IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100803

Docket: M53346

Registry:
Nanaimo

Between:

Sherman Gardner
Power

Plaintiff

And

Stewart Jamison
White

Defendant

Before:
The Honourable Mr. Justice Verhoeven

Reasons for Judgment

I         Introduction

[1]            
The plaintiff, Mr. Power, claims damages arising out of a motor vehicle
accident that occurred on Sunday, September 10, 2006 on the Island Highway,
when the vehicle being driven by him was struck from behind by the vehicle
driven by the defendant, Mr. White. Both liability and quantum are in
issue.

[2]            
The accident was precipitated by the sudden appearance of a deer on the
highway in front of Mr. Power, which resulted in Mr. Power making an
abrupt lane change from the left lane to the right lane in which Mr. White was
travelling, and abruptly braking in the right lane in front of Mr. White’s
vehicle. Mr. Power contends that Mr. White is responsible for the
accident in that he should have been able to stop in time to avoid the
collision. Mr. White contends that the accident was the fault of
Mr. Power in making an unsafe lane change, and braking violently while
directly in his path, thus making the collision unavoidable.

[3]            
The most serious injury suffered by Mr. Power in the accident is a
torn pectoralis major muscle on his right side. The tear cannot be surgically
repaired, and has resulted in ongoing pain and disability, mostly relating to
use of his right arm and shoulder.

II        The Accident

[4]            
At approximately 9:00 a.m. on the day of the accident Mr. Power was
driving northbound on the Island Highway in his 1991 Toyota Camry, travelling from
his residence in Duncan to his mother’s home in Qualicum Beach. The conditions
were dry and sunny. His 16 year old daughter, Desiree, was a front seat
passenger in the vehicle. The accident took place approximately one mile south
of the turnoff for Qualicum beach. In the area of the accident, the highway
consists of four lanes, with two northbound lanes and two southbound lanes,
separated by a concrete no-post barrier.

[5]            
Mr. Power testified that he had been driving in the right hand lane when
he saw three vehicles parked in the right hand shoulder area about one-half to
three-quarters of a mile from the accident scene. As a precaution he changed to
the left hand lane. Prior to the accident he was aware of a small red truck
that was somewhere behind him.

[6]            
He estimated his speed at 90 to 110 km/h. The speed limit in the area is
110 km/h.

[7]            
According to Mr. Power, when he first noticed the deer, it was
standing approximately 200 feet away from him, to his left, in a wide paved
median area between his lane of travel and the concrete barrier. It was within
a foot of the concrete barrier. Mr. Power thought it was going to jump over the
barrier. Mr. Power thought that he was too close to the deer to stop
safely before reaching its position, and was concerned that a panic stop by him
would cause the deer to run into his lane, thereby causing an accident which could
result in serious injuries to himself and his daughter. He decided to give the
deer as much room as possible by making an immediate lane change into the right
hand lane.

[8]            
He checked his rear view and right hand side mirror, looked over his
shoulder and saw the defendant’s red truck, and began making his lane change to
the right hand lane. Unfortunately, while Mr. Power had his head turned,
the deer darted directly into the path of Mr. Power’s vehicle. When he
returned his gaze to the direction of travel, the deer was in the area of the
dashed line between the two travel lanes. He applied maximum braking but was
unable to avoid hitting the deer. The collision with the deer occurred when he
was part way into the right hand lane.

[9]            
He testified that his maximum speed prior to the accident was 110 km/h,
which was the speed limit. He testified that he slowed down before making the
lane change.

[10]        
After hitting the deer he felt momentary relief as he realized that both
he and his daughter were safe. However, he immediately felt a hard impact from
the rear. His vehicle was driven forward and to the left, was spun around, and
after striking the concrete barrier came to rest facing southbound in the
center median area.

[11]        
The plaintiff’s daughter Desiree testified. She was 16 years of age at
the time of the accident. She was just learning how to drive. She testified
that prior to the accident she had her eyes closed and had her headphones on
while listening to music. Just prior to the impact her father said “Des, look
at the deer.” She saw the deer. She looked over her shoulder and saw the red
truck. Her impression was that the vehicle behind them was sufficiently far
away that she felt safe as her father was making the lane change. She said however
“everything happened in a blink of an eye.”

[12]        
Mr. White testified that on the day of the accident he was in process of
moving his residence from Langley to Cumberland on Vancouver Island. He was
driving his red 1991 Nissan extended cab pickup truck. The truck had a canopy
over the truck bed. He was towing a rented U-Haul trailer with a 5’ x 8’ cargo
bed. The trailer is not equipped with brakes. He was accompanied by his
common-law spouse, Ms. Denise Wheeler. They had personal belongings in the cab
of the truck, such as clothing and a suitcase. They also had belongings in the
bed of the pickup truck such as a table saw, and boxes of household goods. In
the trailer there were five or six boxes of books, some furniture, and other
personal belongings, estimated by Mr. White to weigh 500 or 600 lbs.

[13]        
Mr. White testified that prior to the accident he was travelling at 90
to 95 km/h. He recalled being passed by Mr. Power’s Camry, which he thought was
going slightly faster than he was. Just after being passed by Mr. Power’s
vehicle, he noticed what he described as some “hesitation” on the part of Mr.
Power’s vehicle. He thought that “something was amiss”. He took his foot off
the accelerator and placed it over the brake pedal, without applying the brakes.
He said everything happened instantaneously. He saw a deer in Mr. Power’s lane.
He testified that Mr. Power’s brake lights came on just as Mr. Power was
undertaking the lane change. In response the brake lights of Mr. Power’s
vehicle, Mr. White applied emergency braking, but could not avoid colliding
with the Power vehicle. As Mr. White was braking he was angling his vehicle
towards the shoulder. He testified that he wanted to avoid going off the road
to the right as there was a steep bank beyond the edge of the shoulder. He said
Mr. Power’s vehicle was moving “very slowly” when the collision with his vehicle
took place.

[14]        
In cross examination Mr. White confirmed the accuracy of a statement he
gave to ICBC on September 12, 2006, two days after the accident, in which he
stated:

I saw a deer land in the fast
lane ahead of me. I did not see it jump the concrete barrier but it landed in
front of the other car. I actually saw it land on the road. I do not know how
far ahead of the other vehicle that the deer had landed. All I know is that the
other vehicle was coming into my lane with brake lights on. The vehicle to my
left that was coming into my lane had not made contact with the deer. I was on
the brakes immediately.

