Pilfold v. Jaswal (2014 BCSC 719)

IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Pilfold v. Jaswal,
2014 BCSC 719
Date: 20140428
Docket: M112881
Registry: Vancouver
Between:
Peter Pilfold
Plaintiff
And
Jaswinder Jaswal, Royal City Taxi Ltd., John Doe
and Insurance Corporation of British Columbia
Defendants
Before: The Honourable Mr. Justice Savage
Reasons for Judgment
Counsel for the Plaintiff: K.R. Taylor
J.M. Sarophim
Counsel for the Defendants J. Jaswal and
Royal City Taxi Ltd.:
A. Smith
K.H Owen-King
Place and Date of Trial: Vancouver, B.C.
March 31, 2014
April 1-4, 2014
Place and Date of Judgment: Vancouver, B.C.
April 28, 2014

Pilfold v. Jaswal Page 2
Table of Contents
I. Introduction....................................................................................................... 3
II. Background....................................................................................................... 3
III. The Accident ..................................................................................................... 4
IV. Post Accident.................................................................................................... 5
V. Non-Pecuniary Damages.................................................................................. 7
VI. Loss of Past Income......................................................................................... 8
VII. Loss of Future Earning Capacity................................................................... 10
VIII. Future Cost of Care ........................................................................................ 12
IX. Special Damages ............................................................................................ 12
X. Summary ......................................................................................................... 13

I. Introduction
[1] On March 2, 2010, Peter Pilfold was a passenger in a Royal City taxi
negligently operated by Jaswinder Jaswal which struck the Pattullo Bridge curb in a
single vehicle accident in New Westminster, B.C. (the “Accident”). Mr. Pilfold was on
his way to the dispatch office in New Westminster to work as a longshoreman. This
case concerns the assessment of damages arising from the negligent operation of
the taxi.
II. Background
[2] Mr. Pilfold, who is originally from Prince Rupert B.C, is 57 years old and is a
third generation longshoreman. Although cross-examined on some matters which
are arguable inconsistencies, I find him generally to be a credible witness.
[3] As an adolescent Mr. Pilfold left school early when his father was injured
falling off a vessel. He and his brother worked to help support the family. He
commenced longshoring at 15 and has worked in that occupation since. He was
able to complete his high school education five years after leaving school.
[4] Mr. Pilfold is registered for work under the collective agreement between the
British Columbia Maritime Employers Association (“BCMEA”) and the International
Longshore and Warehouse Union. He has worked as a longshoreman since 1972
except during a period from 1982-1985 when he pursued an art career while taking
courses at the Ontario College of Art and while on a scholarship to Florence, Italy.
He completed diplomas in multi-media and fine arts in the 1990s and a Bachelor of
Fine Arts in 2005.
[5] Mr. Pilfold is married to Carol Anne (“Kaleila”) Pilfold. They have three adult
children. Mrs. Pilfold has worked on the docks as a first aid attendant.
[6] Longshore employment differs from other employment in that each employee
chooses when to make themselves available for work. There is neither a regular
schedule of employment nor a guarantee of employment on any given day. Work is

assigned at a labour hall. The type of work varies widely from light duty short
duration work to eight hours of heavy physical labour.
[7] Mr. Pilfold testified that he and Mrs. Pilfold planned to move back to Prince
Rupert in 2010. That is because a new container terminal had opened which
promised dependable employment. It was an advantage to Mr. Pilfold to work out of
Prince Rupert because in the lower mainland he had only visitor status as a “wolfer”
at the labour hall. That meant that preferred longshore employment went first to
members of the lower mainland locals. In Prince Rupert he was thirteenth on the
seniority list where he would receive preferred employment.
[8] Mr. Pilfold was generally in good health before the accident, and enjoyed his
employment, walking, biking and his social life. He pursued artistic endeavors in his
spare time with Mrs. Pilfold. He was easy going.
III. The Accident
[9] The Accident occurred on the early morning of March 2, 2010. Mr. Pilfold was
a front seat passenger in a taxi operated by Mr. Jaswal and owned by Royal City
Taxi. Mr. Pilfold was on his way to the union dispatch hall in Surrey. The taxi was
proceeding onto the Pattullo Bridge in the right lane. Mr. Pilfold saw Mr. Jaswal
make a sudden movement and then the right front tire hit the curb on the right side
of the bridge. The vehicle came to an abrupt stop.
[10] Mr. Jaswal introduced in evidence photographs of his vehicle which,
according to the date stamp, were taken two weeks after the Accident. The
photographs do not show the flattened tire or damaged rim, which were changed
after the Accident. Mr. Jaswal testified that he saw another vehicle and explains his
driving as an evasive manoeuver. That said, the defendants admit liability for the
Accident.
[11] Mr. Pilfold was wearing his seatbelt. I accept his evidence that his body was
jolted front and then back, and he experienced pain in his shoulder. He told
Mr. Jaswal of the problem with his shoulder. Mr. Jaswal, who testified at trial with the

