IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | X. v. Y., |
| 2011 BCSC 944 |
Date: 20110718
Docket: M99443
Registry:
New Westminster
Between:
X.
Plaintiff
And
Y.
and Z. Ltd.
Defendants
Before:
The Honourable Madam Justice Dardi
Reasons for Judgment
NOTICE: Court file sealed
Counsel for the Plaintiff: | T. A. Sovani |
Counsel for the Defendants: | J. Lindsay, Q.C. P. Tung |
Place and Date of Trial: | New Westminster, B.C. February 22-26; |
Place and Date of Judgment: | New Westminster, B.C. July 18, 2011 |
Evidence of the Independent Witnesses
Evidence of the Defendants Father
(iii) Summary of
Expert Evidence
(ii) Failure to
Appreciate U-turning Vehicles
(iii) Travelling at
an Excessive Speed
(iv) Laying Down
the Motorcycle
Plaintiffs Personal Circumstances
(ii) Collision and
Post-Collision Year
(iii) Plaintiffs
Circumstances at Trial
Conclusion Regarding Plaintiffs
Condition
B) Loss of Earning Capacity: Past and
Future
Loss of Future Earning Capacity
(i) Likelihood of
discharge from the RCMP
(ii) Whether his
accident-related injuries will affect the age to which he will likely work
Loss of Earning Capacity to the Date
of Trial
C) Claim for Loss of Housekeeping
Capacity and In-Trust Award
Claim for Impaired Homemaking
Capacity
INTRODUCTION
[1]
On July 19, 2005, the plaintiff, Mr. X., an RCMP officer, was
responding to an emergency call on the Lougheed Highway in Coquitlam. His life
changed permanently and materially when his motorcycle collided with a truck
driven by one of the defendants, Mr. Y. The truck was owned by Z. Ltd.,
the other defendant. I will refer to the defendant, Mr. Y., as the
defendant for the balance of these reasons. As a result of the accident, the plaintiff
was seriously injured; he sustained a burst-fracture of his T12 vertebra and
underwent fusion surgery. The plaintiff returned to his employment with the
RCMP in April 2006. However, he has not returned to front-line police
work.
[2]
He claims general damages for pain and suffering, past wage loss, loss
of capacity to earn income in the future, loss of housekeeping capacity, future
care costs, and special damages.
[3]
The defendant has admitted liability but submits that the plaintiffs negligence
contributed to the accident. The defendants also contend that the plaintiffs
claims for compensation for his injuries are excessive.
[4]
The issues for determination are:
i. Whether the plaintiffs
negligence contributed to the collision; and
ii. The
quantum of damages the plaintiff should be awarded.
I will address these issues separately under the
headings of Liability and Damages.
LIABILITY
[5]
The plaintiff contends that the accident was caused solely because of
the negligence of the defendant, and denies any contributory negligence. The
defendants submit that the apportionment of fault under the Negligence Act,
R.S.B.C. 1996, c. 333, should be in the range of 50% to 60% to the
plaintiff.
[6]
For the reasons discussed below, I find the plaintiff was not
contributorily negligent.
Legal Framework
[7]
Before turning to the analysis, it is necessary to refer to the relevant
provisions of the Motor Vehicle Act, R.S.B.C. 1996 c. 318 [MVA],
and the judicial consideration of those provisions.
[8]
Section 122 of the MVA states as follows:
122 (1) Despite anything in this Part, but subject
to subsections (2) and (4), a driver of an emergency vehicle may do the
following:
(a) exceed the speed limit;
(b) proceed past a red traffic control signal or stop
sign without stopping;
(c) disregard rules and traffic control devices
governing direction of movement or turning in specified directions;
(d) stop or stand.
(2) The driver of an emergency vehicle must not exercise
the privileges granted by subsection (1) except in accordance with the
regulations.
(3) [Repealed 1997-30-2.]
(4) The driver of an emergency vehicle exercising a
privilege granted by subsection (1) must drive with due regard for safety,
having regard to all the circumstances of the case, including the following:
(a) the nature, condition and use of the highway;
(b) the amount of traffic that is on, or might
reasonably be expected to be on, the highway;
(c) the nature of the use being made of the emergency
vehicle at the time.
[9]
The sections of the Emergency Vehicle Driving Regulation, B.C.
Reg. 133/98, which are relevant to the application of s. 122 of the MVA
read as follows:
1 In this
regulation:
…
emergency light means
a flashing red or blue light;
emergency siren means
an audible siren, signal bell or exhaust whistle;
…
4 (1)
A peace officer operating an emergency vehicle for purposes other than pursuit
may exercise the privileges granted by section 122 (1) of the Motor Vehicle
Act if
(a) the
peace officer has reasonable grounds to believe that the risk of harm to
members of the public from the exercise of those privileges is less than the
risk of harm to members of the public should those privileges not be exercised,
and
(b) the
peace officer operates the following emergency equipment, as applicable:
(i) in the
exercise of privileges described in section 122 (1) (a) to (c) of the Motor
Vehicle Act, an emergency light and siren;
(ii) in the
exercise of privileges described in section 122 (1) (d) of the Motor Vehicle
Act, an emergency light or an emergency light and siren.
[10]
Section 163 of the MVA deals with divided highways and states as
follows:
163 If a highway has been divided into
2 roadways by a physical barrier or clearly indicated dividing section
constructed so that it impedes vehicular traffic, a driver must not
(a) drive a vehicle over, across or within a barrier or
dividing section, except at a crossover or intersection, or
(b) drive
a vehicle on the left hand roadway unless directed or permitted to do so by a
peace officer or a traffic control device.
[11]
Section 177 of the MVA which deals with the approach of an
emergency vehicle states as follows:
177 On the immediate approach of an emergency vehicle giving an
audible signal by a bell, siren or exhaust whistle, and showing a visible
flashing red light, except when otherwise directed by a peace officer, a driver
must yield the right of way, and immediately drive to a position parallel to
and as close as possible to the nearest edge or curb of the roadway, clear of
an intersection, and stop and remain in that position until the emergency
vehicle has passed.
[12]
It emerges from the authorities that the determination of whether a
police officer was negligent to any degree turns on whether the conduct of that
police officer, viewed objectively from the viewpoint of a reasonable police
officer, was reasonable in the particular circumstances of the case: Radke
v. M.S. (Litigation guardian of), 2007 BCCA 216 at para. 7; Doern
v. Phillips Estate (1997), 43 B.C.L.R. (3d) 53 at para. 13, 100
B.C.A.C. 5 (C.A.).
[13]
The Court of Appeal in Doern affirmed this governing principle as
follows at para. 13:
There is no dispute in this case concerning the legal
standard of care to which the police are to be held. After a thorough review of
the relevant authorities the learned trial judge said:
Based on the authorities provided, there is little doubt
that the standard of care to which a police officer will be held is that of a
reasonable police officer, acting reasonably and within the statutory powers
imposed upon him or her, according to the circumstances of the case ….
[14]
This Court must analyze whether there was any negligence on the part of
the plaintiff within the context of s. 122 of the MVA, the relevant
sections of the Emergency Vehicle Driving Regulation, and any relevant police
policy. The critical inquiry which informs the analysis is whether the
emergency to which the plaintiff was responding was sufficiently serious to
justify the exercise of his privileges under s. 122 of the MVA and
the attendant risk to public safety. This mandates an assessment of whether he
properly balanced the utility of his conduct with the risk to public safety: Radke
at para. 13.
[15]
I have considered all of the case authorities provided by the parties.
The decisions, while affirming the general propositions outlined above, are
largely fact specific and accordingly are of limited assistance.
[16]
The defendant admitted that his negligence caused the accident.
Therefore, the essential issue for determination in this proceeding is whether
there was any contributory negligence on the part of the plaintiff.
Facts
Evidence of the Plaintiff
[17]
The plaintiff, who had owned and operated a variety of motorcycles, was
a very experienced motorcycle rider. He had been a motorcycle rider with the
Canadian Armed Forces and had successfully completed the Canada Safety Council motorcycle
program. He completed his training as an advanced motorcycle operator with the
RCMP on April 18, 2005.
[18]
Prior to operating his motorcycle on the day of the collision, the
plaintiff, as was his routine, conducted a safety inspection of his motorcycle.
I accept his evidence that he only operated his motorcycle on the days he
considered himself in optimal physical and mental form. The motorcycle was a
heavy Harley Davidson model.
[19]
In the minutes preceding the collision, the plaintiff was responding to
an emergency call in relation to a collapsed overpass on the Lougheed Highway.
The Lougheed Highway runs in a north-south direction. It has two lanes in each
direction and is divided by a painted median which is approximately a half-lane
wide and is flush with the road surface. The posted speed limit on the Lougheed
Highway is 70 kilometres per hour. It was a clear and sunny summer day. Northbound
traffic on the Lougheed Highway was stalled due to the collapse of the overpass.
[20]
The plaintiff, in responding to the Code 3 call, knew the pedestrian
bridge had collapsed over the highway and it was unknown for injuries. Code 3
calls mandate a priority one response and police officers are expected to activate
their emergency equipment, including lights and sirens, and to attend the scene
at a safe and reasonable speed. Although there were emergency vehicles with
activated emergency lights and sirens present in the vicinity of the collapsed
overpass, the Code 3 had not been cancelled prior to the collision.
[21]
It is a critical and uncontroverted fact that the plaintiff, in
responding to the Code 3 call, immediately and continually employed his
automatic flashing emergency lights and sirens and repeatedly sounded his air
horn, which he described as a loud, irritating blast of noise. He accelerated
towards the overpass accident scene at a speed he determined was safe and
reasonable. He initially split the traffic and travelled between the two
northbound lanes before eventually coming to a police roadblock at the Chilko Dr. intersection
which was preventing civilian vehicles from proceeding north. After passing
around the raised median at Chilko Dr., he began travelling in the southbound
lane in a northerly direction towards the overpass. However, while
driving, he observed some traffic moving in the opposite direction from him in
those southbound lanes; some vehicles in the northbound lanes closer to the
collapsed overpass were executing U-turns into the southbound lanes. He also assumed
that some vehicles were still passing underneath the intact portion of the
overpass. He determined that travelling on the flat median area would be
the most prudent and most efficient path of travel in the circumstances. He
proceeded cautiously, with his lights and sirens activated, repeatedly blowing
his air horn so that the drivers on the highway could hear him and see him. He
reduced his speed after passing the roadblock.
[22]
The defendant, who was driving a large pick-up truck, suddenly and
without warning pulled out of the northbound lane and turned directly into the
path in front of him. The plaintiff instantly determined that he would be
unable to swerve to avoid the vehicle, and realizing a collision was inevitable,
he took, in the circumstances, what he deemed to be the most reasonable course
of action. Prior to impact, he laid down his motorcycle on its left side and
tried to dismount the motorcycle so that his body would not directly impact the
truck. He made a conscious effort to tuck himself into a ball by bringing in
his legs and arms before landing on the pavement. He was able to execute this
manoeuvre, at least in part, because of his training as a member of the
emergency response team in the Armed Forces. His motorcycle collided with the
drivers side of the truck.
[23]
Emergency personnel attended the scene immediately after the collision.
[24]
I accept the plaintiffs evidence as outlined above. His description of
the accident was largely supported by the evidence of the independent witnesses
who, prior to the collision, had been travelling on the Lougheed Highway in the
northbound lane closest to the median. I turn now to their evidence.
Evidence of the Independent Witnesses
(i) Ms. O.
[25]
Ms. O.s vehicle was immediately in front of the defendants truck,
in the lane closest to the median. Through her rear-view mirror she observed
the plaintiffs motorcycle travelling down the median with its lights flashing.
She noticed his motorcycle just after it passed the Chilko Dr. intersection.
She estimated that the plaintiff was travelling at a speed of 50-60 kilometres
per hour. She then observed that the truck behind her had begun to veer to the
left; it had turned approximately 45 degrees west when she heard the loud slam
of the collision. She immediately turned to look over her shoulder and saw the
motorcycle driver fly through the air and then hit the ground. Ms. O.
conveyed to the Court her shock at the time that any driver would attempt to
complete a U-turn while an emergency motorcycle was approaching.
[26]
She confirmed that sometime prior to her observing the plaintiffs
motorcycle, she had observed four or five vehicles in front of her making
U-turns into the southbound lanes.
(ii) Mr. K.
[27]
Mr. K. was travelling in a convertible with its top down directly behind
the defendants truck. He noticed other cars were backed up in front of him and
waiting in line, but he was unable to identify the emergency or what was
causing the stalled, stop and go traffic. Mr. K. had just started to
contemplate executing a U-turn when he heard the plaintiffs motorcycle siren approaching
from behind him. He estimated that he first observed the plaintiffs motorcycle
about 20 seconds prior to the collision. He turned his head around and had a
clear view of a police officer on a motorcycle with flashing lights travelling
up the median. He estimated its speed as 50-60 kilometres per hour. He
concluded it was best to remain in his current position.
[28]
Mr. K. then observed that the defendants pick-up truck, which was stopped
one-half to one car length immediately in front of him, was beginning to pull
out to the left. He observed that the driver turned without turning his head to
check for traffic and without turning on his signal lights. Mr. K. stated that
he thought to himself what the heck is he [the driver of the truck] doing?
when he first noticed the trucks movement to the left. According to Mr. K.,
the police motorcycle was approximately two or three car lengths behind the defendants
truck when the defendant began his U-turn.
[29]
Mr. K. saw the motorcycle driver dump the motorcycle, the
motorcycle collide with the truck and the motorcycle driver ricochet off the
truck and fly through the air like a rag doll. According to Mr. K., the defendants
truck was well into the median when the collision occurred.
(iii) Mr. KR.
[30]
Mr. KR. was also travelling north in the same northbound lane. He
was approximately 50 feet in front of the defendants truck. Within what he
estimated to be five seconds of completing his U-turn, he heard the motorcycle
sirens and observed the plaintiffs motorcycle travelling down the median with its
lights activated. He described the motorcycle as travelling pretty fast. He then
saw the defendant, who was a quarter way through his U-turn, collide with the
motorcycle.
(iv) Summary
[31]
There are some inconsistencies in the evidence of these witnesses; for
instance, they gave different accounts of the length of time they had been
stopped prior to the collision. However, I note that these witnesses were
attempting to give detailed descriptions of a sequence of events which happened
suddenly, over the course of seconds or split-seconds. It is not surprising
that their recollections were not identical.
[32]
The evidence establishes that both Ms. O. and Mr. K., in the
vehicles directly in front of and behind the defendant, saw the plaintiff prior
to the collision travelling down the centre of the median with his emergency lights
activated. Mr. K. heard the plaintiffs motorcycle siren; Ms. O.
heard the sirens of emergency vehicles behind her. They both remained in their
respective positions as they were required to do pursuant to s. 177 of the
MVA. With respect to their observations of the defendant and the
sequence of events immediately preceding the collision, I found the evidence of
both Ms. O. and Mr. K. credible and reliable.
[33]
While Mr. KR. testified that he did not hear the siren or see the
motorcycle until just after he had completed his U-turn, he was at least 50
feet ahead of the defendant. Moreover, the evidence does not support a finding
that Mr. KR. checked his mirrors prior to executing his U-turn. Although
he testified that he had been directed by a police officer to execute a U-turn,
the totality of the evidence does not support such a finding. Neither the
plaintiff, the defendant, Ms. O., nor Mr. K. saw a police officer
directing U-turns.
