IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100301

Docket:
S041294

Registry: Vancouver

Between:

Glen William MacIntyre aka Evan
William MacIntyre, Infant
an Infant, by his Litigation Guardian Valmai MacIntyre

Plaintiff

And

Pitt Meadows Secondary School and
Board of School Trustees
District No. 42 (Maple Ridge)

Defendants

And

Ryan Khunkhun, an infant,
by his Guardian Ad Litem, Daljit Khunkhun

Third Party

Docket:
M045251

Registry: Vancouver

Between:

Glen Evan William MacIntyre aka Evan William MacIntyre, Infant
an Infant, by his Litigation Guardian Valmai MacIntyre

Plaintiff

And

Ruby Wilson

Defendant

Docket:
M082415

Registry: Vancouver

Between:

Glen Evan William MacIntyre

Plaintiff

And

Shawn Lever, Wolfe Chevrolet Ltd.,
and Haakon Industries (Canada) Ltd.

Defendants

Before: The Honourable Mr. Justice Butler

Reasons for Judgment

[1]            
Evan MacIntyre is presently 22 years old.  He is
the plaintiff in these three actions which were heard at the same time.  Due to
the fact that most of the events relevant to the actions occurred while the
plaintiff was a minor, I will refer to him by his first name in these reasons. 
In doing so, I intend the plaintiff no disrespect.

[2]            
The first action arose out of an accident in a
shop class at Pitt Meadows Secondary School (“PMSS”) on September 19, 2002 (the
“First Accident”).  Evan was 14 years old at the time of the accident and had just
started Grade 9.  A Briggs and Stratton lawn mower engine (the “Engine”) fell
on his right wrist.  The second accident occurred on October 31, 2003 when Evan
was 15 years old.  A motor vehicle struck him on the right leg as he was
walking in a crosswalk (the “Second Accident”).  The third accident occurred on
October 31, 2007 when Evan was 19 years old.  The truck he was driving was
struck from behind by a commercial van (the “Third Accident”).

[3]            
Evan says that he suffered injuries in each of
the accidents.  The First Accident resulted in an injury to his right wrist. 
The Second Accident resulted in an injury to his right knee.  The Third
Accident resulted in a soft tissue injury to his back.  He alleges that he
suffers from pain and persisting physical problems as a result of each of the
injuries.  He says that each of these injuries has had a significant impact on
his ability to work and take part in recreational activities.  He also says it
is likely that he will suffer permanent disabilities as a result of the
injuries.

[4]            
The defendants in the action arising out of the First
Accident – PMSS and the Board of School Trustees District No. 42 (Maple Ridge)
(collectively, the “School”) – contest liability and say that, in any
event, the wrist injury with the benefit of two surgeries has now healed. 
Alternatively, they submit that even if they are negligent and the plaintiff’s
injuries resulted from their negligence, the First Accident was caused by the
negligence of the third party, Ryan Khunkhun.

[5]            
The defendants in the actions arising out of the
Second Accident and the Third Accident have admitted liability but deny that Evan
suffered significant injuries in either of those accidents.

[6]            
These circumstances raise the following issues
for determination:

1.       Is
the School or Ryan Khunkhun liable for the First Accident?  If so, what fault
is attributable to each party? If the School is liable, what damages should be
awarded to Evan for the injuries suffered in the First Accident?

2.       What
damages should be awarded to Evan for the injuries suffered in the Second
Accident?

3.       What
damages should be awarded to Evan for the injuries suffered in the Third
Accident?

Issue 1.        Is
the School or Ryan Khunkhun liable for the First Accident?  If so, what fault
is attributable to each party?

[7]            
To succeed with his claim against the School, Evan
must prove on a balance of probabilities that the negligence of the School caused
or contributed to the First Accident.  The circumstances of the case make this
a difficult task.  Evan did not see the Engine fall.  He did not observe any
act or omission leading to the fall of the Engine.  He did not report the
incident to his teacher or the administration of PMSS.  The School
administration did not investigate the incident until it received notice of
this action almost two years after the First Accident.  Evan said little about
the incident to his parents until almost two years after the First Accident.  The
delay in reporting the First Accident to the School and his parents meant that
no one took steps to inspect the equipment, question the students or teacher,
or determine what occurred.

[8]            
I have concluded that the plaintiff has failed
to prove on a balance of probabilities the cause of the First Accident.  I have
arrived at this conclusion by considering the evidence of Evan, Ryan Khunkhun,
Paul Dunning (the Power Technology (“Power Tech”) teacher) and the other lay
witnesses.  I have also considered the evidence of the expert witnesses.  I
have briefly detailed the evidence of these witnesses below.  Even though I cannot
determine what caused the First Accident, I must still consider whether the
School breached the applicable “prudent parent” standard of care.  I have
considered all of the circumstances of this case and conclude that Evan has not
established a breach of the standard of care.

Witness Evidence

The Plaintiff

[9]            
Evan had more experience in working with small
engines, shop tools and
construction projects than the average Grade 9 student.  He worked at his
father’s fabrication business, assisted with home renovations and spent time
working with small engines and shop tools with his close friend Jess Orton.  He
took shop class in Grade 8 and was enrolled in the Power Tech class taught by
Mr. Dunning in Grade 9.  The students had six classes per week in Power Tech.  In
September 2002, following introductory sessions on shop safety the students
started to disassemble small engines.

[10]        
Evan said the students were instructed to attach
the engine they were using to an engine mount.  This enabled the students to
securely place the engine in one of the vices in the workshop.  There were two
different models of vice in the workshop – a number four vice and a number
six vice.  Both are large metal vices that have the ability to firmly secure
the weight of a small Briggs and Stratton engine.  The slight difference in
size of the two models is not significant to the issues in this case.

[11]        
Considerable evidence was led at trial regarding
the design and construction of the motor mounts used in class.  They were
fabricated from two steel plates, each of which is 1/4 inch thick.  One plate was
approximately 5 x 8 inches, had four bolt holes and was designed to rest flat
against the bottom of the engine so that it could be firmly attached to the
engine with four bolts.  I will describe this as the mounting plate.  The other
plate was placed perpendicular to the mounting plate and welded to it.  I will
call this plate the vertical plate.  In cross section, the two plates formed a “T”.
The vertical plate could be secured between the two jaws of a vice to mount
the motor in a secure position above the vice.

[12]        
There was considerable controversy at trial
regarding the dimensions and appearance of the motor mount used by Evan.  Given
the delay in the reporting and investigation of the incident, neither party
could locate or identify the motor mount that Evan was using when the First
Accident occurred.  Instead the parties placed in evidence more than ten
different versions of motor mounts.  The differences related to the shape,
dimensions and mounting location of the vertical plate.  Many of the motor
mounts marked as exhibits were made by Evan’s father.

[13]        
While Evan could not identify the motor mount in
question, he said that the motor mount marked as an exhibit (Exhibit 23) and a
photograph of a motor mount produced by the School (Exhibit 4, Tab D, page 7)
were most similar to the one he used on September 19, 2002.  The bottom side of
the vertical plate of both of those mounts was angled; in other words, it was
not parallel to the mounting plate.  The School found the motor mount depicted
in the photograph when it first started to investigate the incident in 2005. 
The School took the photograph of the motor mount at the time but did not
retain the actual motor mount.

[14]        
Evan was critical of the cleanliness of the
workshop and the storage room used for the Power Tech class.  The criticism was
general and it was not relevant to any issue raised in the case.  I will not
detail it as I do not accept his evidence.  I accept that the workshop was kept
clean and that the tools and workbenches were in good working condition.  I
accept the evidence of Mr. Dunning and Dale Ablett (an automotives teacher at
PMSS) in preference to the very general evidence of Evan.

[15]        
In class, the students worked in pairs.  Evan worked
with Jess Orton.  He said that another student, Ryan Khunkhun also worked with
them when they started to disassemble small engines.  Initially they had a 3 1/2
hp engine.  They attached a motor mount and worked on it for at least one or
two classes and perhaps as much as a week.  Eventually Evan and Jess Orton
asked Mr. Dunning if they could work on another engine.  He agreed they could
do so.  They went to the storage room and located the Engine.  Evan recalls
that he and Jess Orton attached the motor mount to the Engine using a wrench
and made sure the mounting plate was tight to the Engine.  Subsequently they
put the Engine in a vice.

[16]        
It took two students to place an engine in a vice.
One student was required to hold the engine while the other worked to tighten
the vice.  Evan does not recall whether he or Jess Orton tightened the vice when
mounting the Engine.  However, he says that on September 19 he knows the Engine
was securely mounted in the vice because it was stable when they worked on it
throughout the class.

[17]        
The two boys started working on disassembling the
Engine after it was secured.  He could not recall if they started on September
18 and continued on September 19 or whether the latter date was the first day
they worked on the Engine.  He could not recall what parts were removed from
the Engine.