assistance of an interpreter, did not respond. Eventually, as he waited outside the
taxi, one of Mr. Pilfold’s co-workers drove by the scene. The co-worker stopped and
drove Mr. Pilfold to the dispatch hall in Surrey.
IV. Post Accident
[12] Mr. Pilfold took a light duty “hatch tender” job the day of the Accident. The
next day he saw his physician, Dr. P.J. Wodynski. Dr. Wodynski reported that
Mr. Pilfold complained of a sore neck and a sore right shoulder. Dr. Wodynski found
tenderness in Mr. Pilfold’s right trapezius muscle and right posterior cervical spine
muscles. Mr. Pilfold had a significantly limited range of motion in the cervical spine
and right shoulder. Dr. Wodynski diagnosed multiple strains and recommended
alternating heat and ice application and ibuprofen.
[13] Mr. Pilfold continued to try light duty work. He returned to Dr. Wodynski five
days later, reporting that he was unable to work as a crane operator, was stiff, and
had pain in his cervical and lumbar spine. Dr. Wodynski found tenderness in
Mr. Pilfold’s cervical and lumbar spine muscles as well as in the muscles around
Mr. Pilfold’s right shoulder blade. Mr. Pilfold had a loss of mobility in the cervical
spine. Mr. Pilfold needed to rotate his entire trunk in order to rotate his head to the
right. Dr. Wodynski prescribed massage therapy.
[14] Mr. Pilfold attended Motion Physiotherapy on March 16 and 19, 2010. On
March 22, 2010 Mr. Pilfold went on a planned extended holiday to Mexico with his
wife. He had 12 massage therapy treatments in Mexico. Mr. and Mrs. Pilfold
returned from Mexico in June 2010. Mr. Pilfold returned to his employment but
selected light duty work and passed on heavier duty employment. As a result of
various exigencies, he had an extended period as a crane operator on logs from
June to October 2010. This was easier work although he experienced pain, fatigue,
and stiffness in his neck and shoulder.
[15] Following an incident in October 2010, Mr. Pilfold saw Dr. Wodynski again in
November 2010. Dr. Wodynski found tender cervical spine muscles and a tender
right shoulder girdle. Mr. Pilfold reported difficulty doing his job as a crane operator

because of the flexion and extension required. Dr. Wodynski prescribed
physiotherapy. Mr. Pilfold had nine physiotherapy treatments in November and
December 2010.
[16] Dr. Wodynski next saw Mr. Pilfold on December 20, 2010 and February 9,
2011. His situation was unchanged. Mr. Pilfold tried kinesiology in October 2012 but
found it exacerbated his problems.
[17] Mr. Pilfold reports ongoing pain and stiffness in his neck, upper back and
shoulder. Dr. Wodynski opines that as most extension-flexion injuries resolve within
two years, he considers the injuries chronic. Mr. Pilfold may experience intermittent
pain and limited mobility for the foreseeable future.
[18] Mr. Pilfold was seen by Dr. T. Giantomaso whose report is generally
consistent with that of Dr. Wodynski. Dr. Giantomaso opines that the vast majority of
improvement occurs within 6 to 18 months post trauma, and that Mr. Pilfold has
reached maximal medical improvement and that his injuries are permanent.
[19] Dr. Wodynski and Dr. Giantomaso were both skillfully cross-examined by the
defendant’s counsel. There were no contrary expert opinions offered by the
defendants. On balance I accept the expert opinions that Mr. Pilfold has likely
reached maximal medical improvement and that his injuries are permanent.
[20] I accept that Mr. Pilfold’s injuries have affected both his personal life and
working life. He is less jovial and upbeat and is more moody and irritable. It has
affected his life with Mrs. Pilfold, as they no longer go for long bike rides, as they did
previously, or go on the long walks together they previously enjoyed. Mr. Pilfold has
also shown less interest in his art which he used to pursue with more interest prior to
the Accident. Mr. Luckett, a friend of Mr. Pilfold noted that Mr. Pilfold is more
irritable, less social, and more negative since the Accident. Mr. Luckett says that
Mr. Pilfold appears “disheartened”.
[21] Mr. Pilfold’s injuries have also affected his working life in a way which is not
accounted for as a pecuniary loss. Mr. Pilfold, admirably, continues to work despite