Evidence of the Defendants Father
[34]
The defendants father was following his son in the northbound lane
closest to the median. He confirmed that traffic was stalled due to the
collapsed overpass. Both he and the defendant testified that his vehicle
was immediately behind the defendants truck. This is inconsistent with the
evidence of Mr. K., who testified that it was his vehicle that was
directly behind the defendants truck. I prefer the evidence of Mr. K. on
this point, as I find it more consistent with the reasonable probabilities of
the situation.
Evidence of the Defendant
[35]
The defendant was proceeding in a northerly direction on the Lougheed Highway
in his canopied 3/4 ton pick-up truck. The drivers side window of his truck
was open. Prior to the collision, he had been stopped in bumper-to-bumper traffic,
during which time he saw lights from emergency vehicles and heard the ambient
sound of sirens. He also observed that there were cars left abandoned along the
shoulder and an out-of-province motorcycle travelling on the right-hand
shoulder. The defendant made his U-turn without being directed to by any
emergency personnel. Although the defendant did hear a loud grinding or
screeching noise a few seconds before the impact, he only saw the motorcycle
when it slid by his window and hit his truck. He slammed on his brakes in the
split seconds prior to the collision. After the collision, he immediately put
his truck in park and jumped out of the vehicle. The defendant was not injured
in the collision.
[36]
The defendant pled guilty to charges of driving without due care and
attention. He asserts that he did so because he could not afford the legal fees
to defend himself and because he wanted to avoid the risk of a suspension of
his license.
[37]
The defendants evidence on material points contradicted both his own
testimony at trial and the evidence of the independent witnesses without any
satisfactory explanation. The following examples are illustrative:
· He
stated he was travelling in the lane closest to the median, and maintained that
it was his turn to make a U-turn. He recalls that although there were a few
staggered vehicles ahead of him there were no drivers in those vehicles. However,
the evidence clearly establishes that Ms. O.s vehicle was directly in
front of him in the lane.
· He
testified at his examination for discovery that his truck remained in the
northbound lane closest to the median, and maintained that he had not turned
into the median prior to impact. At trial, he testified that at the time of the
collision, he was on or right around the centre median line and that his tire
was very close to the median. He conceded in cross-examination that the front
of his vehicle may have been in the median. The three collision experts and the
independent witnesses all place his truck well through the median at the time
of impact.
· He
testified that he checked his mirror seconds before he started executing his
U-turn. He stated that he could see back to the Chilko Dr. intersection
and he saw a clear road on the other side and traffic backed up behind him. Given
the other evidence which I prefer, the only rational conclusion is that the
defendant did not check his mirrors before making his U-turn or execute a
proper shoulder check (which would have finished with a turn to the blind spot
on his left); had he done so, he would have seen the plaintiff approaching. Both
the defendants own expert, Mr. I., as well as Mr. SE., the plaintiffs
expert, were of the opinion that if he had checked his mirrors, the plaintiff
would have been in his view.
· He
testified that prior to executing his U-turn, he turned on his turn signal. This
evidence was directly contradicted by Mr. K.
[38]
An assessment of the defendants evidence as a whole demonstrates that
it is not reliable. I consider it unsafe to give any weight to his evidence
that tends to implicate the plaintiff for being at fault for the accident.
[39]
The preponderance of the evidence shows that the left front tire of the defendants
truck was well between the two yellow median line markers at the time of
impact. The defendant had clearly initiated his U-turn prior to the collision. He
violated s. 163 of the MVA by making a U-turn on a divided highway
and in breaching the law, he was under a heightened duty of care: Bradley v.
Bath, 2010 BCCA 10 at para. 27. Contrary to the submissions of his counsel,
the defendant did not exercise caution in executing his U-turn. The defendant
admits that he was not directed to do the U-turn by any emergency personnel.
Moreover, it was not his turn to make a U-turn; Ms. O.s vehicle was in
front of him. Even if he could not locate the source of the sirens, given the
presence of emergency vehicles, the defendant should have looked carefully
before executing any turn. If he had done so, he would have seen the plaintiffthe
plaintiff was there to be seen and heard by the defendant.
[40]
While recognizing that a breach of the MVA alone is not
determinative of negligence, I find that the defendant clearly failed to keep a
proper lookout and to take appropriate care in the circumstances: Dhah v.
Harris, 2010 BCSC 172; Dickie Estate v. Dickie and Desousa (1991), 5
B.C.A.C. 37 (C.A.). The location and nature of his unlawful manoeuvre in an
area where he knew there were emergency vehicles required him to pay particular
attention. Had he looked in his mirrors and conducted a proper shoulder check,
he would not have initiated his turn in such patently unsafe circumstances.
Expert Evidence
[41]
Each party led expert opinion evidence from an engineer experienced in
accident reconstruction. Mr. I. gave expert evidence for the defendants; Mr. SE.
provided evidence for the plaintiff. Both experts opined on the initial speed
of the motorcycle prior to the pre-impact application of the brakes. Both
experts relied on the contents of the motor vehicle traffic accident RCMP
investigation report as well as RCMP incident scene photographs. Mr. SE. personally
attended and examined the accident scene. Mr. I. did not attend the
accident scene. Neither
engineer examined the truck or the motorcycle.
[42]
The plaintiff also tendered the traffic collision reconstruction report
of Sgt. D., the National Coordinator for Collision Investigation Training
at the RCMP Pacific Region Training Centre. Sergeant D., who is not an
engineer, gave opinion evidence as a traffic collision analyst. He opined that
the speed of the motorcycle was a minimum of 33 kilometres per hour. His
analysis is incomplete because it calculates the speed of the motorcycle using
only the skid marks; therefore, it is of limited assistance.
[43]
The evidence as to the resting position of the two vehicles and the
damage sustained by each of the vehicles was uncontroversial. After the
collision, the final resting position of the upright truck was at an angle
straddling the northbound lane (closest to the median) and the median lane. The
truck was facing northwest. The motorcycle came to rest in the southbound lane,
on its left side, facing southeast.
[44]
The defendants truck sustained some damage: the left running board
under the cabin on the left side was torn off; there was denting on the drivers
door and along the rocker panel below and behind the drivers door; the left
front wheel rim was fractured; and the left side steering components of the
left front wheel sustained damage. Sergeant D. was of the view that the impact
moved the truck on its rotational axis approximately one metre.
[45]
The RCMP Traffic Collision Reconstruction Report describes the damage to
the motorcycle. The primary damage to the motorcycle, which slid to rest on its
left side, consisted of abrasion to the left outboard side of the engine
guard, the left saddlebag guard and the lid to the left saddlebag. The report
also states as follows:
Secondary contact damage consisted of a shattering of the
underside of the right side mounted saddlebag. The right side saddlebag guard
rails were bent upward. The right rear, arm mounted signal lamp was broken and
bent upward.
There was denting to the
underside of the right side mounted exhaust muffler, which was pushed upward
and inward toward the right side of the rear tire. … The right side lower
tubular frame rail, under the engine, was flattened and bent upward.
(i) Mr. I.s Opinion
[46]
Mr. I. opines that the plaintiffs motorcycle lost speed as a
result of the braking, the impact with the defendants truck, and the eventual sliding
to a rest position. He considered the skid marks on the roadway identified by
the investigating officers and the final resting position of the plaintiffs motorcycle.
He analyzed each of these factors to provide an opinion as to the motorcycles
initial speed prior to the application of the brakes. In essence, he analyzed
the initial speed of the motorcycle by working backwards from its resting
position.
[47]
In his analysis, he observes that only one skid mark was visible at the
incident scene, likely from the motorcycles rear tire. The police measured a
17.3 metre tire mark prior to impact.
[48]
From his review of the police photographs and scale diagram, Mr. I.
opines that the motorcycle slid approximately five metres from impact to rest. Mr. I.,
in applying the published works of Lambourn (1991), quantified the co-efficient
of sliding friction of a motorcycle sliding on its side on asphalt to be in the
range of 0.25 to 0.53. In his opinion, the motorcycle exited from the side of
the truck at approximately 18 to 26 kilometres per hour. Through the
application of a computer accident simulation and reconstruction program, he
concluded that this required an impact speed of 37 to 54 kilometres per hour.
He notes that because he used a conservative coefficient of restitution for the
collision, the motorcycles speed was possibly higher. He also notes that
both brakes could have been applied, with only the rear applied hard enough to
lock the wheel; this is significant because the friction coefficient used in
the crash analysis varies with whether there was rear braking only or whether
there was front and rear braking.
[49]
Considering the 17.3 metre tire mark prior to impact and a speed of 37
to 54 kilometres per hour at the end of the skid, he opines that the initial speed
of the plaintiffs motorcycle was between 52 and 86 kilometres per hour. If
only rear braking was applied, he opines that the motorcycles initial speed
was between 52 and 72 kilometres per hour.
[50]
He was of the opinion that at the time of impact, the left front tire of
the defendants truck was in the western half of the median.
(ii)
Mr. SE.s Opinion
[51]
Mr. SE.s analysis of the range of the post-impact speed of the
motorcycle and therefore its initial speed differed from that of Mr. I. He
described two factors which resulted in Mr. I.s overestimated
calculationsthe coefficient of friction on the roadway and not taking into
account that the motorcycle had slid on its side prior to the collision.
[52]
In his opinion, Mr. I.s use of 0.25 to 0.53 for the coefficient of
friction resulted in an overestimation of the post-impact speed of the motorcycle.
Mr. SE. noted that the Lambourn test involved motorcycles varying in size,
from a Honda 90 to a Honda CB 750G. In his report, Mr. SE. states as
follows:
The … Harley Davidson was
fitted with crash bars at the front and had metal guards around the saddlebags.
Only one motorcycle in the Lambourn test was fitted with crash bars; the Honda
CB 750G had crash bars over the crank case ends. The range for the coefficient
of sliding friction for this motorcycle was 0.25 to 0.35.
Applying this coefficient of friction, Mr. SE.
calculated a range of 18 to 21 kilometres per hour for the post-impact speed of
the plaintiffs motorcycle.
[53]
Mr. SE. also observed that Mr. I. stated that only one skid
mark was visible at the accident site, and that the length of the mark was 17.3
metres. However, he points out that Sgt. D. in his traffic collision
reconstruction report describes a metal scar on the road surface seen in the
police photograph. According to Mr. SE., this is a significant component
in the analysis; the scar was most likely from the crash bar on the left side
of the motorcycle, and indicates that it was sliding on its left side as it
approached the truck. Therefore, he opines that the 17.3 metres used by Mr. I.
as the skid distance was too long and ultimately inaccurate. Mr. SE. also
states that based on the measurements he took from the scene, the length of the
mark made by the crash bar before it changed direction abruptly was about 3.6
metres. Therefore his calculations were based on the motorcycle sliding on its
side for 3.6 metres and braking for 13.7 metres.
[54]
Based on the above, Mr. SE. calculates that, if the front and rear
brakes were applied, the pre-braking or initial speed of the motorcycle was between
51 and 76 kilometres per hour. Had only the rear brakes been applied, the
pre-braking speed would have been between 51 and 63 kilometres per hour.
[55]
In Mr. SE.s opinion, at the time of impact, the front wheel of the
defendants truck was approximately 20 inches from the western side of the
median.
[56]
Finally, he states that:
Therefore, if Mr. [Y.] had
scanned his mirrors while trying to localize the source of the approaching
siren, he would have had an unobstructed view of the motorcycle for at least
the final 98 metres of its travel. …
(iii) Summary of Expert Evidence
[57]
Mr. I. conceded that Mr. SE. had offered some valid criticisms
of his report. He acknowledged that Mr. SE.s analysis was correct and that
the crash bars would lower the coefficient of friction. While he did not
concede that the range was as low as that asserted by Mr. SE., he did
acknowledge in cross-examination that he would split the difference in the
range of the coefficient of friction. This calculation in turn impacts the
calculation of the initial speed of the motorcycle. He also conceded that Mr. SE.
had a valid point that the coefficient of friction should be reduced because
there was a concurrent scrape parallel to the skid mark which he had not factored
into his calculations. He admitted in cross-examination that this was a very
difficult problem that had not been fully explored in his report.
[58]
Significantly, he testified that both of their respective estimates were
within the realm of reasonable professional opinion.
[59]
Mr. I. also conceded in cross-examination that if the defendant had
checked his rear-view mirror prior to turning, he would have seen the
plaintiff.
[60]
In my view, on cross-examination, Mr. SE.s opinion was not shown
to be faulty in any substantive way. Mr. SE. acknowledged in
cross-examination the possibility that both his and Mr. I.s calculations
on speed may be conservative because neither analysis factored in the extent to
which the truck was moved by the impact. However, Mr. SE. testified and I
accept that the increase in the speed estimates would be marginal.
[61]
To the extent of any disagreement, I prefer Mr. SE.s opinion to
that of Mr. I.
Discussion
[62]
The crucial question is whether the plaintiff failed to take reasonable
care for his own safety and the safety of the public, and if so, whether his
failure to do so was one of the causes of the collision. For the reasons set
out below, I find that he did not fail to take reasonable care and that he was
not at fault for the collision.
[63]
The defendants overarching submission is that the plaintiff should have
reassessed the circumstances of the Code 3 call once it became apparent at the Chilko
Dr. intersection that he would not be the first officer on the scene of
the collapsed overpass. They say he made an error in judgment in putting
too much emphasis on timing.
[64]
I find that the plaintiff did conduct a proper risk assessment in
responding to the emergency call. From the limited information the plaintiff
had, he knew the situation was very serious; he knew that it was unknown for
injuries and that time was of the essence. The Code 3 call had not been
cancelled prior to the collision. I accept his evidence that officers are to
continue as dispatched until a Code 3 call is cancelled. Moreover, it is an
uncontroverted fact that he reduced his speed after passing the police blockade
at the Chilko Dr. intersection.
[65]
The defendants assert that the plaintiff was negligent as he approached
the accident scene. They argue that:
i.
he was negligent in his choice of lane;
ii.
he should have proceeded more cautiously and he lacked an appreciation
for U-turning vehicles in a chaotic emergency situation;
iii.
he was travelling too fast in all the circumstances; and
iv.
he should not have laid down his motorcycle.
[66]
I will deal with each of these allegations in turn.
(i) Choice of Lane
[67]
The defendants forcefully argue that the plaintiff was negligent in
choosing to travel down the median. They submit that he acted unreasonably
because he was travelling through the blind-spots of the drivers in the inside
northbound lane.
[68]
I reject that submission. It is not reasonable to require the plaintiff
in responding to an emergency call to travel in a lane that would have entirely
avoided the blind-spots of those drivers executing turns or lane changes.
Rather, the analysis of whether his choice of lane was reasonable requires
consideration of what reasonable options were available to the plaintiff at the
time.
[69]
With respect to the defendants contention that the plaintiff should
have travelled on the shoulder of the northbound lane, I note that the evidence
from the defendant himself was that there were vehicles, including a
motorcycle, moving through that lane, and that there were abandoned parked cars
on the shoulder. In those circumstances, I am not persuaded that it would have
been prudent for the plaintiff to travel in the shoulder of the northbound
lane.
