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Court Testimony from Experts @ BEC

Excerpt from Courtney v. Cleary, 2009 NLTD 103 released July 6, 2009

Madam Justice Hoegg awarded the following to Mr. Courtney after accepting Dr. Frank Strain’s evidence:

Past earnings losses: $25,6111 + $568,987 (includes 19.5% for benefits)2
 Future earnings losses: $60,963 per year3 for 4 years (includes 19.5% for benefits)
 Past loss of housekeeping capacity: $2700 ($300 per year)4 from 1999 to 2008
 Future loss of housekeeping capacity: $300 per year for 14 years, using a 1.6% discount rate

Brown Economic was asked by plaintiff’s counsel to calculate the damages awarded by Justice Hoegg on pages 91-92 of the Reasons for Judgment and inclusive of the changes noted above. The total, with pre-judgment interest but excluding the general non-pecuniary damages award of $165,000,5 came to $920,939.

Excerpts from Justice Hoegg’s decision in Courtney are reproduced below. In deciding upon whose expertise to rely, Justice Hoegg commented favorably on the delivery of both experts in the trial (Dr. Strain and Dr. Hyatt) but indicated she preferred Brown Economic’s witness (Dr. Strain) because our firm’s data and assumptions matched the evidence more closely. In describing Dr. Strain’s testimony, Justice Hoegg stated:

"I found Dr. Strain a careful and thoughtful witness, whose evidence was based on well researched data and conservative assumptions. His evidence was straightforward and without pretense." para [232]

In particular, the court was persuaded by various economic assumptions and data used by Brown Economic:

Justice Hoegg also included interesting findings on the concept of mitigation, and more specifically rejected the defense’s contention that Mr. Courtney should have proven that he could not be accommodated in the workplace by an employer. (Paras. [210] to [215])

Finally, Justice Hoegg incorporated the findings of the Ontario appeal court in McIntyre v. Docherty, 2009 ONCA 448 when making Mr. Courtney’s housekeeping loss award, and reflected the housekeeping work that is no longer done and that is done with difficulty in his non-pecuniary award (para. [242]).

The remaining excerpts are directly from the Reasons for Judgment released on July 6, 2009 in Courtney v. Cleary, 2009 NLTD 103. No changes have been made to any of the excerpts, with the exception that we have omitted some paragraphs (designated by the symbol "...") that are not directly relevant to quantum; and we have emphasized a few phrases pertaining to the evidence of Dr. Strain. When such emphasis augments the text, we have placed the phrase [emphasis added] at the end of the paragraph.

    Loss of Earnings from late April to November, 2000

[195] At the time of Mr. Courtney’s surgery, he was employed as a pipefitter with PCL Industrial Contractors Inc. at the Bull Arm site on the Terra Nova Development Project. He stopped work prior to his admission to hospital in late April 2000 and returned to his job on November 1, 2000. Mr. Courtney must be compensated for his lost wages during this period, minus the ten days’ wages which he would have lost from work for treatment of his stage 1 mouth lesion in the absence of Dr. Cleary’s negligence. He claims $27,611 for this loss, net of Employment Insurance and Disability Insurance benefits received. I am uncertain how the Plaintiff’s claim for $27,611 is calculated, and whether the 10-day loss he would have suffered in any event has been taken into consideration. If the 10-day loss is not accounted for, I leave it to counsel to determine per diem wages and the ratio of compensable days to the $27,611 claimed and make the appropriate adjustment. In the absence of agreement, the parties may apply to be heard on this issue.

    Loss of Earnings between September 2001 and September 2008

[196] Mr. Courtney’s injuries resulting from the "commando" surgery and extensive radiation are described above. They are well documented and not the subject of disagreement. How they relate to his claim for loss of earnings after he initially returned to work in November 2001 is discussed below ...

...

[199] In summary, Mr. Courtney cannot climb ladders or work or reach overhead with his left hand. His left chest is very painful to touch. His range of neck motion for looking up or turning is below a functional level and his left face, neck and hand are nerve damaged such that he cannot feel cold. His physical strength is limited. He has a speech impediment and he must drink water every few minutes. These deficits all affect his ability to perform demanding physical labour.

