IN THE SUPREME COURT OF
BRITISH COLUMBIA

Date: 20100323

Docket:
M100892

Registry: New Westminster

Between:

Robert John Burton

Plaintiff

And

Ryan Brad Bouwman

Defendant

Docket:
M107776

Registry:
New Westminster

Between:

Robert John Burton

Plaintiff

And

Ellen Noreen Spence and Hugh Nelson Spence

Defendants

Docket:
M111216

Registry: New Westminster

Between:

Robert John Burton

Plaintiff

And

Insurance Corporation of British Columbia and John Doe

Defendants

Before: The Honourable Madam Justice Gray

Reasons for Judgment

INTRODUCTION

[1]            
Mr. Burton claims damages arising from three
motor vehicle accidents, which occurred on April 7, 2006, November 9, 2006, and
September 5, 2007.  Mr. Burton brought a separate lawsuit in respect of each accident.
I will refer to the accidents as the First, Second and Third Accidents.  The
trial of the three actions were heard together, with Mr. Cope representing Mr.
Burton, and Mr. McDonald representing all defendants.  The trial occupied eight
hearing days.

[2]            
Mr. Burton is employed by the Correctional
Service of Canada (“CSC”).  He performed the duties of a correctional officer
and correctional supervisor in the period of about 1992 to 2002, working in the
last few years at Matsqui Institution, a federal medium-security prison
facility in Abbotsford, B.C.  At the time of the three accidents, Mr. Burton
was assigned to the regional supply depot (“Warehouse”). He hoped to be
reassigned to work as a correctional officer at Matsqui.

[3]            
Mr. Burton claims to have suffered soft tissue
injuries to his right lower back in the First and Third Accidents, and to have
suffered minor aggravation of his injuries in the Second Accident.  He stopped
working for a period following each accident.  He returned to work at the Warehouse
on December 18, 2007, three months after the Third Accident, but stopped
working again about 18 months later, on July 15, 2009.  He claims that he is
unable to work, at least for two more years, as a result of pain and stiffness
in his right lower back which he alleges was caused by the First and Third
Accidents.

[4]            
The defence challenged Mr. Burton’s credibility
on many issues, including the issue of how the Third Accident occurred.

[5]            
The issues are unusually complex, and include
the following:

(a)      Who caused the Third Accident?

(b)      What was
Mr. Burton’s physical condition prior to the First Accident, and in particular,
did he have a pre-existing lower back problem arising from either the Previous Accident
or from the First Workplace Incident, or both?

(c)      What was
Mr. Burton’s physical condition at trial?

(d)      Did Mr.
Burton stop working in July, 2009, as a consequence of injuries in the First
and Third Accidents, or for some other reason?

(e)      Is Mr.
Burton entitled to compensation for depleting his sick leave bank?

(f)       What
would have been Mr. Burton’s likely career path with CSC if the First and Third
Accidents had not occurred, particularly in light of his disciplinary record?

(g)      Did the
accidents impair Mr. Burton’s ability to pursue personal business ventures,
including the sale of used motorcycles?

(h)      If Mr.
Burton is entitled to damages for future lost earning capacity arising from the
Third Accident, should it include consideration of his time off work commencing
July, 2009, in light of s. 24 of the Insurance (Vehicle) Act, R.S.B.C.
1996, c. 231, s. 106 of the Insurance (Vehicle) Regulation, B.C.
Reg. 447/83, and Mr. Burton’s disability coverage with Sun Life?

(i)       If Mr.
Burton is entitled to damages arising from both the First and Third Accidents,
and if damages are assessed globally, how should they be allocated between the
accidents?

(j)       Should
Mr. Burton’s damages be reduced on the basis that he failed to mitigate?

(k)      Should
Mr. Burton’s damages be reduced on the basis that he had a pre-existing lower
back problem?

FACTS

(a)      Before
the workplace injury of August 25, 2002

[6]            
Mr. Burton graduated from high school in 1979.  He
worked for a period in the food industry, and obtained the red seal
qualification as a chef in 1988.  That qualification is recognized inter-provincially
and in some countries outside Canada.  It requires 8,000 hours of proven work
in the food industry, including schooling.

[7]            
In the fall of 1992, Mr. Burton began a training
program with the CSC.  Over the period of about five years, he progressed from
the position of correctional officer 1 (“CX1”) to the position of
correctional supervisor 3 (“CX3”).

[8]            
At various times, Mr. Burton pursued business
ventures in addition to his work for CSC.  In the period of about 1993-1994,
Mr. Burton engaged in the business of importing small used boats from the
United States and selling them for profit.  He estimated that he sold 60 to 70
boats, at a gross profit of $2,000 to $3,000 per boat.  He did not have any
documentation supporting these figures or the estimated gross profit of
$120,000 to $210,000.  Mr. Burton stopped this business when, as a result of
changes in the respective values of U.S. and Canadian currency and market
prices, he was no longer able to make a significant profit.

[9]            
Mr. Burton was in a motor vehicle accident on
January 8, 1995, when the vehicle he was driving hit a telephone pole. He
suffered problems with his lower back as a result of that accident, which I
will term the “Previous Accident” to distinguish it from the First, Second, and
Third Accidents.

[10]        
Mr. Burton received chiropractic treatments on
his lower back in the 1990s. In that time period, he also regularly cut
firewood, both because he needed it for his wood burning stove, and for the
exercise. This work sometimes involved long days doing the hard physical work of
sawing, bucking, splitting and stacking wood.

[11]        
In October 1997, Mr. Burton reported to Matsqui
as a CX3. In this position, he worked about 30 overtime hours per month.

[12]        
Prior to the First Accident, Mr. Burton’s
hobbies included fishing, catching crabs, restoring old mustang cars, cycling,
swimming and boating.  He also periodically cooked elaborate meals.

[13]        
Mr. Burton separated from his wife in February
2001, when his daughter was about 12 years old and his son was about seven
years old.

[14]        
In March, 2001, Mr. Burton was arrested while on
duty at Matsqui and charged with assaulting his estranged wife. He was released
on conditions including not contacting his wife.  CSC redeployed Mr. Burton to
regional headquarters, apparently because of the arrest.

[15]        
In April 2001, Mr. Burton inadvertently spoke to
his wife. This led to a charge of breach of the conditions of his release, but
the charge was later dismissed. Around this time, CSC suspended Mr. Burton from
work without pay, although this was later reversed.

[16]        
When his boat sale business ceased to be viable,
Mr. Burton began purchasing houses which were in disrepair, and repairing them
for resale.  There was no documentation demonstrating material capital gains
from this business.  His tax return for 2001 showed a business loss. 

[17]        
In January 2002, Mr. Burton was reinstated as a
CX3 and received pay for the period of his suspension.

[18]        
At some point in around 2002, Mr. Burton’s
daughter began living with him. Mr. Burton and his wife disputed custody of
their children through the court process for several years.

[19]        
Mr. Burton was injured in a workplace incident
on August 25, 2002 (“First Workplace Incident”).  He injured both his lower
back and his right hand, particularly the 4th and 5th fingers.  Since the First
Workplace Incident, he has not worked at Matsqui Institution or performed the
duties of a correctional officer.  He started receiving workers’ compensation (“WCB”)
benefits.

(b)      Between the First Workplace Incident and the First Accident
of April 7, 2006

[20]        
The records of his family doctor at that time, Dr.
Phillip-Stewart, refer to Mr. Burton’s weight as 250 pounds on September 24,
2002.  Mr. Burton is about 6’ 3” tall.

[21]        
On October 27, 2002, Mr. Burton engaged in
vigorous horseplay with his then-girlfriend in public.  He was charged with
assaulting her.  He pleaded guilty to the charge in early 2003.

[22]        
The records of Mr. Burton’s treating
chiropractor, Dr. Abraham, show treatments in late 2002, with the next entry
about 2.5 years later, in June 2005.

[23]        
Mr. Burton’s 2002 tax return showed business
losses.

[24]        
Mr. Burton began his first work conditioning program
on January 13, 2003.  This was a six week program, including supervised
exercise and stretching for about four hours per day.

[25]        
Mr. Burton was discharged from his first work
conditioning program on February 21, 2003.  The discharge summary report described
Mr. Burton as being “fit to return to work with limitations”.  It referred to
his finger continuing to be sore, and to his low back improving but being worse
with extension and prolonged sitting.  The range of motion of his lumbar spine
was described as full, except for extension and left rotation, each of which
were 3/4 normal. It says that Mr. Burton’s finger continued to be the main
concern.

[26]        
Mr. Burton was dismissed from his job effective
April 2, 2003, although he grieved the dismissal, and it was later reversed.  He
was dismissed on the basis of his conduct, which included his conduct at the
time of the First Workplace Incident of August 25, 2002, but also the assault
on his girlfriend.  The letter dismissing him is dated April 1, 2003, and includes
the following:

On August 25,
2002, you were the supervisor in charge of the institution…by modelling and
encouraging inappropriate and improper behaviour as a Correctional Supervisor,
you have brought the CSC into disrepute in the eyes of the public, the staff,
and the offenders, and the trust and confidence you were once afforded has been
irrevocably damaged.

[27]        
The Workers’ Compensation Board terminated Mr.
Burton’s WCB wage benefits effective June 2, 2003, apparently on the basis
that WCB considered him fit to work.

[28]        
In the period following his dismissal and prior
to the resolution of his dismissal grievance, Mr. Burton worked as a care-worker
for a society caring for mentally challenged adults.