[70]
Moreover, it is significant that the traffic was stalled in the
northbound lane. If the plaintiff had chosen, instead of driving down the
median, to continue to split the traffic by travelling north between the two
northbound lanes of stopped traffic, he likely would not have had an unimpeded
route of travel. The defendant himself testified that some of the drivers of
the vehicles stopped in the northbound lanes were exiting their vehicles. If
any occupant of a vehicle, either on the passenger side of the left lane or the
driver side of the right lane, opened their door without checking their blind-spot,
the door would have opened directly in front of the plaintiffs vehicle.
Moreover, he would have been passing through the blind-spots of the drivers in
the shoulder lane.
[71]
Lastly, proceeding northbound in the southbound lane would have
presented its own set of hazards, because despite the downed overpass, there
were vehicles travelling in a southerly direction in those lanes.
[72]
In summary, I am not persuaded that in the circumstances the plaintiffs
choice of lane breached the standard of care of a reasonable police officer.
(ii) Failure to Appreciate U-turning Vehicles
[73]
I next address whether the plaintiff nonetheless should have taken more
care for his own safety by recognizing the potential risks of vehicles in the
northbound lane negotiating U-turns. I find that the plaintiff did appreciate
that there were vehicles doing U-turns from the northbound lane through the
median to travel south in the southbound lanes.
[74]
In all the circumstances, I am unable to conclude that he failed to take
reasonable care. He did what was reasonable in terms of activating all of his
emergency equipment: the evidence shows that his sirens and his flashing lights
were on, and that he was repeatedly blowing his air-horn. He did so to be seen
and heard. Significantly, both Mr. K. and Ms. O., who were in the
vehicles directly in front of and behind the defendants truck, observed the
approach of the plaintiff and remained stopped in their respective positions.
(iii) Travelling at an Excessive Speed
[75]
The plaintiff, in responding to a high-priority emergency call with his
lights and sirens activated, was travelling in a path where traffic should not
lawfully be travelling. I turn to the defendants submission that in these
circumstances, the plaintiff was travelling too fast.
[76]
Mr. SE. opined that the initial speed of the motorcycle was between
51 and 76 kilometres per hour if the front and rear brakes had been applied.
Had only the rear brakes been applied, the pre-braking speed would have been
between 51 and 63 kilometres per hour. I accept the plaintiffs evidence that
he applied both the front and rear brakes.
[77]
In opining on the speed of the motorcycle, neither expert had complete
data or considered all of the factors necessary to provide a thorough
scientific analysis. This is reflected in the range of estimates they provided.
The conjecture elicited in cross-examination as to the possible variables that
might impact the calculations was of little assistance to the Court. In the
circumstances, while I have considered the expert evidence, I have not relied
on it exclusively in making my findings of fact.
[78]
Both Ms. O. and Mr. K. estimated the plaintiffs speed at 50
to 60 kilometres per hour. I have approached this evidence cautiously as each
of them made this estimate based on a very brief observation. However, there is
no evidence suggesting that either of them were aware of the others testimony
in this regard. The plaintiff estimated his speed as 40 to 50 kilometres per
hour. The plaintiffs unchallenged evidence is that prior to reaching the Chilko
Dr. intersection, he was proceeding at 80 to 90 kilometres per hour. He
then slowed down appreciably to pass the roadblock at the Chilko Dr. intersection.
By virtue of his training and experience, I find the plaintiff would have been
particularly attuned to his speed. Although he candidly admitted that he did
not check his speedometer after passing through the intersection, as I referred
to earlier, I accept his evidence that thereafter he proceeded at a reduced speed.
[79]
Based on the totality of the evidence, I am unable to make a finding as
to the precise speed of the motorcycle prior to the application of the brakes. I
am satisfied that the evidence supports a finding that it is more likely than
not that the plaintiff was travelling in the range of 55 to 70 kilometres per
hour. In all the circumstances, I conclude that the speed at which the
plaintiff was travelling was justified in the context of the duty to which he
was responding. Even if the plaintiff was travelling at 80 kilometres per hour,
I would not be persuaded this constituted a breach of the plaintiffs statutory
duty.
(iv) Laying Down the Motorcycle
[80]
Counsel for the defendants also suggested that the plaintiff, when
suddenly confronted with a very dangerous situation in which he had to react in
a split-second timeframe, should have kept his motorcycle upright. In Dhah
v. Harris, 2010 BCSC 172, the plaintiff motorcyclist was struck by a
pick-up truck driven by the defendant who had made a U-turn across a double
yellow line. The observations of the court at para. 34 are apt in this
case:
Similarly, the plaintiff may, in
hindsight, have had alternate courses of action open to him, although there is
no evidence that they would have made a difference. However, he did not have
the luxury of carefully considering all his options. He reacted to the sudden
appearance of a dangerous situation in front of him.
[81]
I conclude that at the speed the plaintiff was travelling, he could not
have reasonably taken any evasive action that would have avoided the accident. The
evidence establishes that the plaintiff had no escape route, and his only
option to mitigate the severity of the collision was to lay down the motorcycle.
The motorcycle went down on its left side, which shows that the plaintiff
applied counter-steering and steered the motorcycle in the direction he
intended. He could not have swerved to the right because he would have collided
with the vehicles behind the defendants truck. If he had swerved to the left,
it would have likely only changed the location of the impact with the truck.
Conclusion
[82]
The plaintiff was exercising his privileges as a police officer pursuant
to s. 122 of the MVA, travelling on the roadway where he would not
otherwise be allowed to travel. I find that he did so having due regard for his
own safety and the safety of the public. He considered the relevant factors and
exercised appropriate judgment in balancing the risks against the utility of his
conduct.
[83]
The plaintiff was aware that it was important for him to remain visible,
to maintain time and space for an escape route, and to keep in mind his own
safety as well as the publics safety. He proceeded with reasonable caution: he
did not travel at an excessive speed, he kept a proper lookout ahead, and he
activated all of his emergency equipment in an effort to make drivers aware of
his presence and to arrive at the scene of the collapsed overpass as quickly
and safely as possible in the circumstances. He recognized the possibility that
a driver in whose blind spot he was travelling might do a U-turn and took the
precaution of activating all of his emergency equipment. It was reasonable to
assume that upon his approach the drivers in the northbound lanes would obey
the law and stop and remain in their positions until he passed: Mills v.
Seifred, 2010 BCCA 404 at para. 26.
[84]
In short, his conduct, viewed objectively from the viewpoint of a
reasonable police officer, was reasonable in all the circumstances.
[85]
The onus was on the defendants to establish contributory negligence on
the part of the plaintiff on a balance of probabilities. On the totality of the
evidence, they have failed to discharge that onus.
[86]
I conclude on a balance of probabilities that the defendant, Mr. Y.,
caused the accident by his negligence, and that his negligence was the sole
cause of the collision. The plaintiff was not contributorily negligent. The
defendants are wholly liable for the plaintiffs damages.
DAMAGES
Facts
[87]
It is uncontroversial that the accident caused the plaintiffs injuries
and that he is entitled to damages as a result of the injuries he sustained.
Before addressing the damages analysis, I turn to the facts established on the
evidence. I will first address the facts relating to the plaintiffs personal
circumstances and will then address the medical evidence and the evidence of
the occupational therapists.
Plaintiffs Personal
Circumstances
(i) Pre-Collision
[88]
Prior to the collision the plaintiff was a healthy and exceptionally
physically fit 43-year-old RCMP officer.
[89]
He began his career in law enforcement at a young age. After a brief
period of being a member of a regional police force in Ontario, in 1984, the
plaintiff became a member of the Canadian military police. He pursued career
advancement and eventually achieved the rank of master corporal in the military
police. He thrived on the teamwork, camaraderie, and mental and physical
challenges provided by the military environment and earned a number of
certificates for his achievements.
[90]
In 1991, the plaintiff applied for and was accepted into the Canadian
Airborne Regiment, which at that time was the paramount combat unit in Canada. The
training to become a parachutist was extremely rigorous; for instance, once a
year, he attended an intense week-long course on surviving capture and torture.
The plaintiff spent a total of two and a half years with the Canadian Airborne
Regiment and he held the rank of corporal. Throughout this period, he
maintained his excellent physical condition and pursued his passion for outdoor
activities, including hunting, fishing, camping and canoeing.
[91]
After a posting with the Special Investigations Unit in Calgary in 1993,
he was posted to Tokyo, Japan. His role as an attaché in the Canadian Embassy
security guard unit was to ensure the safety of personnel at the Canadian consulate.
During this time, he competed with professional and elite-level amateur
athletes in three different types of triathlons and regularly participated in Kendo
(Japanese sword-fighting), running, biking, and swimming. He eventually met and
married his wife in Japan. They shared a common interest in hiking and camping
endeavours which were very physically challenging. During his posting in Japan,
the Canadian Airborne Regiment was disbanded.
[92]
In 1997, the plaintiff returned with his wife to British Columbia, where
he worked as a member of the military police at the Canadian Armed Forces base
in Comox. He competed on the military police team in the surf and sea
competition, which involved skiing, running, biking, and canoeing.
[93]
In 1999, the plaintiff was assigned to work with the Joint Task Force
II, Canadas counter-terrorist unit. After being attached to a brigade with NATO
in Bosnia for one and a half months, he was assigned to Kosovo for a seven-month
placement. In Kosovo, he saw combat and was involved with UN investigations of
war crimes. From his testimony, it is clear this was an extremely gruelling
placement, from both a mental and a physical perspective.
[94]
After returning from Kosovo, it became apparent to him that he inevitably
would be posted to Afghanistan. For personal reasons, including wanting to
start a family, the plaintiff, after 18 years of service, decided to leave the Canadian
military and to apply to the RCMP. Given his prior experience and outstanding
level of fitness, he excelled at the RCMP training facility in Regina. This was
despite the fact that at age 40, he was older than his fellow trainees.
[95]
After completing his training, he was posted to work at the Coquitlam
RCMP detachment, where he worked as an RCMP officer from September 2002
until the date of the collision. His stated career goal, given his experience
and skill set, was to join the RCMP Emergency Response Team (ERT), which is
the special tactics division of the RCMP. During his posting with the Coquitlam
detachment, he worked various overtime shifts with the ERT and found the
challenge satisfying.
[96]
After a year of performing general duties as an RCMP officer, the
plaintiff was asked to join the traffic section of the Coquitlam detachment. He
was selected to participate in the advanced motorcycle operator course. I
accept that he did not complete the first motorcycle operator course because of
the handling and mechanical difficulties with the motorcycle assigned to him. As
referred to earlier, he successfully completed the course in the spring of
2005, after being issued a Harley Davidson motorcycle. The plaintiff enjoyed being a motorcycle officer and was
passionate about his work.
[97]
The evidence of the plaintiffs wife, Mr. S., and Mr. L., whose
evidence on this point I found reliable without exception, all support the
finding that prior to the collision, the plaintiff was an extremely active individual
who excelled at a wide range of athletic pursuits. The plaintiff has been passionate
about the outdoors since his youth; his pre-collision activities included
regular hiking, fishing, canoeing and camping. He was an avid hunter and, prior
to the collision, he was able to hunt alone and carry all of his own equipment.
He had participated in competitive archery; he was ranked in the World Police
and Fire Games for three different types of archery.
[98]
He was also an involved and active father to his three year old
daughter.
(ii) Collision and Post-Collision Year
[99]
The impact of the collision threw the plaintiff into the air. As
referred to earlier, by virtue of his military training and in an effort to
minimize his injuries, he made a conscious effort to tuck himself into a ball before
landing on the pavement. After impact, he recalled lying on his back on the
pavement, struggling to breathe, with intense pain radiating from his hips and
lower back. He was conscious and observed that people had come to assist him. He
described his pain as pure pain which caused him to see white light. The
emergency personnel administered morphine on the scene and he was transported
by ambulance to the hospital.
[100] The
attending orthopaedic surgeon at the hospital, Dr. D., advised the
plaintiff that he had sustained a spinal injury which would require surgery. The
plaintiff was distraught about the prospect of potential paralysis. The
plaintiff experienced a very negative reaction to the morphine and the other
pain killers which were administered to him.
[101] The
plaintiff underwent surgery on July 21, 2005, after which Dr. D.
explained to the plaintiff that he had a burst fracture in his vertebrae in the
thoracolumbar region, and that metal rods, clamps and screws had been placed in
the area to fuse the spine together. The plaintiff was fitted with a clamshell
brace in order to stabilize his fused spine and prevent him from moving. He was
not allowed to sit or stand up unless he was wearing this brace. He used a
walker to manoeuvre around the hospital. After physiotherapy treatments, he was
able to walk short distances, go to the bathroom, and get in and out of his
hospital bed. He was released from the hospital on July 27, 2005.
[102] Shortly
after his discharge, an occupational therapist, Ms. R., on behalf of the
RCMP, visited the plaintiffs home. She evaluated his comfort and safety needs
and arranged for the necessary equipment to facilitate his recovery.
[103] At home
the plaintiff managed his pain with Tylenol-3s. During his initial recovery, he
experienced difficulty sleeping due to his back pain and spasms; he eventually
obtained sleeping pills to assist him with sleeping.
[104] The
plaintiff made an extraordinary effort to build up his strength and maximize
his recovery. Eventually, he improved sufficiently that he could go for short
walks with his wife and daughter. By the end of September 2005, he was no
longer using prescription painkillers and was able to walk for approximately 1.5
hours per day. He does not subscribe to the use of pain medication unless
absolutely necessary. As of October 2005, Dr. D. permitted him to wean
himself out of his brace. The records indicate that by November 2005, he
was driving and only using a cane for support when walking uphill. The
plaintiff attended physiotherapy from November 2005 until April 2006 for
mobilization and strengthening of his thoracolumbar spine.
[105] Within a
year of the accident, the plaintiff was walking regularly and following
physiotherapy exercises at home. After completing a mock RCMP Physical Abilities
Requirement Evaluation (PARE), the plaintiff returned to work in April 2006
in the Coquitlam detachment on a graduated schedule for a two-month period.
However he never resumed his former front-line policing duties. In the spring
of 2006, he eventually moved into a new position which was less physical and
more administrative in nature; this is described in the next section.
[106] The
plaintiff described the anxiety and fear he experienced because of his injury.
I accept that the first year following his collision was very difficult for
him. He was fearful that he would not be able to return to work or only to work
in a limited capacity, and that he would have no way to provide for his family.
I also accept his wifes evidence that during this period, he was
uncharacteristically negative and short-tempered.
(iii) Plaintiffs Circumstances at Trial
[107] The
plaintiff currently works for the RCMP as a firearms support investigator with
the National Weapons Enforcement Support Team. His duties are much more
administrative in nature than prior to the collision. He primarily works in an
office and his job duties include training frontline police officers in investigating
firearms offences and firearm trafficking, writing sentencing reports, and
preparing court documents. He drives to sites and attends the execution of
search warrants, but does not do so in any capacity that would require the apprehension
of suspects. He has not returned to a front-line general duty policing
position; he cannot assume the risk of any physical altercations because of the
physical limitations imposed by his fused back. He misses the opportunity for
interaction with the public that his general duty position offered; he clearly
derived satisfaction from those interactions.
[108] He
regularly works Monday through Thursday. He requires regular breaks from
sitting throughout the day. His stamina is reduced; he is physically and
mentally exhausted by the end of the workweek. He has been accommodated in that
he is permitted to work at home as required because of his problems with his
back.
[109] His sleep
pattern has largely normalized. However, when he goes to bed, it takes him some
time for his back to loosen and his back pain symptoms will typically wake him in
the early morning.