[15]        
Mr. White is an experienced and qualified commercial truck driver. He acknowledged
knowing that when towing a trailer one should reduce one’s speed of travel. He also
acknowledged receiving a written warning stating from the U-Haul trailer rental
company that when towing a trailer one must reduce one’s speed from what one
would normally drive without a trailer under similar road conditions, and that
the maximum speed when towing a U-Haul trailer is 55 mph [88.5 kmh].

[16]        
The defendant did not call his passenger, Ms. Wheeler, as a witness. The
plaintiff argues for an adverse inference in that regard.

[17]        
Ambulance and police attended. The injured deer was put down by the
police at the scene.

[18]        
Both parties rely upon comments attributed to the other at the accident
scene. The plaintiff testified that immediately after the collision Mr. White
stated: “I’m sorry man, it was my fault.”  Mr. Power acknowledged saying something
to the effect of “It was nobody’s fault. It was the deer’s fault” or “It was no
more your fault than mine – it was the deer’s fault.”  Mr. Power also testified
that he overheard Mr. White tell a police officer on scene that the accident
was Mr. Power’s fault. Mr. White had no recollection of any conversations at
the scene.

[19]        
The plaintiff engaged an accident reconstruction engineer, Mr. Amrit
Toor, who prepared a report concerning the motor vehicle accident. Mr. Toor
worked from photographs of the accident scene and of the damaged vehicles in
preparing his report.

[20]        
The plaintiff’s vehicle was equipped with anti-lock brakes and left no
braking skid marks at the scene. The defendant’s vehicle was equipped with anti-lock
brakes on the rear wheels only. The accident scene photograph shows a long skid
mark consisting of at least 37 metres which would have been deposited by one of
the front wheels of the White vehicle. The accident scene photograph also
revealed a curving tire mark which was inferred to have been caused by the
Power vehicle after the collision, and scuff marks on the concrete barrier
relating to the impact of the vehicle with the barrier. From the evidence
available, Mr. Toor was able to make a number of calculations and to perform an
accident reconstruction analysis.

[21]        
The defendant also called an accident reconstruction engineer, Mr.
Harper, who did not disagree with any of the calculations performed by Mr.
Toor.

[22]        
According to the calculations, at impact the Power vehicle was
travelling at 22 km/h. At impact the White vehicle was travelling at about 78
km/h. The likely pre-braking speed of the White vehicle was a minimum of 106
km/h. Thus the engineering analysis contradicts Mr. White’s evidence that he
was travelling at a speed of about 90 to 95 km/h before the accident occurred.

[23]        
The White vehicle initiated braking a minimum of about 1.6 to 1.7 seconds
prior to impact, when it was at a distance of at least 43 metres from the point
of impact.

[24]        
The deceleration capability of the White vehicle was significantly
reduced by the fact that it was towing an un-braked loaded utility trailer. The
trailer on the White vehicle would have likely reduced the braking efficiency
of the White vehicle to about 75% of the available friction if no trailer was
attached. If the Power vehicle slowed to about 85 to 95 km/h as a result of Mr.
Power removing his foot from the accelerator prior to initiating braking, then
the Power vehicle began decelerating about 6.2 to 6.8 seconds before impact
with the White vehicle. The Power vehicle likely initiated the lane change
about 4.4 to 5 seconds prior to impact. The White vehicle did not initiate
emergency braking until 2.7 to 3.4 seconds after the lane change was initiated
by the Power vehicle.

[25]        
In terms of collision avoidance, Mr. Toor concluded that the White
vehicle would have avoided the impact if the attached trailer was not causing a
reduced braking rate, or if the pre-accident speed of the White vehicle was
about 93 to 108 km/h or less, or if Mr. White had reacted immediately to the
Power vehicle commencing its movement into the right lane.

[26]        
The engineering analysis contradicts Mr. White’s evidence that the Power
vehicle began braking practically simultaneously with the lane change. There
was a delay. This is the consistent with Mr. Power’s evidence that upon seeing
the deer he reacted by initiating a lane change, and commenced braking only when
he saw the deer in his path after returning his gaze to the direction of travel.

IV       Analysis – Accident Liability

[27]        
Section 144(1) and 162(1) of the Motor Vehicle Act, R.S.B.C.
1996, c. 318 are pertinent:

Careless driving prohibited

144  (1) A person must not drive a motor vehicle on
a highway

(a)        without due care and attention,

(b)        without
reasonable consideration for other persons using the highway, or

(c)        at a
speed that is excessive relative to the road, traffic, visibility or weather
conditions.

Following too closely

162  (1) A driver of a
vehicle must not cause or permit the vehicle to follow another vehicle more
closely than is reasonable and prudent, having due regard for the speed of the
vehicles and the amount and nature of traffic on and the condition of the
highway.

[28]        
Driving with due care and attention assumes that one must be on the
lookout for unexpected manoeuvres by other drivers. The burden imposed upon
drivers is reasonably high: Stanowski v. Sammat , [1993] B.C.J. No. 1455
(S.C.) at para. 29, per Madam Justice Kirkpatrick.

[29]        
According to Mr. White’s statement to ICBC given shortly after the accident
he saw the deer land on the road in the area in front of Mr. Power. He
confirmed the accuracy of that statement in his evidence at trial.

[30]        
Once Mr. White saw the deer on the highway, and further, when he observed
momentary hesitation by Mr. Power’s vehicle, he should have been immediately
aware of the need for particular caution. The lane change initiated by Mr.
Power vehicle was a predictable reaction on the part of Mr. Power. In my view Mr.
White should immediately have begun braking when he saw the deer on the highway
and, at the latest, when Mr. Power initiated the lane change, so as to avoid following
more closely than was reasonable and prudent, and in case of the need for
sudden braking by Mr. Power, as then in fact occurred.

