IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100226

Docket:
M07433

Registry: Courtenay

Between:

Paul Andrew Berry

Plaintiff

And:

Stephanie LaBelle

Defendant

Before: The Honourable Madam Justice Baker

Reasons for Judgment

[1]            
On March 7, 2006, a vehicle driven by the
defendant Stephanie Labelle collided with a vehicle driven by the plaintiff
Paul Berry.  Ms. Labelle admits that the accident was caused by her
negligence.   The parties disagree about the nature, severity and duration of
injuries suffered by Mr. Berry as a result of the collision and the heads and
quantum of damages that should be awarded.

FACTS

[2]            
Mr. Berry was 42 years old at the time of the
accident, and 45 at the time of trial.  He spent his teen years in Courtenay
and completed his schooling there.  After graduation from high school, he began
working as a drywall installer.  Eventually he started his own drywall business,
working on residential and commercial buildings. 

[3]            
Mr. Berry is divorced and has an adult son and
adult daughter from his first marriage.  At the time of trial, he had been
living in a common law relationship for 22 years with Monica Schroeder.   Mr.
Berry and Ms. Schroeder have one son, born in December 2004. 

[4]            
On the morning of March 7, 2006, Mr. Berry was
driving his truck southbound in the right lane of 17^th Street in
Courtenay.  His vehicle was a sturdy 2004 F150 truck, modified with a block
inserted between the frame and the body of the truck to raise the truck high
enough to accommodate extra-large tires.  Mr. Berry came up behind a line of
stopped vehicles and brought his vehicle to a stop, keeping his foot on the
brake.  Approximately 15 seconds after he brought his vehicle to a stop, Mr. Berry
heard a bang and felt his truck move.  He recalls that he was looking to the
right when he felt the impact.  He did not feel his lap belt tighten, but did
feel his shoulder belt tighten.  He looked down and could see that his foot was
still on the brake.  The collision did not cause the air bags in his vehicle to
deploy. 

[5]            
Mr. Berry looked behind and could see the top of
the defendant’s small car. He got out of his truck and went to the back of his
vehicle.  He noticed damage to the front of Ms. Labelle’s small car, including
damage to her windshield.  He suggested to Ms. Labelle that they move their
vehicles from the roadway and he got back into his truck and pulled into a
nearby parking lot, followed by the defendant in her vehicle. 

[6]            
The two drivers spent five or 10 minutes
exchanging driver and insurance information.  Mr. Berry noticed that the
radiator of Ms. LaBelle’s vehicle was leaking, and recommended that she drive
directly to a garage.  Mr. Berry got back in his truck and drove away.  He
spent the rest of the day doing the activities he had earlier planned.  He had
a crew working on a project but he had not intended to work with them that day.
He went shopping, picked up and dropped off some building supplies for his
work crew, and went to a friend’s home for several hours to play dice.  By the
end of the day, he was feeling some discomfort in his upper body which he
attributed to the tightening of his shoulder belt at the time of the collision.

[7]            
The next day, Mr. Berry took his vehicle to an
Insurance Corporation of British Columbia vehicle inspection centre where it
was photographed and inspected.  The only damage to Mr. Berry’s vehicle was to
the plastic cover of an auxiliary electrical plug at the back of his vehicle
and some scuffs to the back bumper.  He believes that the damage to the defendant’s
vehicle was caused by this electrical plug, and that the only thing that had
prevented the defendant’s car from sliding under his truck was the electrical
plug. 

[8]            
After going to the vehicle inspection centre,
Mr. Berry went to work with his two assistants, hanging sheets of gyproc that
weigh 120 pounds.  Mr. Berry testified that he was experiencing some neck pain
on this day, and he had to modify the way he did his job to avoid exacerbating
the pain.  He did not notice any bruising on his shoulder, neck or chest.  He
expected the neck pain to go away within a few days. 