[110] The
plaintiff has returned to some of his pre-collision recreational activities,
such as hunting, fishing, and canoeing, but in a greatly modified capacity. Against
the recommendation of his instructor, he competed in an archery competition in
2009, but because of his limitations, he used a lighter wooden bow which had been
tuned down. The evidence was unclear as to whether he is currently
participating in archery. He attends the gym but is restricted in terms of
weight-lifting and he cannot do sit-ups. On medical advice he has not returned
to running, cycling or swimming. He has gained weight since the collision.
[111] I accept the
plaintiffs evidence, that the nature of his hunting endeavours have been
modified dramatically. For the most part, he cannot do any of the heavy
lifting, and his companions do what they can to accommodate him. His fishing
activities have also been modified because of his limitations with heavy
lifting and his difficulties remaining seated in the boat. With respect to
camping, prior to the collision he typically slept on the ground, lifted and carried
heavy items and hiked up steep terrain. After the collision, he is unable to
sleep on the ground; on a camping trip with his wife and daughter, the family
had to return home early because he could not tolerate a third night of
sleeping in the uncomfortable environment. He has now purchased a tent-trailer
and has been able to continue camping with his family.
[112] Since the collision,
the plaintiff, who had ridden motorcycles since the age of 16, has only been on
a motorcycle on one occasion and then only for a few minutes.
[113] I will
address his current symptoms later under the heading of Conclusions Regarding
Plaintiffs Condition.
Medical Evidence
[114] The
plaintiff called the evidence of his orthopaedic surgeon, Dr. D., two
physiatrists, Dr. H. and Dr. S., and the plaintiffs family doctor, Dr. T.
The defence called the evidence of an orthopaedic surgeon, Dr. L., who
conducted an independent medical examination of the plaintiff.
[115] It is
common ground that as a result of the collision, the plaintiff sustained an
injury to his thoracolumbar spinea pincer burst fracture at T12. The vertebra
was shattered into two large pieces and multiple smaller fragments. He also
sustained some superficial contusions and abrasions.
(i) Dr. D.
[116] On July 21,
2005, Dr. D., who has been an orthopaedic surgeon for over 30 years,
performed an instrumented fusion of the plaintiffs lumbar-spine from T11 to L3
with bone graphing from T12 to L2. Pedicle titanium rods and screws were used
to stabilize two levels above and below the fracture site. This prevented the
spine from collapsing. After his surgery, the plaintiff was stabilized and
fitted with a custom-made clamshell brace with Velcro straps.
[117] During his
February 28, 2006 and June 20, 2006 consultations with the plaintiff,
Dr. D. noted stiffness in the plaintiffs lumbar spine which was
consistent with the fusion.
[118]
In December 2008, while he was swimming, the plaintiff developed severe
right thoracolumbar pain extending into his right foot and numbness extending
into his right buttock. He did take anti-inflammatory medication. His family
doctor referred him to Dr. D., who in May 2009 diagnosed mechanical
back pain. The physical examination revealed some spasm as well as some flattening
and stiffness of the plaintiffs thoracolumbar spine. Dr. D. advised the
plaintiff to maintain cardiovascular, core strengthening and range of motion
exercises.
[119]
Dr. D. has not seen the plaintiff since May 2009. He prepared a
report dated January 20, 2010, at the request of plaintiffs counsel.
[120]
I accept Dr. D.s opinion, and indeed it is not seriously disputed
by the defendants, that as a result of the injuries sustained in the collision,
the plaintiff is permanently disabled insofar as repetitive heavy bending,
lifting and twisting movements are concerned within his spine. Dr. D. clarified
in his testimony that this included doing arrests out in the patrol car,
motorcycle-riding, heavy gardening work and performing heavy home maintenance
and repairs. In his opinion, the plaintiff is not disabled from performing
modified employment duties. His prognosis for the plaintiff is fairly good.
He recommends that the plaintiff maintain his own active, independent exercise
program in order to preserve the flexibility of his thoracolumbar spine as much
as possible and to maintain his trunk, core and abdominal muscle strength.
[121] Dr. D.
opined that in order to relieve the plaintiffs pain there is a possibility of
a future surgery to remove the pedicle screws and rods from his spine. Dr. D.
affirmed that the hardware in the spine can cause pain, which Dr. D.
described as a dull roar in the background and that daily activities can make
the pain worse. He explained that removal of hardware usually will reduce the
pain but does not eliminate it. His opinion with respect to the removal of the
hardware from the plaintiffs back is as follows:
In my opinion, it is possible that consideration might be
given to removal of the pedicle screws and rods from his thoracolumbar spine.
The risks of such a surgery include the general anaesthetic and also include
the small possibility of a postoperative infection. It is unlikely that there
would be any nerve compromise or injury as a result of this possible hardware
removal procedure.
I anticipate that this removal of
the hardware may be helpful in the relief of some localized pain within the
thoracolumbar area thereby improving his overall activity and tolerance. I do
not anticipate that this surgery would affect his ability to perform his usual employment
duties and activities of daily living once convalescence has been completed
after such a surgical procedure.
Dr. D. was of the opinion that based on the plaintiffs
reported pain levels as of May, 2009, further surgery was a possibility;
however, if the plaintiffs pain increases, surgery would be more likely.
(ii) Dr. H.
[122] Dr. H.
is a medical doctor with a specialty in physical medicine and rehabilitation.
He has practiced as a specialist since 1985. He assessed the plaintiff on September 5,
2007.
[123] Dr. H.
diagnosed increased tightness or stiffness and loss of range of motion in the
plaintiffs lower back, which increases with heavy physical activities. His
prognosis was a permanent abnormal tightness in the plaintiffs lower back
which results in difficulty getting up from immobile positions, running or
lifting. He explained that a severe and permanent injury to the spine such as
that sustained by the plaintiff results in the body developing reflexes to
tighten the surrounding muscles to protect the injured area. In the result, the
tissues surrounding the plaintiffs spinal fusion have become tighter. The
plaintiff is at increased risk of injury and reinjury to his spine. He also opined
that the plaintiffs injuries increase the risk of him developing arthritis in
his spine because of the increased loading on the two ends of the fusion;
however, he also acknowledged that the development of arthritis does not
inevitably result in increased pain or disability.
[124] Dr. H.
recommended that in order to protect his spine, the plaintiff should limit his
work tasks and sports activities to those that do not involve repetitive heavy
lifting or movements that send impulsive forces through the spine, such as
running and jumping. He also opined that the plaintiff is more likely to
experience pain, fatigue, and tightness if he engages in repetitive tasks. The
plaintiff does not have the same flexibility, endurance, or the capability of
exerting force on his spine that he did prior to the collision.
[125] Dr. H.
disagrees with Dr. L.s opinion that the plaintiffs lower back pain will
not appreciably increase with time. I found Dr. H.s explanation
persuasive and prefer his opinion. I accept that there is a likelihood that the
natural aging process will impact the plaintiffs symptoms because as he ages
he likely will not be able to maintain conditioning and the strength of the
supporting anatomical structures of his spine.
(iii) Dr. S.
[126] Dr. S.,
a specialist in physical medicine and rehabilitation since 1981, assessed the
plaintiff on February 7, 2006.
[127] The
plaintiff reported to her that he had stiffness, discomfort, numbness and a
tingling sensation in his buttocks and lower back. At the time of her report,
she opined that the plaintiff would make a full recovery and would be able to
resume his normal home and leisure activities. She based her opinion on his own
positive presentation and the steady progress he had made in his recovery up to
October 2006. She subsequently changed her opinion and testified that her
initial prognosis was overly optimistic. She stated that the hardware in his
back can cause pain and increased symptoms in the winter months when it is
cold. She opined that his back pain and discomfort will persist indefinitely.
[128] Consistent
with Dr. D. and Dr. H.s recommendation, she recommends that the
plaintiff permanently avoid work with heavy physical demands, and avoid
repetitive lifting and impact activities such as running and jumping. She
stated that given his restrictions, the plaintiff had been unable to maintain
his former level of physical and cardiovascular fitness and noted that his
weight gain since the collision was a reflection of the challenges he faced in
this regard.
[129] She also opined
that the plaintiffs back is permanently more vulnerable to injury, and even if
he is careful, he is at an increased risk of developing degenerative disc
disease. Although this may or may not become symptomatic, it usually results in
increased pain and decreased ability to participate in physical activities.
(iv) Dr. T.
[130] Dr. T.
is the plaintiffs family doctor. He has extensive sport medicine experience
and a Masters Degree in Sports Medicine. His evidence was adduced at trial
through a video deposition. Dr. T. prepared three reports dated November 22,
2006, September 2, 2008, and December 18, 2009.
[131] The
plaintiff first consulted Dr. T. about the injury on August 11, 2005,
and thereafter consulted him on a regular basis until December 7, 2009.
The plaintiff reported stabbing pain in his lower back on March 9, 2007.
In December 2008, the plaintiff reported severe thoracolumbar pain, with
intense pain into his right leg and buttock, which was aggravated by certain
movements such as using stairs. Dr. T. ordered x-rays and referred the
plaintiff back to Dr. D. This flare-up persisted for some months. In December 2009,
the plaintiff again reported shooting pain in his lower back.
[132] It is Dr. T.s
opinion that the plaintiff will be permanently disabled from his previous job
as an active-duty police officer because of his functional limitations. It is
his medical opinion that the plaintiff should not run or swim. He will also be
permanently limited in terms of heavier household cleaning, maintenance
repairs, renovating, and gardening. In his final report Dr. T. states that
he foresees the possibility of future surgery to remove the hardware from the
plaintiffs spine because the plaintiff is experiencing increased symptoms
during the winter time.
(v) Dr. L.
[133]
Dr. L., an orthopaedic surgeon, conducted an independent medical
examination of the plaintiff on behalf of the defendants on July 17, 2008,
and he prepared a report dated July 25, 2008. Dr. L. has been an
orthopaedic surgeon since 1997, but does not perform any type of spinal
surgery.
[134] According
to Dr. L., the plaintiff reported complaints of intermittent low back
discomfort and an increase in pain with activities such as cycling, repetitive
bending and heavier lifting. In his report, Dr. L. opined as follows:
The examinees current functional level and minimal
low back pain complaints, the past history of extreme fitness, this
physical examination and the submitted functional capacity evaluation all
support the probability that the spine injury has not significantly
diminished Mr. [X.]s ability to perform the full duties as an RCMP
officer including performing up to standard for a [46] year old
police officer in any physical encounter (fighting, retraining).
It would be assumed that prolonged driving a car or
motorcycle would trigger low back pain. Also low back pain is likely to be
experienced in the rare instance of physical combat.
[Emphasis added.]
[135]
It is his opinion that there will be an increased stress at least at
the L2-L3 intervertebral level with the probability of a moderate acceleration
of the normal intervertebral disc degenerative process at this level (emphasis
added). He also opines as follows:
Despite this change at the spinal level below the fusion, it
is probable that Mr. [X.]s low back pain, that he will experience indefinitely
due to the spinal fracture, will not appreciably increase with time and not
interfere with his performing the essential duties as an RCMP officer for his
remaining eligible working years. This latter conclusion is supported by his
minimal back pain complaints at this time and his history of maintaining top
physical conditioning. This physical conditioning will combat the risk of
deconditioning (a well known contributing factor for low back pain)
Mr. [X.] should be able to take part in the vast majority
of physical activities he was engaged in prior to the accident but at a reduced
level as a pain reduction measure. His lack of maintaining exceptional fitness
since the accident will most probably result in the examinee not reaching the
same peak as prior to the injury.
It is most probable that further
surgical intervention, such as hardware removal, will not be necessary as a
result of the spinal fracture of July 19, 2005.
[Emphasis added.]
[136] Dr. L.
acknowledged in cross-examination that the primary assumption underlying his
opinion was his assessment that the plaintiff communicated intermittent minimal
lower back pain during their short consultation. Notably, at the time he
prepared his report, he had no information about the aggravation of the plaintiffs
symptoms in December 2008 and December 2009, as those were reported
to Dr. T. He also conceded that Dr. D., the plaintiffs surgeon, was
in a better position to provide an opinion about the plaintiffs condition and
future.
[137] I reject Dr. L.s
opinion that the plaintiff can perform as a full-duty RCMP officer. His view is
contrary to the weight of the evidence of the other healthcare professionals,
including the opinion of Ms. T., an occupational therapist who was called
by the defendants.
[138] Overall, I
found Dr. L.s assessment cursory and lacking the sufficient degree of
objectivity to render it of any assistance to the court. In the end, I place no
weight on his opinion. To the extent of any disagreement, I prefer the evidence
of Dr. D., Dr. S., Dr. H., and Dr. T.
Occupational Therapists
[139] Both sides
provided reports from occupational therapists: Ms. Q. for the plaintiff and
Ms. T. for the defendants. Some aspects of those reports are addressed
below under the heading of Cost of Future Care.
[140] The plaintiff
also called Ms. R., the occupational therapist retained by the RCMP who
assessed the plaintiff at his home after his discharge from the hospital. She
continued to communicate with the plaintiff and coordinated his care until his
return to work in April 2006.
(i) Ms. T.
[141]
Ms. T. is an occupational therapist who has practised since 1991.
She was retained by the defendants to prepare a work capacity evaluation and
cost of future care recommendations for the plaintiff. She assessed the
plaintiff on June 17, 2008. He reported to her that he experienced ongoing
low back pain, tightness, and generalized fatigue.
[142] In making
her future care recommendations after testing the plaintiff, she assumed, and I
find on the evidence, that his limitations in functioning are permanent and
that he will experience episodes of symptom aggravation because of the altered
biomechanics of his trunk. She concluded that the plaintiff is not considered
durable for full policing duties.
[143]
In her report she states her opinion as follows:
With regard to Mr. [X.]s pre-accident job as a police
officer according to the National Occupational Classification (NOC) this job
(#6261) requires: sitting, standing, walking, multiple limb co-ordination and
Heavy strength. Additionally, Mr. [X.] described the requirement for
running, jumping and restraining, as well as riding a motor cycle for work in
Traffic Service.
Based on the results of this assessment, Mr. [X.] is
considered borderline for meeting the demands of this work. He demonstrates
basic tolerances for sitting, standing, walking, multiple limb co-ordination
and into the heavy strength range, but is likely not durable for extended
periods of standing and for heavy strength application outside of neutral trunk
positioning. He is also likely not durable for impact activity. Given
the nature of his work and need to respond at full capacity these limitations
are likely significant for full policing duties. Additionally, medical
recommendations for heavy strength application and impact should be clarified.
Mr. [X.] has returned to work with the RCMP in an
investigative capacity in the National Weapons Enforcement Project. He
described this work to include periods of office work where demands are largely
sedentary, as well as periods of site work which can involve greater mobility
and body dexterity, as well as strength demands in the light to medium range.
Based on the results of this assessment he meets the described physical demands
for this work. In some situation he may experience symptom aggravation or
have to pace/alter his positioning but this appears to be manageable in the
current work situation as described by Mr. [X.].
Mr. [X.] identifies concern regarding finding himself
called into more physical policing demands in the course of his weapons
investigation duties and/or his employer transferring him to other duties that
exceed his tolerances. The likelihood of this would need clarification. As
stated above he is not considered durable for full policing duties.
[Emphasis added.]
(ii) Ms. Q.
[144] Ms. Q.
is a very experienced occupational therapy consultant. She obtained her
qualifications as a physical and occupational therapist in 1956. At the request
of the plaintiff, she prepared three reports dated April 10, 2006, November 30,
2007, and July 24, 2008.