[31]        
The engineering analysis of Mr. Toor, which I accept, demonstrates that
had Mr. White reacted immediately upon Mr. Power commencing the lane change, or
had Mr. White been travelling at no faster than 88.5 km/h, the maximum speed
recommended by the U-Haul trailer rental company, the collision would have been
avoided. There was also some delay in the initiation of emergency braking by
the White vehicle. According to the engineering evidence, an alerted driver
will typically perceive and respond in about .7 seconds. The White vehicle did
not initiate emergency braking until 2.7 to 3.4 seconds after the lane change
was initiated.

[32]        
The defendant’s expert Mr. Harper agreed with all of the calculations
and analysis performed by the plaintiff’s accident reconstruction expert, Mr.
Toor. However, he noted that on the analysis performed by Mr. Toor, Mr. White
braked promptly after seeing Mr. Power’s brake lights come on. Mr. Toor
disagreed with the analysis of Mr. Harper. In any event, as I have said, in my
view, Mr. White, being aware of the presence of the deer on or very near the
highway, ought to have begun braking as soon as Mr. Power began to make the
lane change, if not before, and the collision would thereby have been avoided. As
noted the accident also would have been avoided had Mr. White been travelling
at a lower speed, as he ought to have, given that he was towing a loaded un-braked
trailer. The negligence of the Mr. White led to the collision.

[33]        
The defendant argues that the plaintiff was contributorily negligent. The
burden is on the defendant to prove that the plaintiff was contributorily
negligent.

[34]        
The word “negligence” as used within the phrase “contributory
negligence” has a different meaning than its use in relation to the conduct of a
defendant. Rather than being concerned with a breach of duty to another person,
contributory negligence consists of failure of the plaintiff to take reasonable
care of himself, thereby contributing to the injury. Therefore the defendant
must prove that the plaintiff did not take reasonable care of himself and
contributed, by this want of care, to his own injury: Nance v. B.C. Electric
Railway Company Ltd., [1951] 2 W.W.R. (NS) 665 at 672  per Viscount Simon; A.M.
Linden, B. Feldthusen, Canadian Tort Law, 8th ed. (Markham: LexisNexis,
2006) at 487; J.G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC
Information Services, 1998) at 302. To avoid liability in negligence, a person
must exercise the standard of care that would be expected of an ordinary,
reasonable and prudent person in the same circumstances: Ryan v. Victoria
(City), [1999] 1 S.C.R. 201 at para. 28 per Major J.

[35]        
The defendant argues, firstly, that the plaintiff should have been able
to see the deer well in advance of the 200 feet distance to which he testified.
There was no evidence concerning the size or colouring of the deer, or any visual
contrast analysis, or any other reliable evidence as to how far away the
plaintiff ought to have been able to see the deer in the circumstances. There
is no reliable physical evidence as to the position of the deer at any point in
time. In my view, the plaintiff may well be mistaken concerning his estimate that
he first saw the deer when it was only about 200 feet in front of his vehicle. A
speed of 100 km/h corresponds to a speed of 91.13 feet per second. Therefore if
the deer was 200 feet in front of Mr. Power’s vehicle, the distance between his
vehicle and the deer would have been covered in only about two seconds. It would
be very difficult for Mr. Power to accurately estimate the distance of the deer
when his vehicle was travelling at approximately 100 km/h at the time, and in a
situation of a sudden emergency. I conclude that the estimate of 200 feet is
not reliable and the actual distance may have been longer.

[36]        
The defendant argues, secondly, that Mr. Power should have braked within
his lane rather than initiating the lane change into the path of the White
vehicle. I accept that Mr. Power had a legitimate concern for the safety of
himself and his daughter in seeking to avoid striking the deer. The lane change
was a reasonable reaction on his part. As I have concluded that Mr. White ought
to have been able to stop in time had he reacted appropriately in response to seeing
the deer or in response to or Mr. Power’s lane change, then in my view it
cannot be said that Mr. Power was negligent in making the lane change.

[37]        
In the circumstances the conduct of Mr. Power in initiating the lane change
and then suddenly braking in response to the presence of the deer was not a
failure to meet the standard of care to which he was required to conform for
his own protection in the circumstances. He was entitled to assume that Mr.
White would react promptly to the lane change, even if it was suddenly
initiated by him, and he was also entitled to assume that Mr. White would be
travelling at a speed which would allow him to stop in time to avoid a
collision. Therefore I find no contributory negligence on the part of the
plaintiff.

[38]        
It is trite to say that no one case is every exactly like another: Molson
v. Squamish Transfer Ltd. (1969), 70 W.W.R. 113 at 117 (B.C.S.C.) per
Wilson C.J.S.C. Yet this case has some similarity to the decision of Mr.
Justice Ruttan in Rossiter v. Cowdery, [1983] B.C.J. No. 1095 (S.C.). In
that case Mr. Rossiter was a passenger in his own car being driven by his wife,
Mrs. Rossiter. Mrs. Rossiter applied her brakes forcefully in order to avoid
striking a dog on the Patricia Bay Highway. The defendant argued that she
applied her brakes where it was unsafe to stop, without consideration of others
whom she knew would be behind her. However the defendant also had seen the dog
on the highway. Ruttan J. held that that the defendant should have been aware
of the possibility of the other vehicle stopping, and that Mrs. Rossiter was
not motivated merely by compassion for the dog, but was concerned about danger
to herself and her passenger, the plaintiff, by the collision with the dog. It
was held that there was no liability upon Mrs. Rossiter.

[39]        
As noted, the plaintiff argued that an adverse inference should be drawn
regarding the failure of the defendant to call as a witness his common law
spouse Ms. Wheeler, who was his passenger at the time.

[40]        
In civil cases, an unfavourable inference can be drawn when in the absence
of an explanation a party fails to call a witness who would have knowledge of
the facts and would be assumed to be willing to assist that party. Such failure
amounts to an implied admission that the evidence of the absent witness would
be contrary to the party’s case, or at least would not support it: A.W. Bryant,
S.N. Lederman, M.K. Fuerst, The Law of Evidence in Canada, 3rd ed.
(Markham: LexisNexis, 2009) at para. 6.449.

[41]        
In the circumstances of this case it is not necessary for me to make any
inference concerning the absence of Ms. Wheeler’s testimony in order to make
the findings of fact that I have made. The findings I have made rely primarily
upon the evidence of the accident reconstruction engineers. I doubt that Ms.
Wheeler’s testimony would have made a difference. A passenger in a motor
vehicle has no duty to pay attention to the circumstances and it is often the
case that a passenger has little useful evidence to give concerning a motor
vehicle accident. In this case defence counsel advised me that Ms. Wheeler was
not called as a witness simply because she had no useful evidence to give. I
accept that explanation. In any event, in the circumstances of this case, had I
been prepared to make an inference adverse to the defendant’s case, I would have
given that inference very little, if any, weight.

