Case Summary: Pruett v Robert, 2023 BCSC 49

The Supreme Court of British Columbia recently provided its decision in Pruett v Robert, 2023 BCSC 49. Some of the main points of contention in this trial were the plaintiff’s credibility/ reliability, as well as causation, the duty to mitigate, and the plaintiff’s loss of future earning capacity.

The court awarded the plaintiff $648,868 which was reduced after a 50/50 liability finding, leading to an award of $324,434.

This decision is another big win for Preszler Injury Lawyers.

At the time of trial, the plaintiff, Mr. Pruett was 51 years old. He was involved in a motor vehicle accident on May 1, 2018. Mr. Pruett’s vehicle flipped over as a result of this highway accident. Mr. Pruett was immediately taken to the hospital, and he was discharged after 12-14 hours. Liability was strongly contested at trial.

Credibility and Reliability

In this case, the defendants challenged Mr. Pruett’s credibility and reliability. Like many other personal injury cases, Mr. Pruett’s evidence regarding his injuries were integral for the court. The defendants used video surveillance to try and undermine Mr. Pruett’s credibility and reliability. The video surveillance demonstrated Mr. Pruett doing yard work with his children, shovelling snow, and walking his dog.

The video surveillance was put to Mr. Pruett during trial and Mr. Pruett was forthcoming of his abilities. Simply put, he told the truth. The court did not find any inconsistencies with the video surveillance and Mr. Pruett’s evidence.

Mr. Pruett was also taken through numerous medical entries. The court could not find evidence in the voluminous medical records that the plaintiff was not credible or reliable. The court referred to the case of Edmondson v. Payer, 2011 BCSC, which notes that minor inconsistencies in medical records are not surprising when considering the number of clinical visits in question. This is a reminder that a plaintiff’s memory will not be precise; minor inconsistencies are normal, and not evidence of dishonesty.

Another point of contention was Mr. Pruett’s physical capacity at the time of the trial considering his physical size and muscle mass. Justice Majawa noted that Mr. Pruett was very health-conscious. The defendants argued that his exercise routine is not standard for a person who is injured. Mr. Pruett gave evidence that he continues to exercise, yet not in the same capacity as before the accident. Justice Majawa took note that Mr. Pruett’s exercise routine and physical abilities were a core part of his identity, but also made mention that the court did not know what Mr. Pruett looked like before the accident.

Causation

The defendants argued that Mr. Pruett’s right shoulder pain was not caused by the accident and would have occurred in any event. The defendants argued that Mr. Pruett’s right shoulder pain was attributable to the natural progression of underlying degenerative osteoarthritis. They noted Mr. Pruett’s exercise routine and the physicality of his work. Justice Majawa provided the following in his judgment:

[123] The defendants argue that Mr. Pruett’s right shoulder symptoms are not caused by the Accident and would have occurred in any event. The defendants say that the plaintiff’s complaints of shoulder pain are attributable to the natural progression of his underlying degenerative osteoarthritis. I disagree with the defendants on this point and find that Mr. Pruett’s right shoulder symptoms are a result of the Accident beyond a de minimus range.

[124] While Mr. Pruett’s right shoulder symptoms did not present until four to five months after the Accident, as discussed earlier, there is expert evidence that supports a conclusion that the Accident caused and materially contributed to the right shoulder symptoms. In formulating his opinion, Dr. Regan considered the timing of the onset of the right shoulder symptoms and concluded that they were caused by the Accident, likely as a result of Mr. Pruett overcompensating following a direct injury to his left shoulder, which was also caused by the Accident.

