IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101213

Docket: MO92237

Registry:
Vancouver

Between:

Diane Kelly

Plaintiff

And

Kar Y. Yuen and
Min J. Wu

Defendants

Before:
The Honourable Mr. Justice MacKenzie

Reasons for Judgment

Introduction

[1]            
This is a claim by Ms. Kelly for damages as a result of a motor
vehicle accident that occurred on April 29, 2008 (the “accident”).

[2]            
Ms. Kelly says the accident was caused solely by the negligence of
the defendant Yuen, who was driving his wife’s automobile on the day in
question.

[3]            
Liability is denied. The defendants say the accident was caused solely
by the negligence of the plaintiff.

[4]            
Ms. Kelly is 63 years of age. She testified she suffered moderate
injuries to her neck and back, which have now resolved. However, she says she
still has significant pain and swelling in her right knee, and that this was
caused by the accident. She says this injury has significantly affected her
ability to work in her chosen field of merchandising management in the fashion
industry, an occupation she has enjoyed for a considerable period of time. She
was laid off in November as her employer is moving its head office to Toronto.
She is actively looking for new employment in the Lower Mainland area.

[5]            
Ms. Kelly seeks non-pecuniary damages for her injuries, damages for loss
of earning capacity and special damages. There is an agreement between the
parties as to special damages if the defendants are found liable.

[6]            
The defendants say that even if they are liable for causing the accident,
the significant pain in Ms. Kelly’s right knee is not because of the accident.
They say that Ms. Kelly’s symptoms are as a result of osteoarthritis which was
present prior to the accident and subsequently became symptomatic. They say
that the accident did not accelerate or trigger these symptoms.

Facts

[7]            
Ms. Kelly was driving her 1989 Acura at approximately 8:20 a.m. at
the intersection of West Broadway and Manitoba Street. West Broadway at this
intersection is a three-lane street in each direction. The roads were dry.
There was very heavy rush-hour traffic. Ms. Kelly was in the inside lane
heading east. She was facing a green light and waiting with her turn signal on
to make a left-hand turn across the three lanes and onto Manitoba Street.
Traffic was backed up in both directions. A car in the inside west-bound lane
was stopped, as was a car to its right, in the middle west-bound lane. Cars are
not permitted to travel in the curb lane at that time of day; it is restricted
to buses and bicycles.

[8]            
Mr. James Butler witnessed the accident. He was standing at the
north-east corner of the intersection, waiting to cross the street. He had a
clear view of the incident. He testified that he observed the driver in the
inside west-bound lane motion to Ms. Kelly to commence turning left onto
Manitoba Street. She started to make the turn. He heard screeching and observed
a vehicle in the curb lane heading west. It was skidding. He testified “I could
tell it was not going to stop in time”. He was right. After witnessing the
incident he approached Ms. Kelly to see if she was alright.

[9]            
Ms. Kelly testified she observed a bus go by in the restricted curb
lane heading west. She commenced to turn cautiously. She stopped before
entering the middle and curb lanes and then continued to slowly turn left. She
testified that as she was turning, she was hit on the right side by a vehicle
in the restricted curb lane. Mr. Yuen was the driver of that vehicle. The speed
limit at that intersection is 50 kilometres per hour.

[10]        
Ms. Kelly testified she stopped and looked right to see if the curb lane
was clear of buses or bicycles before entering or encroaching on the curb lane.
She then looked left. She testified she did so to ensure there were no
pedestrians crossing Manitoba Street in order to ascertain if it was safe to
complete her left turn.

[11]        
Mr. Butler acknowledged he could not recall details of the turn
made by Ms. Kelly but testified that it was not made “hastily”. I am of the
opinion it is reasonable to infer there was nothing untoward about the way in
which the turn was made.

[12]        
Mr. Yuen said he “stepped” on his brakes “hard” but could not stop
in time. The left front of his vehicle collided with the right side of Ms.
Kelly’s vehicle on the quarter panel and door, forward of the rear wheel.

[13]        
The damage to the Yuen vehicle was minimal and the damage to
Ms. Kelly’s vehicle was quite moderate. Mr. Yuen and his wife were not
injured.

[14]        
After the accident, Ms. Kelly drove to work. She did not miss any
work. During the day, her neck, back shoulder and legs became sore. She went to
her family doctor, Dr. Lepard, the next day.

[15]        
Doctor Lepard noted in her report that, at that time, Ms. Kelly
complained of “discomfort in her neck, her back and her legs”. Doctor Lepard’s
notes show no mention of Ms. Kelly complaining about pain in her knee.

[16]        
She was next seen by Dr. Lepard on May 7, 2008, a week later.
Dr. Lepard’s report states that “Ms. Kelly still had neck pain but
that it was more ‘uncomfortable’ than painful”. At that point, Ms. Kelly
advised Dr. Lepard that her problems were with her lower back and her
right knee. The doctor’s report states “her other complaint was of her right
knee which was painful on the inner side of the joint”.

[17]        
Ms. Kelly’s right knee has continued to cause her pain and aggravation.
In due course it was determined by all of the medical experts that
Ms. Kelly has significant degenerative osteoarthritis in her right knee.
It is agreed the osteoarthritis was present in her knee prior to the accident
and that the accident did not “cause” the osteoarthritis in her right knee. All
of the medical experts agreed that, irrespective of the accident, these
symptoms would have in all likelihood occurred at some time in the future.

[18]        
Ms. Kelly submits that the accident triggered or accelerated the
onset of her symptoms, notwithstanding the presence of osteoarthritis in her
right knee, because she was symptom-free prior to the accident.

[19]        
The defendants say the arthritic symptoms that occurred in her right
knee sometime after the accident were not triggered or accelerated by the
accident.

Argument – Liability

[20]        
The defendants say that Ms. Kelly is solely responsible for this
accident.

