IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Shinkaruk v. Crouch, |
| 2011 BCSC 1762 |
Date: 20111222
Docket: M114443
Registry:
New Westminster
Between:
Allan Shinkaruk
Plaintiff
And
Richard Crouch
Defendant
Before:
The Honourable Mr. Justice A. Saunders
Reasons for Judgment
Counsel for Plaintiff: | J. Voss |
Counsel for Defendant: | A.D.C. Ross L. McOuatt, Articled |
Place and Date of Trial: | New Westminster, B.C. November 28 30, December 1, 2 and 5, |
Place and Date of Judgment: | New Westminster, B.C. December 22, 2011 |
[1]
The plaintiff was injured in a motor vehicle accident on August 31, 2006.
I have concluded that the greater portion of fault rests with the defendant. I have
also found that the plaintiff suffered a period of disability of approximately
five months duration, following which he continued to have minimal residual
symptoms attributable to the accident. However, I have found that the majority
of his complaints since the end of his period of disability, and moving forward
into the future, are and will be attributable not to the subject accident, but
to a longstanding pre-existing back condition and to other independent factors
for which the defendant bears no liability.
Circumstances of Accident and Liability
[2]
The defendant collided with the plaintiffs vehicle in the intersection
of 96th Avenue and Telegraph Trail in Langley. The intersection
forms an inverted T, with Telegraph Trail running in a north-by-northwesterly
direction from 96th Avenue. The weather was clear, visibility was
good and the streets were bare. It was about 7:00 p.m.; the plaintiff Mr. Shinkaruk,
who was then employed on the afternoon shift at a nearby metal fabrication
shop, was on his lunch break.
[3]
On the south side of 96th Avenue at the intersection there is
a ramped access to a parking lot. Mr. Shinkaruk was in his vehicle,
exiting the parking lot, having picked up a sandwich for his lunch. His
evidence was that he pulled up to, or just past, the sidewalk and looked to his
left, that is, to the west, down 96th Avenue. There was only one
vehicle approaching from that direction, the defendants pickup truck; it was
in the lane closest to the centre line, heading east. 96th Avenue
has four lanes of traffic at that point, two in each direction. Mr. Shinkaruk
said that he could see quite a distance, three or four blocks, down 96th
Avenue to the west; the defendants truck was two or three blocks back.
[4]
This is an industrial area, and it was not clear to me what distance a
block was, as Mr. Shinkaruk used the term. The business next to the
shopping centre where Mr. Shinkaruk had been is an Esso station; shown
photographs of the accident scene, he said that the defendants vehicle was a
good deal to the west of the gas stations sign. He was far enough back, Mr. Shinkaruk
said, that the question of whether or not the defendant was going to stop
wasnt an issue.
[5]
There are no traffic control signals for vehicles entering the
intersection from the parking lot. After observing the defendants oncoming
vehicle, Mr. Shinkaruk looked to the right and could see the traffic
lights for eastbound traffic. They were red. Mr. Shinkaruk then looked
forward. Opposite him on Telegraph Trail was a B-train, a tractor hauling two
trailers, intending to turn left across his path and head east on 96th
Avenue. The B-Train had been stopped and was just starting to enter the
intersection. The B-Train would take time to accelerate, and Mr. Shinkaruk
judged that he had enough time to cross the intersection before the B-Train
turned across his path. He therefore started into the intersection.
[6]
As he entered the curb lane, something caught his eye and he looked to
the left again. He saw the defendants vehicle closing on him quickly.
Mr. Shinkaruk braked, coming to a stop with the first one or two feet of the
front end of his vehicle in the lane closest the centre line, in which the
defendant was travelling. Mr. Shinkaruk believed that there was,
physically, room for the defendant to go around him, but he knew that there was
going to be a collision. He could see that the defendant was going quite fast,
and although he did not hear a screech of brakes or skidding, he could see that
the defendant was skidding towards him.
[7]
The defendants pickup truck impacted the front left corner of Mr. Shinkaruks
vehicle, turning it 90 degrees so that it came to a stop facing east in the
curb lane.
[8]
Mr. Shinkaruk was the only one who gave evidence as to the speed
limit at this location. He said that the speed limit was 50 km/h.
[9]
The defendant Mr. Crouch testified. He said that he was travelling
65 to 70 km/h eastbound on 96th Avenue, and just as he was coming up
to the intersection saw the plaintiffs vehicle suddenly pull out in front of
him. He had not previously seen it. Mr. Crouch said that he believed the
light was green, from my recollection. This aspect of his testimony was less
than emphatic.