[200] It is clear from the evidence of both Ms. Simmons and Ms. Bouzanne that Mr. Courtney is not a match for his present job without accommodation. As his present job is considered the lightest of work for a pipefitter, and he is only performing it with accommodation, it is clear that Mr. Courtney is not a match for the more physically demanding, and more ordinary pipefitting work offshore or on onshore construction, refit, and oil refinery work sites, as Ms. Simmons’ evidence establishes, and which I accept. Ms. Bouzanne’s assessment was restricted only to Mr. Courtney’s present fabrication work with Ameil, and she testified that Mr. Courtney was matched to it only because of the accommodations being made for him.

Mr. Courtney’s Position

[201] Mr. Courtney’s job on the Terra Nova Project finished in July 2001. He was then unemployed for approximately a year during which time he says, and I accept, that he turned down two pipefitting jobs in Labrador due to his inability to perform the jobs and meet their face mask requirements. Mr. Courtney eventually secured work in Comstock’s fabrication shop, now Ameil Constructors Ltd., where he worked seasonally since July 2002.

[202] The evidence of Mr. Courtney, Mr. Jones, Mr. Myers and Ms. Simmons indicates, and I accept, that fabrication shop work is the least demanding work of pipefitting. The evidence of Ms. Simmons and Ms. Bouzanne that Mr. Courtney is not a job match for his present work in Ameil’s fabrication shop and he is managing his duties only with considerable accommodation from his boss and co-workers is based on Functional Capacity Evaluations they conducted, separately, of Mr. Courtney. Mr. Courtney’s evidence, that of his longtime co-worker and foreman Stirling Jones, and Dr. Oscar Howell is also that Mr. Courtney is being accommodated in his present job. Mr. Jones worked as Mr. Courtney’s supervisor for several years. He described Mr. Courtney’s need for significant and daily work site accommodation to enable him to perform his job at Ameil’s fabrication plant. The job requires working overhead, in crawl and other tight spaces, outside in cold weather, and lifting and climbing, all of which Mr. Courtney is unable to do. I accept this uncontraverted evidence that Mr. Courtney is being significantly accommodated in his present work situation. I also note that Ameil is a local employer, located approximately eight kilometers away from Mr. Courtney’s residence, and the owner and employees who accommodate Mr. Courtney know him well.

[203] Mr. Courtney testified that but for his physical condition caused by Dr. Cleary’s negligence, he would have sought pipefitting work on the mainland when his job on the Terra Nova Project finished in July 2001 and pipefitting work was scarce in Newfoundland. He says he would have gone anywhere but likely to Fort McMurray where refit and construction pipefitting work was plentiful and lucrative before his unemployment ran out. Later in his evidence he said he would have gone to work in Fort McMurray "when the boom started three or four years ago". The Plaintiff’s claim is advanced on the basis that he would have commenced work in Fort McMurray by September 2001, after being laid off the previous July, and that he would have remained there working like many other Newfoundlanders availing of the easily available and high paying pipefitting work.

Dr. Cleary’s Position

[204] The Defendant argues that Mr. Courtney has not proved that he would have gone to Fort McMurray or that he is unable to work there.

[205] The issue is therefore whether I accept, on a balance of probabilities, that Mr. Courtney would have moved away from central Newfoundland to work after finishing at the Terra Nova Project in July 2001, and remained working away to the date of the trial and beyond to age 65.

Discussion and Analysis

[206] The evidence of Dr. Frank Strain, which I accept, is that lucrative pipefitting work has been available in the northern Alberta oil patch, referred interchangeably in this judgment as Fort McMurray and the Wood Buffalo area, since at least 2000. Mr. Courtney was no stranger to working away from home, having previously worked many different times in Fort McMurray, Ontario, and also in Saskatchewan and Corner Brook, Newfoundland and Labrador. He returned home to work on the Hibernia Project when it got underway in the early 1990s. I accept that Mr. Courtney’s past experience working away from home increases the likelihood that he would have done so in 2001, as the prospect would not have been foreign to him. As well, Mr. Courtney’s son, also a tradesman, has been working in Fort McMurray the past number of years. This fact would likely increase the attractiveness of working there to Mr. Courtney. Mrs. Courtney testified she was used to her husband working away for periods of time and did not object to him doing so again. Further, the evidence of Mr. Myers is that 66 percent of the pipefitters registered with the union in this province were working in Fort McMurray in 2008, and that many had been there for several years. This factor, to my mind, increases the likelihood that Mr. Courtney would have left this province but for his injuries, not only because that is where the work took pipefitters from this province but also because he would have the advantage of being comfortable in the company of many fellow Newfoundland and Labrador workers away from home. [emphasis added]