[18]        
Evan recalls that there was a dispute of some
kind between Ryan Khunkhun and Jess Orton during the class on September 19,
2002.  Jess Orton did not want to work with Ryan Khunkhun and the two boys had
an argument.  Evan recalls that Ryan Khunkhun worked on the smaller engine
while he and Jess Orton worked on the Engine.  When the five minute warning
bell went off before the end of the class, Evan started cleaning up the tools
to put things away.  He was standing immediately to the left of one of the vices
with his hands on the table in front of him.  The Engine was in the vice.  He
was not looking at it.  The Engine then “rolled over” onto his hand.  It was a
sudden movement.  The Engine struck him on the right wrist.  If his arm had not
been there, the Engine would have hit the table.  He used his arms to push the
Engine onto the table.  As the class was almost over when this occurred, he
told Jess Orton that he had to leave and walked out.  He started to go to the
office but instead went straight home when he heard the school bell.  He did
not speak to Mr. Dunning or anyone else before he left.

[19]        
In cross-examination, Evan agreed he had used vices
many times at home or in the shop.  He agreed that the motor mounts used at the
school fit both the 3 1/2 and 5 hp Briggs and Stratton engines so he must
have used a similar motor mount when he was working on the smaller engine.

[20]        
In cross-examination, Evan said that Ryan
Khunkhun was standing in the area of the vice that was holding the Engine.  He
says that Ryan Khunkhun was to his right and was also cleaning up.  Evan
believes that Ryan Khunkhun was in front of or beside the vice within one foot
of the handle.  Evan did not see Ryan Khunkhun touch the vice handle or do
anything to loosen or destabilize the Engine.  He did not see anyone else do
anything to loosen or destabilize the Engine.

[21]        
When he returned home, he found out that his
mother was at the hospital because her former foster daughter was in labour
with her first child.  Evan took the video camera and rode his bicycle to the
hospital.  He spent several hours in the labour room acting as the cameraman.  He
says his wrist was very painful but he was able to manage.  The next day he
went to school and attended the Power Tech class.  He managed to continue working
on small engines over the next days and weeks.  He finished the Power Tech
class with an 83% mark for the first term and 77% for the second term.

[22]        
Evan recalls speaking to a doctor about his
wrist when he was with his mother at a drop-in clinic on the weekend after the First
Accident, but there is no record of his attendance.  The primary reason for this
visit was for his mother to see the doctor.  He did attend the clinic to see a
doctor about the wrist on September 28, 2002.  He did not see his family doctor
about the wrist until January 2003.

Ryan Khunkhun

[23]        
Like Evan, Ryan Khunkhun had a limited
recollection of the events in the first weeks of the Grade 9 Power Tech class.  He
said that the first two weeks of the course focused on shop safety.  He said
that Mr. Dunning was very strict.  He did not permit horseplay or fooling
around.  He required the students to keep the shop clean and properly
organized.  He recalls working on two smaller Briggs and Stratton motors.  He
did not work on a 5 hp motor.  He was in a group with two other students but
said that he was never in a group with Evan or Jess Orton.

[24]        
He recalls seeing motor mounts with a mounting
plate and vertical plate similar to those exhibited at trial.  He does not
recall motor mounts that had an angled bottom edge.  All of the ones that he
saw had an edge that was parallel to the mounting plate.  While he recalls
seeing motor mounts, he denied using them.  He said that his group never placed
the Briggs and Stratton engines in a vice.  Rather, they placed the engine on
the work table and disassembled it in that location.

[25]        
He believes that he attended the Power Tech
class on September 19, 2002.  He does not recall having an argument or a
pushing match with Jess Orton.  He did not see an engine fall out of a vice on
that date or at any other time.  He said that he never touched a vice that had
an engine mounted in it.  He has no recollection of working in the vicinity of
a vice with Evan beside him.

[26]        
Evan never told Ryan Khunkhun that his actions
caused or contributed to a wrist injury.  Ryan Khunkhun saw Evan wearing a cast
in May or June 2003.  He learned that Evan had wrist surgery but was not
informed that the wrist was injured in a Power Tech class.

Mr. Dunning

[27]        
Mr. Dunning started teaching in 1976.  During
most of his career he taught physical education.  He began working at PMSS in
1986.  He did a lot of coaching including volleyball, wrestling, track and
field, and rugby.  He was always interested in industrial arts.  In the late
1990s, he was asked if he would teach those classes.  The School District paid
for him to take a ten week course at the British Columbia Institute of
Technology (“BCIT”), which qualified him to teach industrial arts courses.  He
took the same course ten years earlier out of personal interest, but on that
occasion he paid the tuition himself.  The course he took in the late 1990s
qualified as 15 credits towards a Masters degree.

[28]        
He first learned of the use of motor mounts to
secure small engines in a vice at the BCIT program.  He said the motor mounts
used at BCIT were similar to the ones he subsequently used in his classroom.

[29]        
The Grade 9 Power Tech class was an introductory
course that allowed students to get hands-on experience with tools.  It was a
prerequisite for any automotive courses.  Each term before he taught a course,
Mr. Dunning did an inventory of the equipment required for the course.  He
inspected the work tables, vices, tools, and other equipment to ensure they
were functional.  This included an inspection of the motor mounts.  He checked
them to make sure the welds holding the two plates together were in good
condition.  He also checked that the length of the vertical plate was not too
long.  The vertical plate was too long if it could bottom out on a vice before
the mounting plate sat on the top of the vice.  He checked this by placing the
motor mounts in the vices.  He rejected any damaged or faulty equipment.  Mr.
Dunning said that the vices and tables in the shop were sturdy and well-made.  He
does not recall any problems with the vices used in his classes.

[30]        
Mr. Dunning said that he was very strict about
classroom rules.  These included the requirement that students keep the
workshop clean.  He required the students to put the tools away in a toolkit.  All
of the engine parts had to be stored in wooden boxes when they were not in use.
He checked the boxes and toolkits at the end of the day to ensure that nothing
was missing and that cleanup was completed. He also insisted that the students
did not fool around in the class or engage in any kind of horseplay.

[31]        
The Grade 9 Power Tech course started off with a
safety curriculum.  This took a few classes and culminated with a quiz.  The
students were expected to obtain at least a 70% score on the quiz in order to
continue with the course.  After the safety exam students worked on bicycles
briefly and then moved on to small engines.

[32]        
Mr. Dunning said that Evan was a very good
student.  His knowledge and abilities were well above average.  He was very
keen and had a good work ethic.  Mr. Dunning recalls that Evan worked with Jess
Orton who was also a very good student.  He does not recall ever seeing Evan
work with Ryan Khunkhun.

[33]        
In 2002, there were nine or ten workgroups in
the Power Tech class.  The students always worked in pairs unless there was an
odd number.  As the students worked through the course at their own speed, he
would give a demonstration to the class whenever the fastest group was starting
a new task that had not been demonstrated previously.  He said that he provided
such a demonstration to show how to attach and use a motor mount.  When placing
the motor mount into the vice, the lower edge of the vertical plate had to be
clear of the bottom of the vice.

[34]        
Mr. Dunning does not recall any incident in a
Power Tech class where one of the engines fell over or where a student was
injured.  He had no knowledge of Evan’s wrist injury in 2002.  The first he
heard of the injury was in February 2004 when he was trying to recruit students
to play for the Grade 10 rugby team.  When he asked Evan to play for the team, Evan
said he could not do so because of a wrist injury he suffered in a Grade 9
Power Tech class.  He said that the injury occurred when he was trying to
loosen a bolt with a wrench.  He said that he pulled the Engine over when Ryan
Khunkhun loosened the vice.  Mr. Dunning asked why he had not been informed of
the incident.  Evan said that the class was taught that day by a substitute
teacher, Keith Allen.  The parties agreed at trial that, in fact, Mr. Dunning
was the teacher in the Power Tech class on September 19, 2002.

[35]        
Mr. Dunning stated that there was never a
problem with the use of motor mounts in his shop classes.  From his
observations, the students had no difficulty using the motor mounts.  All of
the mounts had a vertical plate that was long enough to be gripped firmly by a
vice but short enough that the mounting plate could sit flat on the top of the
vice.  In his examination for discovery, he incorrectly stated that the
vertical plates were four to six inches in length.  He said he made that error
because he was guessing; he had been retired for a couple of years by the time
of the discovery and had not recently seen the motor mounts.  He said that all
of the vertical plates were less than 3 1/4 inches in length along the
longest edge.  In other words, they all fit into the vices without touching the
bottom of the vices.

[36]        
He was shown the photograph of the motor mount
found at the school after the investigation started.  He said that he would
have rejected such a motor mount because of the incomplete weld and the angle
on the bottom of the vertical plate.  The motor mount marked as Exhibit 23 also
had a steep slope on the bottom of the vertical plates.  Mr. Dunning said there
were no motor mounts used in his shop class that had a similar slope.  In cross-examination,
he denied that any motor mount with a sloped edge on the vertical plate would
be unsafe.  He said that if the maximum length of the vertical plate was less
than 3 1/4 inches, the motor mount could still be safe to use.