[29]        
Mr. Burton underwent a bone scan on June 18,
2003 due to persistent low back pain localized to the right L5/S1 region.  No
relevant abnormalities were noted.

[30]        
Mr. Burton’s divorce, including asset division,
was finalized in July 2003.  Mr. Burton’s daughter, who was then about 14½ years old, continued to live with him, and
his son lived with Mr. Burton’s ex-wife.

[31]        
Although the records are difficult to read, it
appears that July 2003 is the last date on which the records of Dr.
Phillip-Stewart refer to Mr. Burton complaining about his back.

[32]        
Mr. Burton sought to appeal the termination of
his WCB wage benefits.  In the related correspondence, he wrote the following:

a)       on August 24, 2003:

…I still suffer from pain in my back and
in my hand. This discomfort is worse at some times than others however it is
pain that I did not have before this injury. My hand still does not open and
close properly and I find myself constantly dropping things or loosing [sic] my
grip on things that I am attempting to hold on to … my hand and back are
still not as they were before the injury … These injuries are not temporary
and are still causing me a great deal of discomfort…

b)       In his submission dated December 5, 2003, he
wrote as follows:

(i)         I still
suffer from lower back pain as a result of the injuries that I received when
assaulted by a federal inmate while at work… I completed a return to work
program … but still suffer from ongoing pain and loss of mobility … I still
have the back pain and it hasn’t gone away and it never hurt like this before.
..

His submission goes on to request that
his WCB claim be reopened and that he receive further medical attention and/or
further therapy for his back injury, and then includes the following:

(ii)        Both injuries
seem to be of a long term nature as both injuries are still causing me pain and
loss of mobility… this was a [sic] unprovoked attack that left me with a
serious back injury and a broken hand. Both injuries still cause me pain every
day. …

[33]        
Mr. Burton met Ms. Nikolopoulos in early 2004. 
She became his girlfriend for a period ending prior to the trial.  She
testified that at the time she met him, Mr. Burton complained of a sore
back, could not keep his back very straight, and his physical activity was
limited.  She also testified that she wanted him to become more physically
active and that there was a brief period when he got into shape and lost 20 to
30 pounds.

[34]        
The records of Dr. Phillip-Stewart describe Mr.
Burton’s weight on June 10, 2004 as 253 pounds.

[35]        
On June 24, 2004, the adjudicator of Mr.
Burton’s dismissal grievance concluded that CSC should demote Mr. Burton to the
position of CX2 rather than dismiss him, and should reinstate him without back
pay.  He had been off work since April 2, 2003, so that was effectively a
suspension without pay of about 15 months together with a demotion.

[36]        
CSC appealed the decision of the adjudicator of
the dismissal grievance, arguing that the arbitrator ought to have accepted or
rejected the dismissal, rather than making an award including a demotion
without back pay.  CSC took the position that it could redeploy Mr. Burton to
another federal institution, such as the Warehouse.  On July 12, 2004, the
Acting Warden of Matsqui wrote that, in his opinion, Mr. Burton’s “ability to
work as a correctional officer with offenders may be detrimental to [his]
safety and security, as well as offenders and staff.”

[37]        
Mr. Burton’s position was that CSC should
redeploy him to Matsqui.

[38]        
Mr. Burton and CSC settled CSC’s appeal and the
dispute over where Mr. Burton would work, and entered into an agreement. 
The agreement was not provided to court, on the basis that the parties had
agreed to maintain its confidentiality.  Mr. Burton testified that he was
to return to Matsqui Institution in January 2008, and work in the Warehouse for
the period of about 3.5 years until then.

[39]        
On July 13, 2004, Mr. Burton started working at
the Warehouse.  His assigned duties were, and until he stopped work in July
2009, continued to be, driving to pick up and make deliveries, and cleaning the
Warehouse, including the office and bathroom areas.

[40]        
Mr. Burton is paid as a CX2, even though the
duties of a warehouseman would normally be paid about $30,000 per year less
than the CX2 position.  This was referred to in the evidence as “red-circling”
Mr. Burton. Mr. Burton’s compensation and benefits were reinstated effective
July 8, 2004.

[41]        
Mr. Burton’s 2004 income tax return shows net
business income of less than $400.

[42]        
Mr. Burton bought himself an SI belt in May
2005.  He used it occasionally, to prevent his back from getting worse.

[43]        
The records of Mr. Burton’s treating
chiropractor, Dr. Abraham, show treatment in June 2005, following a treatment
gap of about 2.5 years.  This treatment appears to be a general treatment
rather than a treatment focussed on a particular area on Mr. Burton’s spine. 

[44]        
Mr. Burton received another chiropractic
treatment on February 28, 2006, which again appeared to be a general treatment.

[45]        
Mr. Burton’s first performance appraisal at the
Warehouse is dated October 31, 2005.  It states that 80 percent of his day
is doing pickups and returns in and around Abbotsford. It states that he has
done “whatever has been asked of him without complaint, whether it be moving
furniture or cleaning toilets…[Mr. Burton] has been an asset…performs his
tasks cheerfully and to the best of his abilities.”

[46]        
Mr. Burton estimated at trial that in April
2006, he spent about half of his work time driving.

(c)      The First
Accident of April 7, 2006

[47]        
On April 7, 2006, at around 6:00 p.m., Mr.
Burton was stopped about five or six cars behind a red traffic light on Highway
11 near Highway 7 in Mission, B.C.  His automatic transmission Chevrolet Blazer
was about six or seven feet from the vehicle in front.  He heard squealing
tires and saw a 3/4 ton Chevrolet four- wheel-drive extended cab truck
approaching quickly from behind.

[48]        
Mr. Bouwman was driving the truck. He failed to
keep a proper lookout, followed Mr. Burton’s vehicle too closely, and failed to
stop in time. Mr. Burton pushed hard on his brake pedal and stiffened in
preparation for the impact.  Mr. Bouwman’s truck struck Mr. Burton’s Blazer
from behind.  The rear window of the Blazer shattered, and its hood was pushed
into the vehicle in front.

[49]        
Mr. Burton went to Ms. Nikolopoulos’s home, took
Ibuprofen, drank alcohol, and sat in a hot tub. His back was sore.

(d)      Between the First Accident of April 7, 2006 and the Second
Accident of November 9, 2006

[50]        
Mr. Burton was off work entirely for about three
months, from April 10, 2006 to July 2006.  CSC provided Mr. Burton with an
annual sick leave entitlement.  If Mr. Burton did not use all the days,
they were put in a sick leave “bank” for later use.  Mr. Burton applied banked
sick leave so that he was paid his regular salary for the period of the absence.
The amount CSC paid Mr. Burton during this leave for banked sick time was
about $12,000.

[51]        
Mr. Burton is not entitled to cash payment for
any unused sick leave.  When he stops working at CSC, he will only be entitled
to use sick leave if he is sick.  It is not possible to “buy back” the sick
leave time that Mr. Burton used.

[52]        
During this absence, Mr. Burton attended a
second work conditioning program, again for six weeks, but this time for about five
hours per day.

[53]        
Mr. Burton signed a statement dated April 11,
2006 in which he said “I had my right hand broke by an inmate a couple years
ago and went to physio for that” and “I have had no prior back problems.”

[54]        
In May 2006, Mr. Burton purchased a small Sportster
motorcycle.  He often rode it about two kilometres to a coffee shop.  Periodically
he went on longer rides of up to 150 kilometres.  His lower back was sore after
long motorcycle rides.

[55]        
At a date which was not clear in the evidence
but was likely around the spring of 2006, Mr. Norgaard approached Mr. Burton
about pursuing a motorcycle business opportunity together. Mr. Norgaard is a
chartered accountant who has been a friend of Mr. Burton’s since they were both
in high school. Mr. Norgaard has experience in pursuing private investment
opportunities, and had some money available to invest.

[56]        
The business idea was to import used motorcycles
from the United States and sell them in Canada.  The hope was that, as with the
boats in the early 1990s, Mr. Burton could acquire used motorcycles relatively
cheaply in the United States, import them to Canada, and sell them at a profit. 
The hope was that Mr. Burton could develop customers from his contacts among
motorcyclists.  The plan was that Mr. Norgaard would provide the business
expertise and most or all of the capital, while Mr. Burton would do the
day-to-day work of purchasing, importing and selling the motorcycles.  Messrs.
Burton and Norgaard hoped that the business would be both fun and profitable.
They saw an opportunity to sell motorcycles on the basis that they perceived a
number of middle-aged people with disposable income becoming interested in
motorcycling.

[57]        
The final report dated June 16, 2006 of Mr.
Burton’s second work conditioning program states that Mr. Burton has had
“significant improvement in pain and function”, and reports that:

the only thing
that still gives him grief is around his L5 region, that it begins to bug him
after about 2 mins. of standing and 10 mins. of sitting.  No pain with walking
or more vigorous activities, sleeping better, no concerns about return to work,
not needing to take pain pills as much as before, odd twinge in his neck.

[58]        
It states that Mr. Burton attended 29 of 30
sessions, and had an “excellent attitude” and was ready to return to work and
resume his normal activities. It describes a graduated return to work schedule,
and says that Mr. Burton has been assigned stretches, and that he is fit to
return to work with no limitations.

[59]        
Mr. Burton disagreed with the description of his
condition in the final report on his second work conditioning program.  He
particularly objected to the use of words like “gives him grief” and “bug him”,
apparently on the basis that it minimized his symptoms.

[60]        
Commencing around July 2006, Mr. Burton returned
to work at the Warehouse on a graduated basis.  He worked 2 hours a day one
week, then 4, then 6, then back to 4, then 6, then full time.