[21]        
The defence relies on s. 174 of the Motor Vehicle Act, R.S.B.C.
1996, c. 318, and says this is a complete defence to the claim.

[22]        
Section 174 of the Act reads as follows:

When a vehicle is in an
intersection and its driver intends to turn left, the driver must yield the
right of way to traffic approaching from the opposite direction that is in the
intersection or so close as to constitute an immediate hazard, but having
yielded and given a signal as required by sections 171 and 172, the driver
may turn the vehicle to the left, and traffic approaching the intersection from
the opposite direction must yield the right of way to the vehicle making the
left turn.

Cases which have analysed
this section of the Motor Vehicle Act have defined the left turning
vehicle as the servient vehicle and the vehicle approaching from the opposite
direction as the dominant vehicle. The issue is whether the Yuen vehicle, the
dominant vehicle, was so close to the intersection as to constitute an
“immediate hazard” to Ms. Kelly within the meaning of s. 174.

Governing Legal
Principles

[23]        
The legal principles with regards to left turn situations have been
addressed in many cases. In Pacheco (Guardian ad litem) v. Robinson (1993),
75 B.C.L.R. (2d) 273 (C.A.) at para. 15, Legg J. stated:

In my opinion, a
driver who wishes to make a left hand turn at an intersection has an obligation
not to proceed unless it can be done safely. Where each party’s vision of the
other is blocked by traffic, the dominant driver who is proceeding through the
intersection is generally entitled to continue and the servient left-turning
driver must yield the right of way. The existence of a left-turning vehicle
does not raise a presumption that something unexpected might happen and cast a
duty on the dominant driver to take extra care. Where the defendant, as here, has
totally failed to determine whether a turn can be made safely, the defendant
should be held 100 percent at fault for a collision which occurs.

[24]        
In Carich v. Cook (1992), 90 D.L.R. (4th) 322 at 326 (B.C.C.A.),
Lambert J.A. had this to say:

… 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. …

[25]        
Of course, each case must be determined on its own particular facts. For
example, in Uyeyama (Guardian ad litem of) v. Wittenberg, [1985] B.C.J.
No. 1883 (C.A.), the BC Court of Appeal determined that a left-turning was not
negligent for having entered an intersection, having failed to detect the
excessive speed of the defendant’s vehicle. In addition, the left-turning
driver was entitled to assume that the oncoming vehicle would stop at a red
light and according to traffic law. The court concluded at para. 44 that the
left turning driver had “exercised due care and commendable prudence in taking
the action she did in attempting to make a difficult left turn.”

[26]        
This case was cited with approval by the BC Court of Appeal in Kokkinis
v. Hall (1996), 19 B.C.L.R. (3d) 273 (C.A.).

[27]        
The court in Kokkinis considered other cases where the court held
in favour of the servient driver. The court looked to Morgan v. Hauck
(1988), 27 B.C.L.R. (2d) 118 (C.A.), a case where the BC Court of Appeal held
that a dominant vehicle which had accelerated towards an intersection despite
amber warning lights and then entered the intersection when the light was red could
not rely on the relevant section of the Motor Vehicle Act to escape
liability. In Kokkinis at para. 6, Newbury J.A. speaking for the court
summarized the position taken in Morgan as follows:

… Esson, J.A. (as he then was),
for example emphasised the "heavy onus which rests upon drivers
approaching signals of this kind to make due allowance for the possibility that
there will be a vehicle seeking to make a turn such as the plaintiff was making
on this day. Their clear duty is to comply with the warning lights and to not
‘run the red’."  But for the fact that appellate courts should, he said,
vary apportionments of blame made by trial judges only in very rare
circumstances, Esson, J.A. (with whom Macfarlane, J.A. concurred) would have
considered setting aside even the 10 percent allocation of fault.

[28]        
At para. 7 of Kokkinis, Newbury J.A. considered the Court
of Appeal’s decision in Brucks v. Caslavsky, 45 B.C.A.C. 62, and stated
the following:

A more recent case from this Court along similar lines is Brucks et
al. v. Caslavsky et al. (19 April 1994) Vancouver Registry CA016390 (B.C.C.A.),
which apparently was not cited to the trial judge. There, this Court rejected
the argument that the onus placed by s. 176 of the Act is "absolute"
and that in deciding whether an oncoming car constitutes an "immediate
hazard", a left-turning driver must consider the possibility that any
oncoming motorist may intend to speed through an intersection and disobey the
traffic signal. Taylor, J.A. for the Court quoted the well-known statement of
principle of Lord Atkinson in Toronto Ry. Co. v. King et al. [1908] A.C. 260,
at 269:

. . . traffic in the streets would be impossible if the
driver of each vehicle did not proceed more or less on the assumption that the
drivers of all other vehicles will do what it is their duty to do, namely,
observe the rules regulating the traffic of the streets.

[29]        
Even though Kokkinis and Morgan dealt with vehicles which
approached an intersection and turned left on an amber light, the principles
and observations stated in these decisions are helpful. At para. 10 of Kokkinis
the court stated that the servient driver should not be faulted for having
diverted her attention momentarily from oncoming traffic to check cross
traffic. This is because servient drivers have “the duty to be aware not only
of oncoming traffic, but also of cross traffic, pedestrians, and whatever else
may be present in the intersection.”

[30]        
At the same paragraph, the court added:

… To say
that the plaintiff can be found at fault because she relied on the assumption
that Mr. Hall would stop, and because she checked cross-traffic, would in my
view subvert the duty on Mr. Hall to bring his vehicle to a safe stop at the
amber light as the other traffic did. …

[31]        
The authorities make it clear in my opinion that for liability to be
found against the dominant driver in situations where the servient driver is
making a left turn in front of stopped traffic, the evidence must establish
that the dominant driver had a sufficient opportunity to avoid the accident, of
which a reasonably careful and skilful driver would have availed him or herself
(Pacheco, para. 18).

