IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101028

Docket: M117417

Registry:
New Westminster

Between:

Jacob Rothenbusch

Plaintiff

And

Kevin Van Boeyen

Defendant

Before:
The Honourable Madam Justice Ker

Reasons for Judgment

I.        Introduction

[1]            
The plaintiff, Jacob Rothenbusch,
claims damages for injuries he sustained in a motor vehicle accident (the
“accident”) that occurred in Mission, B.C. on February 22, 2007. The defendant,
Kevin Van Boeyen, contests both liability and the quantum of damages claimed.

[2]            
The accident occurred at the
T-intersection of 10th Avenue and Cedar Street. 10th Avenue ends at a stop sign
at the intersection with Cedar Street, thus requiring vehicles on 10th Avenue to
stop and yield to vehicles travelling on Cedar Street. Where it intersects with
10th Avenue, Cedar Street has two lanes for traffic proceeding northbound and
one lane for traffic proceeding southbound as well as an additional parking
lane to the west of the southbound traffic lane. There is a marked pedestrian
crosswalk on Cedar Street, located just south of the intersection with 10th
Avenue. The posted speed limit for Cedar Street is 50 km/h.

[3]            
Mr. Rothenbusch, who was driving his
1999 Mercury Sable westbound on 10th Avenue, stopped his vehicle at the stop
sign at the intersection of 10th Avenue and Cedar Street, intending to make a
left hand turn from 10th Avenue onto Cedar Street and to then proceed
southbound.

[4]            
The defendant, Kevin Van Boeyen, was
driving his 1992 modified Ford F-250 standard cab 4×4 pickup truck northbound
up Cedar Street, travelling in the left hand inside lane, closest to the median
line.

[5]            
As Mr. Rothenbusch completed his
left hand turn into the southbound lane of Cedar Street his vehicle was hit by
Mr. Van Boeyen’s truck. The front bumper of the defendant’s pickup essentially
overrode the plaintiff’s vehicle in the area immediately in front of the
driver’s door, essentially the front quarter panel of Mr. Rothenbusch’s vehicle,
including the left front fender, hood, left A-pillar, the driver’s front door
and window. Mr. Van Boeyen’s vehicle sustained damage to the front bumper
section near the mid-section, and had underside structural damage including to the
front axle and the steering mechanism.

[6]            
The issues for determination are:

1)   
Who is responsible for
the accident, and to what extent?

2)   
What injuries did Mr.
Rothenbusch suffer as a result of the accident?

3)   
What is the effect of
Mr. Rothenbusch’s injuries on his enjoyment of life?

4)   
Is the plaintiff’s wife
entitled to an in-trust award for her performance of domestic duties previously
done by the plaintiff?

II.       Liability

[7]            
The parties agree they were involved in an accident at about 4:00
p.m. on February 22, 2007, at the intersection of 10th Avenue and Cedar Street
in Mission, B.C. The traffic in the area was relatively light, the weather was
fair and the roads were clear and dry.

[8]            
Given that the extent of the
damage sustained by each vehicle as a result of the accident was fairly significant, both vehicles were
considered write-offs by the Insurance Corporation of British Columbia
(“I.C.B.C.”).

[9]            
Apart from these facts,
the parties have widely different characterizations of the accident and who
caused it.

A.       Position of the Parties

[10]        
The plaintiff’s position is that he properly and safely executed
his left hand turn from 10th Avenue onto Cedar Street and that the defendant
was not an immediate hazard when the plaintiff entered the intersection to
execute his left turn. The plaintiff argues the sole cause of the accident was
the defendant’s excessive speed and swerve manoeuvre into the southbound lane
of traffic as he was proceeding northbound on Cedar Street.

[11]        
The defendant’s position is that the plaintiff executed an unsafe
left hand turn, pulling out as the defendant was almost at the intersection of 10th
Avenue and Cedar Street. The defendant argues the plaintiff caused the accident
by failing to yield and failing to properly determine that the defendant’s
vehicle constituted an immediate hazard just before the plaintiff commenced his
left hand turn. In the alternative, the defendant argues that if his conduct contributed
to the accident it was minimal, and that his portion of liability should not
exceed 25%.

B.       The Facts

i.        Mr. Rothenbusch’s version of the accident

[12]        
At about 4 p.m. on February 22, 2007, the plaintiff, 80 year old
Jacob Rothenbusch, was driving from the Grand Street Lodge, a senior’s lodge in
Mission, B.C., where he had been visiting residents, and was either driving to
purchase gas or go to the hospital for further visitations. He drove west along
10th Avenue to the T-intersection with Cedar Street. Mr. Rothenbusch was very familiar
with the route having travelled it about three times a week for many years. Mr.
Rothenbusch was driving his 1999 Mercury Sable: the vehicle was well maintained
and had no mechanical difficulties. He was wearing his three-point seatbelt and
both the vehicle seatbelt and headrest were properly adjusted.

[13]        
Mr. Rothenbusch approached the intersection and stopped at the
stop sign on 10th Avenue. As he came up to the stop sign there was a vehicle
ahead of him, but by the time he arrived at the stop sign the vehicle ahead of
him had cleared the intersection and turned left, proceeding south on Cedar
Street. Mr. Rothenbusch stopped at the stop sign. His left turn signal was on
and he checked in both directions and determined that no vehicles were
proceeding north or south on Cedar Street once he was at the stop sign. Mr.
Rothenbusch was not certain as to how long he was stopped at the stop sign but
said it was not very long.

[14]        
Before Mr. Rothenbusch pulled out to make his left hand turn
south on Cedar Street he saw the defendant’s truck turning from 7th Avenue onto
Cedar Street, approximately 900 feet away, and proceeding northbound towards
him. Mr. Rothenbusch believed he had plenty of time to make his left hand turn and
in his opinion there was no danger of him being hit based on the distance the
defendant’s truck was from the intersection.

[15]        
Mr. Rothenbusch moved ahead from the stop sign, checked to his
right to make sure there were no cars coming out of the driveways that merged
onto Cedar Street on the southbound side, and then proceeded to cross both
northbound lanes of Cedar Street. He recalled having largely completed his turn
into the southbound lane on Cedar Street when he was hit by the defendant’s
vehicle.

[16]        
In direct examination, Mr. Rothenbusch testified he could not recall
which direction he looked last before entering the intersection to make his
left hand turn.

[17]        
In cross-examination, Mr. Rothenbusch explained that as he was at the
stop sign he first checked left (south) for traffic and then right (north) for
traffic on Cedar Street. When he looked right he saw a van proceeding
southbound down the hill on Cedar Street towards the intersection. He then
looked to the left again and saw the defendant’s pickup truck approaching,
having just turned from 7th Avenue onto Cedar Street, a distance he estimated
to be about 900 feet away. He then checked right to make sure the southbound
van had cleared the intersection and proceeded to enter the intersection as he
believed there was nothing in his way to prevent him from making a safe left
hand turn.

[18]        
Mr. Rothenbusch was firm that when he first saw the defendant’s truck it
was 900 feet away and believed he had more than enough time to make his left
hand turn, as he only had approximately 50 feet to travel across the
intersection. He was adamant that the defendant was not close to him. He
explained that when he first looked to the left the defendant was not there,
when he looked left again the defendant’s truck was 900 feet away. Mr.
Rothenbusch was of the view he had plenty of time to make his turn based on
where he saw the defendant and the distance he was from the intersection. As he
was making his left hand turn he looked across Cedar Street and the next thing
he remembered was a bang and the collision.

[19]        
When asked to described how the accident happened from the time
he started to make his turn, Mr. Rothenbusch said that he saw nothing, it was
just “kaboom.” Mr. Rothenbusch recalled the defendant’s truck hit his door post
and all he could see was the Ford sign on the front end of the defendant’s
truck.

[20]        
Mr. Rothenbusch adamantly disagreed with the suggestion he did
not properly check for traffic before he commenced his turn, and further
disagreed with the suggestion the defendant’s vehicle was too close to be able
to stop. Mr. Rothenbusch also disagreed with the suggestion he caused the
accident. He characterized it as the safest turn he had ever made and that
there was no reason for the accident as the defendant had plenty of time to
stop.

ii.       The Evidence of Sheryl McKamey

[21]        
At about 4:00 p.m on February 22, 2007, Sheryl McKamey was
driving northbound on Cedar Street when she witnessed the accident at the
intersection of Cedar Street and 10th Avenue. Ms. McKamey is familiar with the
intersection and the traffic configuration in that general area. She described
the weather conditions as a beautiful sunny day: it was dry, warm and driving
conditions were good. Traffic at the time of the accident was light on Cedar
Street.

[22]        
Just prior to 4:00 p.m., Ms. McKamey was travelling west on 7th
Avenue and came to the intersection with Cedar Street. Immediately ahead of her,
in the right hand turn lane, was the defendant’s large red pickup truck. The
defendant turned right into the curb lane of Cedar Street and then immediately
moved to the inside lane travelling northbound on Cedar Street. Ms. McKamey was
right behind the defendant travelling up Cedar Street and also moved to the inside
lane after making her right hand turn.

[23]        
Ms. McKamey testified that the defendant was speeding and that as
she reached her speed of 50 – 55 km/h the defendant continued to accelerate,
pulling away from her. Ms. McKamey estimated that the defendant was travelling at
least 80 km/h.

[24]        
Ms. McKamey estimated the distance between 7th Avenue and 10th
Avenue along Cedar Street was approximately three blocks and felt if a vehicle
was to make a left hand turn from 10th Avenue onto Cedar Street around the time
the defendant and Ms. McKamey started travelling north on Cedar Street, the
vehicle at 10th would have had sufficient time to execute the left hand turn.
Ms. McKamey did not see the plaintiff start to make his left hand turn from 10th
Avenue but thought that the plaintiff had made his turn and was into the lane
proceeding south on Cedar Street when the accident occurred.

[25]        
When asked to describe how the accident occurred, Ms. McKamey
explained that once she reached her speed of approximately 50 to 55 km/h the
defendant continued to accelerate away from her. She then observed something
that she did not understand. The defendant swerved into the oncoming traffic
lane for the southbound lane of Cedar Street. Ms. McKamey explained she did not
understand why the defendant did this, it made no sense to her as there was no
traffic behind either the defendant or herself. She did not understand why the
defendant did not swerve to the right instead of to the left. The defendant
went into the oncoming traffic lane where the plaintiff’s vehicle was located. Ms.
McKamey described that the defendant’s swerve was followed by a split second of
continuous acceleration and then a slamming of brakes and then the crash of the
collision.

[26]        
Ms. McKamey estimated her vehicle was approximately three
telephone poles south of the intersection with 10th Avenue when the accident
occurred and marked her position as such on photograph #24 of exhibit #2.

[27]        
After the collision, Ms. McKamey moved over into the curb lane of
Cedar Street and pulled off onto 10th Avenue. She borrowed a cell phone and
called 9-1-1 and then got out of her vehicle to direct traffic on Cedar Street.

[28]        
Ms. McKamey observed the defendant get out of his truck and look
at his vehicle and then mouth some words. Ms. McKamey, who has a hearing
impairment and is able to lip read, observed the defendant say “I fucked up.” 
Ms. McKamey was certain of what she observed and did not resile from that
observation during cross-examination. Although Ms. McKamey did not think it was
possible that she was wrong about what she saw the defendant say, I note the
defendant’s version that he said “my fucking truck” was not put to Ms. McKamey
in cross-examination.

[29]        
In cross-examination Ms. McKamey was at first firm that her speed
was approximately 50 km/h at the time of the accident but, when confronted with
her statement to a private investigator in October 2008, acknowledged she
estimated that she may have been going as much as 55 km/h and eventually agreed
that her speed was between 50 – 55 km/h. When it was suggested to her that it
was possible her memory was fading as to the events, Ms. McKamey was firm that
she had a certain amount of clarity to the event because it was shocking for
her. She did not think her memory of the details had faded, explaining that
some memories become imbedded because they are so traumatic and this event was
one such event.

[30]        
Ms. McKamey acknowledged she was not trained with respect to
calculating the speed of vehicles, and acknowledged she could not tell exactly
how fast the defendant was going but was very clear that the defendant was
accelerating away from her and was speeding at the time of the accident. When
it was suggested to her that the sound of the defendant’s engine, which has a
modified muffler to make it sound noisier, was what Ms. McKamey heard instead
of acceleration she vigorously disagreed with that point. Ms. McKamey did not
resile from her observation that she saw the defendant’s vehicle swerve into
the southbound lane of traffic, then brake and hit the plaintiff’s vehicle.
When it was suggested to her that what she thought was the defendant’s swerving
was actually the drift of the vehicles on impact, Ms. McKamey specifically
disagreed with that suggestion.

iii.      The Evidence of Andrew Bailey

[31]        
Between 3:30 and 4:00 p.m. on February 22, 2007, Andrew Bailey
was driving westbound on 10th Avenue in Mission B.C. Mr. Bailey stopped at the
stop sign on 10th Avenue where it intersects with Cedar Street and waited until
the intersection was clear for him to make a left hand turn south onto Cedar
Street. Before executing his left hand turn, Mr. Bailey saw the plaintiff pull
up behind him and come to a full stop.

[32]        
After Mr. Bailey made his left hand turn and started to travel
south on Cedar Street, approximately 20 feet beyond the intersection, he first
heard and then saw the defendant’s pickup truck travelling north on Cedar
Street. He did not see the defendant’s vehicle when he made his left hand turn.
Mr. Bailey estimated the defendant’s vehicle was halfway between 7th Avenue and
10th Avenue when he first saw him. The pickup truck continued to proceed north and
then passed Mr. Bailey at about what he thought was 70 feet from the
intersection. Mr. Bailey felt that the vehicle was travelling too quickly and
so he looked in his rear view mirror. He then saw the defendant’s vehicle hit
the plaintiff’s vehicle. Mr. Bailey estimated the defendant’s truck to be going
between 70 and 80 km/h.

[33]        
Mr. Bailey immediately turned his vehicle around, travelled back
up Cedar Street and pulled off onto 10th Avenue. He gave his cell phone to Sheryl
McKamey for her to call an ambulance and went over to the plaintiff’s vehicle.
He spoke with the plaintiff and told him not to get out of the vehicle. Mr.
Bailey explained that the plaintiff seemed disoriented, he was bleeding from
his head, there was a lot of glass around, and Mr. Bailey was uncertain whether
the plaintiff had suffered any further injuries, which is why he asked the
plaintiff to stay in his vehicle.

[34]        
Mr. Bailey looked at the photographs in exhibit #1 and agreed the
photographs at tab 6, p. 35 accurately depicted the scene of the accident. He
agreed the vehicles appeared to be over both lanes of traffic in that the
defendant’s vehicle was mainly in the southbound lane of Cedar Street and the
plaintiff’s truck was also mainly in the southbound lane of Cedar Street.

[35]        
Mr. Bailey saw the plaintiff making his left hand turn, which was
what caused him to look in the mirror at the time that the defendant passed
him. Mr. Bailey could not say for sure whether the plaintiff had completed his
left hand turn but felt there was ample time for the plaintiff to make his turn
and believed the plaintiff was into the southbound lane of Cedar Street, although
not yet straightened out, when the accident occurred.

[36]        
In cross-examination, Mr. Bailey explained he looked in his rear
view mirror after the defendant passed him because the defendant was noticeably
speeding and his vehicle was very loud. Mr. Bailey appeared to agree with the
suggestion that there was not enough time for the defendant to put on his
brakes to avoid hitting the plaintiff.

[37]        
Mr. Bailey estimated that approximately two to four seconds
elapsed between the time the defendant’s vehicle passed him and the accident.
Mr. Bailey was cross-examined on his statement to a private investigator in
March 2008, and agreed he told the investigator the defendant’s truck may have
been going about 100 km/h. Despite the inconsistency in estimates of speed as
between his evidence at trial and in a statement to an adjustor, it was clear
from Mr. Bailey’s evidence the defendant was speeding at the time of the accident.
The difference in estimates does not undermine Mr. Bailey’s credibility or
reliability.

[38]        
What I accept from Mr. Bailey’s evidence is that he observed the
defendant speeding northbound up Cedar Street: his attention was drawn to the
defendant’s vehicle because of its noise and its speed. He was also aware the
plaintiff was making a left hand turn at the time which caused him to look in
the rear view mirror as the defendant sped past him. When Mr. Bailey looked in
his rear view mirror he observed the defendant hit the plaintiff’s vehicle
within two to four seconds of the defendant’s vehicle passing him.

iv.      The Evidence of John Fairweather

[39]        
On February 22, 2007, John Fairweather was driving his Hyundai
Accent southbound on Cedar Street in Mission, B.C. when he observed a pickup
truck speeding northbound and then heard an accident behind him. Mr.
Fairweather was slowing down as he approached the traffic lights at 7th Avenue
on Cedar Street, south of the intersection at 10th Avenue, when he first saw
the defendant’s truck passing him in the opposite direction.

