doctor and has been since 2011. She provided a report dated May 22, 2021. Her report appears to have been based upon her various interactions with Mr.

Hilbig over the years, as opposed to having been based upon a single examination; although at page 6 of her report, she does refer to an “examination finding”. [ 30 ] Dr. Fasihy indicated that Mr. Hilbig had been diagnosed, following the collision, with cervical, thoracic, and lumbar spine injury, myofascial pain syndrome, along with shoulder soft tissue injury, and scapula injury. These all appear to be descriptive of various soft tissue “whiplash” type injuries. She also noted that after the collision he suffered from headaches, depressive mood disorder, and sexual dysfunction.

She concludes that he has developed a chronic pain syndrome and that his overall prognosis is guarded, as his recovery has most likely plateaued. She indicates that the injuries were suffered in and caused by the collision. She opines that the injuries suffered in the collision have affected, and will continue to affect, his ability to work and undertake his day-to-day activities. [ 31 ] While helpful as to basic diagnoses and prognosis, I must note the following issues, which are of some concern regarding Dr. Fasihy’s report and evidence: 1. Dr.

Fasihy’s comments or opinions regarding the impact of the collision on Mr. Hilbig’s occupation, housing, and driving appear to be largely, if not solely, based on his self-reporting. 2. Some of that self-reporting was either wrong, or wrongly recorded by Dr. Fasihy, e.g. :

a) that Mr. Hilbig had not worked overtime since the collision, when in fact he worked his highest amount of overtime in the two years immediately following the collision;

b) that Mr. Hilbig had to move out of his home and move in with his girlfriend as he was no longer able to maintain his house, when in fact the decision to purchase a new home together was made jointly and the purchase involved a larger house; and

c) Dr. Fasihy described Mr. Hilbig’s difficulties in driving after the accident, including anxiety, fear of impending accident, and limits on his driving frequency and distance. However, her own clinical notes, including one made on November 9, 2018, read “drives no issues”. 3. Dr. Fasihy lists several x-rays and other investigations and quotes from the basic findings, but provides no indication as to how, if at all, they relate to Mr. Hilbig’s symptoms, diagnoses, or prognosis. 4. Dr.

Fasihy comments on the issue of sexual dysfunction, but does not address whether this involves loss of interest, loss of ability to obtain or maintain an erection, whether any investigation had been done to ascertain the cause of the problem, or whether any treatments to address the problem had been discussed or attempted. 5. Dr. Fasihy had a tendency, both in her report and in her evidence, to become an advocate for Mr. Hilbig, rather than be an expert to assist the court. [ 32 ] Overall, I found Dr. Fasihy’s report and evidence to be of some but limited assistance. Dr. Heather Finlayson [ 33 ] Dr.

Finlayson is a physiatrist who assessed Mr. Hilbig and provided a report in October of 2019, approximately two-and-a-half years after the collision. Her examination of him was done in person and prior to COVID-19 concerns. Her assessment and opinion were based on her physical examination of Mr. Hilbig, her review of various records, and his self-reporting of symptoms and problems. [ 34 ] In her report, Dr.

Finlayson diagnosed myofascial pain syndrome – a medical condition in which pain originates in the muscles, tendons, ligaments and other soft tissue structures of, in his case, the neck, shoulders and upper back. She linked this condition causally to the collision. She opined that the condition had developed into a chronic pain disorder, which had also led to anxiety and depression. None of these diagnoses or opinions were seriously challenged on cross-examination, and the defence led no evidence in serious opposition to such opinions. [ 35 ] Dr.

Finlayson also diagnosed cervicogenic headaches as being present and connected to the myofascial pain syndrome caused by the collision. The defence expert did take some issue with this diagnosis. [ 36 ] Dr. Finlayson found that the injuries suffered in the collision had a significant impact on Mr. Hilbig regarding his job (particularly his ability to work overtime and the type of overtime), his household maintenance abilities, and his recreational pursuits.