[207] In addition to the availability of work in the Alberta oil patch in 2000, and its scarcity in this province at that time, the expert evidence proves that the wages for pipefitters were much higher there than in Newfoundland and Labrador and elsewhere in Canada. This is a strong financial incentive to move for tradesmen such as Mr. Courtney and one which he says, and I accept, would have influenced him to do so.

[208] Mr. Courtney testified he was on the union work roster and he was offered work in Labrador City, which he was unable to accept, during the year of his unemployment. It is clear that moving outside of one’s home community to work was commonplace in his trade, and there is no evidence or suggestion that Mr. Courtney was any exception, nor any compelling reason advanced to convince the Court to infer that he would not go away.

[209] Dr. Strain gave evidence, which I accept, that a tradesman’s peak earning years are between ages 47 and 55. Mr. Courtney was within this age range in August 2001. This fact, combined with the reasons stated above, and along with the uncontraverted evidence of Mr. Courtney’s attachment to the work force and fine work ethic, make it, in my view, more likely than not that he would have left home in the late summer of 2001 to work rather than stay home unemployed or underemployed.

Accommodation

[210] Dr. Cleary argues that Mr. Courtney has not proved that his disabilities would not have been or could not be accommodated by employers of pipefitters in Fort McMurray. He asserts that employers have a duty at law to accommodate employees with disabilities, and that this accommodation would address Mr. Courtney’s work restrictions. The Defendant also states that Human Rights Legislation prevents employers from discriminating against an employee on the basis of physical disability, and argues that because no pre-employment medicals are required by employers in the Wood Buffalo area, according to the evidence of Jim Myers, Mr. Courtney would not be prevented from being hired. He would thus be hired, and then be unable to be fired.

[211] What the Defendant is essentially arguing is that Mr. Courtney should apply for work in Fort McMurray under the pretence that he can do it, get himself hired and then demand accommodation from his employer. In reality, this is suggesting that Mr. Courtney inveigle an unsuspecting employer into hiring him, when he knows that he cannot meet the physical requirements of the work.

[212] It would be a difficult task for any litigant to prove that he could not be accommodated in a workplace, and it would be especially difficult for Mr. Courtney to prove that he would not be accommodated by an employer of pipefitters in Fort McMurray, Alberta for whom he has not worked and with whom he has no relationship. I am doubtful any employer of pipefitters in Fort McMurray would be forthcoming with testimony respecting a hypothetical issue based on Mr. Courtney’s case. Even if Mr. Courtney were able to call such a witness, it would remain open to the Defendant to argue that such a witness cannot speak for all employers and there could be no end to the amount of proof arguably required.

[213] In this regard I also note and agree with the evidence of Ms. Simmons and Mr. Jones that accommodation of a worker like Mr. Courtney in the Alberta oil patch is a different order of business than accommodation of him in a small plant near his home where everyone knows him.

[214] Notwithstanding this difficulty of proof issue, it is the Defendant who is asserting by inference that Mr. Courtney could or would be accommodated by an employer in Fort McMurray. In my view, it is incumbent on the Defendant, who is asserting the proposition, to prove that Mr. Courtney, with his particular disabilities, would likely be accommodated in Fort McMurray. It is not Mr. Courtney’s responsibility to prove this negative. Mr. Courtney must prove he is not able to do the pipefitting work he would have left the province to do, but it is not his burden to prove that he would not be accommodated. In this regard I rely on the reasoning at paragraph 16 of Farrell v. Snell. [emphasis added]