[40]        
Mr. Fairweather’s attention was drawn to the defendant’s vehicle
because it was like his son’s truck and because he enjoys the sound of a big,
loud engine.  After the defendant’s vehicle passed him going in the opposite
direction, Mr. Fairweather rolled down his window so that he could hear the
sound of the truck’s engine as it travelled up Cedar Street.

[41]        
Mr. Fairweather estimated the defendant’s truck was travelling in
excess of 80 km/h. He did not see the accident occur or how the plaintiff’s
vehicle came to be where it was, he simply heard a boom and looked in his rear
view mirror. After hearing the impact, Mr. Fairweather turned around at a gas
station and drove back up Cedar Street to assist at the scene of the accident.

[42]        
Mr. Fairweather agreed the photographs in exhibit #1 accurately
depicted the scene and that both vehicles in the accident were over the center
line and in the southbound lane of traffic. Mr. Fairweather saw the driver of
the pickup truck running around stomping and cursing and thereby determined he
was not injured.

[43]        
Mr. Fairweather went over to check on the plaintiff and asked him
if he wanted Mr. Fairweather to call anyone. The plaintiff asked him to call
his wife.  Mr. Fairweather did so, spoke to the plaintiff’s wife, and then provided
his cell phone to the plaintiff so he could speak to his wife. When he received
the cell phone back from the plaintiff it was covered with blood. Mr.
Fairweather explained the plaintiff appeared injured and he was bleeding from
his forehead or somewhere around his face.

[44]        
Mr. Fairweather recalled the plaintiff was removed from his
vehicle through the passenger side door after the ambulance arrived.

[45]        
When it was suggested to Mr. Fairweather in cross-examination the
defendant’s vehicle was not travelling in excess of 80 km/h but that he simply
estimated that speed due to its engine noise, Mr. Fairweather disagreed with
the suggestion and did not resile from his opinion as to the defendant’s
estimated speed.

v.       Mr. Van Boeyen’s version of the accident

[46]        
Kevin Van Boeyen, the defendant, was 25 years old at the time of
the accident. He obtained his BC driver’s license in March 2005 and at the time
of the accident still had a new driver’s license with an “N” sign displayed on
the back of his vehicle.

[47]        
Mr. Van Boeyen was driving a 1992 Ford F250 pickup truck with 35
inch tires. The truck had been modified with a 6 inch lift kit and dual 3 inch
exhaust. Mr. Van Boeyen had done the modifications himself and explained the
exhaust modification made the vehicle sound louder and better.

[48]        
Mr. Van Boeyen works in the construction industry doing concrete
shoring.  On the day of the accident he was returning from work in White Rock
and heading to a friend’s home in Mission. At about 4:00 p.m. Mr. Van Boeyen
was travelling west on 7th Avenue and made a right hand turn onto Cedar Street.
He proceeded northbound on Cedar Street towards 10th Avenue. Mr. Van Boeyen
testified he was travelling with the flow of traffic and could not say exactly
what speed he was driving, but estimated he was travelling at 50 km/h.

[49]        
Mr. Van Boeyen testified he was approximately three driveways south
of the intersection with 10th Avenue when the plaintiff pulled out from 10th
Avenue and, according to Mr. Van Boeyen, “cut him off” in the intersection. Mr.
Van Boeyen testified he did not have time to do anything other than hit his
brakes and brace for impact.

[50]        
Mr. Van Boeyen testified that before the accident he was
travelling in the inside lane of Cedar Street in a northbound direction. After
the impact, his vehicle was mainly in the southbound lane of Cedar Street. On Mr.
Van Boeyen’s evidence it was the impact between the two cars that pushed the
vehicles “up into the intersection and into the southbound lane.” Mr. Van
Boeyen denied swerving into the southbound lane of Cedar Street prior to
impact.

[51]        
Mr. Van Boeyen testified that after the collision he lost his
temper, got out of his vehicle, slammed the door, yelled “my fucking truck” and
explained that he was extremely upset as he had put $20,000 into the vehicle.

[52]        
Mr. Van Boeyen did not speak to the plaintiff after the accident
and indicated that the plaintiff was speaking to bystanders who approached his
vehicle.

[53]        
Mr. Van Boeyen acknowledged that he sometimes speeds, that he had
received speeding tickets in the past, prior to the accident, and that he had
received speeding tickets since the accident.

[54]        
Mr. Van Boeyen admitted in cross-examination it was common for
people to speed on Cedar Street and conceded it was possible he was speeding at
the time. Mr. Van Boeyen then explained his vehicle was not able to pick up a
lot of speed going uphill and offered that as an explanation as to why he was
not speeding at the time of this accident.

[55]        
Although Mr. Boeyen testified he always watched the side streets
as he was travelling up the main road in an effort to check for traffic, it was
his evidence that he did not see Mr. Bailey’s vehicle make a left turn from 10th
Avenue to Cedar Street proceeding southbound just before the plaintiff did so.

[56]        
Mr. Van Boeyen testified that figure 5 in exhibit #6, Dr. Toor’s
engineering report, which contains a diagram depicting the position of the
vehicles when the plaintiff started to make his left hand turn, was not correct
and stated the engineer was wrong.

[57]        
I note, however, that Mr. Van Boeyen’s own evidence he was three
driveways south of the intersection with 10th Avenue appears, from an examination
of the panorama photograph 21 – 25 contained in exhibit #2 and figure 5 in exhibit
#6, to roughly conform to the assessed vehicle positions depicted in Dr. Toor’s
expert report. In addition, photograph #10 of exhibit #2 depicts the scene
looking north up Cedar Street, two driveways south of 10th Avenue, and provides
a distance of about 250 feet from the second driveway to the intersection.

[58]        
Mr. Van Boeyen testified he noticed that as the plaintiff started
to make his turn he was looking north up Cedar Street as he was turning south. I
take from this it was Mr. Van Boeyen’s evidence that he saw the plaintiff
looking away from where Mr. Van Boeyen was at the time he started his turn. If
this is in fact correct, it would underscore the need of Mr. Van Boeyen to take
reasonable precautions and slow down immediately, especially given he was at
least 250 feet away at this juncture.

[59]        
Mr. Van Boeyen denied he swerved to the left before the accident
and stated Sheryl McKamey’s evidence about him swerving was a lie. However, I
have no reason to disbelieve Ms. McKamey’s evidence on this point, she was
clear the defendant swerved into the southbound lane essentially steering to
the left. Her evidence was clear, consistent, concise and she explained she was
essentially astounded by what she saw, there being no reason for the manoeuvre.
Moreover, Ms. McKamey’s evidence as to what she saw, coupled with Mr. Bailey’s
evidence that the plaintiff was largely into the southbound lane, is more
consistent with the preponderance of physical evidence. The defendant’s denial
of swerving into the southbound lane of Cedar Street does not carry the
conviction of truth, nor is it consistent with the probabilities of the
situation when considered in the context of the surrounding existing
conditions.

[60]        
On Mr. Van Boeyen’s evidence, he was firm he stayed travelling in
a straight direction in the left inside lane and still hit the plaintiff. He
disagreed with Dr. Toor’s opinion that if he had continued to travel in a
straight direction he would have avoided the accident and suggested the expert
and plaintiffs’ witnesses who said he was speeding were all lying.

[61]        
Mr. Van Boeyen agreed he never looked to the right to see if he
could change to the outside right lane to avoid hitting the plaintiff, explaining
he did not have time. He conceded it was possible that if he had been
travelling more slowly the plaintiff would have completed the turn before he hit
the plaintiff’s vehicle.

[62]        
When it was suggested to Mr. Van Boeyen he was dazed after the
accident and his recollection of the circumstances of the accident was vague,
he disagreed. His examination for discovery evidence was put to him and he
agreed he admitted, at the examination for discovery, he was dazed after the
accident and it was possible that his recollection of the accident was vague
because of that.

[63]        
Mr. Van Boeyen went on to explain that although almost three
years had passed since the accident, because he has discussed the accident a
number of times his memory has become clearer and he remembers more things than
he recalled in his examination for discovery in August 2009. This inconsistency
in his evidence between his examination for discovery and the trial serves to
undermine the reliability of his evidence. While Mr. Van Boeyen claims his memory
has improved over time and may think this to be so, such a proposition is highly
unlikely. Mr. Van Boeyen’s evidence on this point demonstrated a revisionist
view of the events such that it conforms to what he wants to believe happened
in this case.

[64]        
Mr. Van Boeyen agreed he was upset immediately after the accident
and that he was swearing, but denied he was swearing because he had caused the
accident.

[65]        
Mr. Van Boeyen testified he did not speak to the plaintiff
because of his anger, he did not have formal first aid training, and other
people were speaking to the plaintiff. He disagreed with the suggestion that
all he cared about was his truck but conceded he was upset about the damage to
his truck.

vi.      The Evidence of Constable Cameron Kamiya

[66]        
Constable Kamiya, a police officer with the Mission R.C.M.P. detachment,
attended the accident scene and produced a diagram of the scene. The diagram,
found in exhibit #1 at tab 6, p. 39, depicts both vehicles at rest in the
inside northbound lane of Cedar Street. After examining the photographs of the
two vehicles at the scene, Cst. Kamiya acknowledged he had placed the vehicles
in the wrong lane in his diagram and in fact both vehicles should be in the southbound
lane on his diagram. He agreed the plaintiff’s vehicle appeared to be over the
center line, mostly in the southbound lane of travel, on an angle, and that the
right rear tire of the defendant’s truck was on the center line of Cedar
Street.

[67]        
Constable Kamiya was cross-examined about accident procedures and
how serious accidents are usually marked off, the scene secured and evidence
preserved. He conceded none of that was done in this case. As well, no
measurements were taken at the scene and no traffic analyst attended to
document the scene or take measurements. Constable Kamiya took some of the
photographs found in exhibit #1 at tab 6 but did not take all of them, and was
unable to recall which photographs he did take.

[68]        
While a skid mark on one of the photographs in the southbound
lane of travel appeared to Cst. Kamiya to possibly end at the left front tire
of the defendant’s pickup truck, he could not say with certainty the skid mark
stopped at the defendant’s pickup truck as the vehicles had been moved.
Constable Kamiya did not take any close up photographs of the tire marks he
observed and did not take any witness statements.

[69]        
Constable Kamiya recalled the defendant’s Ford F250 had both a “lift”
and sizable tires on it. He acknowledged raised pickup trucks were a common
occurrence in the Mission area.

[70]        
Constable Kamiya was familiar with the area of the accident and
the flow of traffic on Cedar Street. He testified the speed limit was 50 km/h
but traffic moves over the speed limit, with people generally travelling about
10 km/h over the speed limit, and can move up to 20 km/h over the speed limit.

[71]        
Constable Kamiya testified he considered laying charges against
the plaintiff for failing to yield but determined it was not appropriate as the
plaintiff’s vehicle was badly damaged, and he was fairly shaken up and slightly
injured. In the end, he left the matter to I.C.B.C. to investigate. Contable
Kamiya’s evidence that he considered charging Mr. Rothenbusch for failing to yield
is not of any significance to determining who was responsible for the accident,
especially in light of the fact he placed the vehicles in the wrong lane of
travel when he prepared his diagram of the scene. I place no weight on his
opinion on this point.

vii.     The Expert Evidence on Accident Reconstruction

[72]        
At trial, each party called an expert witness on
accident reconstruction and their expert reports were marked as exhibits in the
trial. Neither of the experts had an opportunity to examine the scene at the
time of the accident or immediately thereafter. Nor were they able to physically
examine the vehicles involved in the collision. Instead they had to rely solely
upon the photographs taken at the scene of the accident to assist them in
formulating their opinions.

[73]        
In brief, the plaintiff’s expert, Dr. Amrit
Toor, was of the opinion the defendant was speeding before he applied the
brakes and collided with the plaintiff’s vehicle. It was Dr. Toor’s opinion the
accident could have been avoided if the defendant had been travelling the speed
limit of 50 km/h or if he had not steered his truck into the oncoming
southbound lane of traffic.

[74]        
The defence expert, Mr. Jonathon Gough,
critiqued Dr. Toor’s opinion and concluded there was insufficient reliable data
or evidence from which reliable calculations could be derived for impact,
pre-braking and closing speeds of the two vehicles. In essence, Mr. Gough
concluded that Dr. Toor’s calculations and opinion outlined in his report were
based on an inappropriate analysis of the damage sustained by the two vehicles,
including adopting as an operating assumption the possibility that the
plaintiff’s vehicle may have sustained damage to the front axle and left front
wheel structures. Mr. Gough also opined that Dr. Toor failed to consider the
uncertainties in the available data and their effect on the calculations
produced.

a.       Dr. Amrit Toor – the Plaintiff’s Accident Reconstruction Expert

[75]        
Dr. Amrit Toor was qualified as a mechanical
engineer with expertise in the area of accident reconstruction and was
permitted to provide an opinion in that area.

[76]        
On July 23, 2009, 29 months after the accident, Dr.
Toor attended the intersection where the accident occurred to conduct a visual
inspection of the intersection and surrounding area.

[77]        
Dr. Toor applied two independent approaches to
calculate the impact speed of the colliding vehicles: the principles of linear
momentum and damage momentum analysis. Given the uniqueness of the overriding
impact of the vehicles in this case, Dr. Toor felt that traditional models of
impact data could not be employed and instead applied what he described as a
more nuanced approach.

[78]        
Photographs taken at the scene of the accident,
in particular photographs 35 and 36 in exhibit #1, tab 6, depict the
defendant’s truck overriding the plaintiff’s vehicle. Essentially, the front-middle
region of the defendant’s truck, the bumper and underlying structure, collided
with the front left region of the plaintiff’s vehicle and the vehicles remained
engaged from impact to their final resting position. Given the uniqueness of
the collision in this case, and the fact the vehicles were not of the same size
or involved in a bumper to bumper collision, the standard tools of accident
reconstruction could not be applied by Dr. Toor in reaching his conclusions.

[79]        
Due to the uniqueness of this collision, and the
absence of other data, Dr. Toor decided to consider the damage sustained by a Chevy
Cavalier in another case study for comparison purposes to the case at bar. In
the case study involving the Cavalier there had been a speed change of about 20
km/h with resulting damage corresponding to a wheel only impact (on the front
passenger side of the vehicle) that caused a rearward deformation of the wheel
in that case. Based on the observed damage to that vehicle, and comparing it to
the damage depicted in the photographs of the accident in this case, Dr. Toor
opined that, given the increased stiffness of the defendant’s vehicle, there
was likely a collision severity in the order of 30 km/h for the defendant’s
vehicle and 40 km/h for the plaintiff’s vehicle.

[80]        
Taking the available data, Dr. Toor conducted
both linear momentum and damage momentum analyses using WinCRASH: a computer
program. Dr. Toor explained WinCRASH is simply a tool to expedite the analysis
that could be done manually. Data relevant to the dimensions and weights of the
vehicles, obtained from industry accepted databases, as well as damage data for
the vehicles and scene data, were inputted for the program to calculate the
linear momentum and the damage momentum.

[81]        
Dr. Toor explained linear momentum analysis, the
primary method he employed to calculate the speed of the vehicles, relies on
data from the scene, including skid marks, as well as the relation of the
vehicles at point of impact and resting position vis-à-vis the physical
environment of the accident scene.

[82]        
Damage momentum analysis is a secondary analysis
he used to determine the validity of the linear momentum analysis.

[83]        
Dr. Toor explained the process employed to
calculate the defendant’s speed in this case involved looking at: (i) the speed at impact/collision severity; (ii) the speed during the
skid/braking, and; (iii) the pre-braking speed. The speed at impact is
calculated using the linear momentum and damage momentum calculations. The
collision severity is the change in speed experienced by both vehicles, which
relates to the damage sustained, calculated through the WinCRASH program. The
skid/brake and pre-brake speeds are calculated based on observations of the
crash scene and research data concerning braking and skidding on dry asphalt.
In the end it was this overall line of reasoning that lead to Dr. Toor’s estimate
of the pre-braking speed of the defendant.

[84]        
For the speed at impact/collision severity
component, the linear momentum analysis produced a speed at impact for the
defendant of 54.9 km/h and 23.5 km/h for the plaintiff. The damage momentum
analysis provided similar results with a speed at impact of 55.2 km/h for the
defendant and 23.8 km/h for the plaintiff.

[85]        
For speed change and collision severity, the
linear momentum analysis estimated the speed change for the defendant at 30.3
km/h and for the plaintiff at 43.5 km/h. Comparing this information to the known
information about the Cavalier and a 20 km/h speed change, the estimation based
on the Cavalier numbers regarding speed change (30 km/h for the defendant and
40 km/h for the plaintiff) supported Dr. Toor’s conclusions about the
calculation results on this index.