She does, however, note that his inability to handle extra work is related, in particular, to the heavy aspects of his job. The evidence before me indicates that his coworkers are prepared to accommodate him when it comes to that part of his duties and have in fact done so since the collision. [ 37 ] In cross-examination on this point, Dr. Finlayson indicated that she was not sure when the reduction in overtime actually occurred, until just prior to her testimony when she received that information from plaintiff’s counsel. She testified that it didn’t “surprise her” that Mr.

Hilbig did manage to undertake significant overtime after the collision, but that the cumulative effect of the injuries suffered in the collision led to a “straw that broke the camel’s back” situation, which saw Mr. Hilbig simply unable to continue that practice. [ 38 ] Dr. Finlayson recommends that Mr.

Hilbig participate in a chronic pain management program; that he continue physiotherapy but decrease it over time; that he transition to an independent exercise program with periodic review by a kinesiologist; that he continue to work with a psychologist for his anxiety; that he continue with conservative medication for pain management subject to his doctors’ review; and that he obtain assistance with heavier housework and yard work. Dr. Finlayson says clearly that the prognosis for complete resolution of Mr. Hilbig’s pain is very poor. [ 39 ] I found Dr.

Finlayson’s report and evidence to be of considerable assistance. Dr. Jeremy Quickfall [ 40 ] Dr. Quickfall is a psychiatrist who assessed Mr. Hilbig on May 19, 2021 by video and provided a report the following day. [ 41 ] Dr. Quickfall agreed that assessment of mental illness is almost entirely subjective, based on interviews and overall impression along with some standardized testing, much of which is self-reporting. He also agreed that observation over a longer period of time is preferable to a “single point in time” assessment. Dr. Quickfall’s assessment of Mr.

Hilbig was a “single point in time” assessment. [ 42 ] Dr. Quickfall indicated that he had the clinical records of Dr. Buch (and presumably had reviewed them), but was at least somewhat unclear as to when they were received or reviewed. Dr. Quickfall seemed notably unfamiliar with those records; for example, he was unfamiliar with the reference to the amount of alcohol consumed by Mr. Hilbig, reference to a “nervous breakdown”, and reference to anxiety related to COVID-19. [ 43 ] At page 7 of his report, Dr.

Quickfall provides a diagnosis of “unspecified stressor/trauma related disorder.” He goes on to state: This diagnosis refers to symptoms of post-traumatic stress as well as generalized anxiety. Mr. Hilbig does not meet diagnostic criteria for post-traumatic stress disorder, and this would include the fact that his accident, while nevertheless stressful to him, does not meet the criteria and definition for a trauma under the DSM – 5. [ 44 ] Dr. Quickfall opines that the psychological injury was caused by the 2016 collision.

He also notes that the reduction in employment intensity and quantity “appears to be primarily due to his ongoing pain symptoms rather than his psychological symptoms.” At page 8 of his report, Dr. Quickfall clarifies this somewhat, noting that anxiety also increases muscle tension and thus can exacerbate underlying pain symptoms. He notes that Mr. Hilbig would benefit from ongoing anti-depressant treatments and continued psychotherapy, but that the likelihood that he will continue to experience psychological symptoms on a long-term basis is high. [ 45 ] I found Dr.

Quickfall’s report and evidence to be of modest assistance. Dr. Gillian Simonett [ 46 ] Dr. Simonett is also a physiatrist and was the only witness called on behalf of the defendant. [ 47 ] Dr. Simonett conducted the assessment of Mr. Hilbig on April 8, 2021 and produced her report on April 20, 2021. The assessment was conducted partly by way of the Zoom platform and partly in person, with the use of personal protective equipment. [ 48 ] Dr. Simonett’s report outlines in considerable detail her interview with Mr.

Hilbig regarding the symptoms he experienced after the collision, including his neck and upper back pain, headaches, and mood. She noted and seemed very familiar with the treatments that he had undergone, including medications and therapies. She catalogued his functional changes at home, at work, and in terms of recreation. She briefly reviewed his past medical history. She conducted what appears to have been a fairly thorough physical exam, and reviewed extensive documents and imaging reports. [ 49 ] At page 13 of her report, Dr. Simonett indicates that Mr.