[61]        
Mr. Burton’s neck pain resolved within weeks of
beginning to work at the Warehouse.

[62]        
Mr. Burton testified that he reached a plateau
following his return to work after the First Accident, and never got better. He
testified that he was unable to perform duties he had performed previously,
like moving heavy furniture, and that he stopped looking for more things to do
because it was hard enough to complete his existing duties. 

(e)      The
Second Accident of November 9, 2006

[63]        
On November 9, 2006, about seven months after
the First Accident, Mr. Burton was driving a CSC one ton cargo van eastbound on
George Ferguson Way through the intersection with Garden Street in Abbotsford,
B.C.  A vehicle driven by Ms. Spence driving in the same direction as Mr.
Burton, struck Mr. Burton’s vehicle on the passenger side of the van towards
the rear.  Ms. Spence did not see Mr. Burton’s vehicle and ran into it when she
changed lanes. She failed to keep a proper lookout before she changed lanes. Mr.
Burton felt the impact as a sideways jostle.

(f)       Between the Second Accident of November 9, 2006 and the Third
Accident of September 5, 2007

[64]        
Mr. Burton took a day off work to rest following
the Second Accident.  The amount CSC paid Mr. Burton for the day of banked sick
time was about $250.  Mr. Burton suffered stiffness for one or two weeks.

[65]        
Mr. Burton had a magnetic resonance image
(“MRI”) conducted on November 24, 2006.  He paid for this privately and
claims the expense as part of his special damages.  It revealed very mild disc
bulging of lower lumbar discs, but did not suggest any nerve involvement.  Dr. Milne
referred Mr. Burton for the MRI study for the purpose of ruling out any
physical injuries like disc injuries and nerve compression.

[66]        
Mr. Burton met with Mr. Brown, Matsqui’s Warden,
on January 8, 2007.  Mr. Brown did not agree to Mr. Burton returning to
Matsqui at that time, for two reasons.  First, Mr. Brown was concerned
that some inmates or coworkers or both would be hostile to Mr. Burton if he
returned to active duty at Matsqui, particularly if they had been involved in
the disciplinary process relating to Mr. Burton’s dismissal.  Second, Mr. Brown
was concerned about Mr. Burton’s contact in the community with police.  Mr.
Brown did not consider at that time whether there were any concerns relating to
Mr. Burton’s ability to physically perform the work of a corrections officer at
Matsqui.  Mr. Brown recognizes that CSC has a duty to accommodate employees
with disabilities.

[67]        
Mr. Burton’s Sportster motorcycle was stolen in
the spring of 2007, and Mr. Burton stopped riding until he obtained his
second motorcycle.

[68]        
Mr. Brown sent Mr. Burton an email in which he
wrote that he would contact the Warehouse manager to request Mr. Burton’s
continuing assignment through to September 1, 2007.  Mr. Brown wrote that:

The time will
allow for some abatement of the concerns I identified, and for you to consider
and action any interest in deployment to a site other than Matsqui at the [CX2]
level,

and

I would ask that
after April 1, 2007 you make arrangement to meet with our CCO to identify any
specific training needs necessary to return to work as a [CX2], and that the
training plan be developed accordingly.

[69]        
Mr. Burton had a second MRI on October 19, 2007.
Again, he obtained it privately, and claims the expense as special damages. It
did not show any changes of significance from the prior MRI study.

[70]        
In June 2007, Mr. Burton bought a Harley
Davidson motorcycle from the United States.  It was a Police King model, but
without sirens or police lights, and modified to include a passenger seat.  Mr.
Burton thought that the motorcycle would be an attractive product. Mr. Burton
personally found it too heavy to ride comfortably.

[71]        
At a date which was not clear in the evidence
but was likely around the middle of 2007, Mr. Burton suffered a minor workplace
accident.  A case of tuna fell on him, injuring his toes, and the injury became
infected.  He was briefly away from work owing to this second workplace
incident.

[72]        
In the early hours of August 16, 2007, Mr.
Burton was arrested and charged with impaired driving and failure to provide a
breath sample. Mr. Burton was unusually agile during the arrest, at one point
assuming a position with his head in the police vehicle’s foot-well and his
feet in touching its rear window.

[73]        
Mr. Burton was issued an administrative driving
prohibition to take effect three weeks later. He appealed.

(g)      The Third
Accident of September 5, 2007

[74]        
At around 10:45 p.m. on September 5, 2007, about
ten months after the Second Accident, Mr. Burton was driving his Blazer on Sumas
Mountain Road, a dark winding road in Abbotsford, B.C.  The road has narrow
shoulders, and is in a rural area with no street lighting. Mr. Burton testified
that he did not have anything to drink that night.

[75]        
Mr. Burton testified that a larger vehicle,
probably a truck, followed him too closely for a minute, and its lights were on
high beam.  Mr. Burton testified that he tried to keep to the side of the road
to permit the vehicle to pass, and that the vehicle did pass, but it touched
the left rear of the Blazer while doing so.  Mr. Burton testified that his
Blazer went into a skid, and that he briefly lost control.  Mr. Burton drove
onto a grassy bank and struck a telephone pole.  He testified that he felt
immediate pain in his lower back.

[76]        
Mr. Burton testified that he observed a scuff
mark on his left bumper which was four to six inches square.  He attributed
that to the passing vehicle.

[77]        
Dr. Weibe, a medical doctor, was driving on
Sumas Mountain Road when he came upon Mr. Burton in the roadway.  Dr. Weibe did
not testify about making any observations suggesting that Mr. Burton had been
drinking.  Dr. Weibe testified that Mr. Burton told him about a passing vehicle
touching his and causing him to drive into a tree.

[78]        
Mr. Burton’s appeal of the administrative
driving prohibition issued on August 16, 2007 failed.  The driving prohibition became
effective September 7, 2007 and continued to December 6, 2007.

(h)      The period following the Third Accident of September 5,
2007

[79]        
Mr. Burton did not report to work in the period of
over three months from September 6, 2007 to December 14, 2007.  He received his
regular earnings, but his sick leave bank was reduced by 576 hours (or 72 days). 
The amount CSC paid Mr. Burton for this banked sick leave was about $18,700.

[80]        
Mr. Burton gave ICBC possession of his vehicle
on September 11, 2007.

[81]        
Mr. Burton sold the Police King Harley Davidson
motorcycle in October 2007.

[82]        
Mr. Burton attended a third work conditioning
program following the Third Accident.  This program lasted four weeks, ending on
December 20, 2007.  The final report says that Mr. Burton continues to feel
pain in the lower right side of his back that is mainly a feeling of tightness,
and it is not more painful after returning to work, just more stiff throughout
the day.  It states that the pain is very localized to the lower right side of
his back. It states that aggravating factors include prolonged positioning,
whether sitting, standing or lying, and pain is alleviated once he changes
position.

[83]        
This final report says that objectively, the
range of motion of Mr. Burton’s lumbar spine is about 75 percent of normal into
forward flexion and extension, and left side flexion and left rotation are
full, while right rotation and right side flexion are limited to about 85
percent of normal.  The report states that Mr. Burton “worked hard” to try to
improve his flexibility and strength. It says he needs to continue to improve
his strength and functional abilities in order to make a safe return to his
pre-injury employment as a corrections officer.

[84]        
Mr. Burton’s 2007 tax return showed a business
loss.

[85]        
Mr. Burton testified that by about February
2008, his condition had improved to the point that it was only slightly more
painful than it had been after the First Accident.

[86]        
Mr. Burton was not reassigned to Matsqui in January
2008 as he had anticipated, and by the trial date had still not been reassigned
to Matsqui.

[87]        
Mr. Burton’s 2008 tax return showed a business
loss.

[88]        
By July 2009, Mr. Burton was of the view that he
was worn down by lower back pain and “running on empty”, and could not continue
working at the Warehouse in his condition. He was concerned that if CSC
concludes that he will not be physically able to resume duties as a
correctional officer, he will be reassigned to work he is physically capable of
performing, but at lower pay. He was concerned that he would be reassigned to
work as a warehouseman, receiving lower pay, no overtime, and no shift
differential.

[89]        
Mr. Burton had gained about 50 pounds since the
First Accident, and wanted to lose that weight.  He considered himself to be deconditioned,
and wanted to work with a kinesiologist to regain conditioning.

[90]        
On July 14, 2009, Dr. Milne, Mr. Burton’s family
doctor, recommended that Mr. Burton stop work as of July 20, 2009.  Dr. Milne
referred to Mr. Burton’s complaints of chronic daily back pain in the right
leg, with referred pain and numbness, walking with difficulty, and that he
cannot sleep due to pain.  He also wrote that Mr. Burton had not ever had a
similar or related condition, apparently unaware of either the Previous
Accident or the First Workplace Incident.

[91]        
Mr. Burton’s last day of work at the Warehouse
prior to the trial was on or about July 19, 2009.  He intended to deplete his
sick leave bank and seek disability payments, which he thought might be
available for two years.  He intended to use this paid time off work to focus
on physical recovery.  CSC estimated Mr. Burton’s anticipated use of banked
sick time using an hourly rate of $33.60.

[92]        
Mr. Burton resumed physiotherapy and began
swimming daily.

[93]        
On August 4, 2009, the charges against Mr.
Burton of impaired driving and failing to provide a breath sample, which arose about
two years earlier, on August 14, 2007, were resolved.  Mr. Burton pleaded
guilty to the lesser charge of driving without due care and attention.  As its
standard practise, CSC is investigating whether the criminal charges should
have any impact on Mr. Burton’s employment. That investigation was still
incomplete at the time of the trial.