Ms. Kelly’s Evidence

[32]        
There is no question that any driver negotiating a left-hand turn with
traffic backed up and opposite drivers leaving the intersection clear must be
very cautious and aware of the circumstances in order to avoid a motor vehicle
approaching in the curb lane. Ms. Kelly says she did proceed carefully.

[33]        
She testified that when the driver in the inside lane waved her to make
her turn she moved to the start of the middle lane. She came to a stop. She saw
that the driver in this lane then waved her to continue her turn. She advanced
to the “start” of the curb lane. She testified she looked to her right to check
for traffic in the curb lane. She testified she could see “quite a ways up the
block”. Seeing no buses or bicycles, or in fact cars, she looked to her left.
She testified she did this in order to ensure there were no pedestrians
crossing Manitoba Street, as they too would have the green light. Seeing none,
she “proceeded cautiously” through the third lane. She testified she heard “screeching”,
looked to her right and was “smashed” by the Yuen vehicle. She testified that
at impact she was moving “very slowly”.

[34]        
Ms. Kelly was cross-examined extensively, especially with respect to her
line of sight and how far down the curb lane she was able to see prior to
entering into the curb lane. She testified she had not entered the curb lane
before she looked right. She could not recall the type of vehicle in the inside
or middle lanes but could see down the curb lane. Her discovery evidence from
November 6, 2009 and her statement to ICBC made the day after the accident was
put to her. At trial she testified she could see “more than half way up the
block”. At the discovery she testified “almost a full block down”. I see no
material discrepancy in this part of her evidence. This evidence cannot be
measured with precision. While Ms. Kelly may be inaccurately estimating how far
down the curb lane she could see prior to entering the curb lane, I accept her
evidence that she looked and observed no traffic of any kind when she commenced
the final portion of the turn.

[35]        
Her evidence is supported to a significant extent by the evidence of Mr.
Bowlerd, an engineer who gave expert evidence as to sight-lines, reaction
times, and how far vehicles would travel at various speeds. Mr. Bowlerd
acknowledged that if the Yuen vehicle was travelling at speeds greater than 30
kilometres per hour, the Yuen vehicle might well have been “outside” of Ms.
Kelly’s line of sight.

[36]        
 Nevertheless, the defendants say Ms. Kelly was negligent in
failing to keep a proper lookout, that she should have been more careful when negotiating
the turn and been aware of the Yuen vehicle in the curb lane, notwithstanding
the fact that it should not have been in the lane at the time.

Mr. Yuen’s Evidence

[37]        
 As mentioned, Mr. Yuen was driving a Honda Fit that morning. He
was taking his wife to an eye appointment in the 1300 block of West Broadway.
The appointment was for 8:30 a.m. There is no dispute the accident happened at
approximately 8:20 a.m. Mr. Yuen is a middle-aged gentleman and testified
with the assistance of a Cantonese interpreter. I take into consideration his
evidence was translated for the benefit of the court and counsel.

[38]        
Mr. Yuen testified that he was in the west-bound centre lane on
Broadway and that the traffic was “busy”. Traffic eventually stopped.
Mr. Yuen testified he was stopped behind four or five cars leading up to
the intersection of Manitoba and Broadway. He testified he stopped at that
point for 10 to 15 seconds. He then turned into the curb lane. He acknowledged
he knew this curb lane was restricted to buses and bicycles at that hour of the
morning.

[39]        
He testified he turned into the curb lane because he wanted to proceed
further along Broadway before making a right turn at Columbia street, the next
intersection after Manitoba. The photographs show this is some distance down
Broadway from Manitoba. The restriction on cars from using the curb lane at
that time continues along Broadway. He testified that he wanted to make this
right turn on Columbia rather than proceed down Broadway to the medical office
because traffic was busy and “I thought I would go another route” because of
the traffic and construction along Cambie Street.

[40]        
Counsel for the defence submits Mr. Yuen was entitled to enter the curb
lane to make a right turn a full block past Manitoba Street. I do not agree. A
driver would be able to enter the curb lane at Manitoba to turn right at that
point but could not lawfully enter the restricted lane where Mr. Yuen did with
a view to turning right at the following intersection.

[41]        
He testified that once he was in the curb lane he saw another car trying
to turn and he “stepped on” the brake.

[42]        
He said the Kelly vehicle “suddenly stopped” and there was impact. He
said he did not understand why this other car “suddenly stopped”.

[43]        
Mr. Yuen testified he first saw the Kelly vehicle when it was “moving”
in the centre lane towards the curb lane and that “when the car turned left
that was when the car stopped”. In cross examination he said that if Ms. Kelly
had not suddenly stopped in the middle of the curb lane, he could have avoided
the collision.

[44]        
I do not accept his evidence on this point. It is contradicted by
Ms. Kelly, who testified she was attempting to cautiously complete her
left turn. It is also contradicted by the independent witness James Butler, who
testified he saw Ms. Kelly making the left turn. He did not see her stop
in the middle of the curb lane.

[45]        
In addition, it defies logic and common sense that Ms. Kelly, being
so close to completing a left turn across three lanes of traffic, would all of
a sudden stop and block the Yuen vehicle mid-intersection.

[46]        
The evidence establishes the Kelly vehicle was well into the curb lane
at impact. Mr. Yuen should have had ample opportunity to see her in this
position if he was driving slower and had been aware of the potential situation.

[47]        
Mr. Yuen testified that he was traveling approximately 30
kilometres per hour after he had pulled out from the centre lane, about four or
five car-lengths back from the intersection.