Hilbig’s description of the pain is consistent with myofascial pain but indicates that input from a spine surgeon is required regarding spinal stability, in light of the imaging reports that she reviewed. She also noted that pain and neck stiffness were noted very shortly after the motor vehicle collision, and were likely the result of the collision. [ 50 ] In her report, and more so in her evidence, Dr. Simonett took issue with the complaint of headaches.

She focused almost exclusively on what was referred to as an “ice pick” or “hot iron” headache – a very sharp and intense pain that comes on suddenly, lasts approximately 90 seconds, and then disappears as quickly as it came on. She indicated that such headaches are not normally associated with myofascial pain arising from soft tissue injury, but rather tend to arise from other causes such as brain tumors. She was strongly of the view that this situation should be followed up by a treating headache specialist and she deferred to their opinion. Dr.

Simonett basically refused to accept the presence of any other type of headache experienced by Mr. Hilbig. [ 51 ] While it may be that Mr. Hilbig discussed such “ice pick” headaches with Dr. Simonett, it is clear that there were references to other more general headaches in the records of Dr. Fasihy, and in the discussions with Dr. Finlayson. The headaches appeared to be frequent in the months following the collision and to have then eased off in frequency, if not severity. They are referred to as headaches,

sometimes to the front of the head, sometimes to the back, and other times without reference to location. [ 52 ] Dr. Simonett defers to mental health experts on the issue of mood, depression, and anxiety. [ 53 ] Dr. Simonett recommends a continuation and increase of therapeutic exercises by way of home-based exercise programs; she indicates that the prognosis for a full recovery is guarded. [ 54 ] I found Dr. Simonett’s report and evidence to be helpful and, in many ways, not inconsistent with those of Dr.

Finlayson. [ 55 ] Counsel for the defendant, on several occasions, both in cross-examination and in closing argument, focused on Mr. Hilbig’s use and consumption of alcohol. There was some inconsistency in either reporting or recording of such use – or both – among the witnesses and in the documents. The highest reported level of consumption that I could locate in the evidence was four to six beers, three times per week (Dr. Buch). Dr. Finlayson noted variable alcohol intake, recording that Mr. Hilbig “may have a few beers per week with friends”. Dr. Quickfall acknowledged that he was unaware of Mr.

Hilbig’s alcohol use, in spite of it being clearly noted by Dr. Buch. [ 56 ] There was no evidence that the use of alcohol had in any way affected Mr. Hilbig’s employment, personal life, or driving record, either before or after the collision. There was no evidence presented indicating that any of the suggested levels of alcohol consumption could be considered above normal or excessive, nor was there any evidence connecting such alcohol consumption to any of the symptoms experienced by Mr. Hilbig.

Absent such evidence, I do not consider his alcohol use to be relevant to the injuries alleged to have been suffered in the collision, nor to the damages alleged to have flowed from those injuries. [ 57 ] Before leaving the evidence of the experts, I must note one other issue that clearly arose in the reports, was addressed in cross- examination, and was the subject of further comment in closing submissions – that is the issue of pre- and post-collision overtime. [ 58 ] Dr. Fasihy (report date May 22, 2021) reported that Mr.

Hilbig was working less hours and fewer days since the accident; that he previously worked weekends but had been unable to work weekends since the accident of January 2016; and that he was declining extra work hours and overtime shifts due to his pain and limitations. This is consistent with a single note in her clinical records, which note appears to have been made on or about April 22, 2021. Mr. Hilbig testified that this must have been a misunderstanding between him and the doctor.

He said that by April 2021, he was in fact working considerably less overtime than had previously been the case, and that is what he told his doctor. [ 59 ] Dr. Finlayson (report date October 28, 2019) reported that Mr. Hilbig has continued to work despite his pain; has reduced ability to do all the very heavy aspects of his job; and that it is probable that his pain and reduced energy reserve will lead him to declining extra work, especially if it involves very heavy labour. Her actual notes seem reasonably accurate in terms of work history, both pre- and post- collision.

