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Pain, Suffering and the Inability to Work

Due to a motor vehicle collision I can no longer effectively manage the business I once took pride in operating and built over the last 20 years. Will I be compensated for the loss of enjoyment I once derived from managing my own business?

In the recent case of Catling v. Poteryko, 2017 BCSC 311, the plaintiff and his wife had operated a successful plumbing enterprise for over 20 years at the time the collision occurred. Prior to the collision, the plaintiff had performed plumbing services for over 40 years, loved operating his business and played a centre role in managing its operations. This was all taken away because of the collision and the plaintiff was no longer able to perform many physical aspects related to his work and was forced to pass on the management of the company to his sons much earlier than had ever been anticipated. The company also lost income directly because of the plaintiff’s injuries and the court awarded the plaintiff compensation for those losses. Despite providing compensation for the company’s financial losses under separate heads of damages, Mr. Justice Thompson, felt the plaintiff’s inability to manage the company was a major source of the plaintiff’s pain and suffering and dedicated the majority of his analysis under that head of damages to the plaintiff’s inability to continue managing his company, something the plaintiff once derived pride and pleasure from:

[20]        Mr. Catling has suffered the effects of moderate soft-tissue injuries. He has endured more pain than others would have in his efforts to carry on his work as he did before the MVA. He has lost the enjoyment and social contact he derived from golf. He used to use his ATV frequently and ski occasionally, but those pleasures are gone. Most significantly, Mr. Catling suffers the frustration of prematurely losing his leadership role in the family company that he and his wife built. His frustration has led to some friction in the family.

[21]        With his wife, Mr. Catling made the decisions for the company. With his long experience and intense interest in the business, he derived much pride and pleasure from his role at the centre of this successful enterprise. He was 56 years old at the time of the MVA, and I expect that he had nearly another decade ahead of him before he would reasonably think of turning the reins over to his sons. He is now a company employee, albeit a valuable one when it comes to estimating and acquiring lucrative water line work. But it was apparent when listening to the evidence of Mr. Catling and his family members that it does not sit well with Mr. Catling that he is unable to keep up on the physical side of the plumbing jobs.

[22]        Mr. Catling is no longer in charge of the company that he was instrumental in building and my sense of it is that this is a loss most keenly felt. During his evidence, he related an anecdote that illustrates his point: recently he was on a job with his sons and other workers, and he was sent to fetch hamburgers to feed the crew. This undoubtedly was a sensible (if not sensitive) decision by the new boss, but it was an enlightening example of the unwelcome adjustments forced upon Mr. Catling. Of course, Mr. Catling was not going to be in charge forever. He and his wife planned to turn the business over to the boys at some point. But I find that this change was accelerated by the MVA.

[23]        The plaintiff submits that $85,000 is the appropriate sum for non-pecuniary damages, citing Peers v. Bodkin Leasing Corporation, 2012 BCSC 271 ($85,000); Smith v. Neil, 2015 BCSC 9 ($85,000);  Dzumhur v. Davoody, 2015 BCSC 2316 ($85,000); Pilfold v. Jaswal, 2014 BCSC 719 ($80,000); and McCagherty v. Camps, 2016 BCSC 1974 ($70,000). The defendants rely on Thorson v. Vandop, 2016 BCSC 221 ($50,000) and Lal v. Le, 2016 BCSC 1324 ($50,000) in support of their submission that $50,000 would properly compensate Mr. Catling under this head of damages.

[24]        Reference to awards made in similar cases can be of assistance in arriving at a fair award for non-pecuniary damages, and each of the cases cited by counsel has been of some assistance in establishing the appropriate range. Of course, each case must be decided on its own facts. An individualized assessment is called for. It is neither possible nor desirable to develop a tariff: see Lindal v. Lindal, [1981] 2 S.C.R. 629 at 637; Dilello v. Montgomery, 2005 BCCA 56 at paras. 39-43.

[25]        I assess Mr. Catling’s non-pecuniary damages at $80,000.

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