[86]        
Using the WinCRASH program, Dr. Toor calculated
the skid/brake speed of the defendant’s vehicle to be between 65 and 74 km/h at
the onset of the visible tire marks depicted in photographs from the scene. He
reached this conclusion based on his examination of the photographs taken by
the RCMP at the scene of the accident, which included a visible skid mark that
Dr. Toor assumed was left by the defendant’s vehicle. He estimated the skid
mark to be anywhere from 10 to 14 metres in length but conceded it was only an
estimate because the skid mark in the photograph disappeared under the
defendant’s vehicle. In addition to the skid mark data, Dr. Toor relied upon a
friction coefficient for a vehicle travelling above 50 km/h on dry travelled
asphalt to arrive at his conclusion on the skid/brake speed of the defendant’s
vehicle.

[87]        
Dr. Toor explained that at the onset of applying
full brakes a vehicle does not deposit visible tire marks. Based on the average
of two research studies addressing this issue, Dr. Toor estimated the time the
defendant spent braking before visible tire marks were deposited on the surface
of the road to be 0.2 seconds. From this, Dr. Toor estimated that the defendant
was travelling between 70 and 79 km/h before applying his brakes in this
accident.

[88]        
An additional observation that Dr. Toor factored
into his calculations was an assessment of the plaintiff’s acceleration speed
into the intersection. At impact, the plaintiff’s vehicle was approximately 15
metres from his stopped position at 10th Avenue where he turned left onto Cedar
Street. Industry accepted data for a normal full stop acceleration into a turn
for a passenger vehicle such as the plaintiff’s is about 24 km/h, i.e.,
the normal rate of acceleration over a 15 metre span, based on industry
accepted data. The results from the WinCRASH analysis had the plaintiff’s speed
at impact as 23.5 km/ for linear momentum and 23.8 km/h for damage momentum. Based
on this information, Dr. Toor opined it would have taken the plaintiff
approximately 4.5 seconds to travel the 15 metres. Using this information, Dr.
Toor estimated that the defendant’s vehicle, travelling at 70-79 km/h, was 89
to 96 metres south of the plaintiff’s vehicle when the plaintiff commenced his
left hand turn[1].
Dr. Toor depicted the assessed position of the vehicles when Mr. Rothenbusch
initiated his left hand turn in Figure 5 of his report, marked exhibit 6 in the
trial.

[89]        
In cross-examination, Dr. Toor acknowledged that
included in the facts and assumptions underlying his opinion is the assumption
that photographs he worked from accurately depict both the vehicle damage and
the resting positions of the vehicles. His two significant calculations of
linear and damage momentum are anchored in this assumption. Thus, the package
of ten black and white photocopies of the RCMP photographs was the tool he had
to work with for the accident scene and condition of the vehicles after impact.

[90]        
Dr. Toor conceded more accurate calculations
would have been generated if the RCMP had taken measurements at the scene at
the time of the accident, or if he had been able to physically examine the
vehicles or the scene at the time of the accident. As Dr. Toor was unable to
physically inspect the two vehicles, he had to simply estimate the extent of
the damage, or crush, to both vehicles and conceded this would reduce the
accuracy of the data used in the analysis.

[91]        
Although Dr. Toor’s report assumed in his calculations
the plaintiff’s vehicle sustained damage to the front left axle and front left
wheel structure, he conceded that whether there was damage to these areas was
unknown.

[92]        
Dr. Toor also acknowledged that he assumed the
tire mark in the RCMP photographs (photographs 36 and 37 of exhibit #2 at Tab 6)
crossed the centre line of Cedar Street, and that the mark was made by the
defendant’s vehicle. If the skid mark was not made by the defendant’s vehicle
then that data would have to be excluded from his analysis. He also could only
approximate the length of the skid mark as no such measurements were obtained
or provided.

[93]        
Dr. Toor concluded the defendant steered his
vehicle to the left based on his assumption the defendant’s vehicle was fully
functional and the brakes were working properly at the time of the accident.
Based on this assumption, the only way the vehicle could deviate to the left,
as this vehicle did, was by steering. If the brakes were not working properly,
then the vehicle could possibly veer to the left. In this case there was no
evidence indicating that the defendant’s vehicle brakes were defective.

[94]        
Dr. Toor also agreed the size of the tires on
the defendant’s truck and the lift kit applied to the vehicle could have
significantly reduced the contact between the undercarriage of the defendant’s
vehicle and the front left area of the plaintiff’s vehicle. As such, this would
significantly affect the calculations for the damage momentum analysis as the
undercarriage of the vehicle is usually the stiffest component of the vehicle.

[95]        
Dr. Toor did not specifically know the points of
contact between the two vehicles and so assumed them. He conceded it was
possible, although not likely, the left front wheel of the plaintiff’s vehicle
was not impacted in the accident. Dr. Toor’s opinion it was unlikely there was
no impact to the front wheel area was based on the extensive engagement between
the two vehicles on the front left wheel area of the plaintiff’s vehicle as depicted
in photograph 35. Dr. Toor acknowledged if there was no impact on the front
wheel area then it would have taken less speed to create the same amount of
damage in the surrounding area. It should be noted that photographs 3 through
10 of exhibit 1 at Tab 2 depict the damage to the area around the left front
wheel of the plaintiff’s vehicle but do not appear to depict damage to the
actual wheel itself.

[96]        
Although Dr. Toor conceded it was possible the
defendant’s vehicle was travelling at a different speed than what he calculated,
he disagreed with the suggestion he could not make his calculations with any
degree of certainty. Dr. Toor explained he validated the tests a number of
times and his analyses all lead to the same conclusion, confirming for him the
accuracy of his analysis and conclusions.

b.       Mr. Jonathon Gough – the Defendant’s Accident
Reconstruction           Expert

[97]        
Mr. Jonathon Gough, a metallurgical engineer
with a specialization in accident reconstruction, was qualified as an expert
capable of offering an opinion in the area. Mr. Gough was retained by the
defence to provide a rebuttal report to the report prepared by Dr. Toor.

[98]        
Mr. Gough indicated that as the vehicles were
not examined in this case, it is not possible to determine the damage sustained
by the vehicles to the same degree of certainty as that provided by a physical
examination because actual measurements of the damage cannot be taken. Thus the
damage, in terms of crush, is simply an estimate that lacks the same degree of
certainty provided by actual measurements.

[99]        
Mr. Gough testified the RCMP pictures used by Dr. Toor in his
analysis were simply black and white photocopies, the originals having been
misplaced. As such, the mark depicted in photographs and described as a skid
mark by Dr. Toor could not be conclusively identified as a skid mark. Mr. Gough
opined that based on the character of the mark in the photograph, it had the
general appearance of a skid but said there was no way to be definitive about
whether or not it was a skid mark, let alone whether it was a skid mark from
the accident. Mr. Gough noted there was only one tire mark, as opposed to two
for the brakes of a vehicle with an anti-lock braking system, and that the mark
depicted in the photographs did not lead to the rest position of any of the
tires of the defendant’s vehicle. As such, it could not be stated with any
degree of certainty the mark was from the defendant’s vehicle. If the mark was
not related to the accident, there would be no way of identifying the actual
point of impact between the vehicles or to determine how far each of the
vehicles travelled from the impact position to their rest positions. This would
affect any speed calculations.

[100]    
Mr. Gough also noted that in order to calculate speed based on
damage, an accident reconstruction expert needs to know how much actual crush
there is on the vehicle and the corresponding characteristics of the crush, as
well as the stiffness of each vehicle.

[101]    
Mr. Gough noted the manner of the collision in this case is not
similar to the standard test collisions which are used to generate data for stiffness
values and analysis purposes. Staged collision tests are based on full-width
frontal impact of the vehicle and involve all the structures above the bumper
in the collision, including the bumper, the engine and the front suspension. In
this case however, most of those structures were not involved in the collision
and as such it made it very difficult to determine the stiffness value of the
vehicle. Mr. Gough noted the frame of the defendant’s truck, typically one of
the stiffest aspects of a vehicle, appeared to have been uninvolved in the
accident.

[102]    
Mr. Gough rejected Dr. Toor’s stiffness values for the
defendant’s truck as being too high. If Dr. Toor’s stiffness values were
correct, then Mr. Gough would expect to see less damage to the defendant’s
vehicle and more damage to the plaintiff’s vehicle.

[103]    
Mr. Gough’s research identified three staged collision tests for
Ford F-150 pickup trucks of the same vintage as the defendant’s vehicle and
provided sample numbers for stiffness values significantly lower than provided
by Dr. Toor. As such, the reduced stiffness values provided a speed at impact
approximately half as fast as that provided by Dr. Toor. Mr. Gough indicated
that although the stiffness value for a Ford F-150 was used, the Ford F-150,
F-250 and F-350 vehicles were not significantly different in terms of stiffness
values.

[104]    
Mr. Gough testified Dr. Toor’s resort to a comparison to a
collision involving a Chevy Cavalier with a purported speed change of 20 km/h
was inappropriate in the circumstances given the difference in collision
circumstances and the difference in damage to the Cavalier, which was confined
largely to the wheel of the front passenger side, as compared to the
plaintiff’s vehicle. Mr. Gough was of the opinion the use of this single test
to attempt to assess the impact severity of the defendant’s vehicle was
technically unsupportable, particularly given the different damage sustained by
the vehicles in issue.

[105]    
Mr. Gough explained there was no evidence to support Dr. Toor’s
assumption there was contact and impact between the defendant’s vehicle and the
left front wheel of the plaintiff’s vehicle. The photographs showed the damage
to the area forward of the left front wheel of the plaintiff’s vehicle was
caused by the left front wheel of the defendant’s vehicle. The height of the
bumper of the defendant’s vehicle made it such that it was not reasonable to
assume that there had been impact with the front left wheel of the plaintiff’s
vehicle as the bumper was clearly above the left front wheel area. As well, the
photographs showed the right front tire of the defendant’s vehicle would have
impacted the driver’s door of the plaintiff’s vehicle. Finally, the fact that
none of the photographs showed any contact to the left front wheel or tire of
the plaintiff’s vehicle further supported Mr. Gough’s assessment there was no
physical evidence to support the assumption there was contact with the wheel.

[106]    
Mr. Gough opined that if the defendant’s vehicle had actually
undergone a speed change of 31 km/h as stated by Dr. Toor, Mr. Gough would
expect to see greater damage to the defendant’s vehicle. In other words, the
indicated vehicle damage did not support Dr. Toor’s calculations for a closing
speed of 76 km/h or a speed change of 31 km/h.

[107]    
Although a photograph depicted damage to the housing of the
defendant’s vehicle, Mr. Gough testified there was no way to take the damage
depicted and convert it into impact severity.

[108]    
Mr. Gough was unshaken in his opinion there was no reliable data
to work from for either the stiffness of the vehicles or the crush. As such, he
said it was important to assess the effect of such uncertainty when conducting
any type of calculations for speed based on these two factors. Although the WinCRASH
program has a built in facility to allow such uncertainties to be assessed, the
data provided by Dr. Toor in his calculations failed to include any uncertainty
in the calculations and instead provided a single value. Had these two
uncertainties been taken into account in Dr. Toor’s calculations, a much wider
range of calculated speeds would have been generated for both vehicles.

[109]    
Mr. Gough testified a further factor that made the collision
difficult to analyze, which leads to uncertainty in the overall analysis, was
the unusual collision orientation.

[110]    
Based on his experience in accident reconstruction and staged
collision tests and considering the parts of the vehicles involved and the
damage sustained by the two vehicles, as depicted in the photographs, Mr. Gough
was of the opinion the closing speed at impact was probably no more than half
that calculated by Dr. Toor. Based on all the available information, the best
Mr. Gough could say about the pre-braking speed of the defendant’s vehicle was
that it was between 52 and 63 km/h.

[111]    
Mr. Gough concluded, however, data available in this case was
simply insufficient to determine an accurate speed. The lack of reliable data
on the actual measurements of the vehicles and the failure of the police to
measure anything at the accident scene made it such that the data necessary to
conduct the calculations to assess the vehicle speeds was simply not available.
Although the method employed by Dr. Toor was fine from an engineering
standpoint, the data available to provide accurate calculations was
insufficient such that there was too much uncertainty to derive anything other
than a wide range of speeds for both vehicles.

[112]    
In the end, it was Mr. Gough’s opinion there simply was not
enough reliable data to calculate an accurate speed for either vehicle. Had he
been asked to reconstruct the accident based on the available information, Mr.
Gough would have provided a report that stated there was insufficient data to
accurately calculate the impact, pre-braking and closing speeds in this case.

viii.    Findings from the Evidence

[113]    
Both Dr. Toor and Mr. Gough are highly qualified and experienced
accident reconstruction experts. However, I find I am not able to rely upon Dr.
Toor’s opinion as to the speed of the defendant at the time of the accident. Given
the extremely limited information available as to a faint skid mark that was
not linked to the defendant’s vehicle, the absence of information as to the positions
of the vehicles relative to the intersection and surrounding area, the lack of
any measurements from the accident scene, and no reliable data about the crush
on the vehicles, Dr. Toor’s opinion as to speed appears to be predicated on at
least two assumptions not supported in the evidence or data he looked at.

[114]    
Dr. Toor assumed there was damage to the left
front wheel area of the plaintiff’s vehicle, but the evidence does not clearly
establish the front wheel as damaged. Certainly the area around it is damaged, but
an examination of the photographs does not support Dr. Toor’s assumption the
wheel itself was damaged. I prefer Mr. Gough’s observation on this point that
one cannot conclude the driver’s front wheel was hit or damaged in the
collision. This is supported by the limited photographic evidence available.

[115]    
Dr. Toor also assumed the one tire mark depicted
in the photographs taken by the RCMP on the date of the accident was a skid
mark deposited by the defendant’s vehicle during brake application. However,
Cst. Kamiya, who attended the scene, was unable to say this was the case. The
quality of the photocopied photograph of the purported tire mark on the
pavement is so poor it is impossible to say with any degree of certainty the
tire mark in the photographs can be linked to the defendant’s vehicle. The best
that can be said is it looks like a skid mark. While it is possible the mark is
related to the accident, nothing more substantial can be gleaned from the
evidence. I find the evidence simply does not support the assumption the
defendant’s vehicle made the tire skid mark.

[116]    
These two findings significantly undermine the
reliability of Dr. Toor’s opinion as both were important assumptions upon which
his opinion about speed is predicated. Consequently, it is not possible to say
it is more probable than not the defendant’s vehicle was travelling at an
estimated speed of 70 to 79 km/h before the defendant applied the brakes to his
vehicle just before the accident.

[117]    
Similarly, the reliance on the damage to the
Cavalier wheel sustained at a 20 km/h impact for comparison purposes of
severity of impact appears unsupportable given the lack of evidence as to damage
to the front driver’s-side wheel of the plaintiff’s vehicle.

[118]    
Given the very limited information available and
the insufficient quality of the data, particularly the fact the tire mark in
the photograph cannot be linked to the defendant’s vehicle, I prefer the
opinion of Mr. Gough to that of Dr. Toor. Mr. Gough’s opinion, in the end, was
simply that there is insufficient data to accurately calculate the
impact, pre-braking and closing speeds in this case.

[119]    
The fact there is insufficient data to accurately calculate the
defendant’s actual speed in this case does not, however, mean that he was not
speeding.

[120]    
Cst. Kamiya testified the flow of traffic in
that section of Cedar Street often travels 10 to 20 km/h over the speed limit.
Thus, speeds of 70 km/h are not unheard of for this stretch of road.

[121]    
Mr. Van Boeyen estimated he was at about the
third driveway south of the intersection with 10th Avenue when Mr. Rothenbusch
started to make his left hand turn. I accept his evidence on this point. It
does not appear to be inconsistent with the rest of the evidence and indeed may
well be consistent with the evidence of the other independent witnesses and
their relative positions at the time of their observations.

[122]    
Significantly though, the photographs in exhibit
#2, particularly photographs 10 and 11, depict the intersection and relevant strip
of Cedar Street and estimate the distance from the second driveway and the
second telephone pole south of 10th Avenue to the south curb of 10th Avenue to
be about 250 feet. The third driveway would be further south of this position,
providing further distance between the defendant and the plaintiff when the
latter began his left hand turn.

[123]    
The defendant acknowledged he did not know his
actual speed and that he travelled with the flow of traffic. He later suggested
he was only going 50 km/h but that appeared to be an effort on his part to, ex
post facto, reduce his speed. I do not accept his evidence he was only
travelling at 50 km/h.  Nor do I accept Mr. Van Boeyen’s evidence he was not
speeding because his vehicle was not able to pick up speed going uphill. The
incline depicted in the photographs can be described as no more than a very
gradual rise in elevation and not something of the magnitude that could
significantly affect the ability of Mr. Van Boeyen’s vehicle to accelerate.