She indicated that before the collision, Mr. Hilbig usually worked seven days per week with the occasional weekend off; but since the collision, he works five to six days per week, he does not do heavy jobs on weekends, and he works less overtime overall. [ 60 ] Dr. Quickfall (report date May 20, 2021) noted that Mr. Hilbig typically worked about 60 hours per week prior to the collision, but he now works significantly less hours and requires help for more physical tasks. This statement seems reasonably accurate as of May 2021, the date on which it was made. [ 61 ] Dr.

Simonett (report date April 20, 2021) reported that prior to the collision, Mr. Hilbig worked five to seven days per week. After the collision, he now tends to favour lighter duties with the cooperation of coworkers, and he continues to work five days per week; he mostly does not work overtime on weekends. These estimates are in keeping with those provided to Dr. Finlayson, in terms of pre- and post-collision hours, and accurate in terms of the overtime being worked in April 2021, at the time of the independent medical examination and report. [ 62 ] I do not find on a balance of probabilities that Mr.

Hilbig significantly mis-stated information regarding the overtime he worked after the collision. I believe him regarding the misunderstanding involving Dr. Fasihy. The numbers referenced by the other experts appear reasonably accurate for the point in time when they were provided, and when compared to the actual hours of overtime worked in each of the years following the collision. DAMAGES – EXECUTIVE

SUMMARY [ 63 ] On the basis of the evidence of the witnesses outlined above, I find that Mr. Hilbig had no significant or relevant pre-existing physical complaints or injuries as of January 7, 2016. He suffered soft tissue injuries in the collision of January 7, 2016. The defendant admits liability for the collision. The soft tissue injuries were caused by the collision. The injuries resulted in almost immediate, ongoing, and now chronic pain to Mr. Hilbig, including pain in his neck, shoulders, and arms, as well as intermittent headaches of different kinds.

There has been partial improvement in his symptoms, but his recovery appears to have plateaued and, as noted by the experts – including the defendant’s own expert – the prognosis at this point for a full recovery is guarded. The chronic nature of the pain has had a negative impact upon Mr. Hilbig’s mental health, and has caused problems in the nature of depression and anxiety. The injuries to his physical and mental health have resulted in pain, suffering, loss of enjoyment of life, and loss of amenities; loss of past and future earning capacity and costs related to his future care. Mr.

Hilbig has acted reasonably, as regards the issue of mitigation. His refusal to take opiate- based pain medication is appropriate given the associated risks, and does not constitute a failure to mitigate.

Non-pecuniary damages [ 64 ] Non-pecuniary damages serve to compensate the plaintiff for pain, suffering, loss of enjoyment of life, and loss of amenities. [ 65 ] Factors to be considered in determining an appropriate award include, but are not limited to age; nature of the injury; severity and duration of pain; level and type of disability; emotional suffering; loss or impairment of life; impairment of family, marital, and social relationships; impairment of physical and mental abilities; loss of lifestyle; and the plaintiff’s stoicism (a factor that should not generally

penalize the plaintiff): see Stapley v. Hejslet, 2006 BCCA 34 at para. 46 (leave to appeal ref’d: (SCC)). [66] Counsel for the plaintiff suggested that an appropriate award would be in the range of $110,000 to $115,000 and counsel for thedefendant suggested a range $80,000 to $90,000. Each provided a series of cases that had resulted in awards in their respective suggestedranges after adjustment for inflation. [67] While somewhat helpful in a general sense, each case must be determined on its own unique set of facts.

All of the cases cited bycounsel had certain facts and aspects in common with the present case, however they were all distinguishable as to others. The casesranged from a low of $83,270 to a high of $127,420, adjusted for inflation to 2021 value. [68] Mr. Hilbig is 59 years old.

He suffered soft tissue injuries, which have resulted in headaches; chronic neck, shoulder, and armpain; compromise to his physical performance and standing at work; compromise to or termination of his physical abilities to pursuecertain recreational activities; depression and anxiety related to these losses; and impairment of his family and social relationships. Itappears that his recovery has plateaued and his prognosis for improvement is guarded. [69] I award Mr. Hilbig $105,000 in non-pecuniary damages.