Dale Ablett

[37]        
Mr. Ablett is also an industrial arts teacher at
PMSS.  He teaches most of the automotive courses including Autobody as well as
some Power Tech classes.  Evan was a student in his Autobody 11 class in 2004.  During
that course, Evan told him how he injured his wrist in Power Tech when he
caught an engine that was falling or tilting out of a vice.

[38]        
Mr. Ablett was the individual who found the motor
mounts that were photographed when the School started to investigate the
incident in 2005.  He found the motor mount depicted in Exhibit 4, Tab D at
page 7 in a rack with other scrap metal.  He found a number of motor mounts and
stated that others may have had an angled bottom edge.

[39]        
Mr. Ablett described in some detail the activities
that Evan had to perform in the three automotive classes in which he was
enrolled.  He described Evan as a very good student who obtained marks between
79% and 86% in the three classes.  He does not recall Evan having any
difficulty in performing tasks in the classes.

[40]        
Mr. Ablett did not use motor mounts for his Grade
9 Power Tech classes.  He had the students place the engines on the floor or
the workbench.  He did not know that Mr. Dunning utilized the motor mounts.  When
he first learned of their use during the course of the investigation, he
thought it was a very good idea.  He entertained the thought of using them for
his classes but did not adopt the practice because of the allegations made in
this action.

Valmai MacIntyre

[41]        
Evan’s mother, Valmai MacIntyre, gave extensive
evidence about his injuries.  She also gave evidence about her discussions with
the school administration in 2002 and 2003 regarding his wrist injury.

[42]        
In her evidence in chief, Ms. MacIntyre said
that shortly after the accident she spoke to the school receptionist to advise that
her son would not be in attendance because of a wrist injury.  She said the
receptionist asked if it was a skateboard accident and Ms. MacIntyre said that
the injury occurred in shop class.  Later, in September 2002, she spoke with
the vice principal, Nita Sanghara, about the wrist injury.  She wanted the school
to “step up to the plate” and “give a break” to her son because of the injury.  This
was the extent of her evidence in chief.

[43]        
In cross-examination, Ms. MacIntyre said that
she discussed the shop class incident with Ms. Sanghara in a phone call.  Ms.
Sanghara called her and asked about the shop class injury.  The vice principal
wanted to know if Evan needed to change any of his courses given the wrist
injury and his absences from school.  When counsel pointed out to Ms. MacIntyre
in cross-examination that Evan did not miss many days of school after the
accident, she stated that the school records were notoriously inaccurate.  The
records show that in the two months after September 19, 2002, Evan was absent
for full days on September 30, October 21 and November 4 and 5, and half days
on October 11 and November 1.

[44]        
She agreed in cross-examination that she had no
discussion with anyone in administration about how the First Accident happened.
She never spoke to Mr. Dunning or the other shop teachers about the injury or
the accident.

[45]        
Evan’s parents had further discussions with Ms. Sanghara
in 2003.  In February, Evan’s father spoke with her about headaches and loose
teeth that Evan suffered in a school fight.  On April 10, following Evan’s
wrist surgery, Ms. Sanghara spoke with Ms. MacIntyre about her son’s need for
assistance given the full cast that was on his right arm.  Ms. MacIntyre agreed
that there was no discussion at that time about what caused the injury.

Nita Sanghara

[46]        
Ms. Sanghara was vice principal at PMSS from
September 2002 to spring 2004.  As a vice principal, her job was 100%
administration; she did not teach.  She was responsible for student behaviour,
discipline and sat on a number of committees.  She chaired the Health and
Safety Committee.  The school had a form of incident report that had to be
filled out if a student was injured at school.  She was the individual in
administration that received all of the incident reports.  She never saw an
incident report for the First Accident.

[47]        
She denied having any telephone discussions with
Ms. MacIntyre regarding course changes for Evan in September 2002.  She says
that she would never have initiated such a call because it was not her area of
responsibility.  A counsellor would have initiated such a call.  She recalls no
discussions with Ms. MacIntyre in September 2002 or thereafter regarding Evan
suffering a wrist injury in a shop class at PMSS.

[48]        
Ms. Sanghara agreed that if the receptionist was
advised of an injury in a school class she should have been told about it.  She
said that the receptionist in 2002 was very efficient.  She has subsequently
passed away from cancer.  If Ms. Sanghara had been informed about an injury in
a class, she would have obtained particulars and contacted the teacher.  An
incident report would then be filled out.  There was no problem in filling out
such a report retroactively.

[49]        
Ms. Sanghara recalled the discussions with the
MacIntyres in 2003 and had notes of those discussions in her telephone log.  None
of the notes referred to an injury occurring in shop class.  Ms. Sanghara says
that the MacIntyres never told her during those discussions that Evan injured his
wrist in a school class.

Expert Evidence

Mark Bailey

[50]        
Mr. Bailey, a mechanical and metallurgical
forensic engineer, gave evidence on behalf of the plaintiff.  He produced two
expert reports in which he describes and draws conclusions from a series of
experiments.  In the experiments, he attached a 5 hp Briggs and Stratton
engine to a number of different motor mounts.  He then placed the motor mount
in a bench vice similar to the ones in use at PMSS.  He released the grip of
the vice by rotating the handle slowly.  He made observations as to whether the
engine stayed in the vice or fell out.  For each motor mount he performed a
number of experiments.  He reversed the orientation of the motor mount to the
engine because the weight and balance of an engine varies depending on the
orientation of the fuel tank or pull start to the motor mount.  In some of the
experiments he varied the height of the mounting plate above the vice.

[51]        
Mr. Bailey described the results of the
experiments.  Videos of the two sets of experiments were also entered into
evidence.  He drew limited conclusions from the experiments.

[52]        
Mr. Bailey’s reports and videos clearly showed
the obvious:  in some circumstances the engine will topple out of the vice when
it is loosened.  This occurs if the vertical plate of the motor mount is too
long (i.e. longer than 3 1/4 inches – the depth of the vice from the
top of the jaw to the base) and if the bottom edge of the vertical plate is
angled.  The engine will also topple out of the vice if it is unbalanced; in
other words, if the orientation of the engine places too much weight outside of
the edge of the vice.  The engine will also topple out if it is somewhat unbalanced
and the bottom of the mounting plate is too high above the vice.  This
arrangement permits the engine to rotate before it comes to rest on top of the vice
grips.  Simple physics explains these results.  From watching the video, it
seemed obvious what was likely to occur in the experiments.  I expect it was
more obvious to someone actually handling the engine in the vice.

[53]        
In his first report, Mr. Bailey concludes, “[a]n
engine mount with a ‘T’ cross section with an angled bottom should not be used
to mount a five horsepower Briggs & Stratton engine in a bench vice because
it is dangerous.”  He based this conclusion on experiments in which the motor
mount had an angled bottom on the vertical plate that was five inches in length
on the longest edge.  He mounted the vertical plate parallel to the long side
of the mounting plate.

[54]        
In his second report, Mr. Bailey concludes, “[a]
T-mount substantially similar to the T-mount provided by the defendant allows
the engine to topple out of the vice when the grip of the vice is relaxed only
slightly.”  He bases this conclusion on an experiment in which the motor mount
was similar to the one shown in the photograph produced by the School. 
However, the conclusion was not surprising as the engine was mounted in the
vice in an off-centre position.  In other words, he placed the engine in a position
where it was unbalanced in the vice.  The engine toppled out of the vice, not
because of the shape of the vertical plate of the motor mount but because of
the way he positioned the engine in the vice.

Jason Leber

[55]        
Mr. Leber is an automotive technician who
presently works for Volkswagen training technicians in vehicle repair.  Previously
he taught automotive training courses at BCIT for five years.  He has no
experience or training as a high school teacher.  He offered opinions on a
number of issues including the curriculum at PMSS and considerations and
recommendations for motor mounts.  His opinions include:

In my opinion Evan [MacIntyre] was allowed
to progress too quickly through the training program and that was likely a
contributing factor in this accident as his skills or safety awareness may not
have been to the level required to perform such workshop procedures. 

…

… there are
safety issues with the motor mount design. There is only one safety device
preventing the engine from falling. The clamping force provided by the vise is
the only thing stopping the engine from escaping from the vise. I would suggest
there should have been a back up safety measure to greatly reduce the
[likelihood] of this accident from occurring; the shape of the bottom surface
of the vertical column must be perfectly horizontal…

[56]        
Mr. Leber ultimately gave an opinion as to three
alternatives that could be used for mounting a small motor:

a)       if a
motor mount of the design used at PMSS is used, the vertical plate should not
have an angled base so the mounting plate can sit flat on the top of the vice when
the vice is loosened;

b)       a different
model of motor mount that permits attachment in a vice or placement on a work
table should be used (he provided a photograph of such a motor mount but
provided no other information about its design or whether it is used in schools
in British Columbia or elsewhere); or

c)       the
engine should be mounted to a plywood board and clamped to the work table as
suggested in the Briggs and Stratton Engine Dissection document (this document
reads in part:  “[e]ngine mount – a plywood board with 1/4 inch bolts is fine,
C-clamp to a rigid base”).