[124]    
Although I have rejected Dr. Toor’s opinion as
to the speed of the defendant’s vehicle, I nevertheless find of assistance
Figure 5 of exhibit #6 where Dr. Toor outlines the assessed vehicle positions
when Mr. Rothenbusch initiated his left hand turn. Dr. Toor’s opinion was that
the Van Boeyen vehicle was 89 to 96 meters from the intersection when the
Rothenbusch vehicle started its left hand turn. In imperial measurements this would
be between 292 and 315 feet, a distance not entirely inconsistent with the defendant’s
own evidence as to his location being three driveways south of the intersection
when the plaintiff started to turn. Figure 5 in exhibit #6, when considered in
the context of all the evidence, including the panorama depicted in photograph
#21-25 and photograph #10 of exhibit #2, as well as Mr. Van Boeyen’s estimation
that he was about three driveways south of the intersection when he saw Mr.
Rothenbusch commence his left hand turn, assists in confirming Mr. Rothenbusch
had sufficient time to execute his left hand turn if Mr. Van Boeyen had not
been speeding or if Mr. Van Boeyen had remained in his lane of travel and
applied his brakes instead of steering into the southbound lane of travel on
Cedar Street.

[125]    
In addition, three independent witnesses, all familiar
with the intersection and the speed and flow of travel on Cedar Street, testified
they observed the defendant’s vehicle speeding northbound on Cedar Street.
While their opinions of the defendant’s actual speed are simply estimates, they
are not necessarily unreliable as to the general issue of speeding in the
circumstances.

[126]    
Of particular importance to my assessment and
finding that the defendant was speeding is the evidence of Ms. McKamey and Mr.
Bailey.

[127]    
Ms. McKamey and Mr. Bailey both testified in a
forthright and careful manner.  Significantly, they were independent witness who
had nothing to gain from the evidence they provided. They had no motive to lie.
I found both witnesses to be credible and reliable in their accounts of what
they saw and I accept their evidence.

[128]    
Ms. McKamey was in the best position to observe
the defendant’s speeding as she was directly behind him proceeding up Cedar
Street, both having turned right from 7th Avenue on to Cedar Street, one after
the other.  Ms. McKamey followed the defendant’s vehicle and accelerated to approximately
55 km/h. She observed the defendant continue to accelerate, and noted he was pulling
away from her. The defendant had to have been travelling at a fairly
significant rate of speed, certainly in excess of 50 km/h, to have been
involved in the accident by the time Ms. McKamey was in the vicinity of the
third telephone pole on Cedar Street as she marked on photograph #24 of exhibit
#2.

[129]    
I also accept Ms. McKamey’s evidence she saw the
defendant swerve his vehicle into the southbound oncoming traffic lane. The
event was unusual and, as Ms. McKamey testified, there appeared to be no reason
for it. Mr. Van Boeyen denied swerving and suggested the physical impact
occurred in the northbound lane of Cedar Street and the drift following impact
placed both vehicles in the southbound lane of Cedar Street. The limited
physical evidence from the scene, however, does not support that version of
events, in particular the resting position of the two vehicles as depicted in
the RCMP photographs and the absence of any sort of skid marks, tire marks or
debris indicating a collision in the northbound lane as Mr. Van Boeyen claimed.
Where Mr. Van Boeyen’s evidence differs with that of Ms. McKamey I prefer Ms. McKamey’s
evidence. Mr. Van Boeyen’s suggestion that Ms. McKamey was lying is simply unsupportable
in the circumstances.

[130]    
I also accept the evidence of Mr. Fairweather. He
too was credible and forthright in his evidence. The attention of this independent
witness was drawn to the defendant’s vehicle because of the speeding he observed
in the defendant’s driving. I accept his evidence as to speed is, at best, a
rough estimate and do not rely upon his evidence to establish an exact speed
for the defendant, particularly because he were travelling in the opposite
direction from the defendant’s line of travel. Nevertheless, his assessment
that the defendant was driving at a rate well in excess of the posted speed
limit is confirmatory of Ms. McKamey’s own observations that the defendant was
speeding and pulling away from her as they both travelled northbound up Cedar
Street.

[131]    
Finally, I accept Mr. Rothenbusch’s evidence
that he stopped at the intersection, checked left, observed no vehicle, checked
right and noticed a van proceeding south on Cedar Street heading towards the
intersection he was at, he then checked left again and observed the defendant’s
vehicle turning from 7th Avenue onto Cedar Street, approximately 900
feet away, and proceeding in a northbound direction towards him. Based on his
experience and assessment of the defendant’s vehicle position, Mr. Rothenbusch
concluded he had plenty of time to make his left hand turn and that the
defendant’s approaching vehicle did not constitute a hazard. Mr. Rothenbusch
then checked to his right to ensure the southbound van had cleared the
intersection of Cedar Street and 10th Avenue. He then entered the intersection,
making his left hand turn, crossing both northbound lanes of Cedar Street and
was almost completely into the southbound lane of travel when he was struck by
the defendant who had swerved into the southbound lane of Cedar Street. Of
significance, and enhancing the reliability and credibility of Mr.
Rothenbusch’s evidence, is his admission the last direction he checked was to
the right for traffic southbound on Cedar Street and in the lane of travel he
intended to turn into to continue his journey. He felt he had enough time to
make the turn, based on where he last saw the defendant’s vehicle to the south
near 7th Avenue.

[132]    
I accept Mr. Rothenbusch’s evidence that when he first noticed
the Van Boeyen vehicle it had just turned from 7th Avenue onto Cedar Street and
thus was about 3 blocks or 900 feet away from the intersection with 10th Avenue.
Based on the evidence of the three independent witnesses, which I have
accepted, I conclude Mr. Van Boeyen was speeding as he proceeded northbound up
Cedar Street. I accept Mr. Van Boeyen’s evidence he was about three driveways
south of the intersection when Mr. Rothenbusch commenced his left hand turn.
Thus, I find it is likely Mr. Van Boeyen was at least 250 feet away, and quite
possibly farther. He had to be moving at a pace well in excess of the posted
speed limit of 50 km/h to cover the distance he did so quickly to be involved
in the collision. Recognizing the inherent imprecision of the independent
witnesses estimations of speed, coupled with Cst. Kamiya’s evidence that the
flow of traffic usually is 10 km/h higher than the posted speed limit in the
area, I find it likely that Mr. Van Boeyen was moving at a pace close to 70
km/h.

C.       Legal Framework and Analysis

[133]    
Just before the collision, Mr. Rothenbusch was
attempting to turn left from 10th Avenue onto Cedar Street and as such he was
subject to the provisions of s. 175 of the Motor
Vehicle Act, R.S.B.C. 1996, c. 318 (the “Act”).

[134]    
The plaintiff submits the defendant is liable for the accident
due to his speeding and swerving to the left into the southbound lane of
traffic. The defendant submits the plaintiff is 100% responsible for the
accident in that he failed to exercise his duty of yielding the right of way to
the defendant in accordance with s. 175 of the Act
by failing to check for oncoming traffic before initiating his left hand turn.
In the alternative, if liability is to be apportioned, the defendant argues it
should be apportioned 75/25% in his favour.

[135]    
Section 175 of the Act, which governs the
right-of-way in situations where a driver in the plaintiff’s position is making
a left turn onto a through highway from a stop sign, provides as follows:

Entering through highway

175(1)  If a vehicle that is about to enter a through highway
has stopped in compliance with section 186,

(a)        the driver of the vehicle must yield the right of
way to traffic that has entered the intersection on the through highway or is
approaching so closely on it that it constitutes an immediate hazard, and

(b)        having yielded, the driver may proceed with
caution.

(2)        If a vehicle is
entering a through highway in compliance with subsection (1), traffic
approaching the intersection on the highway must yield the right of way to the
entering vehicle while it is proceeding into or across the highway.

[136]    
The threshold issue in this case is whether the
Van Boeyen vehicle was approaching so closely as to constitute an “immediate
hazard” to Mr. Rothenbusch with the meaning of s. 175. The
leading cases on the question of when through traffic constitutes an immediate
hazard are the decisions of the Court of Appeal in Raie v. Thorpe (1963),
43 W.W.R. 405 [Raie], and Keen v. Stene (1964), 44 D.L.R. (2d)
350 [Keen].

[137]    
In Raie, the Court
considered the meaning of “immediate hazard” in the context of a driver making
a left hand turn. The accepted evidence was that the respondent through driver
was less than 150 feet away, and possibly as close as 60 to 76 feet, when the
left-turning driver executed his turn. The trial judge concluded the
respondent’s approaching car was so close to the intersection as to constitute
an immediate hazard and found the left-turning driver fully liable for the
ensuing accident. There was no finding that the respondent had been driving at
“other than a reasonable and proper rate of speed” (at 410).

[138]    
In upholding the finding of the
trial judge, Tysoe J.A., speaking for the majority, made these instructive
and well-known remarks at 410:

I do not propose to attempt an
exhaustive definition of "immediate hazard." For the purposes of this
appeal it is sufficient for me to say that, in my opinion, if an approaching
car is so close to the intersection when a driver attempts to make a left turn
that a collision threatens unless there be some violent or sudden avoiding
action on the part of the driver of the approaching car, the approaching car is
an "immediate hazard" within the meaning of sec. 164.

[139]    
At 413-14, Tysoe J.A. clarified
that the point in time, or punctum temporis, to assess whether the
through driver poses an immediate hazard, is the moment before the left-turning
driver commences to make the turn. By analogy, the same punctum temporis
applies to the circumstances covered by s. 175; that is, the moment immediately
before the driver intending to enter a through highway proceeds to do so: Hynna
v. Peck, 2009 BCSC 1057 at para. 56
[Hynna].

[140]    
In Keen, the defendant
driver stopped at a stop sign before attempting to cross a four-lane through
highway. She noticed the approaching plaintiff motorcyclist but, believing that
she had sufficient time to clear the intersection, moved forward. At that
point, the motorcyclist was approximately 135 feet away and driving at 25 miles
per hour. Partway across the intersection, the defendant accelerated in an
unsuccessful attempt to move out of the path of the oncoming motorcyclist, and
a collision ensued. The trial judge found that by accelerating rather than
stopping or slowing, the defendant made the collision inevitable. The plaintiff
motorcyclist was also found negligent for failing to keep a proper lookout. Liability
was apportioned 65% to the plaintiff and 35% to the defendant.

[141]    
In allowing the appeal, the
Court of Appeal interpreted the meaning of “immediate hazard” under the
predecessor to s. 175. Mr. Justice Davey stated at 359 that speed and distance
generally determine what constitutes an immediate hazard. To that, he added an
important proviso:

But having said that, I must
add that in most automobile collision cases estimates of time, speed and
distance do not lend themselves to exact mathematical analysis, because the
estimates are by their very nature uncertain. But on occasion the results of
such an analysis, used with care and understanding, may be very revealing.
 …

[142]    
Davey J.A. stated further at 359
the applicable statutory section governing the rights of way of drivers:

… is to be applied broadly
from the point of view of the motorist sitting in the driver’s seat, and not
meticulously by a Judge with the benefit of afterthought. The situation
confronting a motorist, even one waiting at a stop sign, is not a static, but a
fluid one, calling for quick appreciation and judgment. A driver waiting at a
stop sign ought not to enter a through street unless it is clear that oncoming
traffic does not constitute an immediate hazard. Excessive refinement of what traffic
is an immediate hazard will defeat the purpose of the right-of-way regulations
contained in section 165, and make them an inadequate and confusing method of
regulating traffic at intersections on through streets.

[143]    
In Keen, Sheppard J.A.
emphasized at 364 it is the hazard or the threat of the collision, as distinct
from the collision itself, which must be immediate. He endorsed the test
adopted in prior authorities to the effect that even though the actual
collision may be remote in terms of time and distance, the hazard will
nevertheless be considered immediate if reasonable danger of the future
collision may be apprehended at the time of the proposed entry into the
intersection (at 365). Accordingly, whether or not an approaching vehicle poses
an immediate hazard within s. 175 must be considered temporally, that is, in
relation to time and space. In the context of a motor vehicle accident, these
elements are embodied in the concepts of speed and distance at the time the
other driver commences his or her manoeuvre.

[144]    
Mr. Van Boeyen’s counsel relied upon the
decision in Salaam v. Abramovic, 2009 BCSC 111 [Salaam], to
support his argument that the plaintiff was 100% responsible for the accident
in this case. However, in Salaam the plaintiff was found 100% responsible
for the accident as she did not stop at a stop sign before entering the
intersection in issue, she did not ascertain whether there was any through
traffic, whether such traffic constituted an immediate hazard or not, and
failed to proceed with caution through the intersection: Salaam at paras
42 and 48.  Thus, the circumstances in Salaam are distinguishable to
this case. In Salaam the plaintiff took no steps to determine whether it
was safe to make her left hand turn.

[145]    
In this case, however, Mr. Rothenbusch did take
steps to determine whether it was safe for him to make the left hand turn by
looking to determine whether an approaching vehicle on the through highway of
Cedar Street constituted an immediate hazard. His assessment of the defendant’s
vehicle was that it did not constitute a hazard when he first saw it three
blocks, or approximately 900 feet, away.

[146]    
The question of immediate hazard and right of way, however, is to
be assessed temporally in the moment before the driver proposing to make the left
hand turn at issue commences to make it: Raie, pp. 413-414. If an
approaching car does not present an immediate hazard when the manoeuvre is
commenced but later creates one by unreasonable conduct such as speeding, the
approaching driver will be held responsible for the ensuing collision: Devidi
v. Lam, [1998] B.C.J. No. 912 (S.C.); Rollins v. Lovely, 2007 BCSC
1752, at para. 35.

[147]    
In Rollins, Dickson J. succinctly
reviewed the principles governing the duty of dominant and servient drivers
where the servient driver is making a turn or crossing a multi-lane through
highway stating at paras. 36-38:

[36]      When a driver concludes, reasonably, that no
immediate hazard is posed by oncoming traffic and commences to cross a
multi-lane highway care must be taken to keep a proper lookout as each lane is
crossed: Carich v. Cook, [1992] 90 D.L.R. (4^th) 322 (BCCA) p.
326.  In the words of Lambert J.A. in Carich, another left turn
case that applies by analogy:

The question as a driver turns left is whether there
is any vehicle in any approaching lanes that constitutes an immediate
hazard.  If there is, the turn should not be made.  If there is not,
then the turn can be made and of course, care should be taken throughout the
turn and as each new lane is entered to make sure that the situation as it was
assessed when the turn started has not changed in the meantime.  But that
care is more a matter of the ordinary duty of a reasonably careful driver and
not a duty, in my view, imposed specifically by s. 176 which, in my view,
states the situation when the turn is commenced.  Once the turn is
commenced both of the drivers in that situation, the one who is doing a left
turn and the ones that are approaching straight ahead in a situation where a
vehicle could turn in front of them, all must keep a proper look-out.

[37]  Drivers
are generally entitled to assume others will observe the rules of the road,
except where they know or should know otherwise: Kamoschinski v. Hein,
[1989] B.C.J. No. 909.  As noted by Drossos, Co.Ct.J. in Kamoschinski,
however, this general rule is limited to the extent described by Lord Dunedin
in Fardon v. Harcourt-Rivington (1932), 48 T.L.R. 215 as follows:

The root of this liability is negligence, and what is
negligence depends on the facts with which you have to deal.  If the
possibility of the danger emerging is reasonably apparent, then to take no
precautions is negligence; but if the possibility of danger emerging is only a
mere possibility which would never occur to the mind of a reasonable man, then
there is no negligence in not having taken extraordinary precautions.

[38]  All
drivers, whether dominant or servient, have a common law duty of care to avoid
a collision which can reasonably be foreseen and avoided:  Atchison v.
Kummetz (1995), 14 M.V.R. (2d) 271 (BCCA).  Where a dominant driver
poses an immediate hazard, the burden of proof on the servient driver to cast a
portion of the blame on the dominant driver is significant.  In the words
of Cartwright J. in Walker v. Brownlee [1952], 2 D.L.R. 450 (SCC):

While the
decision of every motor vehicle collision case must depend on its particular
facts, I am of the opinion that when A, the driver in the servient position,
proceeds through an intersection in complete disregard of his statutory duty to
yield the right-of-way and a collision results, if he seeks to cast any portion
of the blame upon B, the driver having the right-of-way, A must establish that
after B became aware, or by the exercise of reasonable care should have become
aware, of A’s disregard of the law B had in fact a sufficient opportunity to
avoid the accident of which a reasonably careful and skilful driver would have
availed himself; and I do not think that in such circumstances any doubts
should be resolved in favour of A, whose unlawful conduct was fons et origo
mali.

[148]    
In Rollins, Dickson J. found the
defendant dominant driver 90% responsible for the collision and the plaintiff
10% responsible as he failed to check continuously for oncoming traffic as he
crossed each lane of the through highway. In Mr. Rollins’ case, s. 176(2) of
the Act governed as he was crossing a highway from a laneway but the
principles enumerated in the decision are equally applicable to the
circumstances of this case.