[9]            
Mr. Berry did not testify that he went to the
emergency department of his local hospital on March 8, 2006, but Dr. Barbara
Fehlau, Mr. Berry’s family doctor, referred to Mr. Berry having visited the
emergency department and in cross-examination she was taken through an
emergency department record for March 8, 2006 that was not entered into
evidence.  According to Dr. Fehlau, the emergency department record stated that
Mr. Berry had normal skin color and respiration, good range of motion in his
neck and no mid-line neck tenderness.  There is no mention of neck pain.  There
is no report of bruising to the neck, chest or shoulder.  The only symptom
referred to is headache on the left side, behind the left eye.  Advil and
Tylenol 3 were recommended.

[10]        
Although references were made to Mr. Berry
having been seen by two specialists, the only medical report actually entered as
an exhibit at trial is a two-page letter authored by Dr. Fehlau on October 15,
2008.  Dr. Fehlau also testified at trial.  In Dr. Fehlau’s medical report
there is no reference to Mr. Berry having complained to her of headache. 
However, Mr. Berry testified that he has been having headaches since the
accident.  I conclude from this that the headaches have not been severe enough
for Mr. Berry to complain to his doctor about them. 

[11]        
Dr. Fehlau’s report does not indicate the date
of Mr. Berry’s first visit to her clinic following the motor vehicle accident. 
Mr. Berry testified that Dr. Fehlau’s clinic was located next door to the
construction project on which Mr. Berry was working during the days and weeks
following the accident.  I consider it likely that Mr. Berry probably saw Dr. Fehlau
within a few days or weeks after the March 7, 2006 accident. 

[12]        
Mr. Berry testified that Dr. Fehlau recommended
massage therapy for him.  There was a massage therapist located within walking
distance of the construction project, so Mr. Berry went there for therapy about
two times a week for about six or eight weeks.  Mr. Berry’s main complaint was
a feeling of tightness on the left side of his neck and the upper part of his
left shoulder.  Mr. Berry felt that the muscles on that side of his neck were
not behaving as they normally did.  He found massage therapy provided some
temporary relief.

[13]        
It appears that on June 6, 2006, Mr. Berry was
seen by a Dr. Blacklock.  I am not sure who Dr. Blacklock is – his name does
not appear on the list of physicians’ names on the letterhead of Dr. Fehlau’s
clinic – but it appears that Dr. Blacklock referred Mr. Berry for physiotherapy
and that Mr. Berry began physiotherapy treatment on June 23, 2006.  Mr. Berry
testified that he went to physiotherapy for about four months and did improve
during that time. 

[14]        
It is evident from Dr. Fehlau’s October 15, 2008
report that over time – her report does not indicate when – she began to
suspect that Mr. Berry had suffered a rupture of his platysma muscle on the
left side.  The platysma muscle is a platelike muscle that originates in the
cervical area and comes around to the skin around the mouth and jaw.  It acts
to wrinkle the skin of the neck and to depress the jaw.  Mr. Berry said
this suspected injury manifested itself in a change to the appearance of the
left side of his neck and face when he pretended to do what he called a
“Kardassian neck flare”; a Kardassian, if I may take judicial notice, being an
alien species on one of the several Star Trek television series. 

[15]        
According to her report, Dr. Fehlau’s eventual
diagnosis was “… left neck soft tissue injury (platysma muscle rupture).”   Dr.
Fehlau reported this as her diagnosis in her October 15, 2008 medical-legal
letter, which was surprising as she agreed in cross-examination, that
radiological examinations had ruled out a rupture of the platysma muscle.   While
conceding that her diagnosis of rupture was incorrect, Dr. Fehlau maintained
that there could have been a strain or sprain that was not detected. 

[16]        
In any event, Dr. Fehlau did not explain how an
injury to the neck or to a facial muscle could account for the subjective
complaint of weakness in Mr. Berry’s left arm.  Dr. Fehlau agreed that
cervical x-rays and Magnetic Resonance Imaging (“MRI”) done in 2008 indicated
Mr. Berry’s cervical spine was normal and that there were no structural
problems in Mr. Berry’s neck or upper back and neurological studies revealed no
nerve impairment or damage. 

