Locomotive engineer has not been accommodated by his employer, CN Rail. Judge awards $650,000.00 for loss of earning capacity.
RH v. CN 2021 BCSC 1407
The Reasons for Judgment of the Honourable Madam Justice Matthews were given on July 19, 2021 in Vancouver, British Columbia
On November 23, 2017, RH (“Mr. H”), age 45 at the time of trial, was involved in a motor vehicle collision when a vehicle driven by the defendant CN, travelling in the opposite direction to Mr. H, executed a turn in front of Mr. H’s vehicle. The defendants have admitted liability for the accident. The parties agree that Mr. H suffered soft tissue injuries to his wrist, neck, left shoulder, mid-back and lower back. Mr. H asserts he had migraine headaches caused by the accident. The defendants argue that he had pre-existing migraine headaches and the accident did not aggravate them.
With the exception of his low back pain, Mr. H’s injuries reduced in frequency and severity by six months after the accident and do not bother him regularly nor cause impairment to his functioning. Currently Mr. H’s main area of dysfunction is his low back. He testified that since the accident he has had low back pain that radiates into his buttocks. He testified that he has a constant level of pain, and he has flare ups with certain activities. The pain seemed to slowly improve until 2019, when it became worse. He testified he would sometimes take 15 to 20 Advil a day when working until late 2019 when his doctor advised him to reduce his Advil consumption because it was causing stomach problems. Mr. H’s wife testified that sometimes he was in so much pain after a shift that she would have to help him remove his footwear.
Dr. Sangha opined that “…Mr. H has a strain to the lumbosacral area of his back with mechanical low back pain caused by loading on the left facet joints at the end of his lower lumbar and sacral spine. He also noted discomfort in Mr. H’s left sacroiliac joint and opined that pain contributes to his low back discomfort to a lesser extent than his facet joint pain.” He characterized Mr. H’s report of flare ups as severe bouts of lumbago and opined that they are typically very frustrating and difficult to manage.
The most contentious issue is whether Mr. H’s accident injuries have interfered with his career as a conductor with CN Rail. Mr. H claims that CN Rail has not permitted him to work since he asked for accommodation due to his injuries which impede his ability to undertake some physical aspects of the job. The defendants assert that Mr. H’s injuries do not cause these impediments and if they do, CN Rail has a duty to accommodate Mr. H. They also assert that since the accident, Mr. H has trained to become a locomotive engineer and can work in that position without issue and earn more money. For these reasons their position is that Mr. H has not suffered a loss of earning capacity.
Madam Justice Matthews found that the medical evidence, and the fact that at the time of trial Mr. H was not permitted to work in any capacity, including locomotive engineer, because he asked for accommodation for his back pain, easily passes the threshold of a real and substantial possibility of a future loss.
Summary: Non-pecuniary damages – $105,000.00; Past loss of earning capacity – $75,000.00; Future loss of earning capacity – $650,000.00; Cost of future care – $3,000.00; Special damages – $1,857.49