[94]        
Mr. Walton, another CSC employee, worked at the
Warehouse during the period of about 11 months from February through December
2007.  Subsequently, he returned to working as a CX2 at Mountain and Kent
Institutions.  Mr. Walton earned about 1,110 hours of overtime in 2008,being
almost 100 hours per month.

[95]        
On the first day of trial, August 17, 2009, Mr.
Burton was 48 years old. He testified that he finds it difficult to get in and
out of a vehicle or chair after sitting in it for 20 to 30 minutes, and must
move one foot at a time and pull himself up.  He testified that he will suffer
a few minutes of pain in his lower back and right hip until he has moved and
stretched sufficiently.  He testified that he does a morning stretching program
for 20 minutes each day, and takes Ibuprofen morning and evening.

[96]        
Mr. Burton no longer goes fishing or to catch
crabs.  He is less energetic, and he seldom or never cooks the elaborate meals
he cooked prior to the First Accident.

[97]        
Mr. Burton intends to continue working for CSC.  He
will be eligible to retire when he reaches age 55.  He presently has about 16
years of pensionable service, and requires 25 years of service to retire
with pension.

(i)       Expert evidence

[98]        
Mr. Burton relied on the evidence of one
treating professional, his family doctor, Dr. Milne.  Mr. Burton relied on the
evidence of two experts who did an examination and report for the purposes of
trial: Dr. Kousaie, an orthopaedic surgeon, and Mr. McNeil, an occupational
therapist.  The defence relied on the evidence of two non-treating professionals:
Dr. Loomer, an orthopaedic surgeon, and Dr. Weiss, an expert in physical
medicine and rehabilitation, often referred to as a “physiatrist”.

a.       Dr.
Milne, family doctor

[99]        
Dr. Milne was qualified to give evidence at the
trial as a physician who is a general practitioner. He first saw Mr. Burton as
a patient on February 22, 2006, which was about six weeks before the First
Accident.  Mr. Burton’s prior doctor, Dr. Phillip-Stewart, had passed
away.

[100]     Dr. Milne saw Mr. Burton intermittently over the period commencing a
few days after the First Accident and continuing to trial.  At the time he
wrote his report, Dr. Milne did not know that Mr. Burton had been injured in
the Previous Accident, or in the First Workplace Incident, and did not know
about the first work conditioning program that Mr. Burton attended following
the First Workplace Incident.

[101]     Dr. Milne wrote that in his opinion, Mr. Burton has a “chronic
mechanical backache syndrome, most likely caused by three MVA incidents
worsened by obesity and weak abdominal muscles.”  In his opinion, the prognosis
for a pain-free and functional recovery depends on Mr. Burton’s specialist and
MRI diagnosis.  Dr. Milne testified that it was most likely that Mr. Burton’s
symptomatology would improve if he lost weight and strengthened his core.

[102]     Dr. Milne referred Mr. Burton to obtain the two MRI studies, and for
a computerized tomography (“CT”) study. Dr. Milne also referred Mr. Burton to
see Dr. Lee, a neurosurgeon, because Mr. Burton had some signs on examination in
May 21, 2009 which raised the possibility of a pinched nerve.

[103]     Dr. Milne recommended in July 2009 that Mr. Burton stop working. Dr.
Milne was prepared to recommend that Mr. Burton stop working until he sees Dr.
Lee, and then pass on to Dr. Lee the responsibility to determine whether Mr.
Burton is fit to work. Dr. Milne provided a report to the Sun Life Assurance
Company of Canada dated July 15, 2009 in which he wrote that recovery of usual
functional abilities could be anticipated over the period of four to six months.
Dr. Milne signed Mr. Burton’s long-term disability certificate on the basis
that Mr. Burton said he could not continue with his light duty capacity, since
medication did not really help.

b.       Orthopaedic
surgeons

[104]     Both Dr. Kousaie and Dr. Loomer were qualified to give evidence at
the trial as orthopaedic surgeons.

i.        Dr.
Kousaie, testifying at Mr. Burton’s request

[105]     Dr. Kousaie’s report dated January 15, 2009 was based on an
examination and interview of Mr. Burton on the date of the report, January 15,
2009, as well as review of the MRI studies and other documents.

[106]     Dr. Kousaie refers to Mr. Burton suffering a low back sprain in an
incident in 2004 as a correctional officer (referring to the First Workplace
Incident), and that he transferred to light duties as a result.  Dr. Kousaie’s
report also referred to Mr. Burton receiving treatment at the Sport and Spine
Physiotherapy Clinic. His report also includes reference to Mr. Burton being in
a motor vehicle accident in 1982, and another not long after.

[107]     Dr. Kousaie wrote that the First Accident caused a soft tissue
injury to Mr. Burton’s right lower back and neck, that it seemed this accident
was the most significant as far as causation of symptomatology, and that the
symptomatology improved by only 50 percent prior to the Second Accident.

[108]     Dr. Kousaie wrote that the Second Accident was the most benign of
the three accidents.  He wrote that the Third Accident has caused Mr. Burton to
return at times to the most symptomatic state that he was after the First
Accident.  He wrote that the pain from the First Workplace Incident did not
seem to go beyond 2002-2003.

[109]     Dr. Kousaie’s opinion was that the symptomology is related to the
accidents. In his opinion, Mr. Burton has degenerative lumbar disc disease,
which pre-existed the accidents and can have the effect of prolonging
symptomatology related to the injuries.  In his opinion, Mr. Burton’s weight
gain and general deconditioning has led to some prolongation of symptomology.

[110]     In Dr. Kousaie’s opinion, two periods of three months to recover
from the injuries was entirely reasonable.

[111]     Dr. Kousaie doubts that Mr. Burton will be able to return to any
other type of work than the light duties that he was performing at the Warehouse.
Dr. Kousaie did not have concerns about Mr. Burton being disabled in his light
Warehouse job. In Dr. Kousaie’s opinion, Mr. Burton will not be able to return
to any type of duty where he would be required to be involved physically with
inmates, and will not be able to return to any type of heavy labour.

[112]     In Dr. Kousaie’s opinion, Mr. Burton will not be able to return to
any sporting activities given his 50 pound weight gain and general
deconditioning.

[113]    
Dr. Kousaie’s report includes the following:

The prognosis
for further recovery is very limited given his weight gain and general
deconditioning. There is a possibility of some improvement should he be able to
lose the weight that he has gained. Hopefully this might make him physically
active and thus help reduce his symptomatology.

[114]     In his testimony at trial, Dr. Kousaie estimated that most of Mr.
Burton’s symptoms arose as a result of the First Accident.  He estimated that
80 percent were from the First Accident and the balance from the Third Accident.
These were rough figures that he based on his general impression.  However,
because the only time he saw Mr. Burton was two to three years after the
accidents, the history he obtained from Mr. Burton was key to that estimate.

ii.       Dr.
Loomer, testifying at the request of the defence

[115]    
Dr. Loomer’s opinion was based on his
examination and interview of Mr. Burton on March 17, 2009 and his review
of records.  The records included Dr. Milne’s records as treating family
doctor, and WCB records.

[116]    
Dr. Loomer diagnosed Mr. Burton as having mild
to moderate degeneration of the discs in the lumbar spine.  His report includes
the following:

… At this time it is impossible to say
whether the pre-existing complaints and problems with his lower back are
responsible for his current symptoms or whether this is on the basis of age
related disc degeneration plus weight gain or whether it is from the motor
vehicle accidents in question. I think likely all three are contributory to a
certain extent. …

…I think there
is a good chance that with time if he loses weight and re-conditions himself he
should be able to increase his activities including possibly even returning to
his previous work.

[117]     The description of Mr. Burton’s history in Dr. Loomer’s report
contains errors.  For example, Dr. Loomer wrote that Mr. Burton had been
transferred to the Warehouse “subsequent to the most recent accident”, when in
fact that transfer occurred prior to all three accidents.  Dr. Loomer’s report
did not refer to the First Workplace Incident, but did describe Mr. Burton
telling him that he had suffered back pain “now and again”.

[118]     Dr. Loomer’s examination of Mr. Burton included asking him to flex
his back. Dr. Loomer testified that Mr. Burton appeared to have pain, and
because of that, limited range of motion of his back.  When he examined Mr.
Burton on March 17, 2009, Dr. Loomer did not see any reason that Mr. Burton
could not continue with his duties at the Warehouse, or any indication that he
needed to stop working.

c.       Physiatrist

[119]     Dr. Weiss was qualified to give evidence at the trial as a
physiatrist. His report was based on his examination and interview of Mr.
Burton on May 19, 2009, and his review of documentation.

[120]     Mr. Burton told Dr. Weiss about the First Workplace Incident,
although he reported the problem with his hand and not his back.  Dr. Weiss did
not report Mr. Burton telling him about first the work conditioning
program he attended after that incident and Mr. Burton may not have told Dr.
Weiss about it.  Mr. Burton told Dr. Weiss that he was involved in two or three
minor motor vehicle accidents in the 1980s.

[121]     Dr. Weiss wrote that Mr. Burton’s current complaints of chronic low
back pain are consistent with multifactorial low back pain with pain generators
being localized to the discs of his lower back, the facets at least at the
L5/S1 level, and mechanical low back pain in association with relative
deconditioning of his core musculature.