[42]        
I place no weight on the alleged comments of the parties at the scene.
Even if the comments as alleged were made, in my view, they do not represent
accurate and reliable statements that are of assistance to me in determining
fault for the accident, in the circumstances of this case.

VI       Assessment of Damages

[43]        
The position of the parties in relation to the damages claims of the
plaintiff are as follows:

 Plaintiff                                    Defendant

Non-pecuniary loss                                  $175,000                           $80,000

Loss of capacity to earn
income              $300,000                         $100,000

Cost of Future Care                                 $190,872                           $50,000

Past wage loss                                              1,810
(net of taxes)       agreed

Special
damages                                            $525                             agreed

[44]        
These claims will be assessed in turn.

Non-pecuniary Loss

Factual background

[45]        
Mr. Power was 50 years of age when the accident occurred. He is now 54
years of age. He is married and has two daughters. The eldest daughter is 32
years of age and the younger daughter, Desiree, is now 20 years of age. Both
are independent. Mr. Power left high school in grade 9. He later achieved a GED
(General Education Development) High School Equivalency diploma. He has no post
secondary education.

[46]        
He resides in the area of Duncan on a five acre parcel of land that he
and his wife purchased in approximately 1996.

[47]        
The most significant injury Mr. Power sustained in the accident was a torn
right pectoral muscle. It is a very rare injury. No surgical repair is
possible. The consequence of the injury is that the right side pectoral muscle
is only partially attached to Mr. Power’s right arm. This has left him with significant
and permanent limitation of function and disability relating to his right arm
and shoulder. He is right hand dominant.

[48]        
Before the accident Mr. Power was very active and fit. His daughter
Desiree described him as an “amazing ball of energy.”  He regularly engaged in
walking, running, and cycling. With his daughter Desiree he had participated in
a triathlon event in 2004. He annually participated in an event called the
“Great Walk” between Gold River and Tahsis. It covers a distance of 63.5
kilometres. Mr. Power would attempt to run the course which is on unpaved
logging roads. His shortest time was 6 hours and 36 minutes and his longest
time was 10 hours and 17 minutes. The course record is 4 hours and 15 minutes. He
had participated approximately 12 to 15 times prior to the accident.

[49]        
He rode his bicycle to work about half the time. The distance is 22
kilometres in each direction. He bicycled on the weekends as well. He attended
the gym regularly. He swam at the gym two to three times per week for about an
hour each time. He was able to bench press in excess of 200 lbs. He fished and
hunted occasionally.

[50]        
Following the accident he has not been able to run. Running results in
chest muscle spasm. He walks occasionally. He is no longer able to ride his
bicycle, as the position requires engagement of the chest muscle. He no longer
participates in the Great Walk. Swimming is limited to mild forms of water
exercise in a group setting. He has not attempted hunting since the motor
vehicle accident. He tried firing a gun but the recoil causes a problem in his
shoulder. He testified that he would also be unable to retrieve any game that
was shot.

[51]        
His wife of 33 years, Yvonne, works as a community support worker. She
testified that prior to the accident she and her husband used to exercise at the
gym together. They now exercise separately as her husband’s exercise activities
are limited to aqua-cize. They used to engage in a lot of activity together in relation
to house and yard maintenance. They continue to do so but only for short
periods of time. She confirmed Mr. Power’s high level of physical fitness and
physical activity prior to the accident.

[52]        
Before the accident Mr. Power was active in improving and maintaining
their house and property. Their five acre property is mostly treed except for
an area of three quarters of an acre. The house was already old when it was purchased
in approximately 1996. It is about 1200 to 1600 square feet in size. After acquiring
the house, Mr. Power singlehandedly installed new doors and windows, and
replaced the existing shake roof with a steel roof. The pieces of steel for the
roof were brought up to the roof by Mr. Power using a ladder. He installed a
trout pond and cleared land for lawns and gardens. He installed an above ground
swimming pool, constructed outbuildings, and fenced the perimeter of the entire
property, consisting of about 1600 lineal feet. He installed by hand, by
himself, the approximately 160 fence posts required. He constructed decks,
bridges, removed trees and stumps, moved earth first using a bobcat and then using
a bulldozer which he acquired. He performed all of the maintenance on the
family’s two motor vehicles. The house is heated primarily with wood. Mr. Power
would obtain a permit to cut wood on public property and cut, split and store
the wood himself.

[53]        
Post accident, Mr. Power has been able to engage only in very limited
house and yard work. His discomfort is constant. He must avoid activities that
bring on spasm to the torn pectoral muscle. If the muscle contracts and goes
into spasm, it can create a lump which he described as a “good sized orange.” 
He then has to attempt to stretch out the muscle. Pain can last for as long as
a couple of days afterwards. He continues to suffer from pain in his mid back,
spinal area, and in the right size upper shoulder. Pain and discomfort
interferes with his sleep. He takes three to five Advil pain tablets per day.

[54]        
Mr. Power no longer has a vegetable garden. He grows strawberries and
blueberries only. His bulldozer is broken and remains derelict. Mr Power is
unable to repair it. He is no longer able to repair the motor vehicles. Generally,
the property is overgrown and as he described it, “It has gone to rack and ruin”
compared with its former condition.

[55]        
Mr. Power is reluctant to hire people to perform house and yard
maintenance. Recently Mrs. Power has insisted on hiring an interior house
painter. The exterior of the house needs painting.

[56]        
Mr. Power continues to engage in some yard work. He has to limit his
activities so as to avoid causing problems.

[57]        
In or about 1997 Mr. Power purchased a manually operated sawmill which
he used to manufacture lumber. He would sometimes barter sawmilling services
for a share of the finished product, which he would then use in his various
projects on his property. He is no longer able to operate the sawmill due the
physical exertion required.