[17]        
Dr. Fehlau referred in her report to Mr. Berry’s
reports of left arm weakness and she appeared to have accepted these reports at
face value.  However, neither her report nor her testimony at trial provided an
explanation for a mechanism of injury that could account for arm weakness. 

[18]        
Mr. Berry did not miss any work as a drywaller
following the motor vehicle accident.  However, he testified that he had
modified his work methods and worked with his assistants in carrying out some
tasks that he had previously done alone.  He considers himself to be a less
efficient worker now than he was before the motor vehicle accident and says he
has to use different techniques to lift and hold sheets of drywall or gyproc
than previously. 

[19]        
Mr. Berry is left-handed.  Some years before the
motor vehicle accident he had injured his left elbow.  Although his evidence
was not consistent, he perceives that since the motor vehicle he has lost
strength in his left hand and arm.  I say “not consistent” because at times Mr.
Berry appeared to be saying that his left hand grip strength is less than it
used to be.  At other times he said that his left hand is unaffected and that
it is just his left arm that is weak. 

[20]        
So far as the evidence reveals, no testing was
done to assess objectively whether Mr. Berry has had a loss of strength in
either the left hand or arm.  No grip tests were performed.  There was no
evidence that there has been any muscle wasting of the left arm.  Dr. Fehlau
agreed in cross-examination that neurological testing revealed no nerve damage
or impairment.

[21]        
There were some difficulties with Dr. Fehlau’s
report.  Dr. Fehlau made reference in her report to Mr. Berry “… still having
pain radiating down to his elbow”.  Her evidence did not indicate when this
symptom had been reported, although she thought he might have told her about it
on October 9, 2008, the last time she met with him before writing her October
15, 2008 report.  Before October 9, Mr. Berry had not been to see her since
April 2008.  There is no evidence of the symptom having been reported to Dr.
Fehlau at any time before October 9, 2008, so the use of the word “still” is
puzzling.  This reported symptom seems inconsistent with the neurological
studies that ruled out nerve damage and Dr. Fehlau agreed in cross-examination
that Mr. Berry had told her on August 17, 2006 – more than two years earlier –
that everything below his shoulder was fine. 

[22]        
 Although Dr. Fehlau commented in her medical
report about her understanding of the impact that Mr. Berry’s accident has had
on his capacity to work and on his capacity to engage in recreational
activities, it is clear that her comments are based solely on information
provided to her by Mr. Berry and not on any objective assessment of his
physical limitations. 

[23]        
In this regard, Dr. Fehlau’s report is not
entirely consistent with other testimony led at trial, including the testimony
of Mr. Berry himself.   For example, Dr. Fehlau stated in her report that Mr.
Berry is a “mountain biker” but there is no evidence from Mr. Berry that he did
mountain biking before the accident.  She wrote that Mr. Berry is no longer
able to do river kayaking.  The evidence is that Mr. Berry has not attempted
river kayaking since the accident.  Dr. Fehlau wrote that Mr. Berry “normally
golfs” and “is no longer able to”.  The evidence of Mr. Berry demonstrates that
he rarely golfed, only a few times a year with his father and brother or Mr. Lavoie;
and that he has not attempted to golf since the accident.  She wrote that when
Mr. Berry is motorcycling off-road, “… even small jumps can cause him to fall
and in fact recently he had a wrist injury from which he is now recuperating”. 
The evidence does not support the conclusion that Mr. Berry has been falling
when doing small jumps with his motor bike and the injury he did suffer in
September 2008 was not caused by a small jump.

[24]        
Dr. Fehlau reported that Mr. Berry “… does
everything that he can to keep the rest of his body fit and strong …” 
However, she testified that she had recommended to Mr. Berry that he work out
at the gym and swim to maximize his recovery.  Mr. Berry testified that he
doesn’t like going to the gym, or swimming and does not do these forms of
exercise, because it doesn’t give him an adrenalin rush and he finds them
boring.  He says that the work he does on the job would be physically taxing
even for a body builder and that he lifts heavy weights above his head all day,
so feels like he gets enough exercise doing the physical labour involved in his
job. 