[122]     Dr. Weiss wrote that if Mr. Burton had spinal symptoms prior to the
accidents, these were relatively controlled with chiropractic care. He wrote
that many patients receive ongoing chiropractic care, and it is not surprising
or unusual that Mr. Burton was receiving regular treatments for neck and low
back discomfort.  Dr. Weiss wrote that the First Workplace Incident identifies
the emergence of low back discomfort without significant spinal pathology noted
on the basis of a normal bone scan.  Dr. Weiss wrote that Mr. Burton’s
acute injuries are in keeping with an acute sprain across his back, which is
considered to be, at most, of moderate severity in that there is no evidence of
spinal fractures, dislocations or subluxations. 

[123]     Dr. Wiess’s recommendation was that a nuclear medicine bone scan be
considered to look for evidence of inflammatory facet arthropathy involving Mr. Burton’s
lower back, which might suggest that treatment with targeted injections would
assist him.

[124]     Dr. Weiss wrote that there are no medical contraindications
identified that provide absolute limitations on Mr. Burton meeting the work
activities involved with prisoner contact, although Dr. Weiss was not provided
with a work demand analysis.  Dr. Weiss testified that Mr. Burton might suffer
relative contraindications, such as residual discomfort and stiffness, but that
they should not stop him from doing the job.  However, Dr. Weiss had not
reviewed Mr. McNeil’s functional capacity evaluation.

[125]    
Dr. Weiss also wrote as follows:

Over time [Mr.
Burton] has the potential to become more physically fit with a secondary
reduction in symptoms. On the other hand almost two years has [passed] since
the most recent motor vehicle accident. I have no reason to believe that he
will improve without further active intervention as I have noted.

[126]     Dr. Weiss recommended that Mr. Burton reduce his weight and pursue a
program to improve his level of conditioning and flexibility.  He would
recommend a program of six weeks to three months.  He would encourage Mr.
Burton to remain at work, because it is a form of conditioning.

d.       Occupational Therapist, Mr. McNeil

[127]     Mr. McNeil was qualified to give evidence at the trial as an
occupational therapist able to evaluate functional capacity. He provided a
functional capacity evaluation and cost of future care report based on his
testing and interview of Mr. Burton on March 19, 2008, and his review of
documentation.

[128]    
Mr. McNeil summarized Mr. Burton’s overall
functional capacity as follows:

Overall, Mr.
Burton has demonstrated the capacity to perform activity that requires light to
modified medium level strength. Specifically, he consistently demonstrated
restrictions in his capacity for activity requiring below waist work requiring
bending, stooping, crouching, and kneeling. There were measured restrictions in
upper and lower extremity strength as well as one handed carrying, two handed
carrying, one handed lifting, and two handed lifting. There were also
restrictions in his tolerance for sitting, standing, walking, and climbing.
Overall there were restrictions in his mobility and overall endurance.

[129]    
Mr. McNeil’s report also includes the following:

14.       In my opinion, Mr. Burton is able
to sit for periods of 30 to 60 minutes on an occasional to frequent basis
throughout the day. Combined with prolonged neck and trunk flexion or static
positioning, his tolerance declines and he will require accommodations
including frequent changes in position. He would also benefit from the use of
ergonomic devices to reduce strain on the neck, shoulders, and back. He has
also demonstrated the capacity to remain standing in one spot (static standing)
for short periods of time 10 to 15 minutes at a time on an occasional basis
throughout the day. If he is able to move and stretch (dynamic standing)
combined with walking about, he would be able to manage standing on an
occasional to frequent basis throughout the day. Further, he has demonstrated
the capacity to walk for short periods of time on at least an occasional basis
throughout the day.

20.       … Mr. Burton has not
demonstrated the capacity to perform all aspects of his work as a Corrections
Officer. Specifically, he has not demonstrated the capacity to perform the
general duties with direct inmate contact. He has also not demonstrated the
capacity to respond to emergency situations. He has not demonstrated the
capacity to perform the strength and stamina requirements of the work and would
likely be placing himself and workers at risk for injury. With accommodations;
however he would be capable of performing light duties, away from the general
population, such as duties that he described including purchasing light
supplies and administrative duties.

24.       … Mr. Burton has not
demonstrated the capacity to perform [the work of boat refurbishing] on a full
time or part time basis. He has not demonstrated the capacity to perform the
strength and stamina requirements of this type of work. He has also not
demonstrated the capacity to perform the prolonged spinal positioning including
bending and crouching.

27.       … Mr. Burton has not
demonstrated the capacity to perform his work as a general labourer or
carpenter on a full time [or] part time basis. Specifically, he has not
demonstrated the capacity to perform the strength and stamina requirements of
the work. He has also not demonstrated the capacity to perform the repetitive
and static trunk positioning.

372.     …It is apparent from the test
results in combination with clinical observations that he put forth a high
level of effort and a consistent effort in order to obtain a reliable
assessment of his functional capacity.

375.     … In my opinion these test
results are a reliable measure of his physical capacity.

388.     … In
my opinion, Mr. Burton’s reports of pain were consistent with his measured
and/or observed abilities.

[130]     Mr. Burton told Mr. McNeil about the First Workplace Incident, and
that he had injuries to his right hand and right hip, but said that he did not
have any lasting physical restrictions from that incident.

[131]     Mr. McNeil’s report did not address Mr. Burton’s functional capacity
to perform the work he was doing at the Warehouse.  However, Mr. McNeil
testified that Mr. Burton is capable of performing the warehouse work he
described, with the ability to pace himself and alter his positions. In his
opinion, Mr. Burton can do work classified as light to modified medium, and can
do light shipping and receiving and courier duties, with some accommodations,
and light supply and administrative work.

[132]     Mr. McNeil testified that in his opinion, Mr. Burton could not
increase his functional capacity by losing weight or improving his physical
condition.

ANALYSIS

1.       Issues

(a)      Who
caused the Third Accident?

[133]     Mr. Burton’s position is that the unknown driver of a truck caused
the Third Accident.  The position of the defence is that Mr. Burton should not
be believed concerning the Third Accident.  The defence suggested that Mr.
Burton lost control of his vehicle, causing the Third Accident, and fabricated
the story of the truck in order to obtain compensation.

[134]     Mr. Burton’s description of the Third Accident is plausible.  While
testifying, Mr. Burton appeared to recount actual memory.  The evidence of
Dr. Weibe demonstrated that Mr. Burton was injured and confused following the
accident, but that what Mr. Burton said shortly after the Third Accident was
consistent with his evidence at trial.  In particular, Mr. Burton told
Dr. Weibe about his vehicle being touched by a passing vehicle.  Dr. Weibe
did not testify about any observations suggesting Mr. Burton had consumed
alcohol.  Dr. Weibe was concerned about dealing with Mr. Burton’s apparent
physical injuries.

[135]     It is possible that someone could lose control of his or her vehicle
and hit a telephone pole, and afterwards fabricate the story of an unknown
vehicle causing them to lose control.  An individual who had been drinking or speeding
might fabricate such a story.  However, the road on which the Third Accident
occurred was so dark and winding that most drivers would be attentive while
driving.

[136]     The evidence of the condition of Mr. Burton’s Blazer was of little
assistance.  Mr. Burton recalled a scuff mark on the bumper.  The vehicle was
not available for inspection at the time of the trial.  Photographs taken of
the vehicle were inconclusive.  The entry on the police statement about damage
to Mr. Burton’s left rear bumper was probably based on Mr. Burton’s statement
rather than physical inspection by the police officer.

[137]     As discussed below, Mr. Burton exaggerated in some of his evidence.
However, the evidence did not demonstrate that he fabricated evidence.  His
explanation of what occurred was consistent with the other available evidence.

[138]     On the balance of probabilities, the unidentified driver of the
truck caused the Third Accident.

(b)      What was Mr. Burton’s physical condition
prior to the First Accident, and in particular, did he have a pre-existing back
problem, arising from either the Previous Accident or from the First Workplace
Incident, or both?

[139]     Mr. Burton suffered injury to his lower back in the Previous Accident.
However, the evidence demonstrated that he recovered from those injuries.  For
example, by the late 1990s, he was periodically doing the heavy work involved
in obtaining firewood.

[140]     Mr. Burton re-injured his lower back in the First Workplace
Incident. The position of the Workers’ Compensation Board was that he recovered
from those injuries by June 23, 2003.  Mr. Burton pursued appeals of the
termination of his wage loss benefits.  In the course of that, he complained in
December 2003 about on-going problems with his back.

[141]     There was no evidence that Mr. Burton complained to a doctor or chiropractor
about back pain in the period of over 2.5 years, from June 2003 until the First Accident in April 2006.  There
was no record of Mr. Burton receiving chiropractic treatment for his back in
the 2.5 year period from late
2002 until June 2005, and only a general treatment then and on February 28,
2006.  However, in May 2005, Mr. Burton bought himself an SI belt and used
it occasionally to prevent his back from getting worse.

[142]     Ms. Nikolopoulos testified that Mr. Burton complained of back
problems from the time she first met him in early 2004.  She also testified
that she had broken up with him about 30 times, and that the relationship was
stormy.  She also testified that she wanted him to become more active, and that
there was a brief period when he got into shape and lost 20 to 30 pounds.

[143]     Mr. Burton has not performed the duties of a correctional officer or
supervisor since the First Workplace Incident.  His duties at the Warehouse are
light duties, and there was nothing in his performance appraisals referring to
any physical limitations.

[144]     One of the difficulties in assessing a case like this is that there
are no precise gradations of pain.  Mr. Burton may have suffered continuing pain
after the First Workplace Incident which is significantly less than the pain he
suffered following the First and Third Accidents.