[58]        
Mrs. Power testified that Mr. Power used to spend very little time
inside the house, because he was so busy with exterior work and outdoor
activities. Whereas he used to mow the lawn in two to three hours, it now takes
him two to three days to accomplish the same task. Raking of leaves was formerly
accomplished in three to four hours but now takes several days, doing a small
portion at a time. He last obtained wood for the house two years ago, only with
the assistance of his brother. When active, he takes breaks by lying down on
the floor of the house on a yoga mat for an hour. She confirmed that his sleep
has been interfered with.

[59]        
Mrs. Power said that prior to the accident Mr. Power was easy going. He
is now easily frustrated and somewhat short tempered. Their physical
relationship has suffered.

[60]        
Mr. Power requires the assistance of Mrs. Power to assist him in
relieving muscle spasm in his back.

[61]        
It is clear to Mrs. Power that Mr. Power is not going to be able to keep
up the property. She has brought up the topic of perhaps selling it.

[62]        
Desiree Power, the plaintiff’s daughter, testified that prior to the
accident her father was easy going, calm, and happy. He is now frustrated and
grumpy. She has observed that her parents are not as close as they used to be.
She noted that Mr. Power is not able to engage in the sorts of activities that
he used to do with her niece, Mr. Power’s 10 year old granddaughter.

Medical Evidence

[63]        
In a report dated June 18, 2008, approximately 22 months post accident,
Mr. Power’s general practitioner, Dr. Paul Watson, summarized as follows:

In review, Mr. Power sustained injuries to his right
pectoralis major (partial tear) to the right T-6 area as well as some transient
injuries to the soft tissues in his right shoulder and base of neck and right
buttock area. These complaints started after his accident and have been
persistent and continuous since that time. Institution of physiotherapy,
chiropractic and exercised based therapy have been useful in increasing some of
his functional capacity since the accident, but have plateaued in that the pain
from either his right pectoralis area or the T-6 area have limited any further
advancement of intensity or duration of his exercise. These injuries have
significantly limited his recreational activities, particularly swimming,
biking and running as well as his ability to care for his house and yard,
particularly the use of his power saw, shovels and mowing his lawn. At work he
generally does not have a lot of limitation as he is able to get up from his
seat when he needs to but does have limited sitting capacity as has previously
been outlined. He does and would have some problems turning some of the heavy
valves and climbing the ladders if there is a breakdown at the mill, however he
does have a partner and this has generally worked out that the partner has done
this.

Mr. Power has sustained significant injuries from the
accident. His functional limitations have been outlined in detail. They are
significant for his recreational and household and yard activities. At this
time I do not see a significant future recovery for these and at the moment I
am unable to find a surgeon who would consider repairing this injury, although
I will persist in searching the literature for a possible solution for this
problem. Mr. Power has shown he is determined to remain active, having returned
to work promptly after his accident, followed all of my instructions as well as
his therapist’s instructions to the letter and done a persistent and
significant job in increasing his activities to what is now his limit due to
pain in the aforementioned areas and I do not see his disabilities resolving in
the near future.

[64]        
An orthopaedic surgeon, Dr. David Ellis, in a report dated July 9, 2008,
said that Mr. Power will have: permanent residual weakness of certain movements
of the right shoulder joint; residual cosmetic deformity related to loss of
muscle contour and secondary bunching of the muscle at its chest wall
attachment; intermittent discomfort associated with aggressive physical
activity involving the muscle; and functional impairment for aggressive
physical work.

[65]        
In a report dated August 4, 2008, Dr. Steve Martin, a specialist in
sports and occupational medicine, opined that Mr. Power’s condition was not
going to improve. He should avoid loading of the pectoral muscle whether at
work or non work activities. He suffers from a marked reduction in the use of
his right upper limb. No treatment is available for his condition other than
the use of analgesic medications. With respect to the spasm of Mr. Power’s
pectoral muscle, which then requires Mr. Powers to release the muscle by
stretching, Dr. Martin remarked “I was able to witness this on a number of
occasions in the clinical setting and it was very dramatic”.

[66]        
A functional capacity evaluation was conducted by an occupational
therapist, Mr. Fred Vandenboer, in May 2008. Mr. Vandenboer opined that Mr.
Power was physically capable of continuing with his present occupation of
Thermomechanical Pulp Operator for the foreseeable future. He demonstrated an ability
to perform physical activities falling within the “heavy” classification, but
Mr. Vandenboer noted that in doing so Mr. Power reported and demonstrated
increasing difficulties, and he would most likely continue to pace himself and
take rest breaks to control symptom response.

Assessment: Non Pecuniary Loss

[67]        
An award of non-pecuniary damage does not depend upon the seriousness of
the injury, but on its ability to ameliorate the condition of the victim
considering his or her particular situation. The gravity of the injury alone is
not determinative. An appreciation of the individual’s loss is the key. There
is no “tariff”. An award will vary in each case to meet the specific
circumstances of the individual case: Lindal v. Lindal, [1981] 2 S.C.R.
629 at 637.

[68]        
A non-exhaustive list of common factors that may influence an award of
non-pecuniary damages are: age of the plaintiff; nature of the injury; severity
and duration of pain; disability; emotional suffering; loss or impairment of
life; impairment of family, marital and social relationships; impairment of
physical and mental abilities; loss of lifestyle. Stoicism of the plaintiff
should not reduce the award: Stapley v. Hejslet, 2006 BCCA 34 at para.
46.

[69]        
Comparison with awards made in other cases may be of assistance in
determining the appropriate amount of an award.

[70]        
The plaintiff argues that the award in Stapley itself provides
guidance.

[71]        
In Stapley, the plaintiff was injured in a motor vehicle accident
on May 20, 2000. On February 13, 2004 a jury awarded non-pecuniary damages of
$275,000. The Court of Appeal reduced the award to $175,000. However, of this
amount, $75,000 was on account of what was accepted by the Court of Appeal as
Mr. Stapley’s “unique loss”, in that the injury could force the plaintiff to
leave his work on a ranch to take employment somewhere else. The Court of
Appeal accepted that Mr. Stapley’s job on the ranch was of tremendous
importance to almost all aspects of his life. It provided Mr. Stapley and his
family with their home, community, and lifestyle. He was a long term resident
of the ranch, at nominal rent, and had freedom to use the ranch and extensive
facilities and thousands of acres of land. If he lost his job on the ranch, his
family would be forced to leave their home and lose their unique ranch
lifestyle, sense of community, the ranch’s wide open spaces and “8,000 acre
back yard”.