[149]    
Who has the statutory right-of-way is informative; however, it
does not determine liability in an accident. Drivers with the statutory
right-of-way must still exercise caution to avoid accidents where possible.  In
Walker v. Brownlee and Harmon, [1952] 2 D.L.R. 450 (S.C.C.), Cartwright
J. states at paras. 46-47:

[46]      The duty of a driver having the statutory
right-of-way has been discussed in many cases.  In my opinion it is stated
briefly and accurately in the following passage in the judgment of Aylesworth
J.A., concurred in by Robertson C.J.O., in Woodward v. Harris, [1951]
O.W.N. 221 at p. 223:

Authority is not required in support of the principle
that a driver entering an intersection, even although he has the right of way,
is bound to act so as to avoid a collision if reasonable care on his part will
prevent it.  To put it another way: he ought not to exercise his right of
way if the circumstances are such that the result of his so doing will be a
collision which he reasonably should have foreseen and avoided.

[47]      While
the judgment of the Court of Appeal in that case was set aside and a new trial
ordered [[1952] 1 D.L.R. 82] there is nothing said in the judgments delivered
in this Court to throw any doubt on the accuracy of the statement quoted.

[150]    
It is also well-settled that drivers are entitled to assume other
drivers will obey and observe the rules of the road unless there is reason to
know otherwise: Brucks v.
Caslavsky (1994),
4 M.V.R. (3d) 278, 45 B.C.A.C. 62; Kokkinis
v. Hall, [1996] B.C.J. No. 1560 (C.A.); Rollins at para 37; Hynna. The assumption flows both ways.  As
Mr. Rothenbusch sat stopped on 10th Avenue waiting for a safe window to make
his left hand turn and enter the intersection, he had the right to expect Mr.
Van Boeyen would be obeying the law and approaching the intersection at a speed
of around 50 km/h and maintaining a proper look-out. For his part, Mr. Van
Boeyen was entitled to assume Mr. Rothenbusch would remain stopped and not
venture out onto Cedar Street unless it was safe to do so.

[151]    
The law does not expect a driver in Mr. Rothenbusch’s position to
be able to anticipate time and distance or the speed of oncoming traffic with flawless
precision. In the circumstances of this case, Mr. Van Boeyen was about three
blocks away when Mr. Rothenbusch first observed his vehicle. I have also concluded
that Mr. Van Boeyen was more than 250 feet away as Mr. Rothenbusch began his
move into the intersection, a distance that would have been more than sufficient
for a left hand turn had Mr. Van Boeyen not been speeding. Unfortunately, however,
Mr. Rothenbusch did not make one last look to his left before entering the
intersection. Had he done so, he would have deduced Mr. Van Boeyen’s vehicle was
bearing down upon him at an excessive speed and Mr. Van Boeyen may well have
become an immediate hazard at that point in time.

[152]    
Looking at matters from the broad view of a prudent motorist, I
conclude a collision was threatened by the approach of the speeding Van Boeyen
truck, and in the circumstances it posed an immediate hazard to Mr. Rothenbusch
within the meaning of s. 175. Mr. Rothenbusch ought to have looked one last
time to his left to assess where Mr. Van Boeyen’s vehicle had advanced to, and determined
whether the intersection was passable before making a left hand turn. Mr.
Rothenbusch’s failure to look left one last time to re-assess and determine the
position of the Van Boeyen truck was negligent.

[153]    
The issue of liability in this case, however, does not rest
solely on the determination of whether Mr. Van Boeyen posed an immediate hazard.

[154]    
The facts in the case of Hynna are very similar to those
in the case at bar and provide an instructive illustration of the difficulties
such cases present.  Ms. Hynna proceeded from a side residential street to
either cross or make a left hand turn onto major city street, a through highway;
she was struck and injured by Mr. Peck’s oncoming vehicle. Mr. Peck had been
driving at a speed of 83 to 86 km/h in a posted speed zone of 50 km/h and was
found to have been about 62 to 65 metres away from the intersection when Ms.
Hynna commenced her turn across the through highway Mr. Peck was speeding
along. Madam Justice Ballance addressed both the issue of Ms. Hynna’s failing
to yield and Mr. Peck’s speed and failure to keep a proper look out in
determining the issue of liability and contributory negligence by the conduct
of both parties. In the end, Ballance J. concluded the conduct of both parties
combined to cause the accident.  Liability was apportioned in Hynna at
60% to the defendant and 40% to the plaintiff.

[155]    
In reaching her determination that Mr. Peck was also responsible
for the accident, Ballance J. reviewed the decision in Chung Estate v. King,
[1992] B.C.J. No. 1830 (B.C.S.C.) writing at paras. 65-69:

[65]      The facts in the
case of Chung Estate v. King, [1992] B.C.J. No. 1830 (B.C.S.C.) are
strikingly similar to those in the case at hand and provide an instructive
example.  As Mr. Chung proceeded to cross a through highway, he was
struck and killed by Mr. King’s oncoming vehicle.  Mr. King had
been racing along at least 63 km/h above the speed limit immediately
before he saw Mr. Chung’s encroaching vehicle and slammed on his
brakes.  Mr. King admitted his negligence and alleged that
Mr. Chung was also negligent.  The pivotal question before the Court
was whether at the moment before Mr. Chung pulled into the intersection,
Mr. King posed an immediate hazard.

[66]      Madam Justice
Saunders (as she was then) framed the issue as to whether the failure on the
part of Mr. Chung to see Mr. King, or to realize that Mr. King
was travelling at such an excessive speed that he presented an immediate
hazard, amounted to negligence on Mr. Chung’s part.  In this regard,
she referred to the case law supporting the proposition that a driver’s failure
to appreciate the fast speed of an oncoming vehicle does not, of itself,
necessarily establish negligence: see also generally: Uyeyama et al.
v. Wittenberg et al., [1985] B.C.J. No. 1883 (C.A.); Kokkinis.

[67]  Madam Justice Saunders concluded at paras. 20-21 that,
because it was light outside and the visibility clear, a reasonable observer
would have noticed Mr. King’s rapid approach toward the
intersection.  She found Mr. Chung contributorily negligent. 
The degree of fault was apportioned 80% to Mr. King and 20% to
Mr. Chung.

[68]  In both Raie and Keen, the Court of
Appeal explicitly endorsed the enduring dictum of Cartwright J. in Walker
v. Brownlee and Harmon, [1952] 2 D.L.R. 450 (S.C.C.)  (at 461) [Walker],
concerning the nature of the duty imposed on the so-called servient driver:

While the decision of every motor
vehicle collision case must depend on its particular facts, I am of opinion
that when A, the driver in the servient position, proceeds through an
intersection in complete disregard of his statutory duty to yield the
right-of-way and a collision results, if he seeks to cast any portion of the
blame upon B, the driver having the right-of-way, A must establish that after B
became aware, or by the exercise of reasonable care should have become aware,
of A’s disregard of the law B had in fact a sufficient opportunity to avoid the
accident of which a reasonably careful and skilful driver would have availed
himself; and I do not think that in such circumstances any doubts should be
resolved in favour of A, whose unlawful conduct was fons et origo mali.

[69]  Mr. Justice Cartwright’s approach has been
consistently applied by this Court since its articulation: see generally: 
Pacheco et al. v. Robinson et al. (1993), 75 B.C.L.R. (2d) 273, 22
B.C.A.C. 185; Gautreau v. Hollige 2000 BCCA 390.

[156]    
Madam Justice Ballance’s observations on this point are apposite
to the case at bar.

[157]    
As in Hynna, counsel for Mr. Van Boeyen relies on this
Court’s application of Cartwright J.’s analysis in Walker found in the
decision of Cooper v. Garrett, 2009 BCSC 35, as it concerns a speeding
through or dominant driver. In the case at bar, counsel correctly observes that
travelling over the speed limit will only constitute negligence if the speed is
what prevented the defendant from taking reasonable measures to avoid the
collision.

[158]    
However, in Hynna at paras. 71-78, Ballance J. carefully
reviewed the facts from Cooper and noted in that case the defendant
executed a left hand turn and immediately struck the speeding taxi that the
plaintiff was travelling in. The fact the case was a head-on collision was a
significant factual feature. In the circumstances of Cooper it was
determined that speed in that case did not prevent the taxi driver from taking
reasonable measures to avoid the collision. Rather, the defendant driver’s
conduct of encroaching upon the taxi driver’s path, when the approaching taxi
was only 40 metres away, made it impossible for the taxi driver to avoid the
collision and he clearly posed an immediate hazard to the defendant when the defendant
elected to turn left. By virtue of the fact the collision was essentially a
head-on collision in Cooper, there clearly was no opportunity for the
taxi driver to brake or take any avoidance steps – a distinction of some
significance for both the circumstances in Hynna as well as the
circumstances of the case at bar.

[159]    
Madam Justice Ballance reached the following conclusion at paras.
80-81 of Hynna about the scope of the decision in Cooper and the
import of what defence counsel was advancing in that case:

[80]  I do not read the Cooper decision as
advocating, in the assessment of tort liability, the outright rejection of
considerations pertaining to the speed or other conduct of the through driver
who constitutes an immediate hazard.  Put another way, Cooper does
not lay down a rigid rule that the Court ought not to consider whether and how
the speed of a through driver might have played a causative role in an accident
where it has been found that the other driver has failed to yield the
right-of-way.  In my view, the dictum in Walker does not extend
that broadly and was not intended to have that reach.  The Court in Walker
speaks of avoidance action to be taken by a reasonably careful and skilful
driver.  It is difficult to imagine how a driver who is speeding
significantly over the applicable limit can legitimately be portrayed as
standing in the position of the reasonably careful and skilful driver
contemplated by Cartwright J.

[81]  One can conceive of all manner of substandard or
reckless driving conduct that might prevent a driver from taking evasive action
in response to a servient driver’s failure to yield the right-of-way. 
Based on the defence’s reading of the breadth of the ratio in Cooper,
such flawed driving conduct is not a relevant consideration even where it is
shown that it deprived the defective driver from being able to take reasonable
evasive action.  The analysis urged by the defence would give unrestrained
licence to a through driver to speed excessively, fail to maintain a proper
look-out and violate any number of the other rules of the road, and yet not be
held responsible for negligence on his part, even where his impugned conduct
prevented him from taking reasonable avoidance measures and was a proximate
cause of the accident.  Resolving liability between two substandard
drivers using that approach would effectively attach absolute liability on the
driver who has failed to yield the right-of-way pursuant to s. 175. 
That approach is not sanctioned by s. 175 and seems incompatible with the
basic tenets of the law of causation.

[160]    
I agree with Ballance J.’s conclusion and adopt it for the
purposes of the analysis in the case at bar.

[161]    
Mr. Rothenbusch was fixed with the primary obligation
to not commence his left hand turn onto Cedar Street unless it was safe to do
so. I have found he breached his obligation by failing to check one last time
as to where the defendant’s vehicle was positioned immediately before he
commenced his left hand turn and that this breach played a causative part in the
occurrence of the accident. However, his failure to check one last time on the
whereabouts of the defendant’s vehicle does not necessarily carry with it
absolute liability for the ensuing accident. Implicit in much of the
jurisprudence, and sometimes expressly stated, is the principle that if the
substandard conduct of the dominant driver on a through highway is a proximate
cause of the accident, that driver will also bear some of the responsibility
for the accident even where the other driver has failed to yield the right of
way to through traffic when entering a highway or negotiating a left turn: see Hynna
at para. 83 and the authorities cited therein.

[162]    
Potential liability for an accident where the
dominant driver is speeding was addressed in part in Santos v. Raes, [1998]
B.C.J. No. 389 (S.C.) where at paras. 11 and 15 Catliff J. noted:

While travelling with other traffic over the speed
limit does not itself constitute negligence in this case, it will constitute
contributory negligence if excessive speed probably prevented the defendant
from taking reasonable measures to avoid the accident.

…All
drivers who exceed the speed limit run the risk of being found liable if their speed
has prevented them from taking reasonable evasive action to avoid an accident.

[163]    
I have found Mr. Van Boeyen was speeding along
Cedar Street, and likely travelling at a speed close to 70 km/h, nearly 20 km/h
in excess of the posted speed limit. He was at least 250 feet from the
intersection when Mr. Rothenbusch commenced his left hand turn, a distance
sufficient for him to slow down by either taking his foot off the gas pedal and
braking, and/or simply remain in his lane of travel, or move to the curb lane
of travel. But for Mr. Van Boeyen’s excessive speed of travel and his
inexplicable swerve into the oncoming traffic lane, he would have been able to
take reasonable measures to avoid the accident and it would not have occurred. In
driving in the manner he did, Mr. Van Boeyen failed to drive with reasonable
care and attention and created the hazardous circumstances that were a
contributing cause to the accident.

[164]    
I conclude that the conduct of both Mr. Van
Boeyen and Mr. Rothenbusch was negligent, and combined to cause the accident.

[165]    
Where, as here, the fault of two or more persons
combine to cause a loss, liability will be apportioned.  Apportionment is
governed by the Negligence Act, R.S.B.C. 1996, c. 333.  The relevant
provisions are set out below:

s.1 Apportionment of liability for damages

(1)  If by the fault of 2 or more persons damage or loss
is caused to one or more of them, the liability to make good the damage or loss
is in proportion to the degree to which each person was at fault.

(2)  Despite subsection (1), if, having regard to all
the circumstances of the case, it is not possible to establish different
degrees of fault, the liability must be apportioned equally.

(3)  Nothing in this section operates to make a person
liable for damage or loss to which the person’s fault has not contributed.

s.4 Liability and right of contribution

(1)  If damage or loss has
been caused by the fault of 2 or more persons, the court must determine the
degree to which each person was at fault.

[166]    
In assessing apportionment, the
Court examines the extent of blameworthiness, that is, the degree to which each
party is at fault, and not the degree to which each party’s fault has caused
the loss. Stated another way, the Court does not assess degrees of causation,
it assesses degrees of fault: Cempel v. Harrison Hot Springs Hotel Ltd. (1997),
43 B.C.L.R. (3d) 219, 100 B.C.A.C. 212; Hynna at para. 88.

[167]    
In Cempel, the trial judge apportioned liability equally
between the parties on the basis that the plaintiff was "primarily the
author of her own misfortune." The Court of Appeal found this reasoning to
constitute an error of law, reassessed the apportionment and found the
plaintiff to be only 40% at fault: Cempel, para. 19.

[168]    
A number of factors may be relevant in assessing relative degrees
of fault.  In Aberdeen v. Langley (Township), Zanatta, Cassels, 2007
BCSC 993, (reversed in part: Aberdeen v. Zanatta, 2008 BCCA 420) at
paras. 62-63, Groves J. enumerated and reviewed the factors for assessing
relative degrees of fault. And in MacEachern v. Rennie, 2010 BCSC 625,
at para. 651 Ehrcke J. noted the factors included the following:

1.         The nature of the duty owed by the tortfeasor to
the injured person;

2.         The
number of acts of fault or negligence committed by a person at fault;

3.         The
timing of the various negligent acts. For example, the party who first commits
a negligent act will usually be more at fault than the party whose negligence
comes as a result of the initial fault;

4.         The
nature of the conduct held to amount to fault. For example, indifference to the
results of the conduct may be more blameworthy. Similarly, a deliberate
departure from safety rules may be more blameworthy than an imperfect reaction
to a crisis;

5.         The
extent to which the conduct breaches statutory requirements. For example, in a
motor vehicle collision, the driver of the vehicle with the right of way may be
less blameworthy;

6.         The gravity of the risk created;

7.         The
extent of the opportunity to avoid or prevent the accident or the damage;

8.         Whether
the conduct in question was deliberate, or unusual or unexpected; and,

9.         The knowledge one person had or
should have had of the conduct of another person at fault.

[169]    
In this case both drivers were in breach of their statutory
duties. The defendant was speeding and not keeping a proper lookout for traffic
crossing the intersection. He was about three driveways south of the
intersection when the plaintiff started to make his left hand turn, a distance
of at least 250 feet or 75 metres. He failed to slow down or take responsible
evasive action, instead steering into the oncoming traffic lane.

[170]    
Considering all of the above factors, I would apportion 70% of
the fault to the defendant and 30% to the plaintiff. Both the plaintiff and the
defendant had a duty to be aware of each other’s presence and to take
appropriate steps to ensure there was sufficient time for the plaintiff to
execute his left hand turn. By their actions, both contributed to the accident.

[171]    
I find Mr. Van Boeyen to be more blameworthy for three reasons.
First, given his higher vantage point from the cab of a pickup truck modified
with a lift kit, he had a better view and better opportunity to assess the
situation and should have noticed the plaintiff’s vehicle with its left turn
signal flashing. The second error was accelerating up Cedar Street in the
manner he did, exceeding the posted speed limit of 50 km/h. Although it is
difficult to determine the precise speed he was travelling at, given the lack
of sufficient reliable data to assist in that determination, the evidence of
the plaintiffs’ witnesses clearly establishes Mr. Van Boeyen was speeding and
travelling at a rate higher than the regular flow of traffic, at a rate I have
found to be likely close to 70 km/h. His third error was in failing to keep his
vehicle in his lane of travel or to steer to the right to avoid the plaintiff’s
vehicle. Instead of doing either of these reasonable manoeuvres, Mr. Van
Boeyen, inexplicably, steered his vehicle into the oncoming southbound traffic
lane, hitting the plaintiff’s vehicle, which, on the totality of the physical
evidence and observations at the scene, was almost entirely in the southbound
lane of Cedar Street and thus largely had completed his turn at the time of the
collision.