[145] She
performed a functional capacity evaluation of the plaintiff on September 25,
2007. During this assessment and the follow-up on July 24, 2008, the
plaintiff reported he was continuing to experience muscle spasms, stiffness, tightness
in his para-vertebral muscles, tingling in his buttocks and reduced stamina. Based
on her experience, she opined that he will experience an increase in pain as he
ages.
[146] It is her
opinion that the plaintiff does not meet the physical demands of an active-duty
RCMP officer; he is restricted to working in occupations in the limited and
light categories. Moreover, he requires the flexibility to be able to take
regular breaks from sitting or standing.
Conclusion Regarding Plaintiffs Condition
[147]
It is uncontroversial that the plaintiff suffered a serious injury in
the accident: a fractured spine which required surgical fusion with metal
instrumentation. The medical evidence clearly establishes that he is permanently
disabled insofar as repetitive heavy bending, lifting and high-impact
activities. He has an increased risk for the development or acceleration of
degenerative disc disease and is at an increased susceptibility for reinjuring
his back.
[148]
However, the assessment of the consequences of that injury on the
plaintiff and, in particular, the symptoms he continues to experience now and
in the future are very much in dispute. It therefore falls to this Court to
assess the severity of his persisting symptoms and the likelihood that he will
experience an increase in the severity of his symptoms in the future.
[149] As was
affirmed by the medical witnesses in this trial, the interpretation, reporting
and assessment of the level of pain of any given individual is, at its core, a
very subjective exercise. The medical opinions as to prognosis have been
largely based on the back pain symptoms reported by the plaintiff himself. The
observations of the court in Fan v. Chana, 2009 BCSC 1127 at para. 73,
are apt in this case:
… As courts have observed on
any number of occasions, the approach taken by medical professionals is not
forensic: they assume that the patient is accurately reporting to them and then
set about a diagnosis that plausibly fits the pattern of the complaint.
[150] In the end,
the assessment of the plaintiffs back pain ultimately turns on the Courts
assessment of the plaintiffs credibility and the consistency of his evidence
at trial with the information he previously communicated to the various healthcare
professionals who treated and assessed him: Edmondson v. Payer, 2011
BCSC 118 at para. 21. At this juncture, it is therefore appropriate to
comment on the plaintiffs credibility.
[151] The
defendants, although conceding that the plaintiff was largely a credible
witness, submitted that on the fundamental issues, he embellished and coloured
his injuries, and that he was attempting to colour his function and injuries in
a way that was not accurate. In assessing credibility, the defendants urge the
Court to consider the level of the plaintiffs return to function after the
injury. Furthermore, the defendants say that after his initial recovery from
surgery, the plaintiff did not report any pain other than episodic flare-ups to
various healthcare professionals. They point out that after 2006, Dr. T.
has not referred the plaintiff for either physiotherapy or massage therapy, nor
has the plaintiff been prescribed pain medications since the fall of 2005.
[152] The
evidence shows that since the collision, the plaintiff has consistently
reported symptoms of stiffness, tightness and discomfort to the various healthcare
professionals. The common theme that emerges from the evidence is that the
plaintiff, particularly in the first few years after the accident, minimized
his symptoms in the course of his self-reporting. Ms. Q. described the
plaintiff as being very much an RCMP officer in that he avoided complaining
to her about pain or limitations, and was hesitant to admit activities that he
was unable to complete. Ms. R., whom I found to be professional and
objective in her assessment, was of the view that the plaintiff minimized reporting
his symptoms and difficulties and pushed himself to get as far as he could in
his recovery. Ms. T. confirmed that he demonstrated higher levels of
effort and exhibited competitive behaviour in the functional capacity
assessment.
[153] There was
much made at the trial of the numeric pain scale of 1-10, with 10 being the
worst pain. I have considered that the plaintiffs military experiences may have
impacted his interpretation of the pain rating scale and his characterization
and communication of the degree of pain he has experienced. In his functional
capacity assessment with Ms. Q. in 2007, the plaintiff described his pain
as 1-2; but this must be assessed in the context of his description in 2008 to Ms. T.
of stabbing pain as 2-4 on the pain scale. At the trial, the plaintiff described
his normal pain as level 4, which he compared to the sensation of someone
putting a foot on his back. He sometimes experiences tingling in his right
buttock which he compared to a fork being jammed into him. This sometimes causes
an increase in pain to a 5-6 out of 10. During the course of the testimony
which was given over some seven days, the plaintiff required frequent breaks.
He frequently switched between standing and sitting positions. He described
feeling beat down and tired from sitting too long.
[154] I have
concluded that the plaintiff was highly motivated after the collision, and made
a genuine and extraordinary attempt to overcome his injuries and to minimize
their impact on his lifestyle. Given his training and background, he is a man
whose temperament is to grin and bear it. In particular, in the first few
years following the accident, he was reluctant to complain about his pain; his
tendency was to minimize the suffering he had endured. The plaintiff says that
he has experienced the worst pain, being a 10, and that he had previously
described his less severe symptoms as discomfort. I accept his explanation that
the 1-2 ratings he reported to Ms. Q. in 2007 are equivalent to what he
subsequently described at trial as level-4 pain. His expression of his
discomfort and pain has gradually evolved over time to a more realistic
presentation. I find no significant discrepancy between his evidence at trial
and the information he had previously communicated to others. I have made these
findings notwithstanding his self-reporting of no pain at various times to
some of the healthcare professionals he saw.
[155] Overall, I
found the plaintiff to be a credible witness. In the face of a very
thorough cross-examination, I found his evidence as a whole forthright and
consistent. The plaintiff struck me as a proud and honourable man who has
served his country and his community with distinction. He presented as a stoic individual
with a brave demeanour who has struggled with accepting the reality of his
limitations. I have considered all of the defendants examples of what they
assert are inconsistencies in the plaintiffs evidence, including as those
allegations relate to him shooting an elk on an October 2006 hunting trip, and
his mandatory RCMP periodic health assessments. I do not regard all of the
examples as constituting inconsistencies. Moreover, I am not persuaded that the
inconsistencies that can be found are particularly significant in the context
of all of the evidence. I do not agree that these inconsistencies demonstrate
that the plaintiff attempted to mislead the Court or exaggerate the extent and
nature of his injuries.
[156] I am
fortified in my conclusions by the witnesses called by the plaintiff, whose
evidence I found reliable regarding their observations about the changes in the
plaintiff after the accident.
[157] Mr. S.,
the plaintiffs neighbour and friend, testified that after the accident he has
observed the plaintiff as being obviously in pain and observed that he can no
longer stand or sit for any extended periods of time. He has also observed that
the plaintiffs fitness level has deteriorated since the accident.
[158] Corporal L.,
a colleague of the plaintiff, described the plaintiff prior to the collision to
be in phenomenal physical shape. After the collision, he observed that the
plaintiff was not the same person. He walked more slowly and appeared stiff.
He also described his temperament as being short and not as friendly as
before the accident.
[159] Mr. L.,
the plaintiffs former archery coach, who I found to be an exceptionally
sincere witness, described the plaintiff prior to the accident as standing
tall and walking proud and with a very positive mental outlook. After the
accident, he described the plaintiffs walk as being hunched forward with
stooped shoulders. Mr. L. has also observed a change in the plaintiffs
demeanour; he is more withdrawn and short and he tires more easily.
[160] Sergeant P.,
the plaintiffs former supervisor, described the plaintiff prior to the
accident as a go-getter, very mature, competent and extremely committed to
police work. Since the accident, he has observed on occasion that the plaintiffs
back was obviously bothering him and that he had to sit down more frequently.
The plaintiff also complained to him about his back problems.
[161] According
to the plaintiffs wife, if he stays in certain positions for any length of
time, he complains of spasm and discomfort. He has lower levels of energy and
tires easily.
[162] A careful
review of the videotape surveillance submitted by the defendants does not
demonstrate any inconsistencies with my findings.
[163] In summary
on this issue, I find that the plaintiffs symptoms are genuine. He regularly
experiences varying degrees of pain and significant stiffness, tightness, and spasms
in his back. The cold exacerbates his symptoms. He will continue to experience
episodic aggravation of his symptoms. He is at an increased risk of developing
degenerative arthritis and he has an increased susceptibility for further
injury to his back. He also faces the possibility of another surgery to remove
the hardware in his back. He has reduced stamina and tires much more easily
than prior to the collision. I also conclude that as the plaintiff ages, there
is a substantial likelihood that his pain and discomfort will increase because
he will not be able to maintain the same level of conditioning in the muscles
supporting the fused area of his back.
[164] In terms
of his career, the preponderance of the evidence clearly supports a finding
that the plaintiff is not fit to perform the full range of policing duties. He
must avoid impact activities and any risk of physical altercations with
suspects, which restricts him from participation in front-line policing duties.
He can no longer perform the duties of a motorcycle officer, nor is he able to
pursue his ambition to join the ERT as an operational member.
Discussion
[165] I next address
the plaintiffs claim for damages under the following headings:
(A) Non-Pecuniary Damages
(B) Loss of Past Income
Earning Capacity and Loss of Future Earning Capacity
(C) Loss of Housekeeping
Capacity
(D) Cost of Future Care
(E) Special
Damages
A) Non-Pecuniary Damages
[166] The
plaintiff seeks an award of $250,000 for non-pecuniary damages. Counsel for the
defendants concedes that the plaintiff sustained a serious injury, but forcefully
asserts that he has had an excellent recovery. The defendants submit that
non-pecuniary damages should be assessed at approximately $100,000.
[167] The
objective of non-pecuniary damages is to compensate a plaintiffs pain,
suffering, and loss of enjoyment of life. The award is to compensate a
plaintiff for those damages he has suffered up to the date of the trial and for
those he will suffer in the future. The essential principle derived from the
authorities is that an award for non-pecuniary damages must be fair and
reasonable to both parties and should be measured by the adverse impact of the
particular injuries on the individual plaintiff.
[168] The B.C.
Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34 at para. 46,
enumerated the factors to be considered in awarding non-pecuniary damages. The
non-exhaustive list includes: the age of the plaintiff; the nature of the
injury; the severity and duration of pain; the degree of disability; the
impairment of family, marital, and social relationships; and loss of lifestyle.
While fairness is assessed by reference to awards made in comparable cases, it
is impossible to develop a tariff; each case is decided on its own unique
facts: Lindal v. Lindal, [1981] 2 S.C.R. 629 at 637.
[169] It cannot
be overstated that the assessment of non-pecuniary damages is necessarily
influenced by the individual plaintiffs personal experiences in dealing with
his injuries and their consequences, and the plaintiffs ability to articulate
that experience: Dilello v. Montgomery, 2005 BCCA 56 at para. 25.
[170] I have
concluded that as a result of the accident, the plaintiff has suffered pain and
a loss of enjoyment of life. The consequences of his injury are permanent.
[171] In terms
of his enjoyment of athletics, his lifelong outdoor pursuits have been
significantly curtailed. His injuries have restricted his participation in many
recreational activities and competitive athletic endeavours that he pursued so
passionately prior to the collision. He is a former triathlete with a
considerable competitive drive who is no longer able to run, cycle or swim. He
derived considerable pleasure from his excellence at athletic pursuits and that
was a vital component of his identity. He prided himself on his ability to
protect others and to embrace any type of challenge.
[172] I have also
considered as a factor in my assessment the adverse emotional impact of the
plaintiffs inability to pursue the type of active police work from which he so
clearly derived satisfaction.
[173] His
injuries have also impacted his family life; the plaintiffs limitations have
inevitably created a strain on his marriage. He can no longer perform heavier
household tasks such as heavy gardening, cleaning, maintenance, and repairs. He
is unable to do many physical and recreational activities such as skiing and
the more strenuous hiking and camping that he and his wife had previously
enjoyed doing together.
[174] Significantly,
the plaintiff has been unable to lift up his young daughter since the
collision, which has created a genuine emotional strain on him. He also clearly
finds it distressing that he is and will continue to be unable to participate
with his daughter in the more adventurous physical and recreational activities
that, but for his injury, he would have pursued.
[175] The
totality of the evidence supports a finding that prior to the collision, he was
a very stable individual with an outgoing personality and a very positive
outlook. He now faces uncertainty about the potential for deterioration and is
burdened with anxiety regarding his future. He struggles with episodic bouts of
frustration and irritability. He is more withdrawn in his social interactions.
Prior to the collision, he was a very energetic and enthusiastic individual;
Corporal B. described him as a go-getter. As a consequence of coping with his
condition, he now suffers from markedly reduced stamina and increased fatigue.
[176]
The plaintiff, similar to the plaintiff in Easton v. Chrunka,
2006 BCSC 1396 at para. 21, is neither a complainer nor a malingerer;
rather, when faced with a challenge, his character demanded that he tough it
out. Although he has endured significant pain and discomfort, he exhibited
considerable perseverance and fortitude in his efforts to resume his
pre-collision lifestyle and to engage in as many of his pre-collision
activities as he could. It would be unjust if the Court did not recognize the
reality of the adverse impact of his injuries and loss of enjoyment of life
that he has and will continue to endure. As Kirkpatrick J. observes in Stapley
at para. 46, a plaintiff should not, generally speaking, be penalized
for their stoicism.
[177] I have
considered the following cases cited by plaintiffs counsel on the issue of the
quantum of non-pecuniary damages: Dilello v. Montgomery, 2005 BCCA 56; Crackel
v. Miller, 2003 ABQB 781; Payne v. Lore, 2008 BCSC 1744; Easton
v. Chrunka, 2006 BCSC 1396; Park v. Heimbeckner, 2007 ABQB 386; Cook
v. Cahoose, 2001 BCSC 254; Kahl v. Jakobsson, 2006 BCSC 1163; Erickson
v. Webber, 2005 BCSC 1048; Bjornson v. Field, 2007 BCSC 1860; Caldwell
v. Ignas, 2007 BCSC 1816; and Court v. Schwartz, 1994 CarswellBC 2520,
[1994] B.C.J. No. 2164 (S.C.).
[178] I have
also considered the additional case cited by the defence: Yu v. Yu
(1999), 48 M.V.R. (3d) 285, 93 A.C.W.S. (3d) 585 (B.C.S.C.).
[179] While the
authorities are instructive, I do not propose to review them in detail, as each
case turns on its own unique facts. Having reviewed all of the authorities
provided by both counsel, and in considering the plaintiffs particular
circumstances, I conclude a fair and reasonable award for non-pecuniary damages
is $140,000.
B) Loss of Earning Capacity: Past and Future
Position of the Parties
[180] The
plaintiff submits that he should receive an award of $100,000 for lost income
and opportunities up to the date of trial, and an award in the range of
$550,000 to $750,000 for future loss of income and diminished earning capacity.
[181] The
position of the defendants is that:
(1) the
plaintiff should not be awarded any damages for loss of future earning capacity
because the evidence does not establish that there is any real and substantial
possibility of a financial loss in the future;
(2) the
plaintiff should not be awarded any damages for past wage loss because he
received full wages from the RCMP when he was off work; and
(3) the
plaintiff should be awarded $10,000 for loss of opportunity up to the date of
trial.
This head of damages represents the most significant and
complex aspect of the plaintiffs claim.
Legal Framework
[182] An award
for future loss of earning capacity represents compensation for a pecuniary
loss: Gregory v. Insurance Corp. of British Columbia, 2011 BCCA 144 at para. 32.