[72]        
The motor vehicle accident resulted in a thoracic outlet syndrome injury
which required surgery which afforded considerable improvement, but Mr. Stapley
was left with permanent partial disability. Nonetheless he was able to continue
his work as a mechanic on the ranch and continued to engage in numerous
recreational pursuits such as slow pitch softball, curling, ice hockey, bucking
of firewood, fishing, golfing, and hunting; however all of these activities
were on a limited basis and with pain.

[73]        
The Court of Appeal stated:

[31]      However, the unique and central loss to Mr. Stapley
is the potential loss of his employment on the ranch and concomitant loss of
the lifestyle that living on the ranch provides.

[107]    It must be recognized
that the jury accepted that Mr. Stapley would lose the lifestyle afforded to
him by reason of his employment on the ranch. However, that is only one
component of his non-pecuniary award, albeit a significant one. It must also be
recognized that Mr. Stapley continues to work and is capable of supporting his
family, a matter that means much to him. Furthermore, he is able to enjoy
recreational pursuits and is not, as with some other plaintiffs referred to
above, incapacitated in that regard.

…

[109]    I accept that the
$100,000 non-pecuniary damage award made in Munro v. Faircrest represents the
high end of conventional awards for a somewhat similarly situated plaintiff.
However, as I have noted, Mr. Stapley’s unique loss deserves to be compensated.
…

[110]    In other words, Mr.
Stapley is able to work, support his family, and participate in recreational
activities. The chronic pain he experiences has not and, according to the medical
evidence, will not in the future preclude those activities. In ordinary
circumstances, an award of non-pecuniary damages for those losses would not
exceed $100,000.

[111]    What, then, is
reasonable compensation for the additional potential loss of lifestyle?  In my
opinion, it cannot reasonably exceed an additional $75,000…

[112]    In my view, based on
the evidence before the jury and having particular deference to the jury’s
assessment of Mr. Stapley’s loss, a reasonable award for non-pecuniary damages
at the highest level would be $175,000.

[74]        
Stapley is a somewhat difficult precedent to apply. Firstly, much
of the discussion and a substantial portion of the award itself related to the
“unique loss” suffered by the plaintiff, in that case. Secondly, the overall
award of $175,000 is partly based upon deference to the jury’s assessment.

[75]        
The plaintiff also referred me to the decision of Madam Justice Gray in Prince-Wright
v. Copeman, 2005 BCSC 1306. In that case the plaintiff was 39 years of age
at the time of the accident in 2001. Her health was good. She was physically
active and enjoyed skiing, running, biking, hiking, tennis and exercise. She
lived alone. Prior to the accident she was energetic, optimistic, buoyant,
extroverted and accomplished. By the time of trial she continued to suffer from
constant headaches, neck pain, back spasms and pain, with associated pain in
the ribs and numbness and weakness in her forearms and hands. She could not
tolerate prolonged sitting or exercise. She could not sleep for more than about
an hour. Her physical activities were significantly reduced. She no longer
skied or ran or hiked for more than 90 minutes. Her work and volunteer
activities were negatively affected. Non-pecuniary damages of $100,000 were
awarded. There were also awards of $200,000 for past loss of earning capacity,
and $550,000 in respect of future loss of earning capacity.

[76]        
The plaintiff also relied upon Marois v. Pelech, 2007 BCSC 1969,
a decision of Mr. Justice Smart. There the plaintiff was 49 years of age when
the accident occurred in 2001. She was physically active prior to the accident.
The trial took place in 2007. The court accepted that the plaintiff suffered
from significant depression and chronic pain as a result of the accident. Mr.
Justice Smart summarized by saying:

[92]      … she lived a full and busy life.
This has been lost over the last six years. It will continue to be impacted in
the future. It is difficult to determine the extent of the impact given the
nature of her health issues and given the concerns with respect to her
credibility that I have already discussed. She appears to be improving… However,
her prospects for further improvement are uncertain. I find that non-pecuniary
damages should be assessed at $130,000.

[77]        
$65,000 was awarded for past loss of earnings and $120,000 was awarded
for future loss of earnings, and $130,000 for future care and future
housekeeping.

[78]        
The defendant referred me to the decision of Mr. Justice A.F. Wilson in John
v. Landry, 2006 BCSC 1767.

[79]        
In that case the plaintiff was a 61 year old retired teacher when the
accident occurred on December 10, 2004. While jogging he was hit by the
defendant’s vehicle, knocked down, and sustained a significant injury to his
right shoulder. He was left with permanent stiffness of his shoulder with
fatigue and weakness. There was some risk that future shoulder replacement
surgery would be required. He had been a very active retiree pre-accident. His
activities were significantly curtailed following the accident. Before the
accident he did most of the inside housework and all of the outside housework
at his large single family home. He assisted his mother in taking care of a
number of rental properties. At his wife’s urging, following the accident, the
couple sold their house and moved into a townhouse because the plaintiff could
no longer maintain the property. The couple hired a housekeeper.

[80]        
Mr. Justice Wilson summarised as follows:

[35]      Mr. John did sustain a
serious shoulder injury, from which he will never fully recover. There are many
activities which he previously enjoyed which he is no longer able to do. There
is the risk of need for further surgery. On the other hand, he is now able to
golf again, pain free, three times a week, although his scores are not as good
as before. In all of the circumstances, I assess non-pecuniary damages at
$70,000.

[81]        
An award of $20,000 for loss of earning capacity was also made.

[82]        
In this case, Mr. Power has suffered a very significant and permanent
loss to the lifestyle he previously enjoyed. Virtually all of his previous
physical activities have been severely curtailed. Prior to the accident Mr.
Powers physical vigour was central to his life and lifestyle. His mood and
emotional well being have been negatively affected. His relationship with his
wife has been harmed. His ability to improve and maintain his property, quite
obviously a source of great pleasure and pride to him formerly, is all but
completely gone. He has not and will not in future be as physically fit as he
previously was. It is reasonable to infer that this may affect his health long
term. I think it likely that Mr. and Mrs. Power will sell their five acre
property and move into a residence that does not require so much effort to
maintain.