[125] In his report, Dr. Kendall opined that Mr. Pruett’s right shoulder pain was not caused by the Accident, but is rather a result of his pre-existing osteoarthritis. However, during cross-examination, he acknowledged that it was possible that Mr. Pruett’s right shoulder pain was indirectly caused by the Accident in the manner described by Dr. Regan. Furthermore, I accept Dr. Regan’s opinion, which was unshaken on cross-examination, that the pain experienced by Mr. Pruett in his shoulder has a wider distribution than what is known to occur in osteoarthritis of the shoulders. Consequently, Dr. Regan did not agree that Mr. Pruett would have developed the right shoulder pain he complained of solely as a result of the osteoarthritis. It should also not be overlooked that Dr. Chow concluded that Mr. Pruett’s right shoulder injury was caused by the Accident, although he did acknowledge that the link was not as strong as it was with respect to his other physical injuries.

[126] The defendants appear to suggest that if the osteoarthritis is not the cause of the right shoulder symptoms then it is the result of some intervening event that occurred after the Accident. However, there is no evidence that there is such an intervening event. To conclude as such would be mere speculation.

Duty to Mitigate

The defendants also argued that the plaintiff failed to mitigate his damages. Their argument was focused on the fact that Mr. Pruett decided not to take prescription anti-depressant medication. Dr. Okorie gave evidence that 80% of people who suffer from depression and take prescribed medication recover. Mr. Pruett gave evidence that his reluctance to take prescription medications was derived from his childhood experiences – he had a father who had substance use issues with prescription medication. Justice Majawa provided the following in his judgment:

[132] In Mr. Pruett’s particular circumstances, I do not find that the defendants have shown that Mr. Pruett acted unreasonably by not taking anti-depressant medications for longer. The decision to take such medications is a highly personal decision that involves many factors including the likelihood and tolerance of side effects: Sharma v. Day, 2020 BCSC 1365 at para. 183. In my view, it is also a reasonable factor for Mr. Pruett to consider his father’s substance use problem in his decision to stop taking them. Moreover, there is no evidence from the prescribing physician that Mr. Pruett was recommended to continue taking anti-depressants.

[133] Furthermore, the evidence is not clear as to what extent anti-depressants would have reduced Mr. Pruett’s damages. While Dr. Okorie stated that 80% of people who take anti-depressants recover, he acknowledged that there is a significant interplay between the pain Mr. Pruett experiences and the extent of his depression. In light of Mr. Pruett’s chronic pain and its poor prognosis, the defendants have not proven that taking anti-depressant medications would have reduced Mr. Pruett’s damages to an extent that warrants a reduction based on his failure to mitigate.

Future Earning Capacity

Justice Majawa used a capital asset approach to determine Mr. Pruett’s loss of future earning capacity. The court provided the following:

[180] In determining Mr. Pruett’s loss of income earning capacity, I must consider the various positive and negative contingencies that may affect this capacity. Relevant contingencies in the present case include that Mr. Pruett’s condition may improve, and conversely, that he may become ill or die or have been removed from the workforce due to causes unrelated to the Accident. I also must consider that Mr. Pruett’s pre-existing osteoarthritis would likely have become symptomatic at some point before his planned retirement absent the Accident. In addition, I must consider the possibility that Mr. Pruett would have retired earlier than the age of 60 and embarked upon his dream of owning and operating a food truck in the without-Accident scenario.

[181] Considering these negative and positive contingencies, I find that a fair and reasonable assessment for Mr. Pruett’s loss of income earning capacity on a capital asset approach is $300,000.

[182] In considering the fairness and reasonableness of this award, I note that it is roughly equivalent to a loss equal to 30-40% of his without Accident lifetime earnings of $836,050, based on his diminished earning capacity. In my view, a diminishment of capacity in this amount is more consistent with the evidence than a diminishment of 80% as the plaintiff has submitted. In particular, it is consistent with the evidence in respect of the time that Mr. Pruett missed from work at Boundary due to his injuries. It also reflects the likelihood that, as Mr. Pruett ages, he will be less able to tolerate pain.

Taken together, this decision is a clear win for Preszler Injury Lawyers and Mr. Pruett against an insurance company that did not want to settle for fair value before trial.