his injuries. That work, however, is harder for him, in that he experiences stiffness,
soreness and pain at work. That has not generally prevented him from working,
although he has missed some work, however, when he works, he often does so
while experiencing discomfort. Mr. Pilfold’s working life is an important part of his
identity.
[22] The injuries also affect Mr. Pilfold’s ability to work as a gantry crane operator,
which requires high levels of concentration in an awkward position. Both he and
Mr. Luckett demonstrated the awkward position which involves the crane operator
leaning forward looking straight down between his legs through a glass floor while
operating levers with both hands, manipulating containers 170 feet below. Although
he did not mention this to management when reviewing his performance, I accept
his evidence that the position aggravates his injuries. Because of production
difficulties he was removed as a gantry crane operator. Although some additional
training is available, Mr. Pilfold has been reluctant to take that training in his current
physical condition because if he does not qualify he would unlikely ever have
another opportunity.
[23] Gantry crane operation is the most prestigious job in his field of endeavour,
and a four hour job for which one is paid for nine hours. Because of his seniority in
Prince Rupert, Mr. Pilfold would be able to work through the week. Actually obtaining
this job on an ongoing basis in Prince Rupert involves some contingencies. Not
everyone is capable of performing this high stress, difficult work. Nevertheless, in my
opinion Mr. Pilfold’s opportunity to work in this position has been significantly
diminished by his injuries. There are pecuniary and non-pecuniary aspects to these
consequences. A significant non-pecuniary aspect is the lost advantage of working a
four hour job daily instead of an eight hour job.
V. Non-Pecuniary Damages
[24] Plaintiff’s counsel argues that Mr. Pilfold’s non-pecuniary losses fall within a
range of $80,000 to $95,000. In doing so she relies on Clark v. Kouba, 2012 BCSC

1607 ($85,000); Gold v. Joe, 2008 BCSC 865 ($80,000); Neumann v. Eskoy, 2010
BCSC 1275 ($90,000); and Kaleta v. MacDougall, 2011 BCSC 1259 ($80,000).
[25] Defendants counsel argues that Mr. Pilfold’s non-pecuniary losses fall within
a range of $40,000 to $45,000. In doing so they rely on Stein v. Kline, 2012 BCSC
573 ($40,000); Jackman v. All Season Labour Supplies Ltd., 2006 BCSC 2053
($40,000); Fata v. Heinonen, 2010 BCSC 385 ($45,000); and Salvatierra v.
Vancouver (City), 2008 BCSC 537 ($45,000).
[26] In my opinion the cases cited by the plaintiff more closely resemble the
situation of Mr. Pilfold here. Bearing in mind the principles referenced by the Court of
Appeal in Stapley v. Hejslet, 2006 BCCA 34, and this court in Hartnett v. Leischner,
2008 BCSC 1589, and the appropriate contingencies, in my opinion Mr. Pilfold’s
non-pecuniary losses are properly assessed at $80,000.
VI. Loss of Past Income
[27] A plaintiff is entitled to be compensated for the loss of the value of the work
he would have performed but for the injuries sustained in the accident. In Rowe v.
Bobell Express Ltd., 2005 BCCA 141, the Court describes this as a claim for loss of
earning capacity. A trial court should apply contingencies that affect the loss:
Hussack v. Chilliwack School District No. 33, 2011 BCCA 258, at para. 92; Riding-
Brown v. Jenkins, 2014 BCSC 382, at para. 38.
[28] Mr. Pilfold here argues that there are two aspects to the loss: (1) after the
Accident Mr. Pilfold had to turn down work on days where there was work but no
light duty work was available, and (2) but for the Accident, Mr. Pilfold would have
returned to work in Prince Rupert in accordance with his plans and earned a much
higher income.
[29] The defendants meet the plaintiff’s arguments head on. They say that the
best evidence is that of the employment records which do not show any loss of
income by Mr. Pilfold. Further, it is not proven that Mr. Pilfold would have returned to