[10]
Mr. Crouch said that he hit the brakes very hard, and his truck
started to slide. His front wheels locked and he could not steer.
[11]
Mr. Crouch had worked on his trucks brakes about a month before
the accident. In cross-examination, he stated that he has no idea if the rear
brakes were working. Pictures of the accident show that there were skid marks
made by the front tires only. He was unable to explain why the rear wheels did
not lock up and skid also.
[12]
Mr. Crouch acknowledged being slightly over the speed limit.
[13]
In cross-examination, he agreed with the suggestion that if he had been
going slower, and had got better braking, he could possibly have released his
brake before his wheels locked up and manoeuvred his truck around the
plaintiffs car. Mr. Crouch said that he did not know if the plaintiffs
vehicle was still moving, but if it was stopped, he could quite possibly have
steered around him.
[14]
An independent witness, Mr. Whetstone, testified. Just before the
accident he had pulled out of a parking lot on the north side of 96th
Avenue, east of the intersection, turning to his right. The length of his
vehicle he was hauling a trailer required him to turn into the westbound
lane closest the centre line. As he approached the intersection, the light went
yellow, and he came to a stop. He was at the stop line, first in line in that
lane. When he stopped, the light was red. He saw only one vehicle coming on
from the other direction, the defendants truck; he described its location as
being back around the gas station. He also observed the plaintiffs vehicle; he
believes that it was stopped. The plaintiff seemed to Mr. Whetstone to be
waiting.
[15]
He then saw the plaintiff start to move into the intersection. The
oncoming pickup was still approaching. It did not appear to Mr. Whetstone
that it was going to stop at the red light. He heard the its brakes being
applied. Once the plaintiff began to move into the intersection, Mr. Whetstone
knew there was going to be a collision.
[16]
Mr. Whetstone recalled that at the point of impact, the plaintiff
was not all the way into the eastbound lane closest the centre line. He thought
that there was quite possibly room for the defendant to get around the plaintiffs
vehicle, although he said that it would be touch-and-go, and it was possible
that the defendant would have ended up colliding with him.
[17]
Section 176(2) of the Motor Vehicle Act, RSBC 1979 c. 318,
states:
The driver of a vehicle about to
enter or cross a highway from an alley, lane, driveway, building or private
road must yield the right of way to traffic approaching on the highway so
closely that it constitutes an immediate hazard.
[18]
A breach of the Motor Vehicle Act is not in itself determinative
of liability; all of the surrounding circumstances may be taken into account.
[19]
The sequence of events is that the plaintiff stopped at the exit from
the parking lot, looked to the left and observed the defendant, then looked to
the right, and then looked ahead and saw the B-train moving forward from its
stopped position. Had the plaintiff then looked to the left again, he would have
had the same view as Mr. Whetstone and at that point would have
appreciated that the defendant was not going to stop, as Mr. Whetstone did.
At that point, immediately prior to the plaintiff entering the intersection,
the defendants vehicle was an immediate hazard. The plaintiff ought then to
have yielded to the defendant.
[20]
If, as the plaintiff testified, the defendants vehicle was two to three
blocks back from the intersection, some time must have elapsed for the
defendant to reach the intersection. During that time, there was the
possibility that traffic could have pulled out onto the road from the gas
station. There would have been more than enough time for the plaintiff to look
again to the left before pulling forward.
[21]
The most probable explanation for what happened is that the defendant
did not bother checking again because the light was red, and because his
attention had been drawn to the B-Train, and he was determined to beat it
through the intersection so that he would not have to wait and risk missing an
opportunity to cross while traffic on 96th Ave. was stopped. If he
had taken the time to look, the defendants vehicle would have been perceived
by him as a hazard. I therefore find that there was some contributory
negligence on the plaintiffs part.
[22]
However, the greater negligence, I find, rests with the defendant, who
entered the intersection on a red light and who was speeding. The evidence also
suggests that his rear brakes were not properly functioning.
[23]
I assess the defendants liability at 80%.
The Plaintiffs Pre-Accident History
[24]
Mr. Shinkaruk is an ironworker. He is now 48 years of age. He has a
significant history of low back pain, including absences from work.
[25]
Pre-1999 medical records are not in evidence, but Mr. Shinkaruk has
been under the care of the same family physician, Dr. Ian Mitchell, since
he was a teenager. Dr. Mitchells report of October 22, 2007, notes that Mr. Shinkaruk
has a history of intermittent low back pain dating to the early 1980s.