[172]    
Accordingly, due to Mr. Van Boeyen’s speeding, his failure to
keep a proper lookout, his distance from the intersection which provided sufficient
room to take evasive manoeuvres, the lack of surrounding traffic limiting his
movements to the right, and his inexplicable swerve manoeuvre into the incoming
lane of traffic, his liability in relation to the collision is greater than
that of the defendant in Hynna who was only speeding but at a closer
location relative to the intersection but less than the defendant in Chung who
was travelling at an excessively high rate of speed.

[173]    
In the case at bar, Mr. Rothenbusch checked to
his left twice before entering the intersection. On the first occasion, the
defendant’s vehicle was not on Cedar Street. On the second occasion, the
defendant’s vehicle had just entered into the northbound lane of Cedar Street
from 7th Avenue, about three blocks to the south of Mr. Rothenbusch’s position. 
Mr. Rothenbusch then checked right and waited for a van proceeding south on
Cedar Street to clear the intersection. He then proceeded to make his left hand
turn without one further check to his left. Had he done so he would have seen
Mr. Van Boeyen’s vehicle speeding towards the intersection. Although Mr.
Rothenbusch is entitled to assume that Mr. Van Boeyen will observe the rules of
the road with respect to speed, he should have checked to his left one last
time before he commenced his turn.

[174]    
Thus liability for the accident will be
apportioned at 70% to the defendant, Mr Van Boeyen, and 30% to the plaintiff,
Mr. Rothenbusch.

[175]    
I turn now to the evidence addressing the nature
and extent of the injuries sustained by Mr. Rothenbusch as a result of the
accident and the quantum of damages.

III.       Injuries and Quantum of Damages

[176]    
In addition to Mr. Rothenbusch’s evidence on the
nature and extent of his injuries, the Court heard from Mrs. Rothenbusch, Dr. Peter
Frew, the plaintiff’s family physician, and Dr. Kenneth Kousaie, an orthopaedic
surgeon retained by the defence to conduct an independent medical examination
upon the plaintiff.

[177]    
Mr. Rothenbusch was undoubtedly injured as a result of the
accident. He was transported from the accident scene to the hospital by
ambulance. Both vehicles were a write off due to the damage sustained in the
accident. The question for analysis regarding the appropriate quantum of
damages concerns the extent of his injuries and the impact these injuries have
had upon his life.

[178]    
On the issue of injuries sustained, the plaintiff
argues the medical opinion evidence supports his position that he suffered soft
tissue injuries to his neck, lumbar spine, left scapula, left ribs, a
concussion which has left him with headaches and memory problems, cuts to his
face, pain in his jaw and erectile dysfunction. Although his physician notes
that he was totally disabled until December 31, 2007, he remains partially
disabled as a result of the injuries sustained in the accident. His counsel
also argues, given the plaintiff’s age, the injuries he sustained are more
serious than if they had been sustained by a younger person.

[179]    
The defendant acknowledges the plaintiff
sustained soft tissue injuries to his neck, lumbar spine, left scapula area and
left ribs as a result of the accident but argues the medical evidence
establishes the total period of disability was approximately 10 months. The
defendant disputes the plaintiff sustained a concussion in the accident.
Subsequent health issues have intervened, argues the defendant, that have
contributed to the plaintiff’s memory difficulties and other physical
limitations, including a concussion from a fall on ice in late January 2008 and
then open heart surgery later in February 2008.

A.       Before the Accident

[180]    
Mr. Rothenbusch was almost 81 years of age at the time of the
accident.  Although retired from hog farming, Mr. Rothenbusch remained active
in the community, curling two or three times a week and engaging in volunteer
pastoral work at a senior’s lodge and visiting people in the hospital. He also
helped a friend at a berry farm by planting and pruning throughout the year and
in picking berries during the summer season. In addition to being a hog farmer,
Mr. Rothenbusch worked in construction and as a plumber and continued to do his
own home repairs and helped others in this area.

[181]    
Prior to the accident, Mr. Rothenbusch had no difficulties with
his neck or shoulders, he could do plumbing work and home repairs, his memory
was perfect, and he remained intimate with his wife. He had some physical
difficulties due to a defective heart valve but that only affected him in terms
of experiencing shortness of breath.

[182]    
Janet Rothenbusch, the plaintiff’s wife of 58 years, largely confirmed
in her evidence that prior to the accident, Mr. Rothenbusch did not have
difficulties with his memory, was able to perform home repair and plumbing
tasks, did the vacuuming, chopped wood, mowed the lawn and did a variety of
other tasks and activities related to the upkeep of their home and acreage.

[183]    
Sometime after the accident, the couple moved from their rural
home into an apartment style residence and so some tasks, such as chopping wood
and mowing the lawn, were no longer necessary.

B.       After the Accident

i.        The Evidence of Mr. Rothenbusch

[184]    
Since the accident, Mr. Rothenbusch testified his activities have
been curtailed significantly. He cannot do home repairs, change a light bulb or
hang pictures as he cannot lift his hands above his head without pain to his
shoulders. His memory has deteriorated. His neck continues to bother him in
terms of ongoing pain, which he treats with Tylenol, and he continues to
experience headaches. He is no longer able to be intimate with his wife.

[185]    
Insofar as the immediate aftermath of the
accident is concerned, Mr. Rothenbusch believes he was unconscious for a
period of time after the accident but did not know the length of time. His
belief he was unconscious is grounded in the fact that he has no specific
memory of events immediately after the accident. Mr. Rothenbusch believes he
hit his head in the accident because his face was bleeding but has no specific
memory of doing so.

[186]    
Apart from blood running down his face and his ribs hurting from
where his seatbelt was, Mr. Rothenbusch testified that he was too “shook up” to
remember being aware of any other injuries at the time. Mr. Rothenbusch was
transported to the emergency department at Mission Memorial Hospital in an
ambulance.

[187]    
Mr. Rothenbusch testified he felt numb while he was at the
hospital. He could not recall having x-rays taken at the hospital. He did
recall being discharged from the hospital in the early evening and taken home
by his daughter.

[188]    
Mr. Rothenbusch explained that of the injuries caused by the
accident the most significant ones were to his neck and his head in terms of
his memory problems. However, he also explained that as time wore on he could
no longer be intimate with his wife and also that his bowels started to
deteriorate.

[189]    
Mr. Rothenbusch testified he went to see his family doctor, Dr.
Frew, about three days after the accident, complaining his neck, head, ribs and
face still hurt and he was not feeling very well. Dr. Frew referred him for
physiotherapy or massage therapy to work on his neck and he attended
approximately 10 times.

[190]    
Mr. Rothenbusch testified that since the accident he has not
noticed any improvement with respect to his injuries and said difficulty with
his memory remains a big problem for him as he is starting to forget the names
of his children and forgets where he has placed items.

[191]    
Mr. Rothenbusch testified in direct examination he recalled falling
in his driveway after clearing snow but could not remember when it happened. He
testified he was not rendered unconscious but an ambulance was called and he
was checked by the ambulance attendants. He testified that although he thought
he was fine, he was taken to the emergency department of the Mission Memorial Hospital
anyway. In cross-examination Mr. Rothenbusch recalled slipping on the ice in
February 2008 falling and hitting his head. He did recall the ambulance
attended but he did not recall going to emergency with them. He was shook up
from the fall but did not recall being dizzy or vomiting or having difficulty
with his speech or experiencing blurry vision. He did not recall asking Dr.
Frew to have a CT scan done and could not recall having the CT scan done.

[192]    
Mr. Rothenbusch did not hurt his neck or shoulders in that fall
but felt it probably did not help him.  He explained that to him it appeared
that since the motor vehicle accident “everything has gone wrong.”

[193]    
Mr. Rothenbusch testified he also had cardiac surgery, although
he could not remember the exact date. The surgery was a major operation
involving valve replacement and being outfitted with a pacemaker. He was
hospitalized for approximately 10 days following this surgery. There were
complications and fluid build up as a result of the surgery and he had to be
re-hospitalized. Although his recuperation period took a couple of months, Mr.
Rothenbusch was not prepared to concede some of his physical ailments were as a
result of the surgery and his heart condition.

[194]    
Mr. Rothenbusch explained that although he did not do a lot of
activities prior to the accident, the activities he did engage in were affected
by the injuries from the accident. In particular, he is no longer able to
assist a friend on his berry farm picking berries and helping with the farming
as he is no longer able to raise his arms under the trees and bushes.

[195]    
Mr. Rothenbusch initially explained he also did not curl for
about a year after the accident, but in cross-examination acknowledged he
missed only one month at the end of the curling season after the accident and
then returned to it in the fall of 2007. Although he is no longer able to
crouch in the “hack” position when throwing a stone, and now has to use his
broom and stand up straight, it was not entirely clear from the evidence this
had anything to do with injuries from the accident as opposed to complications
from his heart surgery and his general decline in health due to the aging process.

[196]    
In terms of his relationship with his wife, Mr. Rothenbusch
explained that although sexual intimacy was not as frequent as when they were
first married, since the accident they have not been able to be sexually
intimate at all.

[197]    
Mr. Rothenbusch agreed Dr. Frew was the person who prescribed him
pain medications, although he could not recall specifically what had been
prescribed. He did recall Dr. Frew recommending physiotherapy mainly for his
neck and that the physiotherapy helped his neck feel better. He could not
recall why he had stopped attending physiotherapy.

[198]    
Mr. Rothenbusch recalled seeing Dr. Kousaie in Chilliwack as part
of the process for the litigation but could not remember what they talked about
and did not remember anybody mentioning to him that he has arthritis.

[199]    
Mr. Rothenbusch agreed he suffered perhaps minor injuries as a
result of the accident but that they really affected his life. He disagreed
with the suggestion he did not hit his head in the accident and suffered a
concussion as a result of it. He also disagreed with the
suggestion the symptoms from the injuries he sustained in the accident had
resolved by December 2007, and that the health issues
he was still experiencing at trial were due to other medical issues.

ii.       The Evidence of Mrs. Rothenbusch

[200]    
The bulk of Mrs. Rothenbusch’s evidence
was directed to her observations of the change in her husband’s health as a
result of the accident. Mrs. Rothenbusch testified that prior to the accident
Mr. Rothenbusch did not have difficulty with his memory but after the accident
he could not remember even normal questions.

[201]    
In terms of physical limitations since the accident, Mrs.
Rothenbusch noted her husband has been unable to lift his arms above his
shoulders, he has been unable to hang pictures in their new home and he has not
been able to do any vacuuming for her since the accident. This latter point was
a household chore Mr. Rothenbusch performed prior to the accident.

[202]    
Mrs. Rothenbusch also testified that prior to the accident Mr.
Rothenbusch, in addition to being a hog farmer, worked as a plumber, and since
the accident has been unable to do that, describing how he has been unable to
fix the garburator in their kitchen as he is unable to put his head under the
sink.

[203]    
Prior to the accident, Mr. Rothenbusch was able to chop wood, mow
the lawn and do a variety of activities in their mobile home and on their
acreage.

[204]    
Mrs. Rothenbusch testified the injuries Mr. Rothenbusch sustained
in the accident also had an impact on their sexual relationship and they have
not been able to be intimate since the accident.

[205]    
Mrs. Rothenbusch testified that immediately after the accident
she had to do more of the driving, but Mr. Rothenbusch has returned to doing
most of the driving now.

[206]    
When asked if there had been any improvement in her husband as
time passed, Mrs. Rothenbusch testified there had been no improvement really as
far as his neck was concerned, the issue of his forgetfulness and his inability
to raise his arms above his shoulders.

[207]    
In cross-examination, Mrs. Rothenbusch acknowledged Mr.
Rothenbusch had heart surgery in February 2008 and it was a serious operation
that took him some time to recover. Mrs. Rothenbusch disagreed with the
suggestion some of the symptoms her husband continued to exhibit were simply related
to aging.

C.       The Expert Medical Evidence of Mr. Rothenbusch’s
Injuries

i.        Evidence of Dr. Peter Frew –Mr. Rothenbusch’s Physician

[208]    
Dr. Peter Frew, the plaintiff’s family doctor of 10 years,
outlined his observations of Mr. Rothenbusch’s health both prior to and
following the accident. Dr. Frew saw Mr. Rothenbusch on February 26, 2007, four
days after the accident, assessing and treating him for the injuries sustained
in the accident. Dr. Frew was aware Mr. Rothenbusch had been seen in the
emergency room of the hospital immediately after the accident and there were
complaints of left side chest pain and lacerations to the left side of the
face, but that x-rays of the facial bones and chest and left side ribs were
found to be normal.

[209]    
Over the course of almost two years, Mr. Rothenbusch complained to
Dr. Frew of ongoing neck tenderness, headaches, difficulty with his lower back
in the lumbar region and, in June 2007, reported noticing memory difficulties since
the time of the accident. In October 2007 Mr. Rothenbusch complained of
difficulties with his bowels and also of erectile dysfunction, attributing both
to the accident. Significantly, however, Dr. Frew expressed no opinion about
these two complaints being related to the accident.

[210]    
Dr. Frew diagnosed Mr. Rothenbusch as sustaining soft tissue
injuries in the accident that affected his neck, lumbar spine, left scapula and
left ribs. He also concluded Mr. Rothenbusch sustained a mild concussion in the
accident, which was complicated by post concussion headaches and memory
difficulties.

[211]    
Although Dr. Frew stated in his medical report that the
disability period for the accident related injuries Mr Rothenbusch sustained
only went to December 31, 2007, he was clear in his evidence Mr. Rothenbusch
remains partially disabled in terms of the activities he is no longer able to
engage in.

[212]    
Dr. Frew testified that as of March 31, 2009, it was his
understanding Mr. Rothenbusch was still unable to resume his physical work in
plumbing or construction. However, he had able to pursue his pastoral work as a
hospital volunteer. Dr. Frew noted Mr. Rothenbusch was unable to perform any
work around the house and had difficulty with basic housekeeping
responsibilities; however, he was able to pursue his recreational activities
such as curling.

[213]    
It was Dr. Frew’s opinion, based on X-ray reports, there was a
pre-existing degenerative disc disease affecting Mr. Rothenbusch’s neck but
that Mr. Rothenbusch did not have any difficulties with this neck prior to the
accident. Accordingly, it was Dr. Frew’s opinion the degenerative changes in Mr.
Rothenbusch’s neck were asymptomatic prior to the accident. The neck pain Mr. Rothenbusch
complained of as a result of the accident was muscular and ligamentous. In Dr.
Frew’s opinion, weakening of the ligaments could lead to worsening of arthritis
in the neck and discs pinching nerves in the neck.

[214]    
Dr. Frew opined that he felt it was a possibility Mr.
Rothenbusch’s neck could become worse and he was susceptible to developing
cervical spondylosis or degenerative disc disease which could involve nerve
root compression and might require surgery. He conceded in cross-examination
Mr. Rothenbusch already had disc degeneration in his neck and the CT scan did
not suggest any need for surgery because there was no disc herniation. Although
the disc degeneration was pre-existing, the symptoms of neck pain and stiffness
were new and resultant of injuries from the accident.

[215]    
Dr. Frew explained in his evidence that after the accident and
over the subsequent months of visits to his office, the recurring complaint
presented by Mr. Rothenbusch was of neck pain, lumbar spine pain and memory
deficit. In respect of the low back pain, Dr. Frew was of the opinion this
could progress to further difficulties or disc herniation with a small chance
future surgery might be required.

[216]    
In both his medical-legal report of March 31, 2009, and his
evidence, Dr. Frew opined that because there were abrasions to Mr.
Rothenbusch’s face at the time of the accident, it was his opinion Mr.
Rothenbusch sustained a minor concussion at the time of the accident, which was
causing the memory difficulties. He initially attributed Mr. Rothenbusch’s
headaches to his diagnosis of a concussion but conceded the headaches could be
due to the neck pain Mr. Rothenbusch experienced as a result of the soft tissue
injuries he sustained to his neck in the accident.

[217]    
In cross-examination, Dr. Frew acknowledged the basis for his diagnosis
of a mild concussion from the accident was Mr. Rothenbusch’s complaint of
memory difficulties and the facial injuries observed at the scene. He did not
conduct any formal tests for memory function.

[218]    
Dr. Frew was aware the emergency room report, generated by
Mission Memorial Hospital on February 22, 2007, referred to Mr. Rothenbusch
having abrasions on the left side of his face and that he was diagnosed with
multiple soft tissue injuries and a facial abrasion. Dr. Frew was also aware
there was no diagnosis of concussion while Mr. Rothenbusch was in the emergency
room after the accident. He was not aware of any evidence that suggested Mr.
Rothenbusch was unconscious at the scene of the accident.