[48]        
But as Mr. Ross submitted on behalf of Ms. Kelly, given the evidence of
Mr. Bowlerd that in an emergency a driver generally takes 1.1 seconds to
respond by applying the brakes, even at only 30 kilometres per hour, Mr. Yuen
would have travelled four or five car-lengths and hit Ms. Kelly before even
applying his brakes. This scenario is inconsistent even with the evidence of
Mr. Yuen. He said he stepped on the brake “hard”. It is also inconsistent with
the evidence of Mr. Butler who observed the Yuen vehicle skidding some distance
before entering the intersection. As a result, I do not accept Mr. Yuen’s
evidence he was travelling at only 30 kilometres per hour or that he pulled
into the curb lane as close to the intersection as he says he did.

[49]        
On this point the key fact was Mr. Butler’s observation that the Yuen
vehicle was skidding in the curb lane adjacent to a lamp standard, a distance
he estimated as approximately 18 meters east of the intersection. There is
indeed a lamp standard 15.8 meters east of Manitoba. I accept Mr. Butler’s
evidence when he testified he observed the Yuen vehicle skidding from
approximately that distance.

[50]        
I do not accept Mr. Yuen’s evidence that he was one to two feet from the
intersection when he applied the brakes and started skidding.

[51]        
Mr. Yuen’s evidence was also contradicted by the evidence of Mr. West,
an engineer who provided expert evidence as to “the approach speed of the Yuen
vehicle and to assess whether the Yuen vehicle could accelerate to the
calculated speed from a stopped position, four to five cars from the
intersection”.

[52]        
Mr. West estimated from the damage to the vehicles that the speed of the
Yuen vehicle “when it struck the Kelly Acura was between 10 and 15 km/h”. As a
result, Mr. West concluded “that the speed of the Yuen vehicle was between 56
and 62 km/h (with 80 percent certainty) with a median, or most probable speed,
of 59 km/h” when it began to skid.

[53]        
I accept the evidence of both experts. Their combined evidence
establishes Mr. Yuen was travelling at an excessive speed given the
circumstances and was far enough down the curb lane as to not be observable to
Ms. Kelly when she commenced her turn.

[54]        
As stated by Currie J. in Peek et al. v. S. Cunard & Co. (1958),
40 M.P.R. 236 at 241 (N.S.C.A.), and adopted by Davey J.A. in Keen v. Stene
(1964), 44 D.L.R. (2d) 350 at 359 (B.C.C.A.), “Speed and distance generally
determine what constitutes an immediate hazard.”

[55]        
As Ker J. said in Rothenbusch v. Van Boeyen, 2010 BCSC 1518, at
para. 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.

[56]        
I am mindful of the comments of Legg J.A. in Pacheco. I accept that
the presence of a left turning driver does not create a presumption that
something unexpected might happen or impose a duty on the dominant driver to
take extra care. However as is emphasized in Brucks, and noted in Kokkinis,
a dominant driver is obligated to “observe the rules regulating the traffic
of the streets”. By failing to operate his motor vehicle in the allowed lane of
travel and at a speed appropriate to traffic conditions, Mr. Yuen breached this
duty and fell below the standard expected of a careful and prudent driver on
the morning in question.

[57]        
I appreciate that Goepel J. in Robinson v. Wong, 2007 BCSC 708, considered a dominant driver’s liability under s. 174
of the Motor Vehicle Act in a situation where a dominant driver in a
curb lane hit a left turning driver. Goepel J. at para. 22 said the
following:

… Mr. Wong was not required to
slow down or come to a stop because traffic in the adjoining southbound lanes
was backing up. Nothing about the situation would alert him that Ms. Robinson
would disregard her statutory duty and fail to yield the right of way. The
photographs disclose that impact was between the left front of Mr. Wong’s
vehicle and the right front of Ms. Robinson’s vehicle. The location of the
damage suggests that the collision would have occurred almost immediately after
Ms. Robinson entered into the curb lane. In the circumstances, the defendant
had no reasonable opportunity to avoid the collision.

[58]        
In drawing this conclusion, Goepel J. found Ms. Robinson not to be a
credible witness and did not accept her evidence that she stopped before
turning or first checked to see if there was oncoming traffic approaching the
intersection.

[59]        
The circumstances here are significantly different. This is not a
situation where the servient driver has disregarded her statutory duty. Here it
is just the reverse. Mr. Yuen flagrantly ignored the restriction on travel in
the curb lane in a clear attempt, in my opinion, to drive along the restricted
lane in order to get to his destination earlier rather than wait like other
responsible drivers who were complying with the curb lane restriction. As Esson
J.A. said in Morgan, I am satisfied that Mr. Yuen should have made “due
allowance for the possibility that there will be a vehicle seeking to make a
turn such as the plaintiff was making on this day”.

[60]        
 As Ker J. said in Rothenbusch at para. 149, “Who has the
statutory right of way is informative; however, it does not determine liability
in an accident. Drivers with a statutory right of way must still exercise
caution to avoid accidents where possible.”  

[61]        
In these circumstances, I am satisfied a reasonably careful and prudent
driver would not have pulled into the restricted curb lane, as Mr. Yuen did
with limited vision, and accelerate towards a backed up intersection at an
excessive rate of speed. As the dominant driver, Mr. Yuen was not required to
take “extraordinary steps to avoid an accident or to show exceptional proficiency
in the operation of a motor vehicle.” (Salaam v. Abramovic, 2010 BCCA
212 at para. 25). However, I am satisfied a reasonably prudent driver, exercising
reasonable caution, would have had a sufficient opportunity to avoid the
accident.

[62]        
Furthermore, Ms. Kelly did not breach her statutory duty under s. 174 to
yield the right of way. She took reasonable steps to determine she could make
the left turn safely. The evidence which I have accepted establishes that when
Ms. Kelly looked right and entered the curb lane, the Yuen vehicle was not “so
close as to constitute an immediate hazard”.

[63]        
As a result, I am satisfied that the accident was caused solely by the
negligent driving of Mr. Yuen. The defence has not established any contributory
negligence on the part of Ms. Kelly.

