Our Supreme Court Judges have no power to deal with the rights of employees and the liability of employers when car accident personal injuries are suffered in the course of employment, concludes Judge Burnyeat after an extensive review of the law (Pinch v. Hofstee,2015 BCSC 1888).
The claimant was injured in two motor vehicle accidents ( MVA#1 and MVA#2) suffering injuries to the same part of his body. The second motor vehicle accident, pursuant to the provisions of the Workers Compensation Act, R.S.B.C. 1996, was barred as the claimant and other driver were working at the time of the accident. In applying a convoluted discount for the second car accident the judge stated,
 I conclude that the Legislature has made it clear that the principles set out in Bradley, supra, do not apply where there is a statutory bar to recovery of what may be found to be indivisible damages…s. 10(1) of the Act has taken away “any right and rights of action” available to Mr. Pinch and any recoverable “damages, contributions or indemnity” that might have been available to Mr. Pinch as a result of MVA #2.
In my view the formulaic approach set out in Long v. Thiessen (1968), 65 W.W.R. 577 (B.C.C.A.) is raising is ugly head once more. That approach was as follows:
I think that the way in which justice can best be done here is: (a) To assess as best one can what the plaintiff would have recovered…the day before the second accident, and to award damages accordingly; (b) To assess global damages as of the date of the trial in respect of both accidents; and (c) To deduct the amount under (a) from the amount under (b) and award damages against Laliberte in the amount of the difference.
The court in fact dealt with the damages suffered in the first car accident fictionally, as if the second accident had not occurred. This is despite finding that the damages suffered in the two accidents were indivisible. The judge then assessed separately those damages which he attributed only to the second accident.
So for the damages flowing solely from MVA #1 the judge awarded $730,821.29 made up of the following:
(a) Pain and suffering – $100,000;
(b) Past loss of income – $70,124 (gross);
(c) Loss of capacity – $335,000;
(d) Past Loss of Housekeeping Capacity – $50,980.50;
(e) Future Loss of Housekeeping Capacity – $152,307.07;
(f) Future cost of care – $5,425 (one‑time expense); and
(g) Out of Pocket expenses – $16,984.72.
The judge was well aware of his rather novel approach and planned that in the event the Court of Appeal finds that he was wrong to divide the indivisible he determined that the claimant would be entitled to the following “additional” compensation attributable to MVA #2:
(a) Pain and Suffering – $150,000;
(b) Past Income Loss – $107,728 (Gross);
(c) Loss of Capacity – $678,200;
(d) Loss of Future Housekeeping Capacity – $42,351.23 and
(e) Out of Pocket expenses – $59,340.33.
The defendants tried to reduce their responsibility by claiming that the claimant had failed to mitigate. A recommendation was made to lose weight but he continued to exhibit significant deconditioning and poor fitness. The judge did not buy that defence.