Findings of fact regarding the First Accident

[57]        
As I indicated, I am unable to conclude on a
balance of probabilities what happened to cause the Engine to fall out of the
vice.  Evan’s testimony was the only direct evidence of what allegedly happened
in the classroom when the Engine came out of the vice.  His evidence was
extremely limited and did not offer any explanation as to why or how it
happened.  I do accept his evidence that the Engine was firmly mounted in the vice
on September 19, 2002 for the early part of the class.  If it had not been
firmly mounted, he and Jess Orton would not have been able to work on its
disassembly.  At some point, one of the boys must have loosened the vice,
probably as a prelude to removing the Engine.  I cannot determine who loosened
the vice.  On the basis of all of the evidence, Evan or Jess Orton likely
performed this action.  The School argued that Ryan Khunkhun loosened the vice.
While Evan said that Ryan Khunkhun was near the vice just before the First
Accident occurred, Ryan Khunkhun has denied ever loosening a vice to remove an
engine.  He denies ever working on an engine mounted in a vice.  Further, Ryan
Khunkhun says that he never worked on an engine with Evan or Jess Orton.  I
accept that evidence as it is also supported by the testimony of Mr. Dunning.  This
leads me to conclude that either Evan or Jess Orton loosened the vice.

[58]        
I infer from the evidence that it was common
practice for one of the students in each group to remove an engine from a vice without
any assistance from his or her partner.  Accordingly, Evan or Jess Orton likely
loosened the vice without assistance of the other to start the cleanup at the
end of the class.  It is not possible for me to draw any further conclusions or
inferences as to what happened after the vice was loosened.  There are many
possibilities.  One of the boys may have started to remove the Engine and did
not appreciate it was off balance so that it rolled out of the vice.  Jess
Orton may have loosened the vice with the Engine unbalanced and moved away when
he became distracted.  Evan may have loosened the vice and started cleaning up
thinking he had left the motor balanced on the vice when it was, in fact,
unbalanced.  Evan may have been working on the Engine with a wrench when the
Engine came out of the vice.  Jess Orton may have loosened the vice and the
Engine tipped out of the vice because the bottom edge of the vertical plate was
uneven.  This possibility seems remote as the unevenness would have been
obvious to him.  There are other possible explanations as to what occurred, but
none have been proven on a balance of probabilities.

[59]        
The difficulty in determining what occurred
arises in part from problems with Evan’s evidence.  He can offer no positive
statement as to what happened.  His evidence at trial was very different from
what he told Mr. Dunning in 2004.  I accept Mr. Dunning’s evidence that Evan
told him that the engine fell over when he was trying to loosen a bolt with a
wrench.  Evan said in 2004 that he pulled the Engine over when Ryan Khunkhun
loosened the vice.  He also said that Keith Allen, the substitute teacher,
taught the class.

[60]        
The statement of claim, which was filed in March
2004, makes allegations that Evan has now abandoned.  The abandoned allegations
include the following:

– Keith Allen
taught the class;

– Ryan
Khunkhun acted negligently in loosening the vice;

– there was no
motor mount in the class that could fit the 5 hp Briggs & Stratton motor;

– the vice was
old and unstable; and

– the tables
in the class moved and were insecure.

[61]        
It is also noteworthy that the statement of
claim makes no reference to the one allegation that Evan is now advancing:  use
of a motor mount that was dangerous because the bottom edge was uneven.

[62]        
The only conclusion I can draw from the limited
evidence given by Evan, the abandoned allegations, and Evan’s statement to Mr.
Dunning in 2004 is that Evan has no recollection of the events of September 19,
2002.  This is not surprising.  It was not a significant event in his life at
that time.  He continued to attend school after the First Accident and was able
to continue to carry on the tasks needed to perform well in the Power Tech
class.  I infer that he was also able to manage most of the activities in the
rest of his life.  I do not believe that anyone in his family perceived that
there was a significant problem with his wrist in the months following the First
Accident.  He did not go to a doctor immediately after the accident.  He did
not see his family doctor about the accident until January 2003.  I find that
neither Evan nor his family saw the wrist injury as a potential problem until
well into the following year.  By that time, Evan’s ability to remember or
record the details of the events of September 19, 2002 was limited.

[63]        
As will be evident from my conclusions, I do not
accept Ms. MacIntyre’s evidence that she discussed the shop class injury with
the school receptionist or with Ms. Sanghara.  I find that she was attempting
to reconstruct what happened in a way that was favourable to her son.  I accept
Ms. Sanghara’s evidence regarding her discussions with the MacIntyre family
both in September 2002 and 2003.  In September 2002, Ms. Sanghara would not
have called Ms. MacIntyre to discuss course changes.  That was not her job.  If
Ms. MacIntyre had advised anyone at the school that her son was injured in shop
class, an incident report form would have been completed.  I find that PMSS was
not notified in any way of a shop class accident involving Evan until 2004.  I
also reject Ms. MacIntyre’s evidence that she took her son to the medical
clinic about his wrist on the weekend after the First Accident.  If this had
occurred, the doctor would have recorded the visit in order to receive payment
for examination of the wrist, and there is no such record.

[64]        
I have considered Evan’s argument that the only
plausible explanation for the First Accident is that it was caused by the use
of a motor mount with a vertical plate that had an angled bottom edge.  This
argument asserts that the motor mount in question must have been similar to the
one shown in the photograph at Exhibit 4, Tab D, page 7.  It asks that I
conclude that the use of such a motor mount is dangerous based on the opinion
of Mr. Bailey.

[65]        
I reject the submission that there is only one
plausible explanation for the First Accident for a number of reasons.  First, I
cannot conclude on a balance of probabilities that an angled motor mount was
used to mount the Engine.  Evan could not identify the motor mount he used.  Both
Mr. Dunning and Ryan Khunkhun said that only motor mounts with square bottom
edges were in use.  While Evan said the motor mount had an angled bottom edge, I
have already found that he has a limited recollection of the events of the day.
I also conclude that his recollection of the appearance of the motor mount is
unreliable.  His unreliability was highlighted by the changing positions he took
regarding the appearance of the motor mount.  All I can conclude on the basis
of the evidence is that there is a possibility that he used a motor mount with
an uneven bottom surface.

[66]        
Second, Mr. Ablett found the motor mount
depicted in the photograph in a box containing scrap metal.  I accept Mr.
Dunning’s evidence that he would not have used a motor mount with an incomplete
weld or a base that was uneven.  Third, I find that Mr. Dunning would not have
used a motor mount with a base that was longer than 3 1/4 inches, the
distance from the bottom to the top of the vice.  At trial the plaintiff
conceded that the motor mount in the photograph did not have a base that was
longer than 3 1/4 inches.  It would have been obvious to a teacher or a
competent student like Evan that such a motor mount should not be used, just as
it would have been evident that a motor mount with a long base and an uneven
edge should not be used.

[67]        
An additional consideration is that even if Evan
used a motor mount with an uneven edge and a short base (such as the one in the
photograph), such a motor mount did not pose a significant danger.  The only
risk that such a motor mount posed was the same danger all mounts posed:  if
the Engine was placed in the motor mount in a loosened vice when the Engine was
unbalanced, it could fall over.  This was a minor risk that was within the
knowledge and ability of any student to control.

[68]        
The final and most significant reason that I
cannot accept the plaintiff’s theory of the cause of the accident is that there
are many possible reasons why the Engine may have come out of the vice.  I have
tried to outline some of those above.  The unlikely possibility that it
occurred because of the condition or shape of the motor mount is only one of
numerous possible scenarios.  At best, there is only a slight possibility that
this theory is correct.  Such a possibility is nowhere near proof on a balance
of probabilities.

[69]        
In summary, I can come to no conclusion as to
how or why the Engine came out of the vice on September 19, 2002.  It happened
after either Evan or Jess Orton loosened the vice.  The evidence has not
established the sequence of events that caused the First Accident.

Was the First Accident caused by the negligence of the
School?

[70]        
While I cannot determine how the First Accident
happened, I could still find that the School is negligent and in breach of its
duties to Evan, if I find that the equipment or supervision provided for the
small motor section of the Power Tech class failed to meet a reasonable
standard of care.  The law in this area is well settled.  The standard of care
is that of a prudent parent.  The classic statement of the standard is set out
in Myers v. Peel County Board of Education, [1981] 2 S.C.R. 21 at 31-32:

The standard of
care to be exercised by school authorities in providing for the supervision and
protection of students for whom they are responsible is that of the careful or
prudent parent, described in Williams v. Eady [(1893), 10 T.L.R. 41]. It
has, no doubt, become somewhat qualified in modern times because of the greater
variety of activities conducted in schools, with probably larger groups of
students using more complicated and more dangerous equipment than formerly: see
McKay et al. v. The Board of the Govan School Unit No. 29 of Saskatchewan et
al. [[1968] S.C.R. 589], but with the qualification expressed in the McKay
case and noted by Carrothers J.A. in Thornton, supra, it remains the
appropriate standard for such cases. It is not, however, a standard which can
be applied in the same manner and to the same extent in every case. Its
application will vary from case to case and will depend upon the number of
students being supervised at any given time, the nature of the exercise or
activity in progress, the age and the degree of skill and training which the
students may have received in connection with such activity, the nature and
condition of the equipment in use at the time, the competency and capacity of
the students involved, and a host of other matters which may be widely varied
but which, in a given case, may affect the application of the prudent parent-standard
to the conduct of the school authority in the circumstances.