The Injuries

Soft Tissue

[64]        
There is no question that Ms. Kelly suffered from moderate
soft-tissue injuries to her neck, back, and shoulders. Fortunately these
resolved within a reasonable period of time. The plaintiff submits an appropriate
award for these injuries would be $30,000. Counsel for the defence submits the
appropriate range is between $20,000 and $25,000.

The Right Knee

[65]        
The difficult question is whether the plaintiff has established that the
accident was a contributing factor to the onset of the symptoms in her knee,
which of course are consistent with osteoarthritis, especially in persons in Ms. Kelly’s
age group.

[66]        
Given the medical evidence, the critical point in answering this
question is when did Ms. Kelly actually first experience pain and swelling in
her knee.

[67]        
The evidence and resulting medical opinions on this point are
inconsistent and contradictory. Three experts testified: Dr. Travlos, a
physiatrist, who is a duly qualified and registered physical medicine and
rehabilitation specialist in the province of British Columbia; Dr. Blachut, an
experienced orthopaedic surgeon who performed arthroscopic surgery on Ms.
Kelly’s right knee on November 6, 2008; and Dr. Leith, another experienced
orthopaedic surgeon who provided a medical report for the defendants.

[68]        
Ms. Kelly testified that she was “jarred” in the accident, her lower leg
hit the console and her right knee hit the gear shift.

[69]        
As mentioned, Ms. Kelly arranged to see her family doctor, Dr. Lepard,
the day after the accident. Dr. Lepard reported that Ms. Kelly complained of
neck and back pain. She wrote that Ms. Kelly “had intermittent pain down both
legs with certain movements”. There was no complaint from Ms. Kelly about right
knee pain and nothing was recorded by Dr. Lepard as to any problems with Ms.
Kelly’s right knee at that point in time. Ms. Kelly testified that she saw Dr.
Lepard again on May 7, 2008. Ms. Kelly testified that “in that time my right
knee was very swollen and extremely sore”. She testified she noticed a “slight
small bruise” on the outside of her knee. Most importantly, she testified she
“believed” she first noticed pain and swelling the evening after her first
visit to Dr. Lepard.

[70]        
Dr. Lepard’s report of her examination on May 7, 2008 is not consistent
with Ms. Kelly’s evidence when she describes this very significant swelling to
her “whole knee”. Dr. Lepard notes in her report “her other complaint was of
her right knee which was painful on the inner side of the joint”. On
examination “she was tender around the inner joint of the right knee, with a
good range of movement and no instability”.

[71]        
As Mr. Hood, on behalf of the defendants submits, Dr. Lepard’s report
mentions “absolutely nothing about swelling and a bruise to the right knee.”
This is especially troubling when Ms. Kelly testified at trial that on May 7,
2008, “my right knee was the focus of my attention”. Common sense dictates that
if her whole knee was very swollen and extremely sore and the focus of her
visit, Dr. Lepard would have made a notation of such symptoms.

[72]        
As I have noted, Ms. Kelly testified she only “believed” the knee became
painful the night after the accident. Moreover, there is no record in Dr.
Lepard’s notes as to when in the time between April 30, 2008 and May 7, 2008 Ms.
Kelly first experienced pain in her knee, let alone whether this occurred during
the evening after first seeing Dr. Lepard.

[73]        
Moreover, because there is no evidence as to Ms. Kelly telling any of
the doctors that dealt with her that she “noticed” slight bruising sometime
after the accident, and that this disclosure was only forthcoming after Dr.
Leith’s testimony at trial, I do not accept her evidence on this point. I agree
with Mr. Hood’s submission that if there had indeed been any bruising, she
would have disclosed this to at least one of her doctors, especially when she
says her knee was “the focus” of her attention when she saw Dr. Lepard the
second time.

[74]        
Even though I have accepted Ms. Kelly’s evidence with respect to her
operation of her motor vehicle, I do not accept her evidence as to the presence
of a slight bruise sometime after her first visit to Dr. Lepard.

[75]        
Additionally, given the equivocal nature of her evidence, I am not
satisfied Ms. Kelly’s evidence is reliable as to when she first experienced
pain in her knee. I accept that her knee became painful sometime between her
first and second visit to Dr. Lepard but I am not satisfied the pain
materialised the evening after the accident.

[76]        
I now turn to Dr. Travlos’ opinion. Dr. Travlos evaluated Ms. Kelly on
October 22, 2009. He referred to Dr. Lepard’s records in his report. He noted
that, based on Dr. Lepard’s report, Ms. Kelly complained of back, neck pain and
right knee pain. He then stated, “It is my opinion that all of those symptoms
were a direct consequence of the accident of April 25, 2008.” I note that the
date of the accident is incorrect but I am satisfied this doesn’t affect Dr.
Travlos’ opinion.

[77]        
Dr. Travlos noted that Dr. Lepard’s records did not indicate any
complaint about pain or soreness to Ms. Kelly’s right knee on the first visit.
He did note Dr. Lepard’s entry for May 7, 2008 and stated Ms. Kelly described
pain “over the inner aspect of her right knee”. Dr. Travlos testified that as
there were no symptoms prior to the accident, and even though Ms. Kelly was
definitely at risk of developing pain in her knee “in the future because of her
osteoarthritis”, it was his opinion the accident “rendered her knee
symptomatic”.

[78]        
He acknowledged however at page 5 of his report that “the ongoing
problems that she now has are a result of the underlying degenerative change”
and that:

It is more probable than not that
at some point in the future Ms. Kelly would have gone on to develop pains
from the degenerating knee in the absence of the accident. It is difficult to
say with any certainty just when that might have occurred, as it might have
been years before the knee became spontaneously symptomatic. On the other hand,
it may have also occurred within weeks or days from the time of his [sic]
accident in the absence of the accident.

[79]        
Dr. Travlos stated in his report that the onset of symptoms can
occur following relatively mild trauma such as something as simple as stepping
off a curb, or moving in an unusual way, or pursuant to a more forceful trauma
such as a slip, a fall or a motor vehicle accident.