[25]        
Dr. Fehlau stated in her report that Mr. Berry
had “… followed my recommendations completely”.  However, she agreed in
cross-examination that she had referred Mr. Berry to a physiatrist practicing
in Nanaimo, and that Mr. Berry had cancelled the appointment.  Mr. Berry agreed
he had never gone to see Dr. Deutscher.

[26]        
Mr. Berry testified that for some months
following the accident, he did not ride his dirt-bike.  Mr. Berry is an
enthusiastic and aggressive cross-country dirt-bike rider and has been since he
was a young man.  At trial, he was shown various photographs of dirt-bike
riding in a magazine and he identified various manoeuvres that he has done in
the past or does now, or both.  By October 2006, Mr. Berry had returned to
dirt-bike riding with his friends.  He testified that he perceived his left arm
and hand to be weaker than prior to the accident and so modified his riding to
avoid accidents.  However, his testimony indicates he was riding at a
considerable speed over rough terrain fairly soon after returning to the sport.

[27]        
Mr. Berry testified about a fall he had while
dirt-biking in September 2008.  At trial, he attributed the fall to weakness in
his left arm.  As I have stated above, the medical evidence does not establish
objective evidence of muscle or nerve damage capable of relating the perceived
weakness in Mr. Berry’s left arm to the March 7, 2006 motor vehicle accident. 
The plastysma muscle is not involved in arm strength.

[28]        
In any event, Mr. Berry’s friend and fellow
dirt-bike enthusiast, Mr. Van Lingen, testified that Mr. Berry told him that
the accident happened because Mr. Berry was not paying attention and had
misjudged his speed. 

[29]        
I conclude that the only injury resulting from
the motor vehicle accident that Mr. Berry has established on the balance of
probabilities is a strain to the soft tissues on the left side of his neck. 

POSITIONS OF THE PARTIES

[30]        
Mr. Berry is seeking an award for past loss of
income, loss of the capacity to earn income in future, and general damages. 
His counsel submitted that an appropriate award for past loss of income would
be $15,000 to $20,000 annually for each year since March 7, 2006, or an award
of roughly $30,000 to $40,000 to the time of trial.  He proposed an award of
$400,000 for loss of the capacity to earn income in future, calculated at
$20,000 annually for the next 20 years.  He proposed an award of $150,000 to
$200,000 for non-pecuniary damages, approximately half, counsel submitted, of
the “ceiling” set by the Supreme Court of Canada for non-pecuniary damages. 
Counsel referred the court to only one authority on the issue of quantum, the
decision in Edgar v. Freedman (1997), 40 B.C.L.R. (3d) 87 (C.A.).  In my
view, the facts of that case are so very different from this one, that the
decision is of no assistance.

[31]        
Counsel for Mr. Berry said that no claim is
being advanced for special damages, because the plaintiff has already been
reimbursed for any pre-trial expenses he incurred. 

[32]        
Counsel for Mr. Berry also asked for an award of
special costs against the defendant, on the ground that defendant’s counsel had
been too aggressive in his cross-examination of Dr. Fehlau.

[33]        
Counsel for the defendant submits that while Mr.
Berry has had some discomfort and inconvenience caused by the accident
injuries, an award of $20,000 to $25,000 is the appropriate quantum for
non-pecuniary damages.  He submits that no award should be made for past or
future income loss, and that no award of special damages is warranted.  Counsel
provided the court with the following quantum authorities: Ford v.
Henderson, 2005 BCSC 609; Bains v. Prasad, 2005 BCSC 1694; Patriquin
v. Decloedt, 2001 BCSC 1087; Foufoulas v. Danvers, 2000 BCSC 1088; Hildebrand
v. Norster, [1999] B.C.J. No. 618 (S.C.); Belanger v. Johnsen,
[1998] B.C.J. No. 446 (S.C.)  and Zedi v. Jeffers, [1994] B.C.J. No. 747
(S.C.). 