[83]        
I view the consequences for Mr. Power as being more serious than those
suffered by Mr. Stapley, leaving aside the special “unique loss” feature of
that case, without which the Court of Appeal would have assessed his loss at
$100,000. Mr. Power’s loss is clearly much more significant than that of the plaintiff
in John, the decision relied upon by the defendant.

[84]        
In all these circumstances, I assess the plaintiff’s non-pecuniary loss
at $135,000.

Loss of Capacity to Earn Income

[85]        
For more than 34 years Mr. Power has worked at the Crofton Pulp and
Paper Mill of Catalyst Paper Company. He continues to work there. At the time
of the accident and currently he is a Thermomechanical Pulp (TMP) Operator. Mr.
Power returned to work two weeks after the accident.

[86]        
In the TMP department, he is the third most senior person. He is the
most senior TMP operator on his crew. There are four crews. He is in a union
position. He is number 58 on the overall plant seniority list out of about 380
workers.

[87]        
The workforce at the mill has recently been substantially reduced. Until
recently there were over 700 workers employed at the plant.

[88]        
As the senior TMP operator, Mr. Power’s work primarily consists of
monitoring plant systems via computer monitors in a control room. He monitors
nine screens. He also walks through the mill for inspections. The mill
undergoes regular partial or complete shutdowns and occasional unscheduled
shutdowns. During shutdowns, Mr. Power’s work can involve closing and opening
and various mechanical valves ranging in size from 4 inches to 46 inches in
size.

[89]        
Before the accident Mr. Power was well able to sustain the physical work
involved in closing and opening valves. He now relies upon his younger partner
to do that work.

[90]        
He would be eligible for retirement on a reduced pension at age 55 (that
is within about one year) but given his financial circumstances, he testified
that if possible he will continue to work until age 65 at which time he will be
eligible for a full pension.

[91]        
At present, he can continue to perform the requirements of his job. Unless
he loses his job, he is unlikely to lose any income as a result of the accident
injuries.

[92]        
However, his employment is not secure. The employer, Catalyst Paper, is
in a very precarious financial position. The pulp and paper business is highly
volatile. A middle manager who testified at the trial described the employer as
being “close to bankrupt” and the company was said to be “hanging on.”

[93]        
Recently the same employer permanently shut down another Vancouver Island
pulp and paper mill at Elk Falls, near Campbell River. Other pulp and paper
mills on the B.C. coast have also had shut-downs or closures.

[94]        
The Crofton mill consists of both kraft pulp production and paper manufacturing.
Mr. Power is employed in the paper manufacturing part of the mill.

[95]        
Pulp production at the Crofton mill was recently shut down for several
months, then restarted in full in May, 2010. The employer has threatened to
close one or both of the kraft pulp production facilities unless there are wage
concessions from the union. The company’s pulp mill is suffering from
competition from Chile, Malaysia, and Indonesia, where costs are lower. Viability
of the mill essentially depends on the price of pulp, which has recently risen,
but may drop in future. Mr. Power’s employment in the TMP operation at the mill
is reasonably secure, due to his seniority, but if the employer shuts down the kraft
section of the mill, then it is likely that Mr. Power would be bumped by other
employees into a position requiring manual labour.

[96]        
I accept that due to his injuries Mr. Power has been rendered unsuited
to employment requiring sustained manual labour. While Mr. Vandenboer’s assessment
found that Mr. Power was physically capable of performing tasks within the
“heavy” classification, on all of medical and other evidence available to me, I
find that Mr. Power could not perform heavy physical labour on a sustained
basis.

[97]        
 If the entire mill ceases operations, Mr. Power will be out of work
and, due to the nature of his injuries, will suffer significantly reduced
opportunities in the job market.

[98]        
The principles relating to an assessment of lost earning capacity were
recently reviewed by the Court of Appeal in Perren v. Lalari, 2010 BCCA
140. In that decision Madam Justice Garson, for the court, states at para. 32:

A plaintiff
must always prove, as was noted by Donald J.A. in Steward, by
Bauman J. in Chang, and by Tysoe J.A. in Romanchych, that
there is a real and substantial possibility of a future event leading to an
income loss. If the plaintiff discharges that burden of proof, then depending
upon the facts of the case, the plaintiff may prove the quantification of that
loss of earning capacity, either on an earnings approach, as in Steenblok,
or a capital asset approach, as in Brown. The former approach will be
more useful when the loss is more easily measurable, as it was in Steenblok.
The latter approach will be more useful when the loss is not as easily
measurable, as in Pallos and Romanchych. A plaintiff may indeed
be able to prove that there is a substantial possibility of a future loss of
income despite having returned to his or her usual employment

[99]        
Mr. Power’s average gross earnings over the past seven years are $87,044
per annum. Using an economist’s income loss multiplier report, the plaintiff
argues that the value of his income to age 65 would be $791,063, absent any
replacement income. This figure does not take into account any negative
contingency of any kind.

[100]     The
plaintiff also provided some comparative statistical earnings for an average BC
male with a high school education. Based upon assumed current annual earnings
of $64,051, and reducing for participation rates, unemployment and part-time
factors, earnings to age 70 would be $315,920. To age 65, the earnings would be
$266,721.

[101]     The plaintiff
further argues that on the calculations provided in the economist’s report, if Mr.
Power were to lose his job as of January 1, 2013, (i.e. Mr. Power would be 56
years of age) his future lost income, without consideration of any income from re-employment,
would be $539,698.

[102]     The
plaintiff argues that under either method approved of in Perren,
appropriate compensation to Mr. Power for loss of earning capacity is $300,000.

[103]     The
defendant argues that Mr. Power’s employment is likely safe as long as the kraft
production at the Crofton Pulp Mill does not shut down permanently. The
defendant argues that there is no way to precisely calculate the chances that
the Crofton Mill will survive for the next decade. The defendant argues that it
is likely the plaintiff will be continued to be employed at the mill until he
chooses to retire. The defendant suggests that on this basis an award of
$100,000, being slightly more than one year’s income, would be sufficient.