[219]    
Dr. Frew did not know Mr. Rothenbusch walked to the ambulance or
spoke with the police at the scene. Significantly, he was unaware the
windshield of Mr. Rothenbusch’s vehicle was shattered and that there was broken
glass everywhere at the scene of the accident.

[220]    
In respect of Mr. Rothenbusch’s memory problems, Dr. Frew
testified that when Mr. Rothenbusch complained of trouble with his memory he
would make a note of it. However, there was only one notation of memory
problems in his clinical records from June 1, 2007. Dr. Frew conceded it was
possible Mr. Rothenbusch did not sustain a minor head injury or concussion in
the accident and that his memory problems were simply due to aging.

[221]    
Dr. Frew agreed an emergency room record from the Mission
Memorial Hospital dated February 1, 2008, indicated Mr. Rothenbusch attended
the emergency room on February 1, 2008, in relation to falling on the ice two
days prior.  Dr. Frew’s own clinical records indicated that on January 31, 2008,
the plaintiff fell two times on January 30, 2008, knocking himself out. He agreed
the emergency room record from February 1, 2008, indicated Mr. Rothenbusch attended
the emergency room and complained of loss of consciousness, mild nausea,
headaches, diplopia (double vision) and was diagnosed as sustaining a
concussion from the fall on the ice two days earlier.

[222]    
On February 4, 2008, Mr. Rothenbusch attended Dr. Frew’s office
and requested a CT scan for the headaches he was experiencing from the fall. A
CT scan was conducted, and a report dated February 18, 2008, indicated cerebral
tissue loss as a result of the general aging process but that there were no
other signs of abnormality.

[223]    
Dr. Frew testified that in addition to his difficulties from the
accident and the subsequent fall on the ice in January 2008, Mr. Rothenbusch
also had other health difficulties including aortic stenosis, a narrowed heart valve,
which was diagnosed prior to the accident. Mr. Rothenbusch was finally able to have
heart surgery on February 25, 2008. He was discharged from the hospital but was
later re-admitted for pleural effusion and an element of congestive heart
failure.

ii.       Evidence of Dr. Kenneth Kousaie – the Defendant’s Medical Expert

[224]    
Dr. Kousaie, an orthopaedic surgeon, conducted an independent
medical examination of the plaintiff on Monday, August 17, 2009, and prepared a
medical/legal opinion dated that same date.

[225]    
In his physical examination of Mr. Rothenbusch, Dr. Kousaie observed
Mr. Rothenbusch’s head and jaw were normal and his cervical spine was aligned
normally except that he held his head forward. Dr. Kousaie did not note any
swelling or tenderness or muscle spasm in this area. Muscle strength of the
cervical spine was found to be normal, however, in bending and flexing his head
Mr. Rothenbusch was able to bring his chin to his chest but could only extend
his head back to the neutral position.  Rotation of his head in either
direction was to 70 degrees. Dr. Kousaie did note a significant loss of lateral
deviation in that Mr. Rothenbusch was unable to tilt his head to one side or
the other.

[226]    
Examination of Mr. Rothenbusch’s lumbar spine revealed it to be
normally aligned and there was no tenderness, masses or muscle spasm. In terms
of flexion and extension, Mr. Rothenbusch had no lumbar extension and his
lateral deviation and rotation showed significant decreased motion. Examination
of Mr. Rothenbusch’s shoulders revealed no swelling or atrophy of the muscles,
but Dr. Kousaie did note a restricted range of motion with respect to the
shoulders and conceded Mr. Rothenbusch had significant problems in raising his
hands above his shoulders.

[227]    
Dr. Kousaie also examined a number of x-rays of Mr. Rothenbusch’s
cervical and lumbar spine areas that demonstrated changes due to degenerative
arthritic disease. Dr. Kousaie noted arthritis would cause some pain in an
individual’s neck but conceded in cross-examination arthritic disease in the
neck area would make the neck more susceptible to injury in a motor vehicle
accident.

[228]    
Dr. Kousaie was of the opinion the arthritic disease as depicted
in the x-rays predated the accident and this likely would have prolonged, and
increased the severity of, the injuries from the accident. Although Dr. Kousaie
did not think it was reasonable to assume the neck pain Mr. Rothenbusch was
experiencing when he examined him in August 2009 was as a result of the
accident, he did concede it was possible the pain was also as a result of the
accident.

[229]    
Dr. Kousaie agreed with Dr. Frew’s opinion Mr. Rothenbusch suffered
moderate soft tissue injuries which involved his neck, head, mid and low back
area. It was Dr. Kousaie’s opinion Mr. Rothenbusch had, for the most part,
recovered from the injuries suffered in the accident. He noted Mr. Rothenbusch
had returned to curling, albeit only two times a week instead of three times a
week. The altered manner of curling, that is Mr. Rothenbusch’s inability to
crouch and get into the “hack” position anymore, was, in Dr. Kousaie’s opinion,
a function of his general physical status as an octogenarian as well as his
cardiac status, and the change in positioning and manner of curling was not
caused by the injuries suffered in the accident.

[230]    
Based on all the medical information available to Dr. Kousaie,
including his review of the documents provided, Dr. Kousaie was of the opinion Mr.
Rothenbusch’s injuries resolved by December 31, 2007. It was clear he was
relying upon Dr. Frew’s statement in his expert report that the period of
disability referred to in the report meant Mr. Rothenbsuch was no longer
disabled in terms of an ability to function. Dr. Kousaie acknowledged Dr. Frew
went on to point out Mr. Rothenbusch had been unable to resume his physical
work in plumbing and construction, but when Dr. Kousaie took all the available
information into consideration he did not feel the soft tissue injuries continued
to affect Mr. Rothenbusch.

[231]    
From all the information he reviewed and his interview with Mr.
Rothenbusch, Dr. Kousaie opined that Mr. Rothenbusch likely suffered a
concussion with loss of consciousness in the accident and he experienced problems
with memory up to the date of his report. However, Dr. Kouasie qualified this
opinion by stating he was not an expert in the area and could not pronounce on
the significance of that aspect of the injury.

[232]    
Dr. Kousaie pointed out, in his opinion, the heart surgery Mr.
Rothenbusch underwent well after the accident likely had an effect on Mr.
Rothenbusch’s health. It may have impacted on his ability to rehabilitate from
the injuries he suffered in the motor vehicle accident, and some of his complaints
of physical disabilities are equally consistent with events from the cardiac
surgery as from the injuries suffered in the motor vehicle accident.

D.       The Nature, Extent and Severity of the Plaintiff’s Injuries

[233]    
It is clear from the totality of the evidence Mr.
Rothenbusch sustained moderate soft tissue injuries to his neck, lumbar spine,
left scapula and left ribs and he suffered cuts to his face as result of the
accident.  The defence concedes this point.

[234]    
Although the more pronounced symptoms have
subsided and the total disability was mainly resolved by December 2007, it is
equally clear Mr. Rothenbusch continues to experience symptoms of pain and
restricted range of motion with his neck and shoulder as a result of the
injuries he sustained in the accident. The difficulties with his neck and
shoulder thus have not completely resolved. Although there may well have been a
pre-existing degenerative disc disease in his neck prior to the accident, Mr.
Rothenbusch was not symptomatic pre-accident. It can be fairly concluded that
the injuries to his neck sustained in the accident remain as contributory
factors in the continuing intermittent pain symptoms Mr. Rothenbusch
experiences in his neck.

[235]    
The plaintiff bears the onus of proving it is
more probable than not he suffered each of the injuries he alleges. In my
opinion, it has not been shown there is a reasonable possibility Mr.
Rothenbusch might have sustained a mild concussion as a result of the accident,
and I certainly am not persuaded it is more probable than not that this
occurred.

[236]    
Although Dr. Kousaie states it is likely Mr.
Rothenbusch suffered a concussion and loss of consciousness at the accident, he
goes on to note he is not an expert in the area and cannot provide an opinion
on the significance of the injury.

[237]    
The rest of the evidence would appear to be
inconsistent with a concussion being sustained. Dr. Frew’s diagnosis is based
simply on the self report of memory loss by Mr. Rothenbusch in June 2007 and on
an assumption that the facial lacerations support the conclusion Mr. Rothenbusch
hit his head in the accident. Other evidence from the accident scene such as a
shattered windshield, broken glass, and Mr. Rothenbusch’s interactions with police
and witnesses was unknown to Dr. Frew and tends to undermine his opinion of a
concussion. Significantly, Mr. Rothenbusch was not diagnosed at the hospital as
having sustained a concussion in the accident. Thus, I find the weight of the
evidence does not support the conclusion Mr. Rothenbusch suffered a concussion
in the accident.

[238]    
The issue of post-concussion headaches stemming from
the accident has also not been established, based on my conclusion Mr.
Rothenbusch did not sustain a concussion in the accident. Dr. Frew conceded the
headaches that occurred after the accident could well have been caused by the
injuries Mr. Rothenbusch sustained to his neck in the accident.

[239]    
Of significance to my finding is that Mr.
Rothenbusch did sustain a concussion when he fell and hit his head on the ice
in late January 2008. He then had major heart surgery on February 25, 2008, which
may also contribute to the failing memory problems he is now experiencing.

[240]    
Although Mr.
Rothenbusch’s headaches after the accident and up to the fall on the ice in
late January 2008 may well have been precipitated by his neck injury, it is
impossible to discern from the state of the medical evidence whether the
headaches he experienced after the fall on the ice were due to the accident or
to the concussion sustained in the fall. Accordingly, I do not find it is more
probable than not that any ongoing headaches Mr. Rothenbusch experiences are
due to the injuries from the accident.

[241]    
I reach similar
conclusions with respect to Mr. Rothenbusch’s complaints about deterioration of
his bowels and erectile dysfunction. Although Dr. Frew refers in his medical-legal
report to these complaints being made by Mr. Rothenbusch during a visit in
October 2007, nothing in his diagnosis and medical opinion supports the
conclusion these two conditions are attributable to the accident.

[242]    
In the end, the totality of the evidence
supports the conclusion Mr. Rothenbusch sustained moderate soft tissue injuries
to his neck, lumbar spine, left scapula and left ribs as well as cuts to his face
as a result of the accident. The evidence further supports the conclusion that
the major disabilities from the injuries were largely resolved by the end of
December 2007. However, Mr. Rothenbusch continues to experience intermittent neck
and shoulder pain as a result of the injuries from the accident, and he is
still restricted in his range of motion for his neck and shoulder. These
continuing symptoms have, in part, impacted on his ability to return to all his
pre-accident activities.

[243]    
The evidence does not support the conclusion he
suffered pain in his jaw or erectile dysfunction as a result of the injuries
from the accident. Nor does the evidence support a conclusion he suffered a
concussion or post-concussion headaches as a result of the accident.

E.       Damages for the Plaintiff’s Injuries

[244]    
 Mr. Rothenbusch seeks the following in damages for the injuries he
sustained in the accident:

1.       Non-pecuniary
damages $50,000.00

2.       Special
damages                                                         $390.63

3.       In-trust
claim for Mrs. Rothenbusch                          $15,000.00

Total                                                                                $65,390.63

i.        Non-Pecuniary Damages

[245]    
Non-pecuniary damages are awarded to compensate
the plaintiff for pain, suffering, loss of enjoyment of life and loss of
amenities. The compensation awarded should be fair and reasonable to both
parties: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 [Andrews];
Jackson v. Lai, 2007 BCSC 1023, at para. 134 [Jackson]; Kuskis
v. Hon Tin, 2008 BCSC 862, at para. 135 [Kuskis].

[246]    
For the purposes of assessing non-pecuniary
damages, fairness is measured against awards made in comparable cases. Such
cases, though helpful, serve only as a rough guide. Each case depends on its
own unique facts: Andrews; Jackson; Jenkins v. Bourcier,
2003 BCSC 388, at para. 87; Radford v. Drobot et al., 2005 BCSC 293, at
para. 62; Kuskis at para 136.

[247]    
The relevant factors in assessing non-pecuniary
damages were reviewed by Mr. Justice Voith in Lakhani v. Elliott, 2009
BCSC 1058, at para. 104, citing the majority opinion of the Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34, (see also Kuskis at para. 138):

The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary
damages includes:

a.         age of the plaintiff;

b.         nature of the injury;

c.         severity and duration of pain;

d.         disability;

e.         emotional suffering; and

f.          loss or impairment of life.

I would add the following factors, although they may arguably
be subsumed in the above list:

g.         impairment of family, marital and social
relationships;

h.         impairment of physical and mental abilities;

i.          loss of lifestyle; and

j.          the plaintiffs stoicism (as a
factor that should not, generally speaking, penalize the plaintiff: Giang v.
Clayton, [2005] B.C.J. No. 163,  2005 BCCA 54).

[248]    
Mr. Rothenbusch seeks an award of $50,000 for
non-pecuniary damages. I have reviewed and considered the cases cited by
plaintiff’s counsel on the issue of non-pecuniary damages: Schembri v. MacNeil,
2001 BCSC 148 [Schembri], ($50,000); Sedor v. Snider, [1999]
B.C.J. No. 2853 [Sedor], ($50,000); Turner v. Coblenz, 2008 BCSC 1801
[Turner], ($55,000); and, Williams v. Nicholson, 2005 BCSC 910 [Williams],
($30,000).

[249]    
The defendant submits the soft tissue injuries
Mr. Rothenbusch experienced were mild to moderate and, on the evidence of both
medical experts, had resolved within 10 months. Accordingly, argues the
defence, the appropriate award for non-pecuniary damages is between $10,000 and
$20,000.

[250]    
I have also reviewed and considered the cases
cited by defence counsel on the issue of non-pecuniary damages: Galbraith v.
Marin, 2004 BCSC 671, ($12,000); Gladish v. Cymbaluk, 2003 BCSC 485,
($14,000); Kurucz v. Con, 2007 BCSC 589, ($15,000); and, Munday v.
Munday (1999), 48 M.V.R. (3d) 101 (B.C.S.C.) ($8,000 each for two
accidents).

[251]    
The difficulties
associated with trying to reconcile the awards in such cases are well known. While
the authorities are instructive, I do not propose to review them in these
reasons, I am mindful the nature of the inquiry is such that these cases can
serve only to provide guidelines as to the range of damages awarded in cases
with some similarities to the case at bar. In this case, as in all others of
this kind, the inquiry is highly factually dependant. Thus the quantum of any
award will turn, to a very large degree, on its unique circumstances, having
regard to what is fair and just in light of the nature, extent and duration of
Mr. Rothenbusch’s injuries and the impact these injuries have had on his
quality of life.

[252]    
The evidence
establishes Mr. Rothenbusch sustained moderate soft tissue injuries to his neck,
lumbar spine, left scapula and left ribs as a result of the accident. The
injuries have largely resolved, but he continues to experience intermittent
neck pain, pain and difficulties with his shoulder, and is not able to raise
his hands above his head without pain. The injuries have impacted his quality
of life.  Thus the injuries are more severe than the defence appears to acknowledge,
and have as yet to completely resolve. However, they are not as severe as
argued by counsel for the plaintiff and do not include such injuries as fine
motor skill problems and depth perception issues (Schembri), mild
traumatic brain injury (Sedor), or permanent hearing impairment (Turner).

[253]    
The case of greatest
assistance in assessing the issue of non-pecuniary damages is Williams,
where the 75 year old plaintiff sustained soft tissue injuries to his neck and
upper back which continued to cause him pain, described as a dull ache in his
neck, shoulders and upper back, that was aggravated by physical activity. Prior
to the accident, the plaintiff was in good health and active despite
degenerative disc disease and degenerative arthritis. Neither of those
conditions caused him pain or prevented him from engaging in the activities he
enjoyed.

[254]    
Mr. Rothenbusch’s circumstances, in terms of pre-accident
activity and health, are similar to those of the plaintiff in Williams, and
his post-accident state is not dissimilar either.

[255]    
Mr. Rothenbusch continues to experience
intermittent pain in his neck and continues to have difficulties with his shoulder.
He is not able to engage in some of the home repair, plumbing activities or
berry picking activities he enjoyed prior to the accident.

[256]    
Although Mr. Rothenbusch may not be as active as
a younger plaintiff, it is important to bear in mind that as one advances in
life, activities and pleasures sometimes become more limited. In that respect,
impairment of the limited activities and pleasures which an individual can
engage in becomes more serious: Williams at para. 17.