PAST LOSS OF INCOME

[34]        
Mr. Berry testified that he went to work the day
following the accident and he continued to work as a drywall installer in the
days and weeks thereafter.  He did not testify that he missed any work because
of his injuries, or the various appointments for massage therapy and
physiotherapy that he attended.  As I mentioned earlier, his doctor’s office
and the massage therapy clinic were near the construction site where Mr. Berry
was working in the spring and summer of 2006 and he fit in the appointments
around his working day.

[35]        
The evidence of Mr. Berry, his employee Mr.
Lavoie, and witnesses Allen Warren and James Lawson does indicate that over the
past couple of years, Mr. Berry does not work as quickly as he used to,
and that he requests or accepts assistance to do some heavy or awkward lifting
that he used to attempt alone.  Neither Mr. Warren nor Mr. Lawson was able
to be specific about when they first noticed the change in Mr. Berry’s work
speed.  Both Mr. Warren and Mr. Lawson testified that Mr. Berry has continued
to be in demand as a drywall installer because of his expertise and experience
and the high quality and consistency of the work he does.  Mr. Lawson, in
particular, testified that he had constructed five large homes in 2009 to the date
of trial, and Mr. Berry had done the drywall work on all of those homes.  He
said that he had done 15 large building projects in 2008, and Mr. Berry had
worked on all of them; that he had done about 12 large projects in 2007 and Mr.
Berry had worked on all of them; and that in the years 2004, 2005, and 2006 he
had done eight or 10 large projects annually and Mr. Berry had worked on all of
them. 

[36]        
No evidence was led that establishes that Mr.
Berry has ever turned down work because of his accident injuries or that he has
ever been discharged or even criticized by any employer or project manager for
the speed, or lack thereof, of his work on a project.  The evidence does not
establish that Mr. Berry has had to hire more workers; in fact it appears that
in the past he has employed more than one assistant but currently employs only
one. 

[37]        
Mr. Lavoie testified that the volume of work he
and Mr. Berry had been doing in 2009 was way down because of the economy.  He
testified that in 2008, the two men had worked five or six days a week every
week, for eight to 10 hours a day. 

[38]        
Mr. Berry did not provide any income tax records
in support of his claim for past loss of income.  His evidence about his
compliance with Revenue Canada requirements for reporting income was
confusing.  As I understand his evidence, he did not file any income tax
returns at all from 1999 until 2006.  In 2006, he went to an accountant and had
the accountant prepare returns for the years 2002 to 2006.  However none of the
returns for these years, or any subsequent years was entered in evidence.  Mr.
Berry made reference to having received a Notice of Assessment indicating that
he owed $250,000 to Revenue Canada, but it was unclear whether that was an
assessment for unpaid Goods and Services Tax, or unpaid income tax, and the
Notice of Assessment was not tendered in evidence. 

[39]        
Mr. Berry testified that he thinks he earned
about $40,000 or $42,000 or $45,000 in 2007, the year after the accident.  He
did not say how that compared to what he had earned in 2005, the year before
the accident; or in 2006, the year of the accident.  He testified that his
business goes up and down; that 2006 was a good year; that in 2007 prices went
way up and that business was also good in 2008 until September when the economy
turned down.  When asked how his claimed loss of income could be quantified, he
referred only to his Examination for Discovery and to defendant’s counsel
having suggested a figure.  Defendant’s counsel’s suggestion is not, of course,
evidence. 

[40]        
Dr. Fehlau’s report referred to Mr. Berry having
estimated his total income to have decreased by $10,000 to $20,000 a year after
the accident.  This is, of course, entirely hearsay and inadmissible for its
truth.  Mr. Berry did not even testify that he had provided these estimates to
Dr. Fehlau.  All of her references to the impact of Mr. Berry’s soft tissue
injury on his ability to work are based solely on statements made to her by Mr.
Berry.  She merely reported what she had been told by Mr. Berry.   Accordingly,
her testimony does not establish a loss of income or capacity to earn income.