Prince Rupert as he says. There were other reasons for not returning other than his
health, namely, one of his children’s medical issues.
[30] I agree that the employment records arguably do not demonstrate any past
loss of income by Mr. Pilfold (based on the assumption that he would stay in the
Lower Mainland). However, the employment records provided by the BCMEA do not
reveal how much work was available from month to month or year to year. Mr. Pilfold
was dispatched from a hiring hall. He had some very incomplete records which
recorded shifts where he refused available work because he was unable to perform
the heavier work. Mr. Luckett, a co-worker, also testified that Mr. Pilfold passed on
heavier work after his injuries. Of course, Mr. Luckett did not have records or
continuous observations, but his evidence supports that of Mr. Pilfold. The fact
Mr. Pilfold’s earnings remained relatively stable does not disprove Mr. Pilfold’s
evidence, which I accept, that he declined some heavier work and lost earnings after
the Accident.
[31] Both Mr. and Mrs. Pilfold testified that they planned to move to Prince Rupert
in 2010. Mr. Pilfold moved to Prince Rupert in 2013. Mrs. Pilfold is going to join him
this year. It is their evidence that they were delayed because Mr. Pilfold sought
treatment for his injuries. Because of his position on the seniority list, and the
available work, when Mr. Pilfold went to Prince Rupert his earnings rose
dramatically. Mr. Kurt Slocombe testified that work was available to Mr. Pilfold in
Prince Rupert and it was his expectation that Mr. Pilfold would have returned years
earlier. Mr. Luckett testified that he knew of Mr. Pilfold’s plans to move to Prince
Rupert.
[32] In my opinion but for the Accident, Mr. Pilfold would have returned to Prince
Rupert earlier than he did, and that he deferred going hoping to get better and with a
view to obtaining necessary treatment for his injuries in the Lower Mainland. In my
view his doing so was not unreasonable.
[33] The plaintiff’s counsel calculates Mr. Pilfold’s net past loss of earnings at
between approximately $30,000, based on assumptions about refused work as a

visitor or wolfer in the Lower Mainland, and approximately $72,000, based on a
comparison of his earnings in the Lower Mainland and his earnings in Prince Rupert.
[34] In my view the second approach is to be preferred, although there is
significant uncertainty over when he would have actually made a move to Prince
Rupert but for the Accident. In the circumstances, allowing for contingencies, and
after deduction for taxes, I award Mr. Pilfold $35,000 for past loss of earnings.
VII. Loss of Future Earning Capacity
[35] In Perren v. Lalari, 2010 BCCA 140, the Court of Appeal summarized the
principles to be considered in assessing whether there are damages under this head
and, if so, the approaches to be used in determining the quantum of such damages.
Those were summarized in Parker v. Lemmon, 2012 BCSC 27, at para. 42 as:
(1) A plaintiff must first prove there is a real and substantial possibility of a
future event leading to an income loss before the Court will embark on an
assessment of the loss;
(2) A future or hypothetical possibility will be taken into consideration as long
as it is a real and substantial possibility and not mere speculation;
(3) A plaintiff may be able to prove that there is a substantial possibility of a
future income loss despite having returned to his or her employment;
(4) An inability to perform an occupation that is not a realistic alternative
occupation is not proof of a future loss;
(5) It is not the loss of earnings but rather the loss of earning capacity for
which compensation must be made;
(6) If the plaintiff discharges the burden of proof, then there must be
quantification of that loss;
(7) Two available methods of quantifying the loss are (a) an earnings
approach or (b) a capital asset approach;
(8) An earnings approach will be more useful when the loss is more easily
measurable;
(9) The capital asset approach will be more useful when the loss is not easily
measurable.
[36] A real and substantial possibility of income loss must be based on something
more than the plaintiff’s own perception or a bare possibility: Kim v. Morier, 2014
BCCA 63, at paras. 6-8.