[26]
It appears that in late 1996 or early 1997, he developed significant low
back pain with associated left leg pain. His left foot became numb and he lost
mobility. He was referred to a neurologist, Dr. Chan, who saw him in
February 1997. A CT scan at that time showed a large left L4-5 disc herniation,
with inferior sequestration. Mr. Shinkaruk was off work for a period of
time, but the painful symptoms settled down with conservative treatment and he
returned to work.
[27]
In May 1999 he experienced a spontaneous return of low back pain and
left side sciatica, down into his leg, ankle, and foot. It appears from the
medical records that he was off work for approximately one week and then
returned to work. However, the pain persisted and in June 1999 he was off work
again. A further CT scan showed a small central L4-5 disc herniation, with a
suggestion of disc material extending down to the L5 level. Degenerative
changes at the L3-4 and L5-S1 discs and L5-S1 facet joints were also noted. During
this period, he was again assessed by Dr. Chan, on three occasions. He was
not judged to be a candidate for surgery. Dr. Chan discussed with him
proper lifting techniques, and he was advised to avoid twisting his back and to
be careful with vacuuming and gardening. He was advised to exercise. He also
had physiotherapy during this period. He returned to work in February 2000.
[28]
There were no further complaints to his doctor of back pain until an
incident which occurred in mid-May 2004, when Mr. Shinkaruk was boating
with friends. This was an activity he enjoyed very much and was a significant
feature of his social life. He owned a power boat, and had several friends who
also owned boats. They would take turns riding in each others boats during
summer evenings, when Mr. Shinkaruk was on vacation or not working, and on
weekends, sightseeing up the Fraser River and across the Straights to the Gulf
Islands, trolling for salmon, and crab fishing. On this occasion, Mr. Shinkaruk
was in a friends boat when it went over several waves at high speed. This
injured his low back, and he was off work for a week to 10 days.
[29]
In early February 2005, Mr. Shinkaruk was working as a Fitter
Improver at Marsh Steel. He suffered a workplace injury to his mid-back while
bending over to move a piece of steel plate. This injury led to Mr. Shinkaruk
taking physiotherapy, and while doing exercises with a rubber band performing
a motion similar to repeatedly pulling on a lawn mower cord he reinjured his
lower back, as a consequence of which he did not return to work until April. His
job was physically demanding, but he had been given low back exercises to do by
the physiotherapist, and from the advice he had received he had learned to
work smarter, and was in good shape.
[30]
In June 2005 Mr. Shinkaruks employment was terminated, after he
got into a fist fight with a fellow employee. He did not work again until
mid-October 2005, when he started working as a fabricator at Knelson
Concentrators (Knelson). He was working at Knelson at the time of the subject
accident.
[31]
There is no further record of complaints to his physician, Dr. Mitchell,
of low back pain, up to the date of the accident.
Injuries and Post-Accident Progress
[32]
Mr. Shinkaruk was taken from the accident scene to hospital by
ambulance. While in the ambulance his lower back started to hurt, and his left
foot and ankle were sore, numb and painful. He suffered other minor soft tissue
injuries which healed quickly.
[33]
Through the following five months, Mr. Shinkaruk experienced mid-
and lower-back pain and leg pain of varying intensity which gradually resolved.
He attended physiotherapy, and was regularly assessed by his GP, Dr. Mitchell.
Dr. Mitchells clinical notes during this time record complaints of severe
left sacroiliac joint pain radiating down the left leg, and he prescribed
anti-inflammatory medication.
[34]
In early November 2006 he attempted to return to work, hoping to perform
light duty. Mr. Shinkaruks supervisor at Knelson, Mr. Ceron,
testified. He said that Mr. Shinkaruks job performance during this brief
attempt at returning to work was not up to the companys standards. He did not
think Mr. Shinkaruk was able to concentrate adequately. He told Mr. Shinkaruk
that there was no light duty on his shift, and told him to go back to his
doctor and not to come back until he was 100%. It appears from the employment
records that this attempted return to work lasted only five days.
[35]
Mr. Shinkaruk then remained off work until January 29, 2007. During
that period of disability he drew down his accumulated vacation pay and sick
days, and obtained a disability pension.
[36]
During this time off, Mr. Shinkaruk suffered a reversal in his
personal life. He had been living with a Ms. Wahlwroth for about three
years, and they had become engaged in March 2006. Her teenage son also lived
with them. She worked days and did a lot of travelling, and Mr. Shinkaruk,
as noted, worked afternoons; their time together was Friday nights and
weekends.