[41]        
Mr. Berry referred to having had an accountant
and to some documents having been taken or kept by that accountant, but he did
not produce any business or personal financial statements, bank statements,
invoices, receipts, or wage records in support of his claim for past loss of
income.  No explanation was offered for the failure to produce any of these
documents or any the income tax returns I referred to earlier.  I believe I may
take judicial notice that copies of income tax returns and notices of
assessment or reassessment can be obtained from Revenue Canada. 

[42]        
The failure to produce any documentation would
permit the drawing of an adverse inference.  However, the real problem is that
there is no evidence to support an award for loss of income – documentary or
otherwise. 

[43]        
I accept that following the accident Mr. Berry
made some changes in the way he does some tasks on the job, and that those
changes – using his assistant to help him with some lifting that he used to do
alone – meant it took a little longer to do some tasks.   However, this
evidence does not establish that Mr. Berry has suffered a loss of income
resulting from the accident injuries.  Mr. Berry has not provided evidence that
would enable this court to conclude that the change in his work methods has resulted
in a loss of income.  I must therefore find that no damages have been proved
and I make no award for damages for income lost to the date of trial.

FUTURE LOSS OF THE CAPACITY TO EARN
INCOME

[44]        
Mr. Berry has also failed to demonstrate any
real possibility or likelihood that his capacity to earn income in the future
has been impaired by his accident injuries.  The work Mr. Berry has continued
to do since the accident is, by his own description, and the evidence of Mr.
Lavoie, very physically demanding.  Mr. Berry said that the work would be
taxing to a body builder, but he is able to do it.  By the time of trial, more
than three years had passed from the date of the accident.  As I said earlier, Mr.
Berry has not demonstrated that he suffered any loss of income even in the
weeks and months immediately following the accident when the discomfort from
the soft tissue injury to his neck might be expected to be greatest.  I am not
persuaded that Mr. Berry did suffer a neurological impairment to his left arm
or that any perceived left arm weakness is causally related to the motor
vehicle accident.  Mr. Berry has continued to do his job carefully and in a way
described by him, and by Messrs. Lavoie, Warren and Lawson as high quality work
and he continues to be in demand.

[45]        
I have already said that Dr. Fehlau’s opinion
does not provide support for an award for loss of income to date of trial. 
Similarly, it does not support a claim for damages for loss of the capacity to
earn income in future.  Her opinion on this point really amounts to no more
than an assertion that as people age, they lose arm strength.

[46]        
I consider it unlikely that Mr. Berry will
suffer any loss of income in the future as a result of the minor soft tissue
injury to the left side of his neck.  I am not persuaded that a capital asset
has been impaired or that Mr. Berry is any less valuable to himself or any
prospective contractor or employer of his services than he was prior to the
accident.  I make no award for loss of the capacity to earn income in future.

GENERAL DAMAGES

[47]        
Counsel for the defendant does not dispute that
Mr. Berry suffered a soft tissue injury to his neck as a result of the motor
vehicle accident.  He submitted that an award for non-pecuniary damages in the
range of $20,000 to $25,000 would adequately compensate Mr. Berry for the
discomfort he has experienced while working, and the impact on his recreational
activities, and his relationship with his spouse.

[48]        
No authorities were provided to the Court by
plaintiff’s counsel capable of supporting an award of the magnitude plaintiff’s
counsel submitted Mr. Berry is seeking.

[49]        
Assessing the impact of Mr. Berry’s accident
injury has been made more difficult because both Mr. Berry and Ms. Schroeder blame
the motor vehicle accident for physical problems experienced by Mr. Berry that
I conclude are not related to the accident.  I have already referred to my
conclusion that Mr. Berry has failed to demonstrate on a balance of
probabilities that the accident caused the weakness he perceives in his left
hand and/or arm.  Ms. Schroeder testified about other symptoms she attributes
to the accident – a fainting spell Mr. Berry had on the day of his birthday; and
a “grey” appearance to his face on occasion, which she attributes to a lack of
oxygen reaching his brain.  No medical evidence links these problems to the
accident and following the fainting incident, Mr. Berry and Ms. Schroeder were
provided with an explanation that does not implicate the motor vehicle
accident.