[215] Construction and refit pipefitting work is the lucrative work which attracts tradespeople to the Alberta oil patch. Indeed Mr. Courtney testified, and I accept, that when he previously worked as a pipefitter on the mainland he worked on construction sites and in refineries. It is this kind of pipefitting work which he would have moved to the mainland to do if he did not have “his problem”, as he describes his present limitations. That is the kind of work he did when he worked previously out of province, and that is the kind of work he usually did and was prepared and able to do elsewhere. The evidence adduced by the Plaintiff through Mr. Myers and Mr. Jones, as well as that of Ms. Simmons, supports the position that although there is fabrication work available in Fort McMurray, it is not usually isolated from construction or shutdown work and a pipefitter must be qualified to do all aspects of pipefitting work, including having passed the Canadian Safety Training Course mandated by the Oil Sands Safety Association...

...

[224] The reality of the situation is, and I so find on a balance of probabilities, that Mr. Courtney is not able to do construction and refit pipefitting work in Fort McMurray, Alberta, or anywhere else for that matter. In my view the preponderance of the evidence establishes that Mr. Courtney’s physical limitations caused by the Defendant’s negligence preclude him from normal employment as a pipefitter. I also find that the Defendant has not met his burden of establishing that Mr. Courtney could be accommodated in this work. Even if it were Mr. Courtney’s burden to prove lack of accommodation, I would not be surprised to learn that Mr. Courtney’s injuries would not likely be accommodated in a normal pipefitting job in Fort McMurray or anywhere else.

Evaluation of past Loss of Earnings

[225] The question now becomes what would Mr. Courtney have earned had he left Newfoundland to work as a pipefitter when his Terra Nova job finished. The expert evidence before me is based on wages earned by tradesmen in Alberta with some of it specific to pipefitters and some of it specific to the Wood Buffalo area of Alberta. There is also anecdotal evidence specific to the wages for individual pipefitters of Mr. Courtney’s particular status and experience in the Fort McMurray area.

[226] Stirling Jones, a pipefitter of similar age and experience as the Plaintiff, testified that he will earn approximately $213,000 in 2008 in Fort McMurray. Although Mr. Jones now works as a foreman, his foreman’s wages form a very small part of his earnings from which the figure of $213,000 was derived. Mr. Jones’ income is earned from working basic shifts plus significant overtime.

[227] Dr. Strain testified that the average salary for trades persons in the Wood Buffalo area is $109,500 per year and that the average salary for pipefitters in the whole of Alberta is 16 percent higher than that of the tradesmen in Wood Buffalo. This indicates that pipefitters in Wood Buffalo would make at least $127,020.00 annually. Neither Dr. Strain nor Dr. Hyatt was able to determine the average earnings for pipefitters specifically in the Fort McMurray area.

[228] The Plaintiff testified that he understands that he would earn a couple of hundred thousand dollars per year in Fort McMurray, based on working at graduated hourly rates three weeks on and one week off, effectively working thirty-seven weeks a year.

[229] Dr. Strain’s estimate of $127,020 is a conservative figure in relation to Mr. Courtney, because it does not account for the fact that Mr. Courtney is an experienced journeyman pipefitter who commands union rates. Dr. Strain’s figure is based on Alberta statistics for all levels and classes of pipefitters. In addition that $127,020 figure does not reflect overtime earnings, which, according to the evidence, accounts for a significant part of workers’ earnings in Fort McMurray. [emphasis added]

[230] Dr. Hyatt’s viva voce evidence is that the average annual wage for journeymen pipefitters in Alberta is $87,893. Dr. Hyatt’s figure is based on average wages for all classes of pipefitters within the whole province of Alberta, whether working full or part time. The Plaintiff is a unionized journeyman pipefitter with many years experience. His intention, which I accept, was to work full time in Fort McMurray. Accordingly, the "average" earnings figure used by Dr. Hyatt does not adequately reflect the Plaintiff’s situation respecting full time work as a unionized journeyman pipefitter in the Wood Buffalo area. Dr. Hyatt’s figure also does not account for overtime earnings. [emphasis added]

[231] The preponderance of evidence indicates that Mr. Courtney’s actual earnings between 2001 and 2008 are not what he would have earned even staying home in Newfoundland to work had he not been injured, for he would be able to work in the offshore and on more lucrative construction sites instead of being confined to doing onshore fabrication work with accommodation. This is illustrated by comparing the difference between his average earnings in the several years pre incident and his actual earnings in the years post accident.