[145]    
The case of Price v. Kostryba (1982), 70
B.C.L.R. 397 (S.C.) is often cited as a reminder of the approach the court must
take to assessing injuries which depend on subjective reports of pain.  At
397-399 of the reasons for judgment, Chief Justice McEachern states:

The assessment of damages in a moderate or
moderately severe whiplash injury is always difficult because plaintiffs, as in
this case, are usually genuine, decent people who honestly try to be as
objective and as factual as they can. Unfortunately, every injured person has a
different understanding of his own complaints and injuries, and it falls to
judges to translate injuries to damages.

…

Perhaps no injury has been the subject of so
much judicial consideration as the whiplash. Human experience tells us that
these injuries normally resolve themselves within six months to a year or so.
Yet every physician knows some patients whose complaint continues for years,
and some apparently never recover. For this reason, it is necessary for a court
to exercise caution and to examine all the evidence carefully so as to arrive
at a fair and reasonable compensation. Previously decided cases are some help
(but not much, because obviously every case is different).

…

In Butler v. Blaylock, decided 7th
October 1981, Vancouver No. B781505 (unreported), I referred to counsel’s
argument that a defendant is often at the mercy of a plaintiff in actions for
damages for personal injuries because complaints of pain cannot easily be
disproved. I then said:

I am not stating any new principle when I
say that the court should be exceedingly careful when there is little or no
objective evidence of      continuing injury and when complaints of pain
persist for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully
and properly compensated for any injury or disability caused by a wrongdoer.
But no one can expect his fellow citizen or citizens to compensate him in the absence
of convincing evidence, — which could be just his own evidence if the
surrounding circumstances are consistent – that his complaints of pain are true
reflections of a continuing injury.

[146]     Mr. Burton’s complaints are substantially subjective complaints of
pain. The defence suggested that he was fabricating his evidence, and that the
expert evidence which relied on his reports of pain must be rejected.

[147]     The evidence which supported the assertion that Mr. Burton
fabricated his complaints of pain caused by the accidents included the
following:

a)       in his April 11,
2006 statement following the First Accident, Mr. Burton stated that he had had
no prior back problem, despite the fact that he suffered a back strain in the
First Workplace Incident and completed a work conditioning program after that;

b)       Mr. Burton did
not tell Dr. Loomer on March 19, 2009 about the First Workplace Incident or the
first work conditioning program;

c)       Mr. Burton did
not tell Dr. Weiss on May 19, 2009 about the back problem he suffered in the
First Workplace Incident, although he referred to the incident itself;

d)       Ms. Nikolopoulos
observed Mr. Burton suffering a stiff back in early 2004;

e)       Mr. Burton
bought himself an SI belt in May 2005 and used it occasionally to prevent his
back from getting worse; and

f)        Mr. Burton was
unusually agile at the time of his arrest on August 16, 2007.

[148]     The evidence which supports the assertion that Mr. Burton is a poor
historian of his medical condition over time, who sometimes exaggerates his
evidence, but is not fabricating it, included the following:

a)       Mr. Burton told
Mr. McNeil on March 19, 2008 about the First Workplace Incident including an injury
to his right hip, and told Mr. McNeil there were no lasting restrictions;

b)       Mr. Burton told
Dr. Kousaie on January 15, 2009 about back problems from the First Workplace
Incident;

c)       Mr. Burton did
not receive chiropractic treatment from Dr. Abraham in the 2.5 year period from
late 2002 to June 2005;

d)       Mr. Burton did
not complain to Dr. Phillip-Stewart about his back after July 2003;

e)       Mr. Burton lost
20 or 30 pounds and got in shape during the period of his relationship with Ms.
Nikolopoulos;

f)        Mr. Burton made
good effort in the work conditioning programs, in the functional testing
evaluation conducted by Mr. McNeil, and at the Warehouse; and

g)       Mr. Burton’s
general demeanour at trial was of a witness who was trying to tell the truth,
and trying to actually recall events.

[149]     The evidence shows, on balance, that Mr. Burton’s evidence about his
physical condition was somewhat exaggerated.  He exaggerated his complaints
about his back when he sought reinstatement of his WCB benefits in 2003.  He
exaggerated his complaints to Dr. Milne leading to stopping work in July 2009. 
At trial, he exaggerated how good his physical condition was prior to the First
Accident, and how bad it was at trial.

[150]     However, the evidence supports Mr. Burton’s position that his
condition at trial was worse than his condition prior to the First Accident.  His
complaints at the time of the First Accident were such that he suffered
periodic pain, and restricted some activities to avoid aggravating his back.  However,
his complaints did not restrict his work, and he was able to participate in
some physical activities.

[151]     On balance, Mr. Burton’s condition prior to the accidents is that he
suffered periodic pain on the right side of his lower back.  However, this did
not interfere with his work.  He was periodically physically active, but was
not consistently active.  He was careful in some activities to avoid triggering
pain.

(c)      What was
Mr. Burton’s physical condition at trial?

[152]     The observations of Mr. Walton, his co-worker at the Warehouse from
a period after both the Second and Third Accidents, confirm that Mr. Burton has
difficulty lifting and getting out of chairs and cars after a period of
sitting.

[153]     Mr. Burton’s back condition is worse than it was before the First
Accident as a result of his soft tissue injuries in the First and Third
Accidents.  Mr. Burton now experiences periodic pain on the right side of his
lower back, and significant stiffness after maintaining any position for about
20 minutes.  This impairs his physical functioning, including walking, driving,
sleeping, lifting, and engaging in recreational activities.

(d)      Did Mr. Burton stop working in July, 2009,
as a consequence of injuries in the First and Third Accidents, or for some
other reason?

[154]     Dr. Milne recommended that Mr. Burton stop working in July 2009, but
he intends to defer to a treating specialist on the question of whether Mr.
Burton should remain off work.  None of the medical specialists who gave evidence
at trial nor Mr. McNeil gave evidence which supported Mr. Burton stopping work
at the Warehouse in July 2009.

[155]     It is likely that Mr. Burton is disheartened by the fact that he is
still assigned to the Warehouse, and by his concerns about his ability to continue
being paid at a CX2 rate.

[156]     Dr. Milne’s recommendation was based on Mr. Burton’s subjective
complaints of pain, which I have concluded are exaggerated.  Mr. Burton stopped
working as a result of his exaggerated view of his complaints, not as a consequence
of the injuries he suffered in the accidents.

(e)      Is Mr. Burton entitled to compensation for
depleting his sick leave bank?

[157]     Mr. Burton is not entitled to receive cash from CSC for unused
banked sick leave.  The banked sick leave will only be of value to him if he
becomes sick and has insufficient banked sick leave, with the result that he
takes an unpaid leave.

[158]     There is a real and substantial possibility that Mr. Burton will
become sick while still employed by CSC and have insufficient banked sick leave.
Mr. Burton is entitled to compensation to reflect that.

(f)       What would have been Mr. Burton’s likely
career path with CSC if the First and Third Accidents had not occurred,
particularly in light of his disciplinary record?

[159]     It is always difficult to predict a likely career path. In this
case, it is particularly difficult, because Mr. Burton’s record of being
dismissed but reinstated without pay with a demotion to another location is an
unusual one.

[160]     In light of his disciplinary record, it is not likely that Mr.
Burton would have obtained a promotion beyond the CX2 level even if the
accidents had not occurred.  However, there is a real and substantial
possibility that Mr. Burton would have been deployed to another location apart
from the Warehouse, and that, if the accidents had not occurred, that he would
have been able to obtain overtime work.

(g)      Did the accidents impair Mr. Burton’s
ability to pursue personal business ventures, including the sale of used
motorcycles?

[161]     Mr. Burton was previously involved in home renovation work, but had
stopped doing that prior to the accidents.  He had a history of pursuing
business ventures outside CSC.  Mr. Norgaard was a suitable business partner,
with both accounting and business expertise, and capital.

[162]     As a result of the accidents, Mr. Burton has difficulty maintaining
prolonged postures.  This would make it uncomfortable for him to physically
bring items, such as motorcycles, over the border from the United States, or to
demonstrate motorcycles.

[163]     There is a reasonable possibility that Mr. Burton could have pursued
the motorcycle business but for the accidents.

(h)      If Mr. Burton is entitled to damages for
future lost earning capacity arising from the Third Accident, should it include
consideration of his time off work commencing July, 2009, in light of s. 24 of
the Insurance (Vehicle) Act, s. 106 of the Insurance (Vehicle)
Regulation, B.C. Reg. 447/83, and Mr.
Burton’s disability coverage with Sun Life?

[164]     As discussed above, Mr. Burton has failed to establish on the
balance of probabilities that the cause of his stopping work in July 2009 was
the accidents.

(i)       If Mr. Burton is entitled to damages
arising from both the First and Third Accidents, and if damages are assessed
globally, how should they be allocated between the accidents?

[165]     Both counsel suggested that the court should assess damages for the
First and Third Accidents globally, and allocate them between the accidents. 
Mr. Cope argued on behalf of Mr. Burton that the damages should be allocated 80
percent to the First Accident and 20 percent to the Third Accident.  Mr.
McDonald argued on behalf of the defendants that they should be allocated
equally to the First and Third Accidents.

[166]     There are two commonly-used approaches to apportion damages between
successive tortfeasors.  One is to apportion by percentage, as in Pryor v.
Bains (1986), 69 B.C.L.R. 395 (C.A.).  The other is to used the
“devaluation” approach as in Long v. Thiessen (1968), 65 W.W.R. 577
(B.C.C.A.).  That requires the court to assess (a) the damages from the first
accident as if assessed the day prior to the second accident, including
vulnerability to aggravated injuries whether possible or realized; and (b)
global damages in respect of both accidents, and then to deduct the first
figure from the second to award damages for the second accident.  There is no
difference in principle between these two approaches, and the court can choose
the one which is most practical on the evidence (Ashcroft v. Dhaliwal,
2008 BCCA 352), lv. to app. Ref’d. [2008] SCCA No. 488.