[50]        
The task of assessing the impact that the motor
vehicle accident injury has had on Mr. Berry’s life was also made more
difficult by the manner in which the plaintiff presented his evidence.  The Court
heard a great deal more detail about how to install drywall and how to ride a
dirt bike than about the nature, severity or duration of symptoms in the days,
weeks and months after the accident. 

[51]        
Nevertheless, I am satisfied that the strain to
the soft tissues on the left side of Mr. Berry’s neck did cause him discomfort
for several months after the accident, although it appears that injury did not
actually impair range of motion in the neck.  Mr. Berry had full range of
motion in his neck the day after the accident; Dr. Fehlau described the range
of motion as “good” when Mr. Berry was seen at her clinic on August 17,
2006.  Massage therapy alleviated the discomfort but only temporarily;
physiotherapy had more lasting benefits.  The pain did not incapacitate Mr.
Berry at work, although he modified some of his tasks to accommodate the
injury. 

[52]        
By no later than October 2006 – seven months
after the accident, Mr. Berry had returned to his favourite recreational
activity – dirt-biking.  According to Mr. Berry’s description, and those of his
friend Mr. Van Lingen, cross-country dirt-biking is a very strenuous and even
hazardous recreational activity.  Mr. Berry told Dr. Fehlau on October 24, 2006
that his neck became sore after one-half hour of dirt-biking.   I accept that
Mr. Berry initially moderated the intensity of his dirt-bike excursions. 
However, Mr. Van Lingen testified that before the bike accident in September
2008, Mr. Berry was back to riding as he had before the March 2006 motor
vehicle accident. 

[53]        
Mr. Berry and his wife both testified that the
neck discomfort had a negative effect on their sexual relationship.  They
testified that before the accident, they had sexual intercourse two or three
times every day, but that the frequency diminished after the accident because
Mr. Berry experienced neck pain during intercourse, particularly when certain
positions were attempted.  Mr. Berry and his wife both testified that Mr. Berry
was less patient and more irritable when his neck was sore.

[54]        
Mr. Berry testified that he has given up river
kayaking and golfing because of his injuries but I am not persuaded this is
true.  Mr. Berry has not made a serious attempt to engage in either of these
activities since the accident.  He testified he had gone kayaking once on a lake,
and had not attempted river kayaking.  He had not attempted to play golf.  Given
that Mr. Berry has been able to continue to do very heavy physical labour at
work, and resumed cross-country dirt-biking within seven months after the
accident, I do not accept that he is incapacitated from playing a few games of
golf annually, or kayaking on a river.  I think it more likely that Mr. Berry
has changed his recreational focus to activities he can enjoy with his wife and
young son, and to a new interest – on-line computer games – which Ms. Schroeder
testified that Mr. Berry plays for hours at a time.

[55]        
I am satisfied that Mr. Berry has recovered from
the injuries caused by the accident.  I consider that an award of $30,000 to be
adequate compensation for the temporary impact Mr. Berry’s neck injury has had
on his enjoyment of life and, in particular, the discomfort he has experienced
when lifting heavy materials at work; while engaging in strenuous recreational
activities; and during intimate relations with his spouse.

COSTS

[56]        
I do not consider defence counsel’s conduct in
the cross-examination of Dr. Fehlau to amount to reprehensible behaviour
warranting an award of special costs, or any costs.  The cross-examination was
aggressive at times, but not over the line. 

[57]        
I am not aware of any reason why costs should
not follow the event in this case and would therefore propose to award Mr.
Berry costs against Mr. LaBelle on Scale B.  If there are factors relevant to
costs that have not been brought to my attention; offers of settlement for
example, then counsel may make submissions in writing and I shall issue a
further decision regarding costs.  If no such submissions have been received
within 30 days from date of issue of these Reasons, then the order shall be
that Mr. Berry have his costs payable by Ms. Labelle, on Scale B. 

“W.G.
Baker J.”