Past loss of earning capacity [70] Compensation for past loss of earning capacity is based on what the plaintiff would have, not could have, earned but for hisinjuries – see Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30; M.B. v. British Columbia, 2003 SCC 53 at para. 49. In Wallmanv. Doe, 2014 BCSC 79 at para. 485, the court noted that loss of past income is a hypothetical assessment guided by the plaintiff’searnings prior to the collision; it is not an exact calculation. The aim is to put the plaintiff back in the position that he would have been inhad this accident not occurred – see Lines v.

W & D Logging Co. Ltd., 2009 BCCA 106 at para. 185 (leave to appeal ref’d: [2009]S.C.C.A. No. 197). [71] Mr. Hilbig says that, prior to the collision, he always worked all or most of the overtime available to him through his variousemployers. [72] Approximately four months after the collision, Mr. Hilbig became eligible to access more and better overtime than hadpreviously been the case. In 2015, he worked 280 hours of THO and 205 hours of capital DTO (total of 485 hours, averaging 9.3 hoursper week over 52 weeks) with a value of approximately $31,000 in total.

With enhanced seniority in 2016, following the collision, heworked 405 hours of THO and 154 hours of DTO (total of 559 hours, averaging 10.75 hours per week over 52 weeks) valued atapproximately $35,000 in total. In 2017, this increased to 520 hours of THO and 273 hours of DTO (total of 793 hours, averaging 15.25hours per week over 52 weeks) valued at approximately $53,000. After 2017, his overtime dropped precipitously to the point thatthrough September 2021, his total overtime for that calendar year was approximately 175 hours, with a value of approximately $14,000. [73] Counsel for Mr.

Hilbig submits that at current pay rates, Mr. Hilbig has available to him approximately $63,000 annually, shouldhe choose to work an eight-hour overtime shift each and every Saturday and Sunday, all year. That would amount to 832 hours of totalovertime and would have him working seven days per week, 365 days per year. Counsel points to the evidence of Warren Williams whotestified that he worked 38 to 40 days straight, took one to two days off, and then repeated that schedule. [74] Mr. Hilbig is accommodated by his employer and supported at his job site by his coworkers.

He clearly has overtime available tohim on this accommodated and supported basis; he has and continues to work overtime on this basis, albeit at a lower frequency than inthe years since the collision. [75] I am satisfied on the evidence that Mr. Hilbig would have worked more overtime during the years 2018, 2019, 2020, and 2021,had it not been for the injuries suffered in the collision. I am not satisfied on the evidence that he would have continued to work at therate of 794 hours of overtime per year.

That would represent an average of approximately 15.25 hours of overtime per week, or almosttwo full eight-hour shifts. A more reasonable rate given Mr. Hilbig’s past overtime elections, the overtime available to him, his age, andhis long-term goals, including his goal to work to age 70, is 12 hours of overtime in total per week, representing 1.5 extra shifts perweek. That amounts to 624 total overtime hours per year. Dividing those hours in approximately the proportion of past years suggests362 hours of THO and 262 hours of DTO.

Given the varying rates of pay for the years 2018, 2019, 2020, and 2021, that would amountto a total overtime income of between $46,000 and $48,000. Using the midpoint of $47,000 I calculate Mr. Hilbig’s past loss of overtimeincome as follows: 2018$47,000 minus $33,110 earned: $13,8902019$47,000 minus $29,150 earned: $17,8502020$47,000 minus $22,740 earned: $24,2602021$47,000 minus $17,000 earned (est.): $30,000 Total loss of overtime income to December 31, 2021:$86,000 Less 25% tax allowance: -$21,500 Total net loss of overtime award: $64,500 [76] It was common ground between counsel that Mr.

Hilbig missed eight days of work following the collision. Neither counseladdressed whether those days included only regular work time, or whether they considered available overtime shifts. Neither counseladdressed whether there was a financial loss for those eight days, whether they were compensated by way of sick time, whether therewas to be payback with respect to those days, or any other such matters. Accordingly, I have made no allowance for those eight days aspart of past income loss. Should either counsel wish to address me on this particular issue, they have liberty to do so.