[167]     In this case, the percentage approach is practical.  Mr. Burton was
off work for three months following both the First and Third Accidents.  He
attended work conditioning programs after both the First and Third Accidents.

[168]     It is difficult to assess the percentage that each accident
contributed to Mr. Burton’s damages, particularly when Mr. Burton’s evidence
about his condition at various times is not reliable.  Dr. Kousaie estimated
that 80 percent related to the First Accident, but Mr. Burton’s report
about his subjective condition was key to that estimate.

[169]     In all the circumstances, I would allocate the injury 70 percent to
the First Accident and 30 percent to the Third Accident.

(j)       Should Mr. Burton’s damages be reduced on the basis that
he failed to mitigate?

[170]     The defence argued that Mr. Burton’s award should be reduced by 50
percent to reflect failure to mitigate.  Mr. Burton’s position is that he did
not fail to mitigate.

[171]     Some of the evidence suggests that Mr. Burton’s pain has been
prolonged by weight gain and deconditioning.  Mr. Burton cooperated with the
work conditioning programs.  Weight gain is notoriously difficult to reverse,
particularly for a patient  who struggles with pain and has limited physical
tolerance.

[172]    
The defence bears a heavy burden in establishing
a reduction in damages on the basis of failure to mitigate.  The applicable law
is well-summarized in Fox v. Danis, 2005 BCSC 102, (aff’d 2006 BCCA 324,
228 B.C.A.C. 164) at paras. 35-37:

[35]      There is no dispute that every
plaintiff has a duty to mitigate his/her damages, and that the burden of
proving a failure to fulfil that duty rests with the defendant, the standard of
proof being the balance of probabilities: Janiak v. Ippolito, [1985] 1
S.C.R. 146.

[36]      In this case, the Defendant
submits that the Plaintiff failed to mitigate her loss in that she failed to
exercise as recommended by her family doctor.

[37]      To
succeed in proving these submissions, the Defendants must establish, on the
balance of probabilities, that the Plaintiff failed to undertake this
recommended treatment; that by following the recommended treatment she could
have overcome or could in the future overcome the problems; and that her
refusal to take that treatment was unreasonable: Janiak v. Ippolito, supra
and Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.).

[173]     The evidence does not demonstrate either that Mr. Burton
unreasonably failed to pursue recommended treatment, or that with treatment his
losses would have been reduced. 

[174]     Mr. Burton cooperated with the treatment suggested to him. The
weight gain is probably attributable in part to the results of the accidents.
In the circumstances, it is not appropriate to reduce Mr. Burton’s award on the
basis that he failed to mitigate.

(k)      Should Mr. Burton’s damages be reduced on
the basis that he had a pre-existing lower back problem?

[175]     Mr. Burton had a pre-existing lower back problem. There is a
significant chance that he would have suffered periodic pain in his lower back
even if the accidents had not occurred.  As a result, his damages must be
assessed on the basis of the amount by which the back problem he suffered prior
to the First Accident was made worse by the accidents.

2.       Liability

[176]     The evidence demonstrated that Mr. Bouwman caused the First
Accident, Ms. Spence caused the Second Accident, and an unidentified driver
caused the Third Accident. Each is responsible for the damages resulting from
the applicable accident.

3.       Damages

a)       Non-Pecuniary
Damages

[177]     Mr. Burton argued that an appropriate amount for his non-pecuniary
damages for all three accidents is $80,000. The defence argued that an
appropriate award is $40,000.

[178]     Non-pecuniary damages are those that have not and will not require
an actual outlay of money.  The purpose of such an award is to compensate Mr.
Burton for such things as pain, suffering, disability, inconvenience,
disfigurement, and loss of enjoyment of life.  The award is to compensate him
for losses suffered up to the date of trial and that he will suffer in the
future.

[179]    
As stated by the Supreme Court of Canada in Lindal
v. Lindal, [1981] 2 S.C.R. 629 at 637, 129 D.L.R. (3d) 263:

Thus the amount
of an award for non-pecuniary damage should not depend alone upon the
seriousness of the injury but upon its ability to ameliorate the condition of
the victim considering his or her particular situation.  It therefore will not
follow that in considering what part of the maximum should be awarded the
gravity of the injury alone will be determinative.  An appreciation of the
individual’s loss is the key and the "need for solace will not necessarily
correlate with the seriousness of the injury" (Cooper-Stephenson and
Saunders, Personal Injury Damages in Canada (1981), at p. 373).  In
dealing with an award of this nature it will be impossible to develop a
"tariff".  An award will vary in each case "to meet the specific
circumstances of the individual case" (Thornton at p. 284 of
S.C.R.).

[180]     Before the First Accident, Mr. Burton was healthy.  He was
moderately physically active, periodically fishing and boating and collecting
firewood.  He was strong but generally not well-conditioned, although there was
a brief period he was fit and lost weight.  Mr. Burton had periodic flare-ups
of lower back pain, but did not have difficulty sustaining postures.  He
occasionally suffered stiffness in his back, but he did not miss work or stop
periodically collecting firewood as a result.  He was physically capable of
responding to emergency situations with inmates. 

[181]     Mr. Burton was off work for about three months after the First
Accident.  As a result of the First Accident, Mr. Burton cannot sustain
postures.  He is limited to work requiring light to modified medium level
strength.  He will be unable to work in situations where he must respond
physically to emergency situations with inmates.  As a result, although he is
likely to work as a CX2 with modified duties, he is not likely to obtain
overtime which would be available to a worker able to respond to emergency
situations.

[182]     As a result of the First Accident, Mr. Burton has lost the ability
to stand for extended periods.  As a result, he is unable to work as a chef,
and unable to cook elaborate meals.  He has lost the enjoyment of that, and of
other activities requiring sustained standing, walking or sitting.  He is no
longer comfortable fishing or lifting crab traps out of the water or riding a
motorcycle.

[183]     The injury that Mr. Burton suffered in the Second Accident was
transient and insufficient for an award.

[184]     Mr. Burton was off work for another three months as a result of the
Third Accident.  He returned to the condition he had been in several months
after the First Accident. 

[185]    
Mr. Burton relied on these cases:

Gold v. Joe, 2008 BCSC 865

Wiebe v. Peters, 2009 BCSC 650

Butler v.
Blaylock Estate, [1983] B.C.J. No. 1490

[186]    
The defence relied on these cases:

Tino v. Kirson; Tino v. Bellavy et al,
2004 BCSC 878

Corrado v. Mah, 2006 BCSC 1191

Ross v. DaimlerChrysler Financial Services Canada Inc., 2008 BCSC 1158

Antoniali v. Massey, 2008 BCSC 1085

Job v. Van
Blankers, 2009 BCSC 230

[187]     I also considered Sangha v. Pun, 2008 BCSC 921.

[188]     No two personal injury cases are alike and each will depend on its
own particular facts.  The appropriate award for Mr. Burton’s non-pecuniary
damages arising from the First and Third Accidents is $70,000.

b)       Past
wage loss and loss of banked sick leave

[189]     Mr. Burton did not suffer a wage loss as a consequence of the
accidents, because he was able to use his banked sick time.  However, he claims
lost banked sick leave and annual leave, $21,600 for lost overtime, and an
unspecified amount for the past lost opportunity to earn income outside CSC. 
The position of the defence is that Mr. Burton should recover nothing for these
claims.

[190]     As discussed above, Mr. Burton is entitled to be compensated for the
loss of his banked sick time.  CSC paid Mr. Burton about $12,000 for his banked
sick leave after the First Accident, about $250 after the Second Accident, and
about $18,700 after the Third Accident.  That is a total of about $30,950.

[191]     The method of compensating a continuing employee for loss of sick
bank credits was discussed in Bjarnson v. Parks, 2009 BCSC 48, and the
cases cited in it.  In that case, and in Roberts v. Earthy, [1995]
B.C.J. No. 1034 and Choromanski v. Malaspina University College, 2002
BCSC 771, the court awarded the full amount of salary corresponding to the
banked sick leave, without making any deduction for contingencies.  Other cases
cited in Bjarnson made such a deduction.

[192]     I would assess the likelihood that Mr. Burton will become sick while
working at CSC and have insufficient banked sick leave at 75 percent.  As a
result, Mr. Burton is entitled to damages of $22,500 in respect of his lost
banked sick leave.

[193]     Mr. Burton was not able to earn overtime at the Warehouse.  He was
not re-assigned to CX2 duties at the time of trial, for reasons unrelated to
his physical condition.  He would not likely have obtained overtime before
trial even if the accidents had not occurred.  As a result, he is not entitled
to an award for past lost overtime. 

[194]     With respect to the past lost opportunity to earn income outside
CSC, the evidence suggested that the motorcycle sales business opportunity
would take time to become profitable, if it could become profitable.  Mr.
Burton has not established on a balance of probabilities that he suffered a
pre-trial business loss.

c)       Future wage loss, loss of earning capacity, and loss of a
capital asset

[195]     Mr. Burton argued that he should receive an award of about $140,000,
reflecting the inability to pursue the motorcycle business, the risk that he
will be demoted from CX2 to a less financially rewarding position that he can
physically perform, and for the possible lost income while on disability
benefits for about two years from trial.  The position of the defence is that Mr.
Burton should receive nothing for this head of damages.