[71]        
The principal allegation against the School is
that the motor mount used to mount the Engine in the vice was faulty.  In light
of this allegation, it is useful to consider decisions involving faulty
equipment used in school classes.  In the trial decision in Thornton v.
Prince George School District No. 57, [1975] 3 W.W.R. 622 (B.C.S.C.), rev’d
on other grounds (1976), 73 D.L.R. (3d) 35 (B.C.C.A.), Andrews J. found that
the teacher owed a duty to ensure that the equipment provided is reasonably
safe for the purpose for which it is intended:  632.  In Wells v. Smithers School
District No. 54, [1987] B.C.J. No. 2297 (S.C.), Legg J. considered a
case involving an injury arising from the use of a planer in a woodworking
class.  He noted that a planer is a dangerous machine and found that a school
owed a strict duty of care to a student operating a dangerous machine.  In
finding liability against the school in that case, he balanced three factors:  the
probability of an accident happening; the possible seriousness of its
consequences; and the costs of reducing the risk of injury.

[72]        
Applying these factors to the circumstances of
this case, I conclude that the School met the standard of care of a prudent
parent.  The disassembly of small engines is not an activity that is inherently
dangerous.  While there is certainly a risk that a student could suffer a
contusion, laceration or sprain, there is a minimal risk of serious injury.  The
activity itself is something that a Grade 9 student should be easily capable of
performing.  Evan and Jess Orton were both sufficiently competent and capable
to be permitted to carry out the disassembly without constant supervision.  The
size of the class permitted Mr. Dunning to give adequate supervision to nine or
ten pairings of students.  I find that he adequately instructed the students
regarding safety issues and that he maintained a reasonable standard of
cleanliness and discipline in the class.

[73]        
The School was required to supply some form of
equipment to stabilize the engines to facilitate disassembly.  It did that
through the provision of the motor mounts.  The question that arises here is
whether the motor mounts were reasonably safe for their intended purpose in
light of all of the circumstances.

[74]        
I have already found that it is more likely than
not that the vertical plate of the motor mounts was not angled and did not
exceed 3 1/4 inches in length.  There is no evidence before me to
establish that such a motor mount was not reasonably safe.  Mr. Leber agreed
that a motor mount that did not have an angled base and sat flat on the top of
the vice was an acceptable mount to stabilize the Engine.  The evidence of Mr.
Dunning and Mr. Ablett provides additional support for the use of such a motor
mount in a classroom setting for Grade 9 students.

[75]        
I do not accept Mr. Leber’s suggestion that it
would have been preferable to have a motor mount with a “back up safety measure”.
His statement contradicted his opinion that a motor mount with a straight edge
was acceptable and was unsupported by reference to any standard or accepted
usage within high schools or elsewhere.

[76]        
In summary, I conclude that the School met the
standard of care of a prudent parent in the operation of the Power Tech class
and the provision of equipment to students in that class.  As a result, Evan’s
claim in action No. S041294 is dismissed.

Issue 2.        What
damages should be awarded to Evan for the injuries suffered in the Second
Accident?

[77]        
Evan was in a crosswalk with other students when
he was struck by the vehicle driven by the defendant, Ruby Wilson.  Ms.
Wilson’s vehicle also struck two other students at the same time.  It was a low
velocity impact.  At trial, Evan could not estimate the speed of the vehicle.  However,
when he attended at the Ridge Meadows Hospital emergency ward, he stated that
the vehicle was traveling 1 to 2 km/h.  At the scene of the accident, he
thought his knee appeared to be dislocated and he recalls pushing it back into
position.  The knee was painful and his leg felt “wobbly”.  The initial
diagnosis was a second degree strain of the anterior cruciate ligament
(“ACL”).  He was released from hospital with crutches.

[78]        
Evan was eventually referred to Dr. Robert
McCormack, an orthopaedic and sports medicine specialist, who treated the knee
injury and provided two detailed expert reports.  At the initial assessment on
November 17, 2003, Dr. McCormack diagnosed an injury to the ACL with the
possibility of an associated medial meniscus tear and sprain of the lateral
collateral ligament.  He recommended that Evan undergo a physiotherapy program
and arranged for an MRI.  The MRI was performed on January 19, 2004.  The MRI
revealed no evidence of a medial meniscus lesion and no evidence of a lateral collateral
ligament disruption.  Dr. McCormack’s tentative diagnosis was a partial tear of
the ACL.  He recommended a course of physiotherapy and suggested that Evan
return to see him if the knee did not improve.

[79]        
Dr. McCormack next saw Evan on October 28, 2004. 
As a result of the ongoing complaints he decided to proceed with exploratory
arthroscopic surgery.  This was performed on November 29, 2004.  The
arthroscopic examination was unremarkable.  No abnormalities of the knee
compartment were observed.  The ACL was normal in appearance and there was no
evidence of instability.  Dr. McCormack felt that the laxity he had observed
previously might be explained by the possibility that Evan suffered from a
partial tear of the ACL that healed between the time of the original
examination and the arthroscopy.  In the follow-up consultation after the
surgery on December 9, 2004, Dr. McCormack outlined a rehabilitation program
for Evan and indicated that he should return if he experienced any continuing
problems.  Evan did not return to see Dr. McCormack until he was sent for a
medical legal assessment almost four years later on October 10, 2008.

[80]        
These circumstances create an issue as to the
nature and extent of the knee injury suffered in the Second Accident.  The issue
is complicated somewhat by the ongoing symptoms suffered by Evan as a result of
the wrist injury from the First
Accident.

Plaintiff’s Position

[81]        
While Evan did not seek medical care for his
knee injury following the arthroscopic surgery, he says that the knee injury
has caused restriction and pain since the Second Accident.  He says that he
continues to suffer limitations and discomfort with certain postures, movements
and activities.  He says that the combination of the wrist and knee injuries
made him miss classes and receive poor marks in academic courses in high
school.  The injury also caused him to suffer a loss of income as he was unable
to work as much as he would have at the part-time and summer jobs he had from
Grade 8 onwards.  He says that the impact of the knee injury on his employment
and other activities is much worse than it would have been if he did not have
the pre-existing wrist problem.

[82]        
He also says that his knee injury aggravated the
right wrist injury in two ways.  First, the use of crutches after the Second
Accident and after the arthroscopic surgery caused additional pain and
restriction of activities involving his right wrist.  Second, instability in
his knee caused him to fall while walking up stairs on March 5, 2004.  The fall
further aggravated the injury to his right wrist.

[83]        
Evan argues that the range for non-pecuniary
damages is $45,000 to $75,000.  In addition, he claims damages for past income
losses and diminished capacity to earn income.  He relies on the report of Dean
Powers, a vocational rehabilitation consultant, to support his claim for loss
of capacity to earn income.  He says that he would have been able to obtain
employment as a firefighter or a journeyman with a trade certificate but for
the injuries he suffered in the three accidents.

Defendant’s Position

[84]        
The defendant admits that Evan suffered a knee
injury in the Second Accident but argues that there is no objective evidence to
support Evan’s contention that he suffers continuing pain and restrictions in
his right knee.  The defendant says that his knee was completely healed from
the arthroscopic surgery by early 2005.  The defendant argues that I should not
accept Evan and his parents’ evidence of the nature of his ongoing symptoms. 
Rather, the defendant says that the extensive activities in which Evan has been
able to partake, such as football, bodybuilding, work, social activities, and limbo
dancing, show that the knee fully healed and that he does not suffer any
ongoing impairment as a result of the knee injury.

[85]        
The defendant submits that the range of
non-pecuniary damages for the knee injury is $15,000 to $20,000.  She argues
that there should be no award for loss of capacity to earn income.

Discussion

[86]        
There is no question that Evan’s right knee
suffered a significant blow in the Second Accident.  He suffered discomfort and
a restriction in his activities.  In the first three weeks after the Second
Accident, Evan missed six full days of school.  He found it difficult to crouch
or kneel and felt that the knee was unstable.  He was not able to carry out his
part-time job as a football referee.  He used crutches for a month or two and
then used a cane.  He found it difficult to use the crutches because this
caused additional pain in his right wrist.  His parents rented a wheelchair for
him to use at home.  He was unable to take part in part-time work over the
Christmas holidays.

[87]        
His knee was improving by the start of 2004,
although he did not follow a physiotherapy program as recommended by Dr.
McCormack.  He began taking physiotherapy in February 2004 after the MRI.