Future loss of earning capacity

[ 77 ] Mr. Hilbig has been employed as a millwright with his current employer since 2013. The evidence appears to show that he is a valued employee. He has no intention of leaving his current employment, and his stated goal is to work until he reaches the age of 70. He says that he is able to work his regular shifts, albeit in some pain, but that his ability to take overtime is diminished significantly due to the effects of the collision. Overtime is available to him on an almost unlimited basis given his seniority. Millwrights at his place of employment are in fact encouraged to work significant overtime.

He is accommodated by his employer and supported by his coworkers on the job, both during regular hours and during overtime hours. He worked his highest level of overtime ever during the two years immediately following the collision, but testified that he is simply unable to maintain that level of overtime given the physical and emotional injuries he suffered as a result of the collision.

His claim of future loss of earning capacity relates only to the question of overtime – no figure, proposal, or allowance was put forward regarding the possibility of further impairment, or loss of his position due to his current impairment. [ 78 ] A claim for loss of future earning capacity raises two key questions: 1.

Has the plaintiff’s earning capacity been impaired by his injuries? 2 If so, what compensation should be awarded for the resulting financial harm that will accrue over time? [ 79 ] There are two possible approaches to the assessment of loss of future earning capacity: the earnings approach and the capital asset approach. Either may be correct, depending on the circumstances of the particular case.

The earnings approach will generally be more useful and applicable when the loss is easily measurable; while in situations where the loss is not measurable in a pecuniary fashion, the capital asset approach will generally be preferable – see Perren v. Lalari 2010 BCCA 140 at para. 12 . [ 80 ] Three unanimous decisions of the British Columbia Court of Appeal, all written by Justice Grauer, have addressed and clarified the proper approach to be taken in assessing damages for future loss of earning capacity: 1. Dornan v. Silva , 2021 BCCA 228 ; 2. Rab v. Prescott , 2021 BCCA 345 ; and 3. Lo v. Vos , 2021 BCCA 421 .

In them, Grauer J.A. confirmed some of the basic principles regarding loss of future earning capacity. [ 81 ] In Dornan at para. 156 , Grauer J.A. cites from Gregory v. Insurance Corporation of British Columbia , 2011 BCCA 144 (at para. 32 ): … An award for future loss of earning capacity thus represents compensation for a pecuniary loss. It is true that the award is an assessment, not a mathematical calculation. Nevertheless, the award involves a comparison between the likely future of the plaintiff if the accident had not happened and the plaintiff’s likely future after the accident has happened: Rosvold v.

Dunlop , 2001 BCCA 1 at para. 11 ; Ryder v. Paquette , [1995] B.C.J. No. 644 (C.A.) at para. 8 . … [ 82 ] Grauer J.A. goes on to cite from Pololos v. Cinnamon-Lopez , 2016 BCSC 81 at para. 133 ( Dornan , para. 157 ): The central task of the Court is to compare the likely future of the plaintiff’s working life if the Accident had not occurred with the plaintiff’s likely future working life after the Accident … . [ 83 ] At para. 28 of Rab, Grauer J.A. cites Grewal v. Naumann , 2017 BCCA 158 : [48] In

summary, an assessment of loss of both past and future earning capacity involves a consideration of hypothetical events. The plaintiff is not required to prove these hypothetical events on a balance of probabilities. A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation. If the plaintiff establishes a real and substantial possibility, the Court must then determine the measure of damages by assessing the likelihood of the event.

Depending on the facts of the case, a loss may be quantified either on an earnings approach or on a capital asset approach: Perren v. Lalari , 2010 BCCA 140 at para. 32 . [ 84 ] From the authorities, Grauer J.A. distills a three-step process for assessing future income loss claims ( Rab at para. 47 ): 1. Does the evidence disclose a potential future event that could lead to a loss of capacity, for example, chronic injury, future surgery, risk of arthritis? 2. On the evidence is there a real and substantial possibility that the future event in question will cause a pecuniary loss? 3.