[80]        
Dr. Blachut was called by the defence. He provided the court with a
report confirming his arthroscopic surgery on Ms. Kelly’s right knee. He
observed degenerative changes in the knee joint. He reported:

This woman presents with a
significant internal derangement in her knee with meniscal lesions associated
with significant articular surface injuries particularly in the medial
compartment. The relationship to the motor vehicle accident is unclear.
Certainly by history she had no symptoms or problems related to that knee
previously. Despite this it is possible that she did have some degenerative
processes in the works in her knee prior to the accident and that the accident
brought the problem to prominence.

[81]        
Dr. Blachut testified that he wrote “the relationship to the
accident is unclear” because of the arthritis in Ms. Kelly’s knee. He
testified the presence of degenerative arthritis makes it “difficult” to
determine whether the accident and the bumping of her knee on the console as Ms.
Kelly has described “caused anything further” to her knee. As noted above, his report
stated it was “possible” the accident “brought the problem to prominence”.

[82]        
Dr. Blachut also acknowledged that, irrespective of the accident,
it would likely have been only a matter of time before Ms. Kelly’s
degenerative arthritis would have become symptomatic.

[83]        
Defence counsel suggests that after a meeting with Ms. Kelly’s
counsel, Dr. Blachut modified his opinion. In a letter dated June 10,
2010, Dr. Blachut wrote, “it is very likely that the accident was related to
the degenerative arthritis in her knee becoming symptomatic”.

[84]        
On this point Dr. Blachut testified in cross-examination:

A          I don’t actually think there is a change. You
know, basically she has — she has degenerative arthritis of the knee, and she
had, as far as I could tell, had no symptoms before she had an accident. There
was findings of degenerative arthritis at the time. There was a lapse of time
between the injury and the time she actually has the surgery. There’s a potential
that whatever injury happened aggravated the degenerative process in that time
frame. It’s possible that — that it’s clear that she had onset of symptoms
subsequently, and so whether or not the degenerative arthritis was actually
caused by the accident, it’s not likely.

 It’s — certainly
her symptoms had a direct relationship to the accident, or the initiation of
symptoms, the time frame, the chronology would make it consistent with the
accident having —  being involved.  So in terms of producing the condition, I
suspect — I mean, it was pre-existent, because changes like that that one sees
on x-rays and the changes she had take longer to evolve than the time frame
involved. But clearly there — from the symptoms point of view, there was a
nuance that wasn’t there previously.

[85]        
It is also important to note that unlike Dr. Leith, Dr. Blachut
testified he did not review Dr. Lepard’s report when preparing his report. If
he had done so, he would have been aware that there was no report of discomfort
or pain in Ms. Kelly’s right knee at the time of the accident or the next day.

[86]        
In his report, under the heading of “History”, Dr. Blachut wrote the
following:

At the time of the accident she
recalled that she was able to walk but because of discomfort in her knee she
saw her family practitioner the following day.

[87]        
He was asked “Is that accurate?” He replied, “That’s — yep, that’s what
it says”.

[88]        
There are two significant difficulties with his opinion. First, Dr.
Blachut’s report is based on information he received from Ms. Kelly that she
had immediate “discomfort” in her knee and as a result of that problem saw her
family practitioner the following day. This is not the evidence. It is clear
she did not have discomfort in her knee at the time of the accident and did not
attend Dr. Lepard the next day because of that condition. The information Dr.
Blachut obtained from Ms. Kelly is inconsistent with her evidence at trial and
the report of Dr. Lepard.

[89]        
Secondly, the above statement taints Dr. Blachut’s opinion because the
time frame he relies on is relevant to his opinion and the issue of causation.
It is clear he was led to believe there was immediate pain to the right knee at
the time of the accident. This inaccurate premise affects the weight I give to
Dr. Blachut’s opinion that the accident triggered or accelerated Ms. Kelly’s
arthritic pain.

[90]        
In addition to basing his opinion on an inaccurate premise, Dr.
Blachaut’s testimony was somewhat equivocal when he said “it seemed reasonable,
there was an association to some extent.”

[91]        
Finally, Dr. Blachaut was asked this question:

Q.
And you’d also agree with me that she didn’t complain of immediate pain in the
right knee — sorry, she didn’t tell you she complained of immediate pain in
the right knee?

A. Yeah, I think that is correct.

[92]        
This testimony is inconsistent with the history he said he received from
Ms. Kelly and contradicts the foundation for his written report. As a result, I
am unable to conclude Dr. Blachaut’s evidence is reliable.

[93]        
In cases such as this involving significant medical issues, it is
crucial that the medical evidence be clear, precise and carefully considered in
light of the particular facts as they present themselves.

[94]        
This history as noted by Dr. Blachut is inconsistent with the medical
reports and clinical notes of Dr. Lepard. It is clear that when first visiting
Dr. Lepard, Ms. Kelly did not complain of any pain in her knee. Whilst it was
understandable she was concerned, as she says, about her neck and back because
of the prior motor vehicle accident many years earlier, where her soft tissue
injuries took six years to resolve, I am satisfied that if she did indeed have
any pain to her right knee she would have promptly advised Dr. Lepard of this
symptom, contrary to Dr. Travlos’ belief as outlined in his September 8, 2010
response to Dr. Leith’s report.

[95]        
Finally, Dr. Blachut confirmed that it is impossible to determine
why a person with no prior symptoms of degenerative arthritis can suddenly complain
of pain in a particular joint with no traumatic intervention. He testified it
can “just happen for no reason”.