[104]     On the
evidence there is a substantial risk that the plaintiff’s employment at the
Crofton Mill will not continue until age 65. The mill may itself shut down, or
parts of the mill may shut down, resulting in Mr. Power being bumped into a
position which he is unable to do, which would force an early retirement. It is
impossible on the evidence to assess the risks of such events with any degree
of precision. However I conclude that there is a real and substantial
possibility of future events leading to an income loss. I further agree with the
plaintiff’s submission that in the event of unemployment Mr. Power’s capacity
to earn income is significantly compromised by the accident injuries.

[105]     However
even without the injury, Mr. Power faced a risk of unemployment in the event
that the mill were to close. There was no guarantee that Mr. Power would have
earned the full sum of $791,063, the present value of all of his future
earnings to age 65 at his present average annual pay.

[106]     In my
opinion the appropriate assessment of the value of lost earning capacity is
$200,000. This amount represents an assessment of the risk of the losses that
may be suffered together with the amount of such losses.

Cost of Future Care

[107]     The
plaintiff claims for the sum of $190,872 as cost of future care. The sum is
made up of $185,096 plus applicable taxes of $5,775 totalling the sum of
$190,872. The basis of the claim is a report of a rehabilitation consultant,
Ms. Nancy Head, dated March 19, 2010. Ms. Head calculated the costs that Mr.
Power will incur in future as a result of his injuries. The bulk of the costs
relate to home, yard and motor vehicle maintenance. An economist’s report,
based upon the report of Ms. Head, summarizes the claim as follows:

·      
Treatment and therapy:  $13,337 plus (negligible) applicable
taxes;

·      
Vehicle maintenance and repairs: $41,370 plus applicable taxes;

·      
Home and yard maintenance: $130,389 plus applicable taxes.

[108]    
The claim is based upon an assumption that all of the costs commence
this year.

[109]     Home and
yard maintenance is comprised of expenses at market rates for work that the
plaintiff would otherwise be capable of doing, such as firewood splitting and
stacking, power washing, cleaning of exterior windows, cleaning and maintenance
of gutters, repairs and maintenance to fascia boards, fence maintenance, gardening,
lawn mowing, mower maintenance, tree pruning, raking, watering, snow removal,
repair of a bulldozer, and maintenance of the swimming pool.

[110]     So far, in
the nearly four years post accident, very little of the household expense has
been incurred. By nature Mr. Power is not a person who wishes to hire people to
do work that he feels he should be able to do, or that he and his wife should
be able to do. There has been some friction between him and Mrs. Power over the
topic. She has recently insisted on hiring someone to do interior painting, at
a cost of approximately $2,300. Much of the rest of the work has either been
gone undone, or been done by Mr. Power, slowly, and with difficulty. For
example he has continued to mow the lawns, albeit it slowly. He has obtained
firewood with the assistance of his brother.

[111]     The
defence argues that the plaintiff’s submissions take no account of the
plaintiff’s duty or ability to mitigate, and no consideration of contingencies.
The defence argues that in the lengthy period of time since the motor vehicle
accident very little of the claimed forecast expenditures have in fact been
incurred. The defence argues that the court is to make an assessment of loss,
not a calculation. The defence argues that an appropriate award for future care
costs would be $50,000.

[112]     In my view
the proper approach in this case is to evaluate the plaintiff’s loss as partly
as a cost of care, in relation to future care costs such as chiropractic
treatment or medications, and partly as a loss of capacity to perform household
services. Mr. Power has undoubtedly lost significant capacity to perform
household services, which is an asset of real economic value. It was especially
valuable to him given the extraordinarily high amount of house and garden maintenance
required on the property owned by Mr. and Mrs. Power, and Mr. Power’s ability
and inclination to personally do so much of the work. The result of Mr. Power’s
incapacity, over the past four years, has largely been that the condition of
the property has deteriorated. There has been little out of pocket loss. Mr.
Power has also lost much of the satisfaction that he formerly derived by
maintaining the property to a high standard through his own efforts. That loss
has already been reflected in the non-pecuniary award. Mr. Power continues to
have some capacity to perform household tasks. It may be that Mr. and Mrs.
Power will be forced to conclude that they need to move to another residence
which does not require the same high level of effort as does their present
residence. In that case the potential expenses would be substantially reduced. Even
without the accident injuries, other health setbacks or lifestyle changes may
in any event have rendered Mr. Power unable or unwilling to carry out the full
range of household services he has done in the past.

[113]     In my view
the sum of $80,000 represents a reasonable assessment of the lost capacity to
perform household services, not including vehicle maintenance.

[114]     The sum of
$41,370 plus tax is claimed in respect of the value of Mr. Power’s maintenance
of the family’s two vehicles, based upon an annual expenditure of $2,473.63
from 2010 to the end of Mr. Power’s life. However, there are negative
contingencies to be considered. At some point Mr. and Mrs. Power may no longer
need two vehicles, for example if one or both of them retires. Again, other
circumstances may in any event have rendered Mr. Power unable or unwilling to
continue doing his own motor vehicle maintenance and repair. In my view $20,000
is reasonable compensation for this loss.

[115]     The
plaintiff claims $13,337 plus applicable sales taxes (which were minimal) for
future treatments such as chiropractic treatments, medical equipment and
supplies, and over the counter medication, such as Advil. These claims are reasonable
and were not really contested by the defence. $15,000 will be allowed in
relation to this claim.

[116]     In summary,
the loss for future cost of care and loss of capacity to perform household
services is assessed at a total of $115,000.

[117]     The
quantum of the plaintiff’s claims for special damages and past loss of earnings
were not contested.

V        Summary and Conclusion

[118]     The
plaintiff is awarded damages as follows:

Non pecuniary
loss                                                $135,000.00

Loss of earning
capacity                                        $200,000.00

Cost of Future Care
and loss of

capacity to perform
household services                  $115,000.00

Special damages                                                         $525

Loss of earnings                                                       $1,810

[119]    
The parties made no submissions with respect to tax gross up of the cost
of future care claim. I note a reference to the possibility of such a claim in
the economist’s report, which he suggests could be calculated following the
rendering of this decision. The parties will be at liberty to make submissions
in relation to this item if they are unable to agree.

[120]     The
plaintiff has been successful and is entitled to costs, in the absence of any
applicable offers to settle under the Rules of Court. The parties will
be at liberty to make submissions if necessary concerning the effect of any
such offers, in writing, within 60 days.

“Mr.
Justice F. Verhoeven”