If so, what is the value of that possible future loss, after assessing the relative likelihood of that possibility occurring? [ 85 ] In the present case, little if any comment or evidence arose with respect to potential future events. There was comment about the risks associated with work as a millwright, particularly as it involves large heavy equipment and equipment parts. The evidence shows that Mr. Hilbig is accommodated by his employer and supported by his coworkers in dealing with heavy or awkward work. [ 86 ] One of the reasons that Mr.

Hilbig was able to advance in seniority was that at least three of the people with more seniority were injured and left their positions. No evidence was led on the point, and none of those individuals were called to testify, but one must presume that if the injuries were work related, they would thereafter be the subject of a claim to WorkSafe BC. [ 87 ] In this present case, the “future contingency” has arguably already happened. In 2016, when the collision occurred and the injuries were suffered, the concern about the future might well have been whether Mr.

Hilbig would be able to continue in his employment and to aggressively pursue overtime, or whether the effects of the collision and the injuries suffered would impair him in

that quest. [88] Six years have now passed since the collision. Mr. Hilbig has continued and intends to continue his employment to age 70. Fortwo to three years, he aggressively pursued increased overtime as it became available to him. The effects of his collision-related injuries,both physical and emotional, have become and remain chronic. They have in fact intervened and impaired his continued pursuit ofovertime. He is able to work overtime but at a reduced rate from that which he was physically and emotionally able to work prior to thecollision, even with accommodation and assistance.

This has had and will continue to have a negative impact on his ability to earnincome from overtime work, which is now available to him on an almost unlimited basis. [89] It remains, therefore, to determine or estimate the true future pecuniary loss Mr. Hilbig has suffered as a result of the collision. [90] With changing union wage scales, uncertainty as to how much of the overtime will be THO as opposed to DTO, and other suchmatters, I am reminded that an award of this type is an assessment, not simply a mathematical calculation. Included in the matters that Iconsider in making the assessment are: 1. that Mr.

Hilbig has an established history of working as a millwright and of availing himself of overtime work as it is, orbecomes, available to him; 2. that he had and has no stated intention to leave his current and established type of work, or his employer; 3. that he had no established pre-existing limitations or injuries that limited his ability to work or take overtime, save and except hisseniority and related overtime availability; 4. that he is now approaching age 60 but still intending to work to age 70 with accommodation and assistance; 5. that the experts, including the defence expert, agree in whole or in part, that Mr.

Hilbig suffered soft tissue injuries to his neck,shoulders, and upper back in the collision; that these injuries and the resultant limitations have caused mental health problems ofdepression and anxiety; that to at least some extent the injuries are chronic; and that the prognosis is guarded; 6. that these injuries were caused by the collision and are the cause of Mr.

Hilbig’s reduced ability to work overtime – they are thusthe cause of his loss of income now and in the future; and 7. that his continuing exposure to risk is not significant given the accommodation and assistance that he gets at work, and given thathis injuries have curtailed his recreational activities from hiking and canoeing to less strenuous and risky activities, such as walking,birdwatching, photography, and working with model railroad systems. [91] No economist or actuarial evidence was called or provided by counsel at the trial. [92] Based on his last two years of work, Mr.

Hilbig’s loss of income from decreased overtime due to injury from the collision can bereasonably shown, by way of the calculations in the

section regarding past loss of earning capacity, as being approximately $30,000 peryear, based on current rates and in current dollars. Starting with a strictly mathematical calculation, and based upon Mr. Hilbig turning 70in late June of 2032, his future loss will be approximately $315,000 if he in fact does work to age 70. [93] Based on the evidence of Mr. Hilbig and his co-workers, I accept that he intends to work to age 70, but I am also satisfied thatmost millwrights retire prior to that age and that it is only a select few who continue to 70 or beyond.

No statistics about this wereprovided, nor were any of the “over 70” workers called to testify about whether they continued to work overtime to age 70 and beyond. Iapply a 10% contingency deduction on the starting figure in recognition of the real and substantial possibility that Mr. Hilbig would nothave worked to age 70 had the collision not occurred. [94] I award Mr. Hilbig $315,000 for future lost overtime, less the 10% contingency of $31,500 for a total net award of $283,500.