[96]        
The third medical opinion was provided by Dr. Leith. He saw Ms. Kelly on
August 11, 2010 and asked her what injuries she had suffered in the
accident. Dr. Leith also referred to all of the documentation that was prepared
by Dr. Lepard, all of the physiotherapy records, the results of x-rays and an
MRI taken of Ms. Kelly’s right knee, as well as the operative report of Dr.
Blachut after he performed the arthroscopic surgery on Ms. Kelly’s right knee.

[97]        
Dr. Leith testified “that the records didn’t show that there was any
knee pain on that day with the family doctor…and then the patient, during my
evaluation, said that there was no knee pain initially either, so that’s what
I’ve documented.”

[98]        
Dr. Leith was of the opinion the accident did not cause or trigger the
symptoms Ms. Kelly describes because “there was a delay in symptoms of
several days”.

[99]        
Like Dr. Blachut, he confirmed that with osteoarthritis symptoms can
occur at any time for no reason at all. As the cartilage thins out, the nerves
are exposed to the bone, resulting in pain and swelling of the joint.

[100]     In this
particular case, after reviewing Dr. Lepard’s report and notes, Dr. Leith
concluded because there was no evidence of acute injury to the knee at the time
of the accident, no immediate pain or bruising and no complaints the following
day to Dr. Lepard, the accident did not cause the swelling and pain to her
knee.

[101]     He stated
in his report, “It is therefore extremely unlikely that the onset of the right
knee pain is related to the subject accident. These findings and symptoms were
related to the degenerative arthritis of the right knee.”

[102]      He
concluded that it is “more likely than not” the pain was caused by the natural
progression of the arthritis in her knee. He noted Ms. Kelly had no knee
pain on her initial visit to Dr. Lepard. Rather, she advised
Dr. Lepard about back, neck and leg discomfort. Dr. Leith testified
that “it is highly unlikely” the impact of the accident precipitated the onset
of the symptoms described by Ms. Kelly because she did not have these
symptoms immediately or shortly after impact, nor the next day when she visited
Dr. Lepard.

[103]    
Dr. Leith stated in his report:

Ms.
Kelly stated during this evaluation that the lateral part of her knee struck
the console in the accident. At most, she may have had a minor bruise to this
area; however this was not detectable to clinical exam as there was an absence
of any sign of swelling or bruising in the clinical records following the
subject accident. It is also unlikely that this blow caused irritation to the
already arthritic knee since there was a delay in symptoms of several days. If
the accident did irritate the already arthritic knee then there would not have
been such a delay. 

[104]    
He concluded by stating:

The fact
that they occurred shortly after the accident with ongoing swelling does not
necessarily indicate that the accident was the cause of these symptoms. The
symptoms that Ms. Kelly initially presented with were most consistent with a
degenerative arthritic knee.

[105]     In
cross-examination, Dr. Leith acknowledged that if the pain and swelling
occurred within a day or two, and if it was where the blow was to the knee, the
accident could have triggered her ongoing symptoms.

[106]     It is
important to consider the hypothetical question that was put to Dr. Leith with
respect to whether his opinion would change if there was swelling of the knee
“and focal pain at the medial side of the knee within a day or two of the
blow.” He was asked whether that would change his view “as to the likelihood of
the contribution made to the onset of the symptoms.”

[107]     When this
suggestion was put to him, he replied, “that is a completely different
scenario, yeah”, and in response to the question “So if that were the case, you
would feel differently about it?”, his answer was “Yeah.”

[108]    
However, Dr. Leith qualified his response by stating:

… [I]f there was a mechanism
that was consistent with the medial-sided injury and she presented immediately
after the accident with swelling and bruising or acute tenderness to that area,
that changes things completely.

[109]    
Counsel for Ms. Kelly then asked this question:

And I am putting to you that if
the pain and swelling of the knee was abundantly evident within a day or two of
the accident, your view then would be that the blow was a contributing factor
to the onset of the symptoms?

[110]    
Dr. Leith replied:

Depends where the pain and
swelling was.  If it was directly over the blow, then, yes.  If it was another
part of the knee, then it changes.  You know, with the same situation of the
arthritis and everything, it still — it’s still not conclusive from that
standpoint.

[111]     The
difficulty with the scenario put to Dr. Leith is that Ms. Kelly’s evidence is equivocal
as to whether within a day or two of the accident her knee was painful and swollen.
The accident occurred early in the morning. There is no evidence that there was
any difficulty with Ms. Kelly’s right knee the next day when she visited Dr.
Lepard. Given that in my opinion there is significant uncertainty as to when
the pain and swelling occurred in her right knee, as well as the fact that Ms.
Kelly says it was the outside or lateral part of her knee that was struck, I am
not satisfied that this exchange between counsel and Dr. Leith either undermines
his opinion or causes me to reject his evidence in any way.

[112]    
I appreciate that he did concede that “if it did contribute, it was
minimal contribution, if any.” In response to that statement, counsel asked,
“How do you measure that?” Dr. Leith replied:

Well, based on the clinical
scenario, she’s got bad arthritis in her knee. … So a little blow from a
low-speed accident is not going to cause a whole lot of damage.  She didn’t
have any fractures.  She didn’t have any bruising.  She didn’t have any major
injury.  She got out of the car on her own.  She walked around.  She exchanged
information.  She continued with her work.  So on the spectrum of trauma and
disability that we see, that’s on the low end of the spectrum.

[113]    
Finally, counsel put this question to Dr. Leith:

I don’t quarrel with that, but
what I suggest to you is that — is that it triggered the onset of the
admittedly sometime-inevitable symptoms?

[114]    
Dr. Leith’s final response to this was:

You know, I don’t — I still think it’s coincidental.  I
don’t think it triggered anything, because she didn’t have symptoms right after
the accident for several days.  And so if you take the accident out of the
equation and she presented, you know, on the same day to her family doctor with
knee pain and swelling, it was because of the arthritis.

But just because we put this
minor accident into the equation and she shows up five days later with medial
compartment pain and swelling, does that mean it’s because of this accident? 
Unlikely.  In this clinical — the context of her presentation, it’s unlikely.