[232] In all the circumstances I am most comfortable using Dr. Strain’s figure of $127,020 in 2008 dollars as representative of what Mr. Courtney would have earned annually as a pipefitter in Fort McMurray from September 2001 to 2008. I found Dr. Strain a careful and thoughtful witness, whose evidence was based on well researched data and conservative assumptions. His evidence was straightforward and without pretense. I acknowledge that $127,020 is a conservative figure which does not account for Mr. Courtney’s experience and journeyman status, or the premium paid to pipefitters working specifically in Fort McMurray. However, in my view, Dr. Strain’s evidence is the best evidence available and its undervaluation vis à vis Mr. Courtney allows for the possibility that Mr. Courtney may not have been working in Fort McMurray for the entire seven-year pre-trial period. [emphasis added]

[233] All things considered, I award Mr. Courtney past lost earnings from September 2001 to the date of trial of the difference between what he would have earned had he been working in Fort McMurray, ie. $127,020 annually and what he actually earned working here, ie. $59,000. I have used the average figure for his post incident earnings from 2001 to 2007 inclusive and converted that figure to 2008 dollars in accordance with Dr. Strain’s report. To this amount I add 19.5% for pension and other fringe benefits in accordance with both Dr. Strain’s and Dr. Hyatt’s evidence.

[234] In assessing Mr. Courtney’s post accident wage loss, I note that Dr. Hyatt used an average of the Plaintiff’s post incident earnings from 2004 to 2006 as representative of Mr. Courtney’s earnings at full employment. He did so as he was under the impression that Mr. Courtney had returned to complete pre-accident working capacity. However, the evidence does not support that Mr. Courtney has been working at full pre-incident capacity since he returned to work in November 2000. In my view, it would have been more appropriate for Dr. Hyatt to use an average of the Plaintiff’s pre-accident earnings as representative of what he was able to earn here prior to his medical injuries. Also, Dr. Hyatt’s total loss figure is based on the Plaintiff retiring at age 61. As will be indicated below, I accept that Mr. Courtney would retire from work at age 65. [emphasis added]

[235] There is a difference of opinion between Dr. Strain and Dr. Hyatt as to whether the conversion of 2001 dollars to 2008 dollars should be based on Statistics Canada Average Weekly Earnings Estimates or the CPI escalator. Dr. Hyatt says the CPI escalator; Dr. Strain says real wage growth as per the Statistics Canada Estimates. I accept that the average weekly wage method is more appropriate in Mr. Courtney’s case. The evidence is that there is unprecedented growth in the oil and gas industry since 2000, and that is the industry area providing work for pipefitters migrating to Fort McMurray. [emphasis added]

[236] Despite my rejection of Dr. Hyatt’s opinion, I found him also to be a straightforward and sincere witness. His opinion evidence was rejected because it was based on assumptions not established by the evidence.

Loss of Future Earnings

    Retirement Age

[237] Mr. Courtney was in his 61st year of age at trial. He was still working. He asserts that he planned to work until age 65. I accept his evidence on this point for several reasons. Mr. Courtney’s evidence is that he always intended to work until age 65, had no plans to do otherwise and had no financial motivation to do otherwise. His wife, not surprisingly, corroborates this. Mr. Courtney’s statement at trial, "what else am I going to do?" aptly makes his point. Further, Dr. Strain’s evidence in relation to "Retirement and the Aging Canadian Population", which I accept, indicates that despite the current average retirement age of 62 for individuals matching Mr. Courtney’s demographic characteristics, there is a trend toward later retirement for males working in the private sector, as Mr. Courtney does. The evidence further indicates that Mr. Courtney is an excellent employee and that his work ethic is strong as illustrated by his participation in the workforce in spite of adversity to date, and by Dr. Howell’s observations that Mr. Courtney was "very motivated to work", "miles ahead of most in moving on with his life" and "a pleasure to work with". Furthermore, it is my impression from the whole of the evidence that Mr. Courtney’s work is meaningful to him and that he will work if at all possible.