The legal principle that governs this assessment for loss of earning capacity
is that, insofar as is possible, the plaintiff should be put in the position he
or she would have been in but for the injuries caused by the defendants
negligence: Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at para. 185.
Compensation must be made for the loss of earning capacity and not for the loss
of earnings: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R.
229.
[183] The recent
jurisprudence of the Court of Appeal has affirmed that the plaintiff must
demonstrate both an impairment to his or her earning capacity, and that there
is a real and substantial possibility that the diminishment in earning capacity
will result in a pecuniary loss. If the plaintiff discharges that
requirement, he or she may prove the quantification of that loss of earning
capacity either on an earnings approach or a capital asset approach: Perren
v. Lalari, 2010 BCCA 140 at para. 32. Regardless of the approach, the
court must endeavour to quantify the financial harm accruing to the plaintiff
over the course of his or her working career: Pett v. Pett, 2009 BCCA
232 at para. 19.
[184] As recently enumerated by the court in Falati v.
Smith, 2010 BCSC 465 at para. 41, affd 2011 BCCA 45, the principles which inform the assessment of loss of earning
capacity include the following:
(1) The standard of proof in relation to hypothetical or future
events is simple probability, not the balance of probabilities: Reilly v.
Lynn, 2003 BCCA 49 at para. 101. Hypothetical events are to be given
weight according to their relative likelihood: Athey v. Leonati, [1996]
3 S.C.R. 458 at para. 27.
(2) The court must make allowances for the possibility that the
assumptions upon which an award is based may prove to be wrong: Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), affd (1987), 49 B.C.L.R.
(2d) 99 (C.A.). Evidence which supports a contingency must show a realistic as
opposed to a speculative possibility: Graham v. Rourke (1990), 75 O.R.
(2d) 622 at 636 (C.A.).
(3) The court must assess damages for loss of earning capacity
and not calculate them mathematically: Mulholland (Guardian ad litem of) v.
Riley Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43. The overall
fairness and reasonableness of the award must be considered: Rosvold v.
Dunlop, 2001 BCCA 1 at para. 11. The assessment is based on the
evidence, taking into account all positive and negative contingencies.
[185] Although a
claim for past loss of income is often characterized as a separate head of
damages, it is properly characterized as a component of loss of earning
capacity: Falati at para. 39. It is a claim for the loss of
value of the work that an injured plaintiff would have performed but was unable
to perform because of the injury: Rowe v. Bobell Express Ltd., 2005 BCCA
141 at para. 30; Bradley at paras. 31-32.
[186]
This court in Falati at para. 40, summarized the pertinent
legal principles governing the assessment of post-accident, pre-trial loss of
earning capacity and concluded that:
[40] … the determination of a plaintiffs prospective
post-accident, pre-trial losses can involve considering many of the same
contingencies as govern the assessment of a loss of future earning capacity.
… As stated by Rowles J.A. in Smith v. Knudsen, 2004 BCCA 613, at
para. 29,
What would have happened in the past but for the injury is
no more knowable than what will happen in the future and therefore it is
appropriate to assess the likelihood of hypothetical and future events rather
than applying the balance of probabilities test that is applied with respect to
past actual events.
[187] With
respect to the loss of earning capacity from the accident to date of trial, the
defendants are only liable for the net income loss, as defined in s. 98 of
the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231. In Lines
at para. 184, the Court of Appeal held that it was the intention of the
Legislature to give a discretion to the judge to determine what period or
periods are appropriate for the determination of net income loss in all of the
circumstances.
Loss of Future Earning
Capacity
[188] The
essential task of the Court is to compare the likely future of the plaintiffs
working life if the accident had not happened with the plaintiffs likely
future working life after the accident: Gregory at para. 32; Rosvold
at para. 11. The Court must first assess whether the plaintiffs accident-related
injuries impaired his earning capacity and then must assess what is fair and
reasonable compensation to the plaintiff for any pecuniary loss accruing
because of that impairment.
[189] The
plaintiff was 49 years old as of the date of trial. His entire career has been
devoted to military service and law enforcement pursuits.
[190] Earlier in
these reasons for judgment, I concluded that the plaintiff, because of his
physical limitations, can no longer discharge the full range of duties of an
RCMP officer. On medical advice, he is restricted from being a motorcycle
officer and from those postings which require heavy lifting, impact activity,
or static or full-time standing. Moreover, he has been advised that he should
not assume the risk of any physical altercation because his own safety and the
safety of the public may be compromised. The plaintiff has therefore been
rendered less capable overall from earning income from all types of law
enforcement employment. The physical limitations caused by the injuries in the
accident have reduced his career options, and have rendered him a less
marketable and attractive employee.
[191] As
referred to earlier, the plaintiffs stated career goal was to join the ERT as
an active operational member. Given the plaintiffs experience and skill set, I
am satisfied that prior to the accident, there was a real possibility that he
would have successfully applied to the ERT. I accept Sgt. P.s evidence as to
the rigorous physical requirements associated with an ERT posting and I am satisfied
that this opportunity has been foreclosed to him due to his accident-related
injuries. Notably, Dr. B., the physician who assessed the plaintiff in June 2007
for his periodic health assessment, deemed the plaintiff not fit for
participation in the PARE required for the ERT.
[192] In short,
the plaintiff has proven that the injuries he sustained in the collision have
impaired his earning capacity. He clearly has lost the ability to take
advantage of all the employment opportunities in law enforcement that might
have otherwise been open to him. However, that is only the first step in the
analysisthe critical and controversial issue is whether the evidence in this
case establishes a real and substantial possibility that this impairment to the
plaintiffs earning capacity will result in a future pecuniary loss. The
defendants submit that given that after his recovery, the plaintiff continued
to be employed by the RCMP with full compensation, there is no basis on the
evidence to find that the plaintiffs loss of opportunity for joining the ERT
would in itself translate into a pecuniary loss.
[193] I
therefore turn to analyze the issue of a potential pecuniary loss under the
following headings:
(i) Likelihood
of discharge from the RCMP;
(ii) Whether
his accident-related injuries will affect the age to which he will likely work;
(iii) Loss
of promotability; and
(iv) Loss
of overtime.
(i) Likelihood of discharge from the RCMP
[194] Inspector D.,
the RCMP officer in charge of the Employee and Management Relations office in
B.C., was called by the defendants. He gave important evidence about the scope
of the RCMPs policy for accommodation. He confirmed that there was nothing in
the plaintiffs personnel file to indicate that he was at any risk for
discharge, and confirmed that the plaintiffs personnel file does not indicate
that he is currently being accommodated.
[195] While I
accept Inspector D.s evidence as to the contents of the plaintiffs personnel
file, I cannot accept the defendants suggestion that the plaintiff is
currently working without limitations and is not being accommodated. These
assertions are overtaken by the reality of the plaintiffs circumstances. As I
referred to earlier, his 2007 health assessment itself recognizes some
limitations with his functioning. The plaintiff, since his return to work in
2006, has been working in a position that does not require strenuous physical
activity and does not pose any significant risk of confrontation with suspects.
The demands are largely sedentary with some site attendances involving mobility
and strength demands in the light to medium range.
[196] The
plaintiff testified that he is concerned about his future with the RCMP.
Regular job rotations occur within each RCMP detachment based on demand and the
work ethic and job performance of each officer. The usual rotation for a member
is three years within each detachment, and he points out that he has been
working in his current position since 2006. Therefore, he asks the Court to
conclude that he may be rotated at any time to a position involving duties
which he cannot perform. Moreover, he says, there are few options for him aside
from his current position as a weapons support investigator; the purely
administrative function of a reader is not appealing to him, and there are only
limited desk jobs available within the RCMP.
[197] According
to Inspector D., even if the plaintiff suffers future deterioration in function
from his accident-related injuries, he will be accommodated by the RCMP. He
will have unlimited access to disability and sick benefits. He stated that accommodation
within the RCMP does not impact a members access to pay increases and
promotion.
[198] In
summary, in face of the evidence of the RCMPs policy of accommodation, I
cannot accept that it is a tenable proposition that there is a real and
substantial possibility that the plaintiff is or will be at risk of being
discharged because of his accident-related injuries.
(ii) Whether his accident-related injuries will affect the
age to which he will likely work
[199] It is
common ground that the RCMPs former policy for mandatory retirement at age 60
has now been abolished. According to Sgt. P. and Corp. L., once an RCMP member
has attained maximum pensionable service, it is not uncommon for those RCMP
members to return to the RCMP on a contract basis or to pursue law enforcement
work with other agencies. While the evidence was conflicting on this point, the
weight of the evidence supports a finding that members of the RCMP are now
permitted to work until at least age 65.
[200] The
defendants forcefully argue that the medical evidence does not support a
finding that the plaintiffs condition will deteriorate as he ages and that his
injuries will affect the age to which he will likely work.
[201] Prior to
the accident, the plaintiff was a very fit and ambitious police officer who was
driven by a strong work ethic and genuine passion about law enforcement. He
intended to return to do contract work with the RCMP or to pursue other law
enforcement work after retiring from the RCMP. I find on the evidence that
there is a substantial likelihood that he would have worked with the RCMP or at
other law-enforcement related employment until at least age 65 and that due to
his accident-related injuries, he will cease employment earlier than he
otherwise would have. I find this for the following reasons.
[202] As
referred to earlier, I have concluded that there is a substantial likelihood
that as the plaintiff ages, he will not be able to maintain the same level of
conditioning and strength in his spine. While Ms. T.s opinion is that he
could tolerate full-time sitting demands as long as he has ergonomic seating
and regular breaks, I find that the plaintiff now experiences episodic symptom
aggravation in his largely sedentary job. This was acknowledged by Ms. T.
The plaintiff is at an increased risk of developing arthritis which may become
symptomatic, and is at increased risk of re-injury. Further, a significant
factor that must not be overlooked is the plaintiffs increased levels of
fatigue and reduced stamina. There is a real chance that his capacity and
general endurance will decrease as he ages.
[203] My best
assessment of the evidence is that due to his accident-related injuries, there
is a real and substantial possibility that the plaintiff will cease working for
the RCMP somewhere between the ages of 57-60. It is not possible to pinpoint
with any precision where in the range his tolerance may lie. I have considered
the fact that he continues to work overtime, but in my view, this is a
reflection of his work ethic and professionalism and does not impact my
findings as to the age that he will likely cease working. I also conclude that
due to his accident-related injuries, there is a substantial possibility he
will not pursue any other employment opportunities after he leaves the RCMP.
Opportunities which were otherwise realistic options for him, such as contract
work with the RCMP, or investigative work, will be foreclosed to him.
(iii) Loss of promotability
[204] Generally,
promotion within the RCMP requires at least seven years service.
[205] The
evidence of Corp. B., Corp. L. and Sgt. P. supports a finding that the
plaintiff was regarded by his RCMP colleagues as an ambitious, motivated, and
competent officer with the potential for being a leader.
[206] The
plaintiff passed the RCMP corporal exam and several correspondence courses
towards a degree in police leadership prior to the collision. He has received very
positive performance reviews and at least three commendations for his
performance as a firearms enforcement support investigator. In considering his
potential for advancement in the RCMP, I have considered the fact that he
attained the rank of master corporal during his military service.
[207] I accept
the plaintiffs evidence that many promotional opportunities within the RCMP
require first becoming an operational supervisor at a detachment. On account of
his accident-related injuries and limitations, those opportunities which
require performance of the full range of duties will be foreclosed to him.
[208] I find a
real and substantial possibility that by the end of 2011, the plaintiff would
have been promoted within the RCMP, but that due to his accident-related
injuries and significantly reduced stamina, he is now less likely to seek
opportunities for advancement and is less likely to be promoted.
(iv) Loss of overtime
[209] I now turn
to the question of whether the plaintiff should be compensated for a pecuniary
loss occasioned by a loss of overtime opportunities. Although there was much
evidence at trial with respect to overtime available to other officers, the
question for this Court is how much overtime the plaintiff would be able to
work if he had remained in the traffic division or moved to the ERT section or
another front-line policing position, in comparison to what overtime
opportunities will now be available to him. I also note parenthetically that
there was no reliable evidence adduced as to what call-out pay or standby pay
ERT members earn.
[210] The
defendants summary of overtime was based on the plaintiffs payroll records
from 2003 to January 2010. The records were produced by Mr. T., a
district manager in the compensation section of the RCMP. Mr. T.s summary
is more complete than the records produced by Corp. L. and I prefer it to the
summary prepared by Corp. L. This summary, however, must be approached
cautiously because it fails to take into account the plaintiffs testimony that
prior to the accident, he on occasion took time off in lieu of the overtime he worked.
Mr. T. confirmed that time off in lieu of pay would not be recorded on the
plaintiffs payroll information. The difficulty this Court now faces is that
there is no evidence of how many hours the plaintiff may have worked on this
basis before or after the accident. In the result, I have not considered this
as a factor in my assessment.
[211] The
evidence at trial shows that in 2009, the plaintiff was paid for 211 hours of
overtime. In 2004, the year immediately preceding the accident, he was paid
182.5 hours of overtime. There was little in the way of reliable evidence
tendered as to the plaintiffs prospects for overtime decreasing if he remains in
his current position or obtains another assignment with the RCMP. Accordingly,
I am unable to conclude that the loss of potential overtime opportunities is a
factor in assessing the future pecuniary loss accruing to the plaintiff as a
result of the accident.
(v) Summary
[212] In summary
on this issue, the plaintiff has proven that the injuries he sustained in the
accident have impaired his future earning capacity and that this impairment
will harm his earning ability into the future. I conclude that on account of
his accident-related injuries, there is a real and substantial likelihood that
the plaintiff will suffer a pecuniary loss because of his reduced prospects for
advancement within the RCMP and because he will cease working earlier than he
otherwise would have.
[213] Having
found that the plaintiffs future earning capacity is diminished, and that
there is a real and substantial possibility that the impairment of his capacity
will generate a pecuniary loss, I must now decide the companion issue of what,
in light of all the circumstances, he should be awarded as compensation.
[214] The
plaintiff earns a base salary of approximately $74,000 per year. Also, in 2009,
he earned $14,147.34 in overtime. I have considered the evidence of Corp. L.
that his own promotion resulted in an increase in his annual salary of
approximately $5,000 in the first year and $10,000 thereafter.
[215] Mr. B.,
an economist, prepared a report on behalf of the plaintiff, estimating his past
income loss and providing multipliers for calculating future losses. He
factored in the survival rates and various negative contingencies, including
non-participation in the labour force, applicable to males of the plaintiffs
age and occupation. In essence, he presented a number of calculations of what
the plaintiff would earn if he works with the RCMP until age 60 and what he can
expect to earn if he ceases employment prior to age 60. Plaintiffs counsel
properly acknowledged that these comparative illustrations are not intended to
be conclusive. In any case, it must be noted that Mr. B. estimated the
loss of overtime earnings based on an assumption of overtime being 20% of the
plaintiffs base salary rather than looking at his actual records of earnings.
In addition, the most current information in the analysis was the plaintiffs
2006 employment income. Mr. B. also provided no calculations from ages
60-65. Overall, his report on future income loss is of limited assistance to
the Court. This is not intended to reflect adversely on Mr. B.s
professionalism; it appears that he was given a narrowly prescribed mandate and
provided with limited information.