[88]        
On March 5, 2004, Evan was walking up stairs
when his right knee gave out on him.  He fell forward and braced his fall with
his hands.  While his knee was fine, his right wrist was very sore.  He
attended the emergency ward and the wrist was splinted.  Evan felt that it
returned to its previous condition approximately a month after the fall.  On
the day of the fall he saw Dr. Patel, the hand surgeon who was responsible for
the care of his wrist.  Dr. Patel stated:

As far as this
fall was concerned, I feel that he incurred a soft tissue injury to the right
wrist.  This likely aggravated his pre-existing right wrist problems.  Without
having done a repeat MRI scan with an arthrogram it is impossible to quantify
this, i.e., as to whether there is any further tearing of the triangular
fibrocartilage complex.

[89]        
By late spring 2004, he said he was riding his
bicycle frequently.  However, in the summer he was unable to referee football
or work at his father’s company.  There were numerous activities that he could
not do, some of which he attributed to his wrist injury and some to his knee
injury.  He obtained a custom knee brace (the “DonJoy” brace) on the
recommendation of his physiotherapist.  He wore it for a month or two but
stopped when the brace caused him back pain.

[90]        
In the fall of 2004, he got a job at the
Cineplex Odeon Theatre.  He initially worked with the floor staff but
eventually became a projectionist.  While he was able to do the job, he found
that his ability to crouch and kneel caused problems for his work as a
projectionist.  He was, however, able to manage and received very high
commendations from his supervisors throughout the years he worked for that
employer.

[91]        
He decided that he should proceed with the
arthroscopic surgery as he felt that his knee was not improving as much as he
and his parents expected.  After the arthroscopic surgery in November 2004, his
knee was swollen and very sore and he missed ten days of school.  He was afraid
that he would lose his job and so tried to work after a couple of weeks.  He
went back at about half his usual time in mid-December.  In January 2005, he
went back to his usual schedule of work at the Cineplex.  He attended an active
rehabilitation program at Innovative Rehabilitation Services from December 2004
to March 2005.  At the end of that program he reported that he had no pain in
his right knee except when he was kneeling on it.

[92]        
Evan did not give extensive evidence about knee
problems he experienced in 2005.  He said that his knee was getting stronger
but that he still experienced pain, especially when crouching.  His ongoing
wrist injury from the First Accident had more effect on his activities in 2005
than did his knee problems.  Indeed, he indicated that in September 2005, the
beginning of his Grade 12 school year, his knee was feeling better.  He
described that as “really a nice feeling”.

[93]        
Evan underwent a functional capacity evaluation
in December 2005.  The report prepared by Shannon Smith of Progressive Rehab
Inc. suggested that Evan suffered restrictions as a result of his knee injury.  Dr.
McCormack commented on this in his report of February 20, 2007:

… Mr. MacIntyre
reported a restriction with standing and walking, jogging and running, kneeling
and crouching.  He also reported stiffness in his knee after prolonged driving.
It is difficult to correlate this with the findings of the MRI and arthroscopy
or my repeated physical examination.  Indeed on reviewing the report it sounds
as if it is more anterior knee pain related to the patellofemoral compartment.
However, there was no evidence of any injury of the patellofemoral compartment
from the motor vehicle accident.

[94]        
Evan graduated from Grade 12 in June 2006.  The
video of the graduation celebration shows him winning the limbo contest with an
impressive limbo move under a bar held close to the ground.  On that occasion
his knee functioned very well.  Following graduation he decided to play football,
something he had not done since suffering a concussion a year before the First
Accident.  He played running-back for the Meadow Ridge Knights.  Evan felt that
he did not play up to the same level he had achieved when he last played
football in Grade 7.  However, he was able to complete the whole season.  Photographs
showing him blocking, crouching and running were entered as exhibits.

[95]        
Since his graduation from high school, Evan says
he has continued to experience problems with his knee.  He testified that he
had difficulty walking around Las Vegas on vacations with his family.  He
complained of problems with bending and crouching while working at the Cineplex
and in the bar at the Sonar nightclub.  He complains that he has trouble
climbing stairs and sitting for lengthy periods of time at his current job as a
production line supervisor.

Medical Evidence

[96]        
The medical evidence does not provide objective
support for Evan’s assertion that he has ongoing knee problems.  In his report
of February 20, 2007, Dr. McCormack notes that Evan’s reported difficulties “with
stair and ladder climbing, balance, kneeling and crouching are difficult to
relate to the MRI and arthroscopy findings following the motor vehicle
accident.”  Dr. McCormack goes on to conclude:

When last seen Mr. [MacIntyre] was making
satisfactory progress.  Follow-up was left open and since he did not return I
had no reason to expect things did not continue to improve.

…

It is difficult to relate his current level
of disability to the injuries identified at the MRI, arthroscopy and
examination under anaesthesia.  I suspect he developed some anterior knee pain
(patellofemoral pain syndrome) related to thigh atrophy and muscular
dysfunction.

This type of pain usually settles with the
course of physiotherapy.  In this situation we normally expect that, after a
couple of months of therapy following the arthroscopy, patients are able to
return to their pre-injury status.

There was no
evidence of any joint injury which would increase the risk of pre-mature
degenerative changes in the knee.  I also note that while I accept the findings
of Progressive Rehab, that Mr. [MacIntyre] was unable to manage the physical
demands as a firefighter or welder, I cannot relate this to the findings in the
MRI or at the time of surgery.

[97]        
In his follow-up report dated November 9, 2008,
Dr. McCormack reiterated that there were no signs of any structural injury in Evan’s
knee.  He affirmed the conclusions in his earlier report.  However, he also
added the following proviso based on Evan’s subjective complaints:

… there is no
doubt in my mind that Mr. MacIntyre has had continued symptoms since his motor
vehicle accident in October 2003.  It seems clear that his symptoms onset at
the motor vehicle accident and are related to this.  While the majority of
patients are able to control their symptoms with a good non-operative program
there does remain a small subset that have residual symptoms despite an optimal
non-operative program including formal therapy and a continuing appropriate
home exercise program.  It seems Mr. MacIntyre’s symptoms have plateaued.

[98]        
Dr. Michael Piper examined Evan at the request
of the defendant on June 30, 2006.  Dr. Piper concluded as follows:

The findings at
arthroscopy certainly would suggest that he had no major ligamentous injury at
the time of the motor vehicle accident.  With the absence of any clinical
findings suggestive of a significant internal derangement, I believe his
symptoms will gradually resolve with the passage of time and he should have no
significant ongoing problem with his right knee in the future.

[99]        
Dr. Kenneth Hill examined Evan at the request of
the defendant on June 11, 2008.  He concluded that Evan suffered a severe
strain of his right knee with residual scarring and mild ACL laxity.  He said
that the symptoms involved minor instability and residual pain in response to
prolonged weight-bearing and stress throughout the knee joint.  It was his
opinion that the knee injury was a soft tissue injury which would heal within three
to six months with no residual disability.

[100]     There is no controversy between the expert orthopaedic surgeons
regarding the nature of the injury and the current condition of Evan’s right
knee.  The structural injury was mild.  If there was damage to the ACL, it was
not significant and healed quickly.  As of the date of the arthroscopic
investigation, the knee compartment exhibited no abnormalities as a result of
the injury.  All of the doctors accept that there was a severe strain to the
right knee.  The impact of the injury was likely worse than it would have been
for most people because of the pre-existing laxity in Evan’s knee joint.

[101]     The experts also agree that Evan should have been symptom free
sometime after June 2006.  However, as Dr. McCormack notes, there is a small
subset of individuals who continue to experience residual symptoms.  The
question that remains is whether Evan falls within that small subset.  If I can
accept Evan’s subjective complaints of continuing pain and limitation of
movement, I can conclude that he falls within that small subset in that his
condition has reached a plateau.  This question raises the issue of Evan’s credibility.

Conclusions

[102]     I found Evan to be a pleasant and engaging young man.  His
employment history highlighted the hard work and determination he has shown
from a very young age.  He is well-liked by all of the teachers and employers
who gave evidence at trial.  I found him to be a forthright and cooperative
witness.  He genuinely attempted to provide responsive answers to all questions
posed.  In spite of these general impressions, I have concluded that I cannot
accept his evidence regarding the continuing symptoms that he says he has
experienced and is currently experiencing as a result of the three accidents.  There
are simply too many inconsistencies in his case to accept his assertions at
face value.

[103]     I have set out some of those inconsistencies below.  Some of the
inconsistencies involve problems with the evidence of his mother and father.  I
have not referred at any length to those issues.  I did conclude that Evan’s
parents seemed intent on trying to exaggerate the severity of the injuries
suffered in the three accidents.  I have no doubt that Evan’s belief that he
has ongoing physical problems stems in part from his parents’ attitudes.