[257]    
Having regard to all the circumstances and
taking what guidance I can from the authorities provided by counsel, I assess
Mr. Rothenbusch’s non-pecuniary damages at $30,000.

ii.       Special Damages

[258]    
It is well established
a plaintiff is entitled to recover as special damages all the pre-trial expenses
he or she incurred as a result of their injuries, so long as they were caused by the tort and the decision to incur them
was reasonable: see Jamie Cassels, Remedies: The Law of Damages
(Toronto: Irwin Law Inc., 2000) at 116.  When assessing the quantum of damages
under any recognized head, the court is concerned, ultimately, with making the
party whole. In Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.),
aff’d (1987), 49 B.C.L.R.(2d) 99 (C.A.) McLachlin J. (as she then was),
described this animating principle at para. 78:

The fundamental governing
precept is restitutio in integrum. The injured person is to be restored
to the position he would have been in had the accident not occurred, insofar as
this can be done with money. This is the philosophical justification for
damages for loss of earning capacity, cost of future care and special damages.

[259]    
Defence counsel took no position
on the amount of special damages sought in this case. The expenses incurred are
minimal, and relate to Mr. Rothenbusch’s attendances for physiotherapy and to
his physician, and mileage expenses related to those attendances. I find Mr.
Rothenbusch is entitled to compensation for the amount of money he has already
expended as a result of the injuries suffered and award $390.63 for special
damages.

iii.      In-Trust Claim for Mrs. Rothenbusch

[260]    
Insofar as Mr. Rothenbusch’s claim for an in-trust award for his
wife is concerned, his counsel argues his wife had to assume his driving and
vacuuming duties and ought to be compensated for her efforts.

[261]    
No in-trust claim was specifically included in
the plaintiff’s pleadings and no relevant facts were pleaded to support
an in-trust award. The issue was first raised at the conclusion
of closing submissions by counsel for the plaintiff. In essence, plaintiff’s
counsel argues Mrs. Rothenbusch had to take over the driving for a period of a
time and had to assume the vacuuming duties Mr. Rothenbusch otherwise
performed. In addition to this, Mrs. Rothenbusch provided personal care to her
husband, including helping him dress. Counsel for the plaintiff argues if Mrs.
Rothenbusch had not taken on these responsibilities, the alternative would have
been to hire an outside third party to do the driving and vacuuming, an
expensive undertaking. Insofar as the other special personal care Mrs.
Rothenbusch provided to her husband, plaintiff’s counsel argues no one else
could have been hired to provide that care.

[262]    
The main point advanced by counsel for the
plaintiff is that expectations for younger spouses in assuming the domestic
duties of an injured spouse without compensation ought not to apply here, given
the age of Mr. and Mrs. Rothenbusch. In essence, given their age, argues
plaintiff’s counsel, it would be entirely acceptable to hire someone to perform
the services and that by taking on the tasks, Mrs. Rothenbusch has done more
than what would normally be expected in a marital relationship. The total in-trust
claim for the tasks performed by Mrs. Rothenbusch is $15,000.

[263]    
In response, the defendant argues the court should not consider
the merits of the in-trust claim for several reasons. First, the in-trust claim
was not specifically pleaded and at no time was the defendant put on notice
that such a claim would be advanced by the plaintiff. Moreover, the plaintiff
did not seek to amend his pleadings to include an in-trust claim. Second, the
in-trust claim was not referred to in the plaintiff’s opening and no evidence
led by the plaintiff could have alerted the defendant to the possibility that
such a claim would be made. Third, the defendant has been prejudiced by the plaintiff’s
failure to disclose the in-trust claim. In particular, they have been denied
the opportunity to cross-examine the plaintiff and his witnesses on this issue both
at the examinations for discovery and at the trial. They were also denied the
opportunity to conduct any investigation of this issue or to call their own
witnesses on the issue. By failing to properly plead the in-trust claim or
provide any notice that this would be done, the defence argues the plaintiff
has prejudiced his ability to properly quantify and defend this aspect of the
claim.

[264]    
In support of this position, the defendant relies upon Bradley
v. Bath, 2010 BCCA 10; Polovnikoff v. Banks, 2009 BCSC 750; Star
v. Ellis, 2008 BCCA 164; Hosseini-Nejad (Guardian ad litem of) v. Roy,
2000 BCCA 397; Homalco Indian Band v. BC (1998), 83 A.C.W.S. (3d) 751
(S.C.); Fraser v. Kelowna Motorcycle Club, [1987] B.C.J. No. 1981 (S.C.).

[265]    
In the alternative, counsel for the defendant argues the
plaintiff’s claim for an in-trust award ought to be dismissed as the plaintiff
has failed to discharge its burden of proof on the issue, as there is a lack of
evidence addressing the factors that are considered in such claims as
enumerated in Bystedt v Hay, 2001 BCSC 1735 at para. 180 [Bystedt],
affirmed in Bystedt v. Hay, 2004 BCCA 124. Based on the principles
established in Bystedt the defendants argue the plaintiff failed to
prove what services were provided by his wife, the frequency or duration of the
services, the cost of obtaining the services outside of the family or the need
for the services.

[266]    
The plaintiff argues the defendant has not been prejudiced by the
in-trust claim as counsel had an opportunity to provide detailed written submissions
addressing the issue. Further, the plaintiff argues the evidence establishes
his wife provided the services, and that she had to perform them or else they
would have had to hire someone else to do the driving and vacuuming as they
could not be left undone. Counsel for the plaintiff argues the duties performed
by Mrs. Rothenbusch were necessary and that she had to perform them due to the
injuries Mr. Rothenbusch sustained in the accident. The case law supports a
modest $15 per hour rate as the cost of hiring someone to perform this type of
work.

[267]    
The plaintiff argues it is not essential for the pleadings to
specifically refer to an in-trust claim and seeks to distinguish the
authorities relied upon by the defence, arguing they did not specifically
decide the issue of the need to include an in-trust claim in the pleadings.

[268]    
The plaintiff also maintains the defence could not have been
taken by surprise because an in-trust claim is routine in this type of case.

[269]    
Although the amount sought by the plaintiff in this case is
significantly less than that sought by the plaintiff in Polovnikoff, the
circumstances of the two cases in respect of how the issue arose are virtually
identical. In Polovnikoff the plaintiff sought an in-trust award of
$619,460 for his father’s services as a primary caregiver and related personal
expenses incurred in that capacity. There, the plaintiff failed to include the
in-trust claim in its pleadings and no reference was made to the claim until
the plaintiff’s closing submissions. The defence had no notice of the claim
until the close of the case. Both parties were given the opportunity to provide
written submissions on the issue. Madam Justice Bruce declined to consider the
plaintiff’s in-trust claim and in the alternative dismissed it for lack of
evidence supporting the damages claimed.

[270]    
Turning to the circumstances of the instant case, in my view,
there can be no doubt that the defendant had no notice of the in-trust claim
until it was referred to at the end of the plaintiff’s closing submissions. The
statement of claim does not identify an in-trust claim, the in-trust claim was
not mentioned in the plaintiff’s opening address to the court, and the evidence
led from Mrs. Rothenbusch, as well as the other witnesses, did not address the
issues raised by this claim in any sort of detail. The court heard no evidence
as to the amount of time spent performing the services, and over what period of
time they were performed by Mrs. Rothenbusch.

[271]    
Although the parties were each given an
opportunity to provide written submissions on the in-trust claim at the end of
the trial, that cannot alleviate the need for specifically pleading the matter
or providing notice to the defence of such a claim so the defence has an
opportunity to explore the issue at the examination for discovery stage of the
proceedings or, at the very least, properly explore the issue through
cross-examination of the plaintiff’s witnesses during the trial.

[272]    
As Mr. Justice K. Smith (as he then was) noted
in Homalco Indian Band at para. 5:

The
ultimate function of pleadings is to clearly define the issues of fact and law
to be determined by the court. The issues must be defined for each cause of
action relied upon by the plaintiff. That process is begun by the plaintiff
stating, for each cause, the material facts, that is, those facts necessary for
the purpose of formulating a complete cause of action: Troup v. McPherson
(1965), 53 W.W.R. 37 (B.C.S.C.) at 39. The defendant, upon seeing the case to
be met, must then respond to the plaintiff’s allegations in such a way that the
court will understand from the pleadings what issues of fact and law it will be
called upon to decide.

[273]    
Recently in Bradley v. Bath, the British Columbia
Court of Appeal addressed the issue of in-trust claims both as to the necessity
of including them in the pleadings and the merits of any claim vis-à-vis the
factors enumerated in the jurisprudence.

[274]    
The nature of an in-trust award was explained in Bradley v.
Bath at para. 43:

[43]      An in-trust award is
one made to a plaintiff in trust for one or more of his or her family members,
who are not named as parties to the action, as compensation to the family
members for additional work done by them as a result of the impaired capacity
of the plaintiff to perform housekeeping chores or to care for themselves. It
was affirmed as a recoverable award by this Court in Kroeker v. Jansen
(1995), 123 D.L.R. (4th) 652, 4 B.C.L.R. (3d) 178 (C.A.).

[275]    
Bradley was an
appeal from a personal injury claim by a cyclist who had been hit by a car and
one of the grounds of appeal was the awarding of $14,040 in trust for the
plaintiff’s girlfriend.

[276]    
The defendant took issue with the failure to
specifically include in the pleadings any reference to an in-trust claim. The
issue was raised for the first time during the closing submissions at trial. The
defence also argued there was no evidentiary foundation establishing
entitlement. The Court of Appeal found merit to both points advanced by the
defence: Bradley, at para. 45.

[277]    
After quoting from the Court’s earlier decision
in Star, and making reference to the plaintiff’s application to amend
their pleadings, Mr. Justice Tysoe, writing for the Court, noted the following:

[48]      Unlike the situation in
Star v. Ellis, the lack of a proper pleading was made an issue on this
appeal.  I would have reservations about granting an amendment at this
stage of the proceeding in view of the trial judge’s reliance on the failure of
the defendants to rebut the evidence that she regarded as supporting the
in-trust claim.  However, it is not necessary to decide this aspect of the
appeal on a pleadings point because it is my view in any event that the
evidence did not support the making of an in-trust award.

[278]    
The Court then reviewed the evidence adduced at
trial and found the plaintiff had failed to establish the necessary evidentiary
foundation to support the finding that his ability to perform household tasks
had been diminished and, accordingly, set aside the in-trust award.

[279]    
In MacEachern v. Rennie, Mr. Justice
Ehrcke noted that Bradley requires in-trust claims to be pleaded, writing
at para. 685:

[685]  In Bradley v. Bath, the Court of Appeal held
that an in trust award should not be made unless it is pleaded and there is a
proper foundation for it in the evidence. At para. 47 the Court emphasized
the importance of proper pleading:

[47]      Mr. Justice
Mackenzie said the following about pleading in-trust claims in Star v. Ellis,
2008 BCCA 164, 80 B.C.L.R. (4th) 57 at para. 21:

[21]      One aspect of this
claim that is not directly in issue on this appeal, but is of some
significance, is the question of the extent to which a claim for past in-trust
services ought to be pleaded. The claim is addressed under the heading of
special damages which normally requires that the claim be specifically pleaded
as is the case with out-of-pocket expenses. The trial judge relied on Frers
v. De Moulin [2002 BCSC 408] for the proposition that an in-trust claim
does not have to be specifically pleaded and Frers was not challenged by
the appellant in this case. Nonetheless, it appears to me that a claim of this
nature ought to be pleaded to provide a degree of specificity to the claim. As
I have indicated, the pleading point is not specifically put in issue on this
appeal, but in my view, good practice suggests that in future cases it ought
properly to be pleaded.

[280]    
Thus, the decisions in Starr and Bradley
are authority for the proposition in-trust claims ought properly to be pleaded
in order to be advanced: see also Ha. v. Fritzke, 1999 BCCA 667 at para.
26.

[281]    
In this case, the in-trust claim was not
pleaded. Raising this claim at such a late juncture in the trial has
significantly prejudiced the defendant in his ability to explore the issue
through cross-examination of the plaintiff and his witnesses, both at the
examination for discovery stage of the proceedings and even at trial. Additionally,
given the lack of disclosure of such a claim until the end of the trial the
defence has been foreclosed from any independent investigation of the claim.

[282]    
Based upon the direction an in-trust claim ought
properly to be specifically pleaded, as supported by the above noted
jurisprudence, and the significant prejudice to the defendant by allowing such
a claim in the absence of any notice about the claim until the conclusion of
the trial, I decline to consider the plaintiff’s in-trust claim.

[283]    
For the sake of completeness, however,
I will consider whether the plaintiff has established entitlement to an in-trust
claim in this case, notwithstanding his failure to specifically plead the
issue.

[284]    
The plaintiff bears the onus of
proof with respect to the damages said to be warranted by an in-trust claim. In
Bystedt, Madam Justice D. Smith (as
she then was) provided a useful compendium of the relevant factors to be
considered when assessing the merits of an in-trust claim, writing at para. 180:

From a review of these
authorities one can construct a summary of the factors to be considered in the
assessment of "in trust" claims:

(a)        the services
provided must replace services necessary for the care of the plaintiff as a
result of a plaintiff’s injuries;

(b)        if the services
are rendered by a family member, they must be over and above what would be
expected from the family relationship (here, the normal care of an uninjured
child);

(c)        the maximum value
of such services is the cost of obtaining the services outside the family;

(d)        where the
opportunity cost to the care-giving family member is lower than the cost of
obtaining the services independently, the court will award the lower amount;

(e)        quantification
should reflect the true and reasonable value of the services performed taking
into account the time, quality and nature of those services. In this regard,
the damages should reflect the wage of a substitute caregiver. There should not
be a discounting or undervaluation of such services because of the nature of
the relationship; and,

(f)         the family
members providing the services need not forego other income and there need not
be payment for the services rendered.

[285]    
The defendant argues the plaintiff
has failed to prove the in-trust claim on any of the enumerated factors
outlined in Bystedt. Specifically, the defendant argues the plaintiff
has not established the need for the services provided by Mrs. Rothenbusch, the
services provided went beyond what falls within the range of activities that
family members might reasonably be called upon to provide, the frequency of the
services provided, the duration of the services provided, or the cost of
obtaining the services from someone else. I agree.

[286]    
There was a paucity of evidence as
to what services for the plaintiff, apart from driving, vacuuming and helping
him get dressed, were actually provided by Mrs. Rothenbusch.  And, there was no
evidence as to what these tasks entailed or how long Mrs. Rothenbusch performed
these tasks.  Furthermore, there is an absence of evidence addressing the issue
of whether or not the plaintiff’s ability to drive and vacuum would have been
reduced in any event, given his other health issues and his overall age.

[287]    
In Campbell v. Banman, 2009
BCCA 484, Madam Justice Saunders, writing for the Court referred to the Court’s
earlier decision in Star and stated at para. 19:

Star is a caution that relatively minor adjustment of
duties within a family will not justify a discreet assessment of damages. There
will be applied a robust appreciation of household realities within a family
and an understanding of the normal give and take that necessarily is part of
family life.

[288]    
In Cummings v. Olson (1996), 82 B.C.A.C.
241, the court overturned an in-trust award of $15,000 made to the plaintiff’s
husband. The evidence of the husband was that he drove the plaintiff where she
wanted to go, including to medical appointments, for a period of two years
following the accident. Mr. Justice Goldie, writing for the Court, determined
that there was no evidence that established that what the husband did for his
wife caused him economic loss or reduced expenses. As a consequence, the Court
concluded that the plaintiff had failed to prove her in-trust claim on a
balance of probabilities and set aside the amount awarded at trial.

[289]    
The overall tenor of Mrs.
Rothenbusch’s evidence was to describe a typical marital relationship in which
there is a give and take by both parties, and a mutual willingness to assist
each other in all facets of their domestic life in whatever way they can,
including the plaintiff assisting Mrs. Rothenbusch when she experiences
difficulties with her shoulder. The evidence, however, is not nearly robust or
detailed enough to support an in-trust award in this case, there being few details
as to the nature of the services provided by Mrs. Rothenbusch, and no details
as to the frequency with which the services were provided by either the
plaintiff pre-accident or Mrs. Rothenbusch post accident, or the duration of
the performance of the services by Mrs. Rothenbusch after the accident. Although
the Rothenbuschs are an elderly couple and performance of the duties by Mrs.
Rothenbusch may have placed an added burden on her (something not entirely
clear from the state of the evidence), that fact alone does not alleviate the
need to properly establish in the evidence the basis for an in-trust award.

[290]    
For the foregoing reasons, the in-trust claim is
dismissed for lack of evidence supporting the damages claimed, the plaintiff
having failed to establish the claim on a balance of probabilities.

IV.      Conclusion

[291]    
In conclusion, and based on these
reasons, I find the following awards of damages to be appropriate for the injuries
sustained by Mr. Rothenbusch in the accident:

Non-pecuniary Damages                                                   $30,000.00

Special Damages                                                                     390.63

In Trust Award                                                                            0.00

TOTAL                                                                             $30,390.63

[292]    
 Mr. Rothenbusch is also entitled to pre-judgment
interest at the prevailing rate and costs, unless the parties seek to make
further submissions on the issue, in which case notice must be given to the
court within 30 days of the filing of this judgment.

“Ker J.”