[37]
Mr. Shinkaruk testified in direct that the collision destroyed
their relationship. With him being around the home all the time convalescing,
he got in her space too much, and got in the way of the routine she had with
her son. They began fighting. Mr. Shinkaruk testified that
Ms. Wahlwroth said to him that any man she would be with should have a job
and be able to support the family. Things came to a head in December, during a
vacation to the Caribbean with members of her extended family. They got into
some bad arguments, and when they returned she told him to move out. He did so
the following day, which was Christmas.
[38]
Since then they have seen each other on and off. Several attempts at
reconciliation were unsuccessful, but more recently they have reunited and are
seeing each other steadily.
[39]
Ms. Wahlwroth gave her own testimony as to Mr. Shinkaruks
demeanour following the accident and as to the reasons for their breakup, which
I will return to later in these reasons.
[40]
By February 19, 2007, Mr. Shinkaruk had been back to work for
approximately three weeks. He reported to Dr. Mitchell that he was able to
do his normal job. There was no numbness in his leg, and his back was a lot
less painful. On March 20, he reported that his back was sore intermittently,
but he was doing okay.
[41]
In April 2007, Mr. Shinkaruk had another incident of low back pain,
which was triggered when he wrenched his back stepping out of a car. As a
result of this incident, he was off work for three days. He sought further
physiotherapy treatment. In cross-examination, it was suggested to Mr. Shinkaruk
that this incident was similar to the incidents in the late 1990s when he had
suffered the onset of lower back pain suddenly and spontaneously, without any
triggering event. Mr. Shinkaruk agreed with this, unless, he said, he had twisted
his back when he got out of the car. I took Mr. Shinkaruk to mean that he may
have twisted his back, and that it may have been this twisting action that
triggered the low back pain.
[42]
There was no evidence that this incident occurred while Mr. Shinkaruk
was having one of the intermittent episodes of low back pain he had suffered since
the accident.
[43]
On May 18, 2007, Dr. Mitchell assessed Mr. Shinkaruk for ICBC.
His orthopedic and neurological examination of Mr. Shinkaruks lower back
was normal and unremarkable. There was palpatory tenderness only across the
thoracic spine, none across the lumbar spine. Mr. Shinkaruks current
subjective complaints were noted as occasional low back pain.
[44]
In June 2007, Mr. Shinkaruk purchased his own condominium. He had
been living with a friend since leaving Ms. Wahlwroths house in December.
Both when he had moved from Ms. Wahlwroths house, and when he moved into
his new condo, he required the assistance of friends to complete the moves; he
could not do any lifting.
[45]
There was a further incident of back pain, triggered on June 16, 2007, by
him bending over and extending his back, reaching forward to pick up a bag of
frozen food from a supermarket freezer. He took more time off work, returning
on July 3, 2007. At the time of his return to work, his evidence was that he
was feeling fine; his pain level, he testified, was minimal, and he was ready
to return to work and do his job. Dr. Mitchell saw him on July 9, 2007,
and assessed him as being 98% better.
[46]
On July 13, 2007, Mr. Shinkaruk was dismissed from his employment. He
claims that his employer dismissed him because he had missed too much work.
[47]
The circumstances of the dismissal were described by Mr. Shinkaruk
in his evidence in chief. For three days running, preceding the dismissal, he
had received a blueprint from the engineering department with mistakes on it. Each
day he would take the blueprint to his supervisor, Mr. Ceron; Mr. Ceron
would agree that the blueprint needed correction, and on each occasion asked Mr. Shinkaruk
to return it to engineering. Such mistakes were not uncommon, and this was the
usual procedure to follow. The following day, the blueprint would be back at Mr. Shinkaruks
workstation, uncorrected. After this happened three days running, Mr. Shinkaruk
says that he remarked to a co-worker that the day shift supervisor was an idiot.
The day shift supervisor apparently overheard him making this remark, and Mr. Shinkaruk
was fired the next day. The plant supervisor came down to see him, told him
that he had been making too many mistakes, the quality of his workmanship was
poor, and his attitude the other day had been unacceptable, which Mr. Shinkaruk
assumed to be a reference to his criticism of the supervisor.
[48]
Mr. Shinkaruk testified that the quality control system at Knelson
required workers to fill out a sheet whenever their work had to be redone
because of an error. He denied ever having had to fill out such sheets during
his time with Knelson, and denied that there had been any problems with the
quality of his workmanship. His evidence on this point was supported by the testimony
of his supervisor, Mr. Ceron, which is discussed in further detail below.