[37] Any assessment must have an appropriate factual underpinning: Morgan v.
Galbraith, 2013 BCCA 305 at para. 55.
[38] The capital asset approach to assessing damages should address the four
factors in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353, 1985 CanLII 149 (S.C.);
namely (1) capacity, (2) marketability, (3) opportunity, and (4) value.
[39] In my opinion Mr. Pilfold has established there is a real and substantial
possibility of a future event leading to a loss of earning capacity. I base this on (1)
Mr. Pilfold’s prognosis, i.e., the likely chronicity of Mr. Pilfold’s complaints; (2) the
evidence regarding the work available to him because of his seniority; (3) the
evidence regarding the physical requirements of such work; (4) the evidence
regarding the physical impact on him of such work; and (5) his experience working
as gantry crane operator in Prince Rupert and Vancouver. In my opinion there is a
real and substantial possibility that the plaintiff will miss some work because of the
chronic nature of his complaints. Likewise, there is a real and substantial possibility
that the position of gantry crane operator will be foreclosed for him because of his
injuries.
[40] Those losses have the following components (1) the loss of a shift differential
of $2.00 per hour for a dock gantry crane operator; (2) the loss of one hour pay per
shift as a dock gantry crane operator who is paid for nine hours instead of eight (for
four hours actually worked); and (3) the occasional loss of work due to dispatch
assigning heavy labour. I accept the plaintiff’s calculation of those losses amounting
to $25,619 per year as a reasonable approximation; however whether Mr. Pilfold
would have been able to qualify and maintain his qualification for such a position in
Prince Rupert but for the Accident is subject to a considerable contingency which is
not accounted for in the plaintiff’s calculation. The position is high stress and
requires greater speed than in the lower mainland. I would reduce the amount
calculated by 50% to account for such contingency. The loss to age 65 is then,
rounded, $65,000.

[41] The plaintiff argues that but for the injury he would have an extended working
life as a gantry crane operator to age 70. The amount claimed for the period from
age 65 to 70 is $124,035. I would apply two contingencies to this amount. First, I
would reduce the amount by 50% to account for the contingency that he would not
have been able to qualify and maintain his qualification for such a position.
[42] Further, I agree with the defendant that the plaintiff’s calculation is flawed in
that it does not account for any specific contingencies related to longshoring and
gantry crane operation. Longshoring generally is a physical activity as is gantry
crane operation. Gantry crane operation is stressful and requires prolonged intense
concentration. In my opinion a very substantial contingency should be applied to
work after age 65. Further, the calculations offered do not account for pension
entitlement which, in my opinion, must be considered after age 65.
[43] Given these factors and the contingencies at play, considered globally, in my
opinion a fair award for the total loss of earning capacity in this case is $75,000.
VIII. Future Cost of Care
[44] With respect to the cost of future care, I would allow $1000 for the cost of
medication and $10,200 for the cost of IMS treatment. In my opinion these are
reasonable and necessary costs.
[45] I do not view the functional capacity evaluation as a necessary or appropriate
cost. Mr. Pilfold is fully familiar with the work available as a longshoreman. My sense
is that at 57 he understands what he is or is not capable of doing. Moreover, I am
not persuaded that the type of work lends itself easily to accommodations that would
be useful. I am not persuaded that a functional capacity evaluation is reasonable or
necessary.
IX. Special Damages
[46] Mr. Pilfold’s special damages consist of treatment of massage therapy,
physiotherapy, and some miscellaneous expenses totalling $1,713. The defendants
would allow $903, disallowing costs associated with recent massage therapy. I

accept that the massage therapy provided the plaintiff with some relief of his
symptoms. I would allow the special damages as presented at $1,713.
X. Summary
[47] In summary, I assess Mr. Pilfold’s damages as follows:
1. Non-pecuniary damages: $ 80,000
2. Loss of past income: $ 35,000
3. Loss of future earning capacity: $ 75,000
4. Future cost of care: $ 11,200
5. Special Damages: $ 1,713
Total: $202,913
[48] In addition to the above sums Mr. Pilfold is entitled to court order interest.
Unless there is something of which I am not aware, Mr. Pilfold is entitled to costs,
pursuant to Rule 15-1.
“The Honourable Mr. Justice Savage”

Pilfold v. Jaswal (2014 BCSC 719)

Recommended

Recommended

More Related Content

Viewers also liked

Viewers also liked (11)

Pilfold v. Jaswal (2014 BCSC 719)