Cost of future care [95] The test for determining an appropriate award for the cost of future care is an objective one, based on medical evidence. Theremust be medical justification for the claims for cost of future care, and those claims must be reasonable – see Milina v. Bartsch (1985),49 B.C.L.R. (2d) 33, (S.C.); Tsalamandris v. McLeod, 2012 BCCA 239 at para. 63. [96] Dr. Finlayson, Mr.

Hilbig’s own expert in the field of physical medicine and rehabilitation, recommends continuingphysiotherapy treatments at the rate of six to twelve sessions per year for the “foreseeable future” in order to manage pain flareups. Shefurther recommends transitioning from active rehabilitation to a gym or home-based independent exercise program. It appears that hasbeen accomplished to at least some extent.

She does recommend, however, that provision be made for the guidance of a kinesiologist tooversee this exercise program five to ten times per year, on an indefinite basis. [97] Based upon the evidence, including the documents entered by agreement, the cost of physiotherapy is currently $86.10 persession and the cost of active rehabilitation is $85.05 per session. It is reasonable in the circumstances to allow Mr. Hilbig 12 sessions peryear of physiotherapy and active rehabilitation/kinesiologist assistance, to age 70.

Based on an average of $85.50 per session, and 2sessions per month over the next 123 months to age 70, that totals $21,033. I allow a further $5,000 for these services beyond the age of70, taking this total to $26,033. [98] Dr. Quickfall recommends a further 15 to 20 sessions of psychotherapy to address Mr. Hilbig’s mental health symptoms.Mr. Hilbig is currently under the care of Dr. Buch in this regard, and has been since approximately 2019 at $225 per session.

I amsatisfied that the minimum recommended number of sessions is appropriate: I allow 15 sessions at $225 per session for total of $3,375. [99] The evidence is clear that Mr. Hilbig has avoided, and continues to avoid, opiate medications for pain. He does take over-the-

counter medications such as Tylenol and Advil. He also takes various medications as prescribed by his doctor and psychologist. Dr. Fasihy estimated an ongoing cost of medications of $500 per month, but on cross-examination acknowledged that that figure was really only a guess and could not be supported by any objective evidence. Absent any evidence on this issue, I make no award regarding ongoing medication costs. Loss of housekeeping capacity [ 100 ] In my respectful view, the claim for loss of housekeeping capacity is not well-founded. [ 101 ] Mr.

Hilbig purchased a large home with a yard approximately five years after the collision. Ms. Bradley is a co-owner of that house; accordingly, her contribution to its upkeep is not gratuitous. In her evidence, she acknowledged that she is retired and does not work outside of the home, while Mr. Hilbig continues to be employed on a full-time basis. [ 102 ] Little or no evidence was led regarding which household tasks Mr. Hilbig is capable of performing. There was an indication that he could not cut the lawn, but that turned out to be incorrect.

Reference was made to hiring outside help for other yard-related work but no evidence was led as to the type of work or the cost associated with it. [ 103 ] I am not satisfied that the claim for loss of housekeeping capacity has been made out on the evidence, and I dismiss it. Special damages [ 104 ] I was advised by counsel that special damages have been agreed in the amount of $10,710.74 and accordingly, I award that amount. Damages

summary [ 105 ] Awards for damages are summarized as follows: Damages

Summary Non-pecuniary: $105,000.00 Past loss of earning capacity: $64,500.00 Future loss of earning capacity: $283,500.00 Cost of future care: $29,408.00 Loss of housekeeping capacity (dismissed): 0 Special damages (agreed): $10,710.74 Total damages: $493,118.74 [ 106 ] Subject to further submissions, the plaintiff Mr. Hilbig is entitled to his costs at Scale B. Should counsel wish to make further submissions on the issue of costs or, as previously indicated, on the issue of the eight days of work that Mr.

Hilbig missed following the collision, they will have 30 days from the release of this decision to file such request. [ 107 ] Counsel had requested leave to address the court regarding certain adjustments and credits to be applied regarding certain heads of damage and they have liberty to do so, along with liberty to address the issue of the eight days of lost work immediately following the collision. “Caldwell J.”