[216] It is
well-recognized that unknown contingencies and uncertain factors make it
impossible to calculate future earning capacity with any precision. The process
of quantification is not a mathematical calculation but rather one of
assessment based on the evidence: Gray v. Fraser Health Authority, 2009
BCSC 269 at para. 35. The evidence in this case mandates that in my
assessment, I take into account the following contingencies:
i.
the plaintiff would not have been promoted, even if the accident had not
occurred, or he would have been promoted in another geographical location that
he would not have accepted given his personal circumstances;
ii.
the plaintiff will be promoted within the RCMP notwithstanding his
injury;
iii.
the plaintiff would have withdrawn from employment because of unrelated
illness, injury, or disability;
iv.
the plaintiff will obtain secure employment after his retirement from
the RCMP at a job that he can tolerate in an area of law enforcement that does
not require strenuous physical activity and/or he will earn more than he would have
if he had continued with the RCMP; and
v.
the plaintiffs tolerance for work will improve because he undergoes surgery
to remove the hardware in his back.
[217] I have not
considered the impact on his pension, as there were no submissions nor any
cogent evidence adduced in this regard.
[218] In
considering all of the evidence, the degree of likelihood of the future loss
occurring and all of the relevant positive and negative contingencies, I assess
the plaintiffs diminishment of future earning capacity from the date of trial
at $180,000.
Loss of Earning Capacity to the Date of Trial
[219] The
defendants properly concede and I find that the injuries the plaintiff
sustained as a result of the accident prevented him from returning to any
employment until April 2006. The defendants nonetheless submit that the
plaintiff is not entitled to recover his past wage loss because he was
reimbursed for those wages by the RCMP.
[220] The
question of whether benefits or wages received by an injured plaintiff should
be deducted from the plaintiffs claim for lost wages has been considered by
the Supreme Court of Canada: Ratych v. Bloomer, [1990] 1 S.C.R. 940; Cunningham
v. Wheeler, [1994] 1 S.C.R. 359; see also Dionne v. Romanick,
2007 BCSC 436. The primary concern, as articulated by Madam Justice McLachlin in
Ratych at 981, is avoiding double recovery:
The general principles
underlying our system of damages suggest that a plaintiff should receive full
and fair compensation, calculated to place him or her in the same position as
he or she would have been had the tort not been committed, in so far as this
can be achieved by a monetary award. This principle suggests that in
calculating damages under the pecuniary heads, the measure of the damages
should be the plaintiffs actual loss. It is implicit in this that the
plaintiff should not recover unless he can demonstrate a loss, and then only to
the extent of that loss. Double recovery violates this principle. It
follows that where a plaintiff sustains no wage loss as a result of a tort because
his employer has continued to pay his salary while he was unable to work, he
should not be entitled to recover damages on that account.
[221] Madam
Justice McLachlin in Ratych at 982-983, affirmed the general rule for
the deduction of wage benefits paid while a plaintiff is unable to work, while
recognizing an exception in those circumstances where employers retain a right
to be reimbursed:
These considerations suggest
the following rule. As a general rule, wage benefits paid while a plaintiff is
unable to work must be brought into account and deducted from the claim for
lost earnings. An exception to this rule may lie where the court is
satisfied that the employer or fund which paid the wage benefits is entitled to
be reimbursed for them on the principle of subrogation. This is the case
where statutes, such as the Workers Compensation Act, expressly provide
for payment to the benefactor of any wage benefits recovered. It will also be
the case where the person who paid the benefits establishes a valid claim to
have them repaid out of any damages awarded. …
[Emphasis added.]
[222] Later, in Cunningham
at 415, the Supreme Court of Canada concluded that where benefits which
are not in the nature of insurance are paid, the issue of the right by the
payor to be reimbursed on the principle of subrogation is determinative,
regardless of whether or not that right has been exercised:
Generally, subrogation has no
relevance in a consideration of the deductibility of the disability benefits if
they are found to be in the nature of insurance. However, if the benefits
are not insurance then the issue of subrogation will be determinative. If the
benefits are not shown to fall within the insurance exception, then they must
be deducted from the wage claim that is recovered. However, if the third party
who paid the benefits has a right of subrogation then there should not be any
deduction. It does not matter whether the right of subrogation is exercised or
not. The exercise of the right is a matter that rests solely between the
plaintiff and the third party. The failure to exercise the right cannot in any
way affect the defendants liability for damages. However, different
considerations might well apply in a situation where the third party has
formally released its subrogation right.
[Emphasis added.]
[223] The Court in
Cunningham, without expressly deciding the issue, left open the
possibility that if the employer formally releases its right for reimbursement,
other considerations may apply and the compensation may be deductible.
[224] In
applying the relevant legal principles, it follows that there should not be any
deduction from the amount for lost wages that the defendants are liable to pay to
the plaintiff if the RCMP has not formally released its right to reimbursement and
may claim back the wages it paid to the plaintiff when he was off work.
Accordingly, the pivotal question is whether the evidence supports a finding
that the RCMP has formally waived its right, based on the principle of
subrogation, to reclaim the compensation for the wages and benefits paid to the
plaintiff from the date of the accident to the date he returned to work.
[225] Waiver
constitutes an intentional and unequivocal relinquishment of a known right: Crump
v. McNeill, [1919] 1 W.W.R. 52.
[226]
Inspector D. stated that he underst[ood] and [could] speak to the RCMP
policy with respect to subrogated claims and with respect to the policy on
seeking the return of the plaintiffs wages. His evidence supports a finding
that the RCMP has the right to reclaim the wages and benefits paid to the
plaintiff when he was away from work. Inspector D. testified as follows:
Q: So, more specifically, is the RCMP seeking
reimbursement from Mr. [X.] for any of the wages that he was paid while he
was off following this accident?
A: No.
Q: Is the RCMP seeking repayment from Mr. [X.]
for any of the rehabilitation benefits that he received while he was off?
A: No.
…
Q: And you are authorized to speak for the RCMP
with respect to the policy on — seeking return of his pay?
A: Yes.
[227] Inspector
D., after confirming that the RCMP has the right to subrogate with respect to
monies paid to a member, further testified as follows:
Q: Okay, sir. You said that the — youve heard
the question, whats the answer. Are you pursuing the right in this case?
A: No, were not.
[228] Inspector D.
stated that he was not aware of the RCMP seeking reimbursement for the wages or
benefits paid to the plaintiff during his time off; however, he did not state
that the RCMP would not seek reimbursement in the future or had relinquished
its right to do so. He did not explicitly state that he was authorized to bind
the RCMP. He merely commented on the current policy. The plaintiff has not
received any notification, written or otherwise, that the RCMP has waived its right
to reclaim the wages and benefits it paid him as a result of the accident.
[229] I am not
persuaded that the evidence establishes that Inspector D., with full authority,
clearly and unequivocally made an informed decision to waive the RCMPs right
with full knowledge of the effect of that waiver. In short, the Inspectors
testimony regarding the RCMPs current policy position does not constitute a
formal release or waiver of the RCMPs right to reclaim the money it paid to
the plaintiff for wages and benefits.
[230] Therefore,
I conclude that the plaintiff is entitled to an award for past loss of earning
capacity. The loss of earning capacity is quantified up until April 2006,
when the plaintiff returned to work, by the amount of wages he would have
earned if his capacity had not been impaired by the injuries sustained in the
accident: Bradley at para. 33. The gross wage loss from the date of
accident to the date of his return to work is 42 weeks, which equates to
$53,855.52 based upon the calculations provided to me. Counsel have leave to
apply if they cannot agree on this calculation.
[231] This
assessment excludes any consideration of the overtime the plaintiff would have
worked. The defendants concede that the plaintiff did lose access to some
overtime in his period of recovery and for some time after he returned to work
in April 2006, and that he should therefore be awarded some compensation
for this loss of opportunity.
[232] In 2003, the
plaintiff was paid for 147 hours of overtime. In 2004, he was paid for 182.5 hours
of overtime. In 2005, he was paid for 95.5 hours in the first 6.5 months
of the year. In 2006, he was paid for 33 hours of overtime; in 2007, he was
paid for 114.5 hours; and in 2008, he was paid for 129 hours. By 2009, he was
working more overtime than before the accident; he was paid for 211 hours of
overtime. The defendants suggest that using 182.5 hours as a benchmark, he lost
access to about 350 hours of overtime. They submit that applying an hourly rate
of $35 produces a loss of overtime income in the range of $12,250. The
defendants contend that an after-tax award of $10,000 would amply compensate the
plaintiff, particularly since for some brief period of time he was ineligible
to work overtime.
[233] Given the
various contingencies that may have arisen, I exercise my discretion, based on
the principles articulated in Lines, as follows. I am satisfied that if
the plaintiff had not been injured, he likely would have continued to work at
least 182.5 hours of overtime per year. For the period from July 2005 to
the end of 2006, the plaintiff lost the opportunity to work overtime while he
was recovering from his injury. I have assessed his loss of overtime as
approximately 240 hours from July 2005 until the end of 2006, keeping in
mind his overtime hours in 2004, and the fact that he was on a gradual return
to work program in 2006. I assess a loss in the range of 125 hours from the
start of 2007 to the end of 2008.
[234] Prior to
the accident, the plaintiff had been selected to train for the VIP motorcycle
escort team at the Vancouver 2010 Olympics. On account of his accident-related
injuries, he was unable to do so. Both Corp. L. and Sgt. P. testified as to the
opportunities for overtime at the Olympics, and although the evidence on this
point was not well developed, Corp. L. testified that members working at the
Olympics were guaranteed a minimum of 16 hours per week of overtime. I
assess a loss of 35 hours with respect to the loss of the opportunity to work overtime
at the Olympics.
[235] In
summary, from the date of the accident to the date of the trial, I assess the
plaintiffs total loss of overtime in the range of 400 hours (125 + 240 + 35).
This overtime would have been primarily paid at either double-time or time and
one-half. Using my judgment as best as I can on the evidence, I assess the loss
at $26,000.
[236] I am not
persuaded that there was a real and substantial possibility that in the
post-accident pre-trial period the plaintiff would have been promoted.
[237] In the
result, the total award for the monetary value of the impairment to the
plaintiffs past earning capacity is $79,855.52 gross ($53,855.52 + $26,000).
I leave it to counsel to calculate the net amount; they have liberty to apply
in the event they are unable to agree.
C) Claim for Loss of
Housekeeping Capacity and In-Trust Award
[238] The
plaintiff seeks an in-trust award for his wife and compensation for both the pre-trial
and future impairment of his housekeeping capacity. I will address the in-trust
claim and compensation claims separately.
In-Trust Award
[239] The plaintiff
claims an in-trust award for his wife. He seeks compensation for the additional
services she rendered as a result of his impaired capacity to perform household
chores. The plaintiffs wife, who works as an in-flight service director for an
airline, took a one-month unpaid leave from work in August 2005 to care
for the plaintiff after the accident. Her mother and sister, who were visiting
from Japan, assisted her with housekeeping chores and child care until September 2005.
[240] The
defendants argue that the in-trust claim was not properly pleaded, and in the
alternative, they submit there is insufficient evidence to justify anything
other than a nominal award.
[241] Such an
award is made to a plaintiff in trust for a non-party family member as
compensation for the additional work performed by that family member on account
of the impaired capacity of the plaintiff to perform housekeeping chores or to
care for themselves: Bradley at para. 43.
[242] In Bradley,
the Court of Appeal addressed the issue of the extent to which a claim for past
in-trust services ought to be pleaded. Without deciding the appeal on the
pleadings point, the Court of Appeal, at para. 47, cited with approval the
observation of the court in Star v. Ellis, 2008 BCCA 164 at para. 21,
that such a claim should be specifically pleaded under the heading of special
damages.
[243] In this
case, although the statement of claim requested special damages, those damages
are not particularized and there was no reference to an in-trust claim. The
claim was raised for the first time during the plaintiffs closing submissions
at trial. I conclude that to allow the claim when it was introduced at such a
late stage of the trial would result in prejudice to the defendants; they were
not afforded an opportunity to test the claim on cross-examination. In the
result, I decline to make any in-trust award.
Claim for Impaired Homemaking Capacity
[244] I turn now
to address whether the plaintiff is entitled to compensation for pre-trial and
future impaired housekeeping capacity. The plaintiff seeks an award of
$25,000-$45,000. Notably, under his claim for future care loss, the plaintiff
also seeks compensation for gardening services, home maintenance and repair,
and janitorial assistance. The assessment of these overlapping claims must be
approached cautiously to avoid the potential for double recovery.
[245] The
defendants assert that the evidence does not support an award for any pre-trial
loss and that any future impairment is more appropriately compensated under
future care costs.
(i) Legal Framework
[246]
In Dykeman v. Porohowski, 2010 BCCA 36, Newbury J.A. at para. 28
summarized the governing principles with respect to awarding damages for the
loss or impairment of housekeeping capacity. She affirmed that damages for the
loss of housekeeping capacity may be awarded even though the plaintiff has not
incurred any expense because housekeeping services were gratuitously replaced
by a family member. Recovery may be allowed for both the future loss of the
ability to perform household tasks as well as for the loss of such abilities
prior to trial. The amount of compensation awarded must be commensurate with
the plaintiffs loss: Dykeman at para. 29.
[247]
In McTavish v. MacGillivray, 2000 BCCA 164, the Court of Appeal endorsed
the replacement cost approach to the valuation of lost housekeeping capacity.
Madam Justice Huddarts comments at paras. 67-68 are instructive:
[67] … The loss of the ability to perform household
tasks requires compensation by an award measured by the value of replacement
services where evidence of that value is available.
[68] In my view, when
housekeeping capacity is lost, it is to be remunerated. When family members by
their gratuitous labour replace costs that would otherwise be incurred or
themselves incur costs, their work can be valued by a replacement cost or
opportunity cost approach as the case may be. That value provides a measure of
the plaintiffs loss.
[248]
In assessing the damages on the replacement cost approach, the court
must carefully scrutinize the gratuitous services done by the family member. A
relatively minor adjustment of duties within a family will not justify a
discrete assessment of damages: Campbell v. Banman, 2009 BCCA 484 at para. 19.
In Dykeman at para. 29, Madam Justice Newbury cautioned that:
Instead, claims for gratuitous
services must be carefully scrutinized, both with respect to the nature of the services
were they simply part of the usual give and take between family members, or
did they go above and beyond that level? and with respect to causation
were the services necessitated by the plaintiffs injuries or would they have
been provided in any event?
[249] Having
reviewed the basis for the assessment, I now turn to a consideration of the
evidence.
(ii) Discussion
[250] Prior to
the accident, it is uncontroversial that the plaintiff equally shared household
duties with his wife. Immediately after the accident and spinal fusion surgery,
the plaintiff was confined to bed; he was unable to do any cooking, cleaning,
laundry, or other household chores. During the approximate nine-month period
when he was recuperating, I accept the evidence that his wifes contribution
exceeded her usual share of the household duties. I accept that the work she
did went above and beyond the normal level of work done by a loving spouse. The
plaintiff also paid an external housekeeping service $511.30 for work done
during that time.
[251] As his
condition improved, the plaintiff, through his perseverance, resumed many of
his household chores. He now performs some of his pre-accident household tasks,
such as cleaning the tub, with some difficulty and discomfort. This does not
properly form the basis for an award for impairment of housekeeping capacity,
but I have considered it as a factor in my award for non-pecuniary damages.