[49]
Following his dismissal, Mr. Shinkaruk had periods of employment at
various fabrication shops, and periods of unemployment. At the end of August
2007, he was dispatched by his union hall to Canron Construction, where he
worked as a yardman. This outside job involved less lifting that inside work,
and he had more opportunity to be mobile, which was better for his back. His
back was good over this time period. That job lasted until October 21, 2007.
[50]
He was then employed at Richmond Steel Recycling, from early April until
late June 2008. This work entailed operating a crane and a forklift. He found
that the bouncing motion on the forklift would get to him after a couple of days;
however, he missed no time from work. Mr. Shinkaruk was not happy with the
demands that job placed on him he worked six days a week and his pay rate
was less than what he had made at his previous jobs, and so he quit that
position.
[51]
In mid-July 2008, he started working as a fabricator with Empire Iron
Works, doing work similar to what he had done at Knelson. He was laid off in
July 2009 due to a lack of work.
[52]
He had a brief stint with an HVAC installation company for a few weeks. In
May 2010 he began working with Wellons Canada, starting as a panel builder, but
quickly being promoted to a machine operator. He is still employed there. His
wage rate is lower than what he earned at Knelson.
[53]
Mr. Shinkaruk still gets low back pain as often as once or twice a
week. He finds that his low back becomes painful if he has had to stand in one
place for a long period of time, such as when doing a long cut. He controls his
symptoms by attempting to adjust the position of his legs, propping one foot up
on a beam placed on the floor at his work station, and with over-the-counter
anti-inflammatories. He does have periods of up to weeks at a time when he is
pain-free.
[54]
As will be discussed, Mr. Shinkaruk has seen a rehabilitation
specialist, Dr. Travlos. Dr. Travlos has recommended that he
strengthen his back with a regular exercise routine. However, Mr. Shinkaruk
does not participate in such exercise activity. He does the stretching routines
that were given to him by the physiotherapist he saw in 2005. He also walks for
exercise. He is no longer nearly as physically active as he used to be, has had
to curtail his boating activities, and no longer enjoys camping due to
difficulties sleeping on the ground. He has lost muscle mass and is not as strong
and fit as he once was.
[55]
Several friends of Mr. Shinkaruk testified. They have known him for
years, and gave evidence as to his enthusiasm, before the accident, for
boating, and off-road driving in four wheel drive vehicles. He is described by
his friends as having been a fun loving, extroverted, outgoing and adventurous
person. Due to his physical limitations he is no longer able to pursue these
activities, and his social contacts with his friends have diminished. He is no
longer the vigorous, active person he once was. He seems very conscious of the
risk of further injury to his back.
[56]
One of these witnesses, Mr. Morrow, has known Mr. Shinkaruk
for 35 years. Mr. Morrow did not recall Mr. Shinkaruks 2004 boating
incident, but he agreed, in cross-examination, with the suggestion that it was
at that point in time that Mr. Shinkaruk curtailed his boating activities.
He also agreed that, to his recollection, that it was following Mr. Shinkaruks
back complaints of February April 2005 that he cut back on his outdoor
activities boating, and four wheel drive off-roading.
[57]
Overall, I did not find that this testimony from his friends assisted Mr. Shinkaruk
in proving that his current physical limitations have been materially
contributed to by the accident.
[58]
As I noted above, Ms. Wahlwroth also testified as to the
circumstances of their breakup in December 2006. That was not their first
breakup; they had separated in the summer of 2005 for a month or two. After
that, the relationship had its ups and downs.
[59]
It was apparent from Ms. Wahlwroths description of their
interaction with each other, during the period in which Mr. Shinkaruk was
convalescing from the accident, that their disagreements were largely a
function of the two of them having very different visions of their roles and
responsibilities within their relationship. It may be that these differences
did not become manifest when the two of them had different working schedules.
But with Mr. Shinkaruk at home in the evenings, she testified that she
found it difficult to have him there without him making any contributions to
the housework, making meals, cleaning up dishes, and doing other tasks which
she felt he was physically capable of. She contrasted his lack of contribution
with efforts made by husbands of friends of hers, when the couples had dinner
together. Their differences were compounded by their poor communication skills,
and they became trapped in a cycle of angry arguments, sniping and a lack of
mutual respect. This climaxed during the December 2006 family vacation, when they
spent little time in each others company, and had heated arguments when they
did. She did not want her 13 year-old son exposed to that kind of behaviour,
and that was a key consideration in her asking Mr. Shinkaruk to leave. These
communication problems are issues which, she testified, they have both