[238] The Plaintiff has also satisfied me that he will, on the basis of simple probability, continue to lose earnings into the future due to his diminished capacity to work at the usual more physically demanding and lucrative pipefitting jobs. I find this to be a "real and substantial possibility and not mere speculation" (Driscoll v. Morgan) for the same reasons he suffered past pre-trial earnings losses due to his permanent partial disability. However, in assessing Mr. Courtney’s future earnings losses, negative contingencies must be taken into account. As Dr. Strain testified, these contingencies include mortality, disability from other causes, availability of work in Mr. Courtney’s trade and voluntary retirement. I also include voluntary return to work at home in this category although I acknowledge that Mr. Courtney is unable to do most pipefitting jobs at home.

[239] In all the circumstances, I award Mr. Courtney future earnings losses to age 65 (four years), which I calculate to be the present value of $127,020 minus $59,000 annually, discounted by 25 percent for negative contingencies. Given Mr. Courtney’s age, his continuing to work and his otherwise good health, I do not see the negative contingencies affecting Mr. Courtney as significant and in my view, 25 percent adequately accounts for them. In calculating present value, I accept Dr. Hyatt’s proposed discount rate of 1.6 percent as it most accurately reflects current economic conditions and projections.

Future Housekeeping Capacity

[240] The Plaintiff argues that since his surgery in 2000, his ability to contribute to his household economy in a non-financial way is diminished. He says he is unable to cut firewood, mow the lawn and shovel snow beyond the aspects of these chores which require very light effort. He is unable to do any overhead work like painting and repairs. He is also unable to operate the trike which he previously used to plow his driveway. These are all tasks which Mr. Courtney was previously capable of performing and which he actually did perform.

[241] Mr. Courtney seeks a total award of $45,000 for past and future losses under this head of damage. The Defendant submits an award of between $150 and $350 per year is more appropriate.

[242] Mr. Courtney’s evidence, along with that of his wife, regarding what he does and does not do around his home, establishes on a balance of probabilities a reduction in Mr. Courtney’s non-economic contribution to his household. To the extent that these losses are tolerated by Mr. Courtney in that the work does not get done or it is done with difficulty, they are compensated for in his non-pecuniary general damages award. I specifically addressed this issue in determining Mr. Courtney’s non-pecuniary damages award. Mr. Courtney’s loss of ability to do some particular home maintenance chores which have been, can and probably will be performed by others is compensatory.

[243] I accept the position of the Defendant on this issue. It is my view, given Mr. Courtney’s residual abilities evidenced by his continuing to work and his ability to make some contribution to his home and property maintenance, that his losses under this head of damage are not significant.

[244] In my estimation an award of $300 per year ought to adequately compensate Mr. Courtney for the cost of labour replacing this loss. In this regard I rely on the reasoning in the recent decision McIntyre v. Docherty, 2009 ONCA 448. Accordingly, I award Mr. Courtney $2700 for past losses to date of trial ($300 x 8 years) plus pre-judgment interest. I further award him the present value, using the discount rate of 1.6%, of $300 per year for 14 future years. I compensate Mr. Courtney for this loss to age 75 because given his labour orientation, strong work ethic and otherwise good health, I consider it more likely than not that he would have continued to paint, mow, shovel and cut his own firewood until that age, but for his injuries.

[1]Initially was stated as $27,611 in para. [246] but pursuant to agreement by counsel, discounted by $2000.
[2]Plus pre-judgment interest.
[3]Discounted initial award of $68,020 in para. [246] by 25% as per para. [239] and then added 19.5% for fringe benefits {=[$68,020 x [1-0.25] x [1.195]}.
[4]Plus pre-judgment interest.
[5]In the Reasons for Judgment, the judge initially quoted $175,000 in para. [194] but revised this amount to $165,000 in para. [246]. We were advised that the latter figure of $165,000 in para. [246] was the correct one.