[115]     Even if I
was satisfied the evidence established there was pain to Ms. Kelly’s knee
within two days, this would not necessarily be sufficient to establish
causation. In this regard, Dr. Leith remained of the opinion that it is “unlikely”
the accident triggered her symptoms because it was the outside of her knee
which came into contact with the gear shift but her subsequent pain was on the
inside of her knee.

[116]     On this
point, Dr. Travlos wrote that pain on the inside or medial part of the knee is
consistent with osteoarthritis. Pain on the exterior of the knee would be
consistent with the outside of her knee hitting the gear shift or console as
Ms. Kelly described. His report and evidence supports the conclusion of Dr.
Leith with respect to his concerns as to where the pain was occurring. It is
logical the pain she described was, as Dr. Leith testified, coincidental with
the accident.

[117]     I am also cognizant
of Dr. Blachut’s response to Dr. Leith’s opinion, in which he submitted that,
depending on the nature of the impact, a lateral blow may be consistent with
pathology on the medial side. However, even allowing for the possibility that a
blow against the console could cause symptoms to Ms. Kelly’s inner knee, I
remain satisfied that, as Dr. Leith stated, for causation to be established,
some symptoms would have to have been present immediately upon impact.

[118]     I
appreciate that causation does not have to be proven by scientific evidence or
to scientific certainty and that common sense and logic should be uppermost in
the court’s mind when considering whether or not a motor vehicle incident
caused any particular injury.

[119]    
In dealing with questions of causation, the Supreme Court of Canada said
in Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 16:

In Snell v. Farrell, supra,
this Court recently confirmed that the plaintiff must prove that the
defendant’s tortious conduct caused or contributed to the plaintiff’s
injury.  The causation test is not to be applied too rigidly. 
Causation need not be determined by scientific precision; as Lord Salmon stated
in Alphacell Ltd. v. Woodward, [1972]
2 All E.R. 475, at p. 490, and as was quoted by Sopinka J. at p. 328, it is
“essentially a practical question of fact which can best be answered by
ordinary common sense”.  Although the burden of proof remains with the
plaintiff, in some circumstances an inference of causation may be drawn from
the evidence without positive scientific proof.

[120]     Based on
the totality of the evidence, I accept the evidence and opinion of
Dr. Leith that if the impact of the collision was the cause of the pain
and swelling in Ms. Kelly’s right knee, she would have experienced those
symptoms at that point in time and certainly prior to seeing Dr. Lepard
the next day. She did not. This is consistent with Dr. Blachut’s evidence
where he says the symptoms she has described would depend on the point of
impact and the magnitude of force to her knee.

[121]     Whilst I appreciate
the logic in Dr. Travlos’ opinion that because there were no symptoms before
the incident and pain and swelling sometime after the incident, it is
reasonable to assume the incident caused the pain and swelling, it is also logical
and sensible to conclude as Dr. Leith has that when hitting the gear shift or
the console in a significant manner as Ms. Kelly said she did, there would have
been an acute injury and immediate pain in that area of the knee. In these
circumstances, the evidence has not established on a balance probabilities that
the accident “materially contributed” to the injury (Athey, para. 15).

[122]     For these
reasons, I am unable to conclude the plaintiff has proven that the accident
caused or accelerated the subsequent pain and swelling she experienced in her
arthritic knee.

Non-Pecuniary Damages

[123]     As I have
already mentioned, counsel suggested the appropriate range for non-pecuniary
damages is $20,000.00 to $30,000.00. Counsel cited various authorities
regarding the appropriate award of damages. However, most are not helpful given
my determination that the right knee symptoms were not caused by the accident.

[124]     In Stapley
v. Hejslet, 2006 BCCA 34 at para. 46, the Court of Appeal set out ten
factors that have a bearing on the amount of damages to be awarded for non-pecuniary
loss. Having regard to those factors and the cases cited by counsel, I am
satisfied the evidence supports an award at the high end of this range. Even though
Ms. Kelly’s knee has been the primary and ongoing focus of her physiotherapy
and rehabilitation, the evidence establishes her soft tissue injuries were
reasonably significant and, even excluding the knee injury, affected her
activities and lifestyle.

[125]     In written
argument, Mr. Hood submitted that Ms. Kelly’s soft tissue injuries were
resolved by December 2009, approximately 18 months after the accident. I accept
this as accurate.

[126]     There will
therefore be judgement for non-pecuniary damages in the amount of $30,000.00.

Loss of Earning
Capacity

[127]     Ms.
Kelly’s claim for loss of earning capacity is based on her ongoing knee problems.
Counsel for Ms. Kelly submits that “but for her knee injury she would have no
trouble getting work as a regional or district manager”. As I have concluded
the accident did not trigger the symptoms of arthritis in Ms. Kelly’s knee, she
is not entitled to damages under this head.

Mitigation

[128]     The
defendants submitted Ms. Kelly failed to mitigate her damages by not accepting
employment with her employer Fields Stores in Toronto. I am not satisfied the
defendant has established a failure to mitigate because she does not wish to
relocate to Toronto at this stage of her life. She is 63 years of age. Her
family and grandchildren live here. Her husband has a business she helps out
with. She is actively seeking employment in this area with the assistance of
vocational experts. The decision not to relocate to Toronto is a reasonable
one.

[129]     There was
no suggestion Ms. Kelly failed to mitigate by not seeking appropriate therapy
for her soft tissue injuries.

Special Damages

[130]     There is
agreement as to the amount of special damages depending on whether or not the
plaintiff proved the accident accelerated the pain in her right knee. Given my
conclusion on this issue there will be awarded special damages in the amount of
$1530.00.

[131]    
The plaintiff is entitled to costs on scale B and to pre-judgment
interest on her special damages.

 __________________________

  
Mr. Justice B.D. MacKenzie