[196]    
Rosvold v. Dunlop,
2001 BCCA 1, 84 B.C.L.R. (3d) 158, describes the approach to assessing lost
earning capacity as follows:

[8]        The most basic of those
principles is that a plaintiff is entitled to be put into the position he would
have been in but for the accident so far as money can do that.  An award for
loss of earning capacity is based on the recognition that a plaintiff’s
capacity to earn income is an asset which has been taken away: Andrews v.
Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Parypa v. Wickware
(1999), 65 B.C.L.R. (3d) 155 (C.A.).  Where a plaintiff’s permanent injury
limits him in his capacity to perform certain activities and consequently
impairs his income earning capacity, he is entitled to compensation.  What is
being compensated is not lost projected future earnings but the loss or
impairment of earning capacity as a capital asset.  In some cases, projections
from past earnings may be a useful factor to consider in valuing the loss but
past earnings are not the only factor to consider.

[9]        Because damage awards are made as
lump sums, an award for loss of future earning capacity must deal to some
extent with the unknowable.  The standard of proof to be applied when
evaluating hypothetical events that may affect an award is simple probability,
not the balance of probabilities: Athey v. Leonati, [1996] 3 S.C.R.
458.  Possibilities and probabilities, chances, opportunities, and risks must
all be considered, so long as they are a real and substantial possibility and
not mere speculation.  These possibilities are to be given weight according to
the percentage chance they would have happened or will happen.

[10]      The trial judge’s task is to
assess the loss on a judgmental basis, taking into consideration all the
relevant factors arising from the evidence: Mazzuca v. Alexakis, [1994]
B.C.J. No. 2128 (S.C.) (QL) at para. 121, aff’d [1997] B.C.J. No. 2178 (C.A.) (QL). 
Guidance as to what factors may be relevant can be found in Parypa v.
Wickware, supra, at para. 31; Kwei v. Boisclair (1991), 60 B.C.L.R.
(2d) 393 (C.A.); and Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.)
per Finch J.  They include:

1.         whether the
plaintiff has been rendered less capable overall from earning income from all
types of employment;

2.         whether the
plaintiff is less marketable or attractive as an employee to potential
employers;

3.         whether the
plaintiff has lost the ability to take advantage of all job opportunities which
might otherwise have been open to him, had he not been injured; and

4.         whether the
plaintiff is less valuable to himself as a person capable of earning income in
a competitive market.

[11]      The task of the court is to assess
damages, not to calculate them according to some mathematical formula: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248
(C.A.).  Once impairment of a plaintiff’s earning capacity as a capital asset
has been established, that impairment must be valued.  The valuation may
involve a comparison of the likely future of the plaintiff if the accident had
not happened with the plaintiff’s likely future after the accident has
happened.  As a starting point, a trial judge may determine the present value
of the difference between the amounts earned under those two scenarios.  But if
this is done, it is not to be the end of the inquiry: Ryder (Guardian ad
litem of) v. Jubbal, [1995] B.C.J. No. 644 (C.A.) (QL); Parypa v.
Wickware, supra.  The overall fairness and reasonableness of the award must
be considered taking into account all the evidence.

[18]      The
assessment of damages is a matter of judgment not calculation…

[197]    
An award for loss of earning capacity is based
on assumptions of future events, and therefore contingencies must be considered
in the event that these assumptions may prove to be wrong.  These contingencies
are things that may affect future earnings, such as unemployment, illness,
accidents and business depression.  Dickson J. in Andrews v. Grand & Toy
Alberta Ltd., [1978] 2 S.C.R. 229 at 253, 83 D.L.R. (3d) 452, provides some
guide in adjusting for contingencies:

First, in many
respects, these contingencies implicitly are already contained in an assessment
of the projected average level of earnings of the injured person, for one must
assume that this figure is a projection with respect to the real world of work,
vicissitudes and all.  Second, not all contingencies are adverse…. Finally, in
modern society there are many public and private schemes which cushion the
individual against adverse contingencies.  Clearly, the percentage deduction
which is proper will depend on the facts of the individual case, particularly
the nature of the plaintiff’s occupation, but generally it will be small.

[198]     At the time of the accidents, Mr. Burton was working from the
Warehouse, but expected to resume duties as a correctional officer.  At the
time of trial, he had still not resumed the duties of a correctional officer,
for reasons unrelated to the accidents.

[199]     It is likely that, if the accidents had not occurred, Mr. Burton
would have returned to work as a CX2 by about January 2010.  By then, CSC would
likely have completed its investigation and determined that Mr. Burton has not
had further contacts with police in the community. It is also likely that while
working as a CX2, Mr. Burton would have had the opportunity to earn overtime
payments.

[200]     I accept the opinion of Mr. McNeil and Dr. Kousaie that Mr. Burton
is not physically able to perform the regular duties of a correctional officer.
I reject Dr. Weiss’s opinion on that point, because he was not given the
opportunity to review the results of Mr. McNeil’s functional capacity testing.

[201]     It is likely that CSC will find a way to accommodate Mr. Burton
despite his physical difficulties.  The CSC is a sufficiently large employer
that opportunities are likely to become available.  It is likely that Mr.
Burton will continue to be paid at the CX2 rate for the balance of his career
at CSC.

[202]     However, Mr. Burton is not likely to be a candidate for significant
overtime work in light of his physical limitations.  Mr. Walton testified that
he was paid for 1100 overtime hours in 2008.  Mr. Burton’s evidence was that he
worked about 30 overtime hours per month as a CX3 at Matsqui.

[203]     One method of calculating Mr Burton’s future wage losses is to
consider the loss of 30 overtime hours per month.  Mr. Burton’s banked sick
leave was projected to be paid out at the rate of $33.60 per hour.  That would
be about $1,000 per month for 30 overtime hours, and $12,000 per year.  Mr.
Burton is likely to work until he achieves 25 years of service, so he can retire
with pension.  That will be a further working period of about nine years.

[204]     The present value of $12,000 per year for nine years using the 2.5
percent tables applicable for future wage loss is about $95,500.  However, that
assumes that Mr. Burton would have worked that much overtime throughout the
balance of his career at CSC.

[205]     There is a real and substantial possibility that Mr. Burton will be
unable to pursue other work, either following retirement from CSC, or work that
he could have done while working at CSC.  As discussed above, there is a real
and substantial possibility that Mr. Burton would have pursued the motorcycle
business opportunity with Mr. Norgaard.  Such business pursuits, of course,
carry the possibility of both profit and loss.

[206]     Damages for loss of future earnings must be assessed, not
calculated. In all the circumstances, the appropriate award for Mr. Burton’s
future wage loss is $85,000.

d)       Special
Damages

[207]     Mr. Burton claims $3,285.71, which includes $2,025.00 in respect of
the two MRI scans.  The position of the defence was that the award should not
include the MRI scans.

[208]     Dr. Milne referred Mr. Burton for the MRI studies, and discussed
them with Mr. Burton in treating him.  As a result, Mr. Burton is entitled to recover
their cost as special damages.

[209]     Mr. Burton is entitled to the full amount claimed, $3,285.71, for
special damages.

e)       Future
cost of care

[210]     Mr. Burton claims $3,000 for the cost of future care.  The position
of the defendant was that Mr. Burton should recover nothing for the cost of
future care.

[211]     Mr. Burton has established that he routinely uses Ibuprofen.  Mr.
McNeil’s report estimated the annual cost at $271.83.

[212]     Mr. Burton also requires the use of a fitness facility.  Mr. McNeil
estimated the annual cost at $360 to $480.

[213]     An annual figure of $700 is appropriate.  The present value of that
figure for 10 years using the 3.5 percent discount rate is about $5,800.

[214]     The court must also consider the likelihood that Mr. Burton would
have been required to incur these costs even if the accidents had not occurred.

[215]     In all the circumstances, Mr. Burton is entitled to an award of $3,000
for cost of future care.

f)        Effect
of pre-existing back problem

[216]     Mr. McDonald argued on behalf of the defence that Mr. Burton’s award
should be reduced by 25 percent to recognize his pre-existing lower back
condition.  In this case, the damages have been assessed on the basis of
comparing Mr. Burton’s condition following the accidents with his condition
prior to the First Accident.  As a result, it is not appropriate to apply a
percentage reduction.

SUMMARY

[217]     Mr. Burton’s damages for both the First and Third Accidents are
assessed at $183,785.71 consisting of the following:

(a)      non-pecuniary
damages of $70,000;

(b)      damages of $22,500
for loss of banked sick leave;

(c)      damages of $85,000
for future wage loss, loss of earning capacity, and loss of a capital asset;

(d)      special damages
of $3,285.71; and

(e)      damages of $3,000
for the cost of future care.

[218]     Mr. Burton is entitled to recover 70 percent of this award,
being $128,650 from Mr. Bouwman, and the 30 percent balance of $55,135.71 from
the unidentified driver.  The name of the owner and driver of the vehicle which
caused the Third Accident is not ascertainable.  The parties have made all
reasonable efforts to ascertain the identity of the unknown driver and unknown
owner.  As a result, pursuant to s. 24 of the Insurance (Vehicle) Act,
Mr. Burton is entitled to judgment against ICBC as nominal defendant for the
damages arising from the Third Accident.

[219]    
Unless the parties have submissions to make on
the issue of costs, Mr. Burton is entitled to his costs on Scale B.  If
the parties seek to make submissions on costs or any other outstanding issue,
they should arrange a hearing before me through the registry.

“Madam
Justice Gray”