[252] Significantly
however, as of the date of trial, the plaintiff had not resumed the entirety of
his pre-accident responsibilities; he has been unable to resume the heavier
household tasks and gardening work he performed prior to the accident. It is
uncontroversial that his doctors have recommended restrictions on the more
strenuous household cleaning, maintenance and repairs, and the heavier gardening
activities.
[253]
In my assessment for the loss to date of trial,
I have considered the initial period of recovery when the plaintiff could not
perform any household tasks. I have also considered the period to date of trial
in which the plaintiff resumed some of his pre-accident household tasks but was
unable to resume the more strenuous tasks. I conclude that the plaintiff is
entitled to an award for his pre-trial loss of housekeeping capacity that will
not be compensated for in his claim for special damages of $511.30. In
quantifying his pre-trial loss, I have considered Ms. L.s and Ms. Q.s
itemization of the estimate of replacement costs for gardening services, home
maintenance, and janitorial services.
[254]
On the totality of the evidence, I assess the plaintiffs
pre-trial loss for impaired housekeeping capacity as $12,000.
[255] Based on
the medical evidence, I am satisfied that there is a real and substantial
probability that in the future, the plaintiff will continue to be unable to
perform heavier household cleaning, maintenance and repairs, and gardening. I
have assessed, as best I can, the household services the plaintiff would have
provided but for the accident and what services would be required to permit the
plaintiff and his family to live and function in their usual manner.
[256] In their
submissions on future care costs, the defendants conceded that the plaintiff,
until at least age 70 when he likely would have required assistance in any event
or would have moved from his home, is reasonably entitled to an annual
allowance for gardening services in the range of $500-$700, home maintenance in
the range of $1,000-$1,500, and janitorial services of $300. Doctrinally, I am
of the view that compensation for these services properly should be addressed
under loss of future housekeeping capacity. The underpinning for an award is a
recognition of the impairment to homemaking capacity. In contrast to an award
for future care, the issue of whether the plaintiff used any of these services
in the past and the likelihood of whether or not the plaintiff would hire
replacement help in the future does not inform the analysis: McTavish at
para. 43.
[257] The
plaintiff did most of the gardening prior to the accident. He has resumed
mowing the lawn. However, he will have some limitations in the future relating
to periodic weeding and seasonal and heavier yard tasks, including when he
experiences episodic aggravation of his symptoms. For the purposes of my
assessment, I have estimated an annual allowance of $900 per year as a
reasonable replacement cost for his services.
[258] The
plaintiff also performed all his own home maintenance, including painting and
home repairs, prior to the accident. He has resumed some participation in those
activities. However, Ms. T. in her evaluation acknowledged his limitations
for some tasks that would be too onerous in terms of overall symptom
aggravation and overall endurance. I have assessed an annual replacement cost
in the range of $1,500 per year for those tasks.
[259] Although
the evidence does not support a finding that a regular home-cleaning service is
required, it would be reasonable to award an annual allowance of $500 for the replacement
cost of hiring assistance for seasonal tasks and those tasks requiring heavy
lifting, and to replace services when the plaintiff experiences periodic
flare-ups.
[260] For the
purposes of my assessment, I have considered the multipliers in the cost of
future services in Mr. B.s report, and I have taken into account that by
the age of 70, the plaintiff would have moved from his home or would have
required assistance even if he had not been injured.
[261]
Keeping in mind that an award for loss of housekeeping capacity is
intended to compensate the plaintiff for a diminished loss of capacity and is
not a mathematical calculation, I assess a fair award to be $40,000 for the
future loss of housekeeping capacity.
D) Cost of Future Care
[262]
Counsel for the plaintiff has submitted entitlement to compensation for
the costs of future care in excess of $240,000, calculated as follows:
Mr. X. Cost Of Future Care | |||||
Treatment |
Cost per Visit |
Frequency |
Value
| ||
5 years | 10 years | 15 years | |||
Medication | $500 per year | – | $2,500.00 | $5,000.00 | $7,500.00 |
Massage Therapy | $60.00 | 2 sessions per month | $7,200.00 | $14,400.00 | $21,600.00 |
Physiotherapy
| $45.00 | 12 sessions annually | $2,700.00 | $5,400.00 | $8,100.00 |
Podiatrist | $40.00 | 1 visit per month | $2,400.00 | $4,800.00 | $7,200.00 |
Gym Membership | $10.00/per month (for RCMP officers) | – | $600.00 | $1,200.00 | $1,800.00 |
Aquatic Centre Membership | $50.00/per month | – | $3,000.00 | $6,000.00 | $9,000.00 |
Kinesiology | $60.00 per session | 12 sessions | $3,600.00 | $7,200.00 | $10,800.00 |
Gardening Service
| $50.00 per week | 1 visit per week for 30 week growing | $7,500.00 | $15,000.00 | $22,500.00 |
Home Maintenance/Repairs | $30.00 per hour | 182.5 hours per year | $27,375.00 | $54,750.00 | $82,125.00 |
Janitorial Assistance | $25.00 per hour | 2 hours per week | $13,000.00 | $26,000.00 | $39,000.00 |
Camper, 5th Wheel Camper | $400.00 per year | Annual Replacement Cost | $2,000.00 | $4,000.00 | $6,000.00 |
Ergonomic Chair Replacement | $170.00 per year | Annual Replacement Cost | $850.00 | $1,700.00 | $2,550.00 |
In Home Exercise Equipment Replacement | $176.00 per year | Annual Replacement Cost | $880.00 | $1,760.00 | $2,640.00 |
Roho Pressure Mattress Replacement | $250.00 per year | Annual Replacement Cost | $1,250.00 | $2,500.00 | $3,750.00 |
Pulse Signal Therapy | Initial Fee | $2,000.00 (9 sessions) | |||
Renovation Repayment | One time Cost | $3,000.00 | |||
Bosu and Swiss Balls | One time Cost | $265.00 | |||
Cane | One time Cost | $50.00 | |||
Ergonomic Worksite & Home office | One time Cost | $1,200.00 | |||
Ergonomic Chair | One time Cost | $1,700.00 | |||
Small Ergonomic Equipment | One time Cost | $400.00 | |||
In-Home exercise Equipment | One time Cost | $1,765.00 | |||
Roho Pressure Mattress | One time Cost | $2,500.00 | |||
Elliptical Trainer | One time Cost | $2,200.00 | |||
Hot Water Tank | One time Cost | $1,116.00 | |||
Hot Tub | One time Cost | $7,500.00 | |||
TOTAL: | $98,551.00 | $173,406.00 | $248,261.00 | ||
[263] The
defendants have acknowledged, based on Ms. T.s report, that the plaintiff
is entitled to some compensation for his future care costs. They submit that he
is entitled to compensation for:
· an
allowance for physiotherapy and massage therapy, which they contend should be
$500 every three years;
· an
allowance for 10 sessions ($600) with a kinesiologist and a further 20 sessions
over his lifetime ($1,200);
· a
one-time ergonomic assessment in the range of $600-$800;
· a
home-office ergonomic chair at a cost of $500-$700 and an allowance of $300
every five years for small equipment repair; and
· home
exercise cardio equipment of $2,000 every ten years, and an annual allowance of
$100 for associated repairs.
(i) Legal Framework
[264]
There is no dispute regarding the legal principles governing the
assessment of this award. After articulating that the basis for an award for
future care is providing for what is reasonably necessary on the medical
evidence to promote the mental and physical health of the plaintiff (at 78), the
court in Milina v. Bartsch (1985), 49 B.C.L.R (2d) 33 (S.C.), affd
(1987), 49 B.C.L.R. (2d) 99 (C.A.), summarized the pertinent principles
at 84:
The test for determining the appropriate
award under the heading of cost of future care, it may be inferred, is an
objective one based on medical evidence.
These
authorities establish (1) that there must be a medical justification for claims
for cost of future care; and (2) that the claims must be reasonable.
[265] In
assessing what is reasonably necessary to preserve the plaintiffs health, the
court should examine whether on the evidence the plaintiff has used the items
or services in the past and whether the plaintiff will likely use the items or
services in the future: Izony v. Weidlich, 2006 BCSC 1315 at para. 74;
Penner v. Insurance Corporation of British Columbia, 2011 BCCA 135 at paras. 12-14.
[266] The B.C.
Court of Appeal has recently clarified, in Gregory v. ICBC, 2011 BCCA
144, that determining whether an item or service is medically justified is not
limited to what medical doctors recommend; rather, it can include recommendations
from a variety of healthcare professionals such as a rehabilitation expert.
However, the authorities mandate that the court find an evidentiary link
between the injuries found by medical doctors and the care or services recommended
by qualified healthcare professionals: Gregory at para. 39. The
Court of Appeal in Penner observed that a little common sense should
inform claims under this head, however much they may be recommended by experts
in the field: para. 13.
[267] The
assessment of damages for cost of future care necessarily entails the
prediction of future events and an assessment of the care that would be in each
individual plaintiffs best interests: Courdin v. Meyers, 2005 BCCA 91
at para. 34; Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9, [2002]
1 S.C.R. 205 at para. 21. The courts have long recognized that such an
assessment is not a precise accounting exercise and that adjustments may be
made for the contingency that the future may differ from what the evidence at
trial indicates: Krangle at para. 21.
(ii) Discussion
[268] In my
view, the evidence falls short of establishing either medical justification
for, or the reasonableness of, many of the items claimed for future care
advanced by the plaintiff.
[269] With
respect to Ms. Q.s recommendations for future care costs, I agree with
counsel for the defendants that given that Ms. Q. never obtained, nor
reviewed, any medical information pertaining to the plaintiff after August 8,
2005, her recommendations are somewhat flawed. Moreover, on cross-examination,
it was apparent that her assessment was deficient because she had based many of
her recommendations on incomplete or inaccurate information and had not taken
reasonable steps to obtain pertinent information. I found her approach to the
assessment of future care items somewhat lacking in objectivity.
[270] I turn now
to a consideration of each of the items claimed.
[271] I conclude
that an annual allowance of $600 for physiotherapy and massage therapy would be
beneficial in providing the plaintiff with some relief, particularly when he
experiences aggravation of his symptoms. Dr. T. recommended this on an as
necessary basis. It can reasonably be inferred on the evidence that with the
elimination of any obvious financial impediment, the plaintiff would access
these treatments from time to time.
[272] The
evidence does not support a claim for either regular podiatry services or the
costs of pain medication. The plaintiff acknowledged that, for the most part
since his initial recovery from the accident, he has not used pain medication.
[273] Dr. H.
recommended Pulse Signal therapy for the plaintiff. This technology consists of
sending a series of low intensity magnetic pulses through the injured region of
the body. Dr. H. contends that in 70%-75% of cases, this treatment
improves function and decreases pain and stiffness. Dr. H. is the
principal provider of this therapy in British Columbia. In the absence of
peer-reviewed literature stating that this is an effective treatment, I am not
persuaded that the cost of treatment in the amount of $2,000 is medically
justified.
[274] I
conclude, based on the medical evidence and the evidence of both the
occupational therapists, that the plaintiff would benefit from some sessions
with a kinesiologist to develop an optimal exercise program. In order to
preserve his health, I also expect the plaintiff would reasonably require some
future sessions over his lifetime. In my view, 15 initial sessions and a
further 30 sessions over his lifetime are reasonable and necessary.
[275] An ergonomic
work and home office assessment by an occupational therapist, the purchase of
an ergonomic chair for the plaintiffs home office, and an allowance for the
purchase of small ergonomic items to support his function and comfort at home
and at work are all reasonably justified expenses.
[276] The
plaintiffs doctors have all recommended that the plaintiff follow a regular
exercise regime as it is important for maintaining his conditioning. I find it
would be beneficial for the plaintiff to be able to exercise within his home.
The purchase of in-home exercise equipment would facilitate a regular at-home
exercise program. An allowance for replacement costs for this equipment every
ten years and some allowance for repair costs is also reasonable.
[277] I turn
next to the balance of the items recommended by Ms. Q. and claimed by the
plaintiff:
· The
claim for the gym membership should not properly be awarded as the plaintiff
had a gym membership prior to the accident;
· It
is uncontentious that the plaintiff does not use a cane (nor does the evidence
support a finding that he will require a cane in the future) and cannot swim
because of his injuries. The claims for an aquatic centre membership and cane
are therefore not allowed;
· The
plaintiff seeks a payment of $3,000 for home renovations under both his future
care claim and his claim for special damages. I will address it below under
special damages;
· In
my view, the proposed expenditures of a hot-water tank and hot tub and the
replacement costs of the tent-trailer are not recoverable as they are properly
characterized as amenities which may render the plaintiffs life more bearable
or enjoyable: Milina at 84. The evidence falls short of establishing
that these expenses are reasonably necessary to promote or preserve the mental
and physical health of the plaintiff in the future; and
· Ms. Q.
recommends the purchase of a Roho pressure mattress when the plaintiff turns
55. The evidence falls short of demonstrating that such a purchase is medically
justified.
[278] Having
considered the costs as set out in Ms. Q. and Ms. T.s respective
reports, and the costs of future care multipliers in Mr. B.s report, I
assess an award for the cost of future care in the amount of $25,000. This is
based on an assessment of the present value of the cost to be incurred in the
future.
[279] The
plaintiff has leave to apply to address any issues related to tax gross-up.
E) Special Damages
[280] The
plaintiff submits that he is entitled to special damages as follows:
(i) | $1,900.00 |
(ii) | $10,000.00 |
(iii) | $3,000.00 |
(iv) | $511.30 |
(v) | $280.00 |
Total: | $15,691.30 |
[281] It is well
established that an injured person is entitled to recover the reasonable
out-of-pocket expenses they incurred as a result of an accident. This is
grounded in the fundamental governing principle that an injured person is to be
restored to the position he or she would have been in had the accident not
occurred: Milina at 78.
[282] However,
this compensatory principle mandates that expense claims be limited to those
which are restorative as distinct from those which would put the plaintiff in a
better position than before the accident: Cooper-Stephenson, Personal Injury
Damages In Canada, 2d ed (Toronto: Thomson Canada, 1996) at 134. Moreover,
remoteness may limit the recovery of damages: Cooper-Stephenson at 134. Based
on these principles, I am not persuaded that the defendants should be liable
for the purchase of a tent-trailer that the plaintiff never owned before the
accident or for the renovations to his home after the accident that were not
occasioned for any rehabilitative purpose.
[283] The
defendants agree to the payment of housekeeping ($511.30) and psychological
treatment ($280.00) for a total of $791.30. Based on my earlier findings
regarding the RCMPs right to reclaim the funds it paid as a result of the
accident, the plaintiff is entitled to reimbursement for physiotherapy in the
amount of $1,900.
[284] The
plaintiff has proved special damages in the amount of $2,691.30.
CONCLUSION AND SUMMARY
[285] The
plaintiffs damages are assessed at $479,546.82, consisting of the following:
Non-Pecuniary: | $140,000.00 |
Gross Past Wage Loss: | $79,855.52 |
Loss of Future | $180,000.00 |
Loss of Housekeeping | $52,000.00 |
Future Care Costs: | $25,000.00 |
Special Damages: | $2,691.30 |
Total: | $479,546.82 |
|
|
COSTS
[286]
If the parties are unable to agree on costs, plaintiffs counsel is at
liberty to file a written submission within 60 days from the date of this
judgment. Counsel for the defendants are to file written submissions in
response within 45 days of receipt of the plaintiffs submissions. Any reply
submissions must be filed within 15 days.
Dardi J.