[104]     The inconsistencies that have led me to conclude that Evan’s
injuries are not as serious as he alleges include the following:

(a)      In Grade
11, Evan applied to the Maple Ridge Fire Department Youth Academy.  Ms.
MacIntyre stated in the application form that her son was physically fit and
capable of participating in strenuous physical activity.  She attempted to deny
that she had read the form but it contained her descriptive handwriting and she
signed it to verify the contents.  Evan advised the court that he was not
accepted to the Youth Academy because of his physical limitations.  In fact, he
was not accepted because of poor grades.

b)       Evan
played a full season of football in 2006.  However, he downplayed or misstated
this activity when giving a history to the medical experts.  For example, he
told Dr. Hill that he tried returning to football but abandoned it because it
caused discomfort in his knee.

c)       Early
in 2008, he took up bodybuilding.  He trained extensively and entered two
competitions.  Photographs and videos of his participation in those
competitions were filed as exhibits.  It is evident that Evan was able to work
out very extensively to develop his impressive musculature.  He testified that
he stayed away from poses that involved kneeling but the video of his routine
in April 2008 shows him holding a pose while kneeling on his right knee to end
the routine.

d)       As
noted earlier, he was able to win the limbo competition at his high school graduation.
Needless to say, this involved strength, mobility and dexterity in both knees.

e)       Numerous
Facebook photographs were entered as exhibits.  They show Evan playing
football, kneeling while he poses with friends, sitting curled up in a clothes-dryer,
kneeling on a tube while being towed behind a boat, and performing many other
activities without apparent difficulty.

f)        Evan’s
physical education and shop teachers all testified that he was an excellent
student in these classes and that he had no physical limitations of which they
were aware.  This was in stark contrast to his evidence about his ability to
perform activities in these classes.

g)       The
suggestion that he could not hold hands with his girlfriend or have his handicapped
sister touch his right hand was inconsistent with some of the photographs and
with the many other activities that he performed for work, school and leisure.

h)       Evan
was advised in December 2004 to return to see Dr. McCormack if he experienced
any continuing problems with his knee.  It was evident from the way in which
Ms. MacIntyre advocated for medical treatment for Evan’s wrist injury that she
was not reluctant to pursue medical treatment if there were continuing
problems.  No attempt was made by Evan or his parents to have him return to see
Dr. McCormack after the December 2004 visit.

[105]     In summary, I find that Evan suffered a severe strain to his right knee
as a result of the Second Accident.  There is no lasting damage to his knee
compartment or the knee structure. There is no possibility of future problems
with the knee as a result of the Second Accident.  I also find that Evan’s knee
symptoms persisted longer than they would have normally because of the laxity
in his knee joints.  I accept Dr. McCormack’s evidence that normally after a
couple of months of therapy following arthroscopy patients are able to return
to their pre-injury status.  In the circumstances of this case, I conclude that
Evan’s knee functioned well within three or four months after the arthroscopy,
although some activities continued to cause him pain or discomfort.  Specifically,
I find that the symptoms persisted for four or five years.

[106]     In addition to the above, I accept Evan’s submission that the fall
on the stairs was caused by the knee injury suffered in the Second Accident.  I
find that this aggravated his wrist injury for approximately a month.  In Stewart
v. Begana, [1995] B.C.J. No. 1223 (S.C.), Sigurdson J. set out the
test for determining if a defendant is liable for further injuries suffered by
a plaintiff in a subsequent accident.  If there is a foreseeable risk that an
injury may affect a person’s ability to cope with the vicissitudes of life and
another injury results, then it is possible to hold the defendant responsible
for the second injury.  The only qualification is that the actions of the
plaintiff must be something he or she would do in the ordinary course of
things.  Further, the actions of the plaintiff must not be blameworthy.

[107]     Here, the circumstances are such that Evan meets that test.  It is
foreseeable that a severe strain to his knee would make Evan susceptible to
falling or slipping.  His fall on March 5, 2004 occurred when he was walking up
stairs and there is no suggestion that anything he did while climbing the
stairs was blameworthy.  Accordingly, I conclude that the defendant, Ms.
Wilson, is also responsible for the aggravation caused to the wrist injury.

[108]     The plaintiff referred to three cases to establish the range for
non-pecuniary damages:

a) Ivanoff v. Bensmiller, 2000 BCSC 1741 – 16 year
old plaintiff (at the time of the accident) – $40,000.

b) Lawson v. Vu, 2000 BCSC 206 – 29 year old
plaintiff – $85,000.

c) Parker v. Ingalls, 2007 BCSC 1763 – 37 year old
plaintiff – $80,000.

[109]     The defendant referred to the following cases:

a) Milsom v. Verron, 2005 BCSC 1452 – 50 year old
plaintiff – $25,000.

b) Larsen v. Wilson, 2007 BCSC 943 – 23 year old
plaintiff – $25,000.

c) Hartman v. Dias, 2006 BCSC 478 – 20 year old plaintiff –
$30,000.

d) Chou v. Siddall, 2007 BCSC 1492 – 19 year old plaintiff –
$30,000.

[110]     Of the cases cited by counsel, I find that Ivanoff,
Hartman and Chou have the most similarity to the present case.  In Ivanoff,
the plaintiff suffered right knee complaints for five years and it was anticipated
he would undergo arthroscopy in the future.  He also suffered from additional
injuries including an undisplaced hip fracture.  In Hartman, the
plaintiff suffered a soft tissue injury to her knee that plagued her with
chronic discomfort for a period of approximately five years.  She did not
undergo surgery but the injury caused her more problems functionally than Evan
has experienced.  In Chou, the plaintiff experienced persistent knee
pain for three years up to the date of trial.  It was found that the knee
injury had a significant impact on his enjoyment of life; however, he did not
undergo surgery.

[111]     Taking into account the incapacity Evan suffered after the initial
injury and after the surgery, the aggravated injury to his right wrist, and the
persistence of the symptoms for four to five years, I fix non-pecuniary damages
at $35,000.

[112]     In addition to the non-pecuniary damages, Evan is awarded damages
for past income loss and special damages.  I accept the schedule put forward by
Evan’s counsel setting out his actual wage loss from the Second Accident
totalling $1,527.65 ($734.05 from his referee position and $793.60 from the Cineplex).
He also claims for opportunity loss from May 1, 2004 to August 31, 2004 in the
approximate amount of $4,700.  He says that he would have worked at L-M
Equipment Co. (his father’s company) during that time period.  I find that the
reason he did not work for L-M Equipment was because of the wrist injury.  However,
I award $1,000 as his opportunity loss for that time period.  I conclude that Evan
would have worked at a part-time position even with the wrist injury but for
the injury to his knee.  However, he would not have been able to obtain a job
that paid as much as L-M Equipment, nor would he have been able to work as many
hours given his pre-existing injury.

[113]     I find that the total of the special damages claim attributable to
the knee injury is $975.  I have removed the mileage expenses from the claim put forward by Evan because
those expenses should be claimed as disbursements.  I have permitted the claim
for the DonJoy knee brace as his physiotherapist recommended it.  The defendant
is entitled to a credit of $219.80 paid for that brace.

[114]     Given my findings regarding the nature and extent of the knee
injury, I decline to make any award for the plaintiff’s future opportunity loss
claim.

Issue 3.        What
damages should be awarded to Evan for the injuries suffered in the Third
Accident?

[115]     In the Third Accident, Evan’s pickup truck was rear-ended by a van
driven by the defendant, Shawn Lever on October 31, 2007.  Evan’s truck suffered relatively minor damage,
although a support rod in the driver’s seat headrest had to be replaced.  There
was significant damage to the vehicle driven by Mr. Lever.  Evan went to the
hospital with complaints of headaches, back and neck pain.  At the time, he was
working about 25 hours per week at the Cineplex and two or three nights per
week at the Sonar nightclub.  As a result of the injuries suffered in the
accident he missed two weeks of work at the Cineplex.  He was not able to
return to work at the nightclub until February 22, 2008.

[116]     Evan described the symptoms he suffered as a result of the Third Accident
in some detail.  He described headaches, blurred vision and sensitivity to
bright lights, as well as constant pain in his back, neck and shoulders.  He
saw his family doctor once in November shortly after the accident and then once
in February 2008.  He attended two physiotherapy sessions in November 2007.  In
addition, he saw Dr. Margaret Wallace, his chiropractor, on November 8, 2007.  On
January 10, 2008, he began to attend twice-weekly appointments with Dr. Wallace
for manipulations.  She has been primarily responsible for his care since that
time.

[117]     From February 22, 2008 onward, Evan did not miss any time at work
(other than a brief period in November) as a result of his injuries.  The
combination of the two jobs meant he was fully employed during that period.  In
January 2008, he started to work out at the gym two to four times per week.  He
continued this pattern of gym attendance throughout 2008 and 2009.  It was
evident from all of the evidence, including the Facebook photos, that he was
very active socially during this time period.

[118]     Evan also says that the blunt head trauma he received in the Third
Accident caused a deterioration of a childhood strabismus.  He says that he had
a small angle deviation between his eyes prior to the Third Accident and a
larger deviation after the accident.  He also says that the trauma he received
has caused an enlargement of his left pupil.  Both he and his mother testified
that prior to the Third Accident his left and right pupils were equal in size.

[119]     At the present time, he continues to have complaints of back and
neck pain mainly on his right side.  He says he is restricted in many tasks and
complains of pain when he stands or sits for long periods.  This is a problem
at work and when he drives or travels.

Evan’s Position

[120]     Evan argues that the range for non-pecuniary damages for his
injuries is $35,000 to $65,000.  In addition, he claims for past income loss
and a loss of capacity to earn income.

The Defendants’ Position

[121]     The defendants say that the appropriate range of damages for the
soft tissue injuries suffered in the Third Accident is $10,000 to $15,000.  Based
on the medical and physical evidence, they argue that Evan has not proved that
either of his eye problems was caused by the Third Accident.

Discussion

[122]     I have concluded that I cannot accept Evan’s evidence regarding the
nature and extent of the injuries suffered in the Third Accident.  Earlier in
these reasons I set out some of the reasons why I reached that conclusion in
relation to the injuries claimed in the Second Accident.  This reasoning
applies equally to his evidence regarding the injuries suffered in all three
accidents.  His tendency to exaggerate the symptoms he suffered was apparent in
the evidence he gave with respect to all of the accidents.

[123]     A glaring example of the unreliability of his evidence in relation
to the Third Accident is the allegation made by both Evan and his mother that
his left pupil was noticeably larger after that accident.  In fact, the
pre-accident photographs of Evan clearly show he had an enlarged left pupil
before October 31, 2007.

[124]    
The medical evidence presented to establish that
Evan continues to suffer soft tissue symptoms from the Third Accident consists
primarily of the evidence of Dr. Wallace, Evan’s chiropractor.  Her evidence
was not helpful.  Her report was comprised of general statements of “principle”
that supported her conclusion that the plaintiff suffered an injury that has
not healed and will likely require constant chiropractic attention in the
future.  For example, she stated in her report of November 25, 2008:

The inherent
problem with whiplash injury is that the soft tissues are irreversibly damaged.
As stated above the area never heals to its prior integrity and function.  This
is especially true for Mr. MacIntyre.

[125]     She offered conclusions in the report without indicating the objective
findings that supported them.  In addition, she expressed her opinions with
such imprecision as to give a reader no confidence in their accuracy; for
example, she said “I feel that Mr. MacIntyre may have suffered
permanent damage from the accidents” (emphasis added).  As a result, I reject
Dr. Wallace’s opinion.

[126]     Dr. Hill examined Evan approximately eight months after the
accident.  He took a detailed history and set out his findings on examination.  He
concluded that Evan suffered “soft tissue injury (grade II)” to his cervical
and lumbar spines as well as a soft tissue injury to his right groin.  He
provided the opinion that the injuries would resolve within three to six months
with no residual disability.  He recommended that Evan continue his stretching
and exercise regime.

[127]     Dr. Ross Kennedy provided a medical legal report dated December 14,
2008 in which he opined that the trauma of the Third Accident caused the
deterioration of Evan’s strabismus (esotropia) and the enlargement of his left
pupil.  Dr. Kennedy agreed in cross-examination that he based his opinion in
relation to the enlargement of the pupil on the assumption that the left pupil
was equal in size to the right pupil prior to the Third Accident.  As indicated
above, I have found that this assumption was incorrect.  I need not consider
his opinion in that regard any further.

[128]     Dr. Kennedy noted that Evan’s clinical records show that there was a
“stable small angle deviation” with his eyes up until the time of the Third
Accident and a larger deviation following that accident.  He says there is
medical literature recording the fact that blunt head trauma can cause
deterioration of pre-existing eso-deviations.  As a result, he concludes that “the
balance of evidence points to the motor vehicle accident as the precipitating
factor causing deterioration of the esotropia.”

[129]     Dr. Janette Lindley provided a contrary opinion.  She said it is
well recognized that individuals who have had strabismus procedures as an
infant may have late decompensation of the alignment during their lifetime and
may require operations to correct this.  She noted that the esotropia that she
measured was less than that found by Dr. Kennedy.  She stated that Evan “has
the ability to change his fixation, or the eye he is looking with, and the
deviation appears to be somewhat variable.”  She concluded that there is no
evidence to suggest a marked change in the deviation between the two eyes as a
result of the accident.

[130]     I accept the opinion of Dr. Kennedy in preference to that of Dr.
Lindley.  In cross-examination, Dr. Kennedy stated emphatically that Evan’s
clinical records show that prior to the Third Accident his eyes had developed
good fusion.  In other words, the deviation between the two eyes was small
enough that he had good binocular vision.  Further, the literature establishes
that it is very uncommon for patients with good binocular vision to experience
a spontaneous breakdown of the fusion.  There is always an event that causes a
breakdown.  While Dr. Kennedy is not aware of literature suggesting that
whiplash alone can cause a breakdown of the fusion, there is no question that
blunt trauma can cause such a breakdown.  In consideration of the fact that the
support to Evan’s headrest broke in the Third Accident, I infer that his head
struck the headrest and that blunt trauma caused the deterioration of the
esotropia.

[131]     Evan underwent the operation to correct the deterioration of the
esotropia on May 7, 2009 and missed approximately eight shifts of work at the Cineplex
following the operation.

[132]     On the basis of all of the evidence, I conclude that the Third
Accident resulted in a soft tissue injury to the cervical and lumbar regions of Evan’s spine.  In general, I
accept Dr. Hill’s opinion evidence regarding the nature and extent of the
injury Evan suffered.  While I do not accept Evan’s complaints of ongoing pain,
I find that his symptoms persisted somewhat longer than predicted by Dr. Hill.  Given
the level of physical activity Evan was able to maintain in the years following
the accident, I conclude that the impairment to his work and leisure activities
was not significant.  By the date of the trial, approximately two years after
the Third Accident, the injuries were substantially healed.

[133]     The plaintiff referred to the following cases to establish the range
for non-pecuniary damages:

a) Frankson
v. Myre, 2008 BCSC 795 – $45,000.

b) Wilby
v. Hyatt, 2008 BCSC 1019 – $48,500.

[134]     The defendants referred to the following cases:

a) Henderson v. Peachey, 2003 BCSC 1104 – $10,000.

b) Huynh
v. Vo, 2006 BCSC 1736 – $11,000.

c) Faedo
v. Dowell, 2007 BCSC 1985 – $12,000.

d) Levasseur
v. Fraser, 2003 BCSC 946 – $14,500.

[135]     Given my findings, the cases referred to by the plaintiff are of
little assistance.  In light of my finding that Evan’s symptoms persisted for two
years, the only case referred to by the defendants that has some similarity to
the present case is Levasseur.  Of course, in addition to the soft
tissue injuries, Evan also suffered from disruption to his vision, which
resulted in the strabismus operation.  In all of the circumstances of this case,
I assess non-pecuniary damages at $22,500.

[136]     In addition, he is entitled to recover $12,552.70 in past wage loss
as set out in the calculation prepared by his counsel.  This includes average
nightly tips of $213.02.  I accept that figure as a reasonable, indeed conservative,
average for a bar-porter working at the Sonar nightclub.

[137]     I do not accept Evan’s claims for loss of opportunity to work at
Sonar from January 31, 2009 onwards.  He was dismissed from his position at the
nightclub because of his pursuit of this action.  The rationale behind that
decision was not explored at trial; however, it was clear from the evidence of
the employer that it had nothing to do with Evan’s ability to do the work.  He
was capable of performing all of the tasks associated with his job and had done
so for almost a year since the Third Accident.  It appeared to be an illogical
and ill-advised management decision.  The defendants should not be held
responsible for an unreasonable position taken by Evan’s employer.

[138]     I also reject Evan’s claim based on his allegation that he could
have worked his way up to the position of bartender had he not suffered the
Third Accident.  If an injury held Evan back from obtaining the position of
bartender, it was the wrist injury, not the soft tissue injury suffered in the
Third Accident.

[139]     Evan is entitled to recover special damages in the total amount of
$2,189.50.  I have arrived at this figure by reducing the expenses for the
chiropractic treatments and mileage to Dr. Wallace’s office by one-quarter.  The
defendants will receive credit for the sum of $265.17 paid towards the
chiropractic treatments.

Summary

[140]     The claims of Evan against the School in action S041294 are
dismissed.  The claims of the Board of School Trustees District No. 42 (Maple
Ridge) against the third party, Ryan Khunkhun, are also dismissed.

[141]     In action M045251, Evan will recover judgment against Ms. Wilson in
the amounts of $35,000 for non-pecuniary damages, $2,527.65 for past income
loss and $755.20 ($975.00 – $219.80) for special damages.  He is also
entitled to court order interest on those latter two amounts.

[142]     In action M082415, Evan will recover judgment against the defendants
in the amounts of $22,500 for non-pecuniary damages, $12,552.70 for past income
loss and $1,924.33 ($2,189.50 – $265.17) for special damages.  He is also
entitled to court order interest on those latter two amounts.

Costs

[143]     Subject to any submissions of the parties, in each action, costs
will follow the event at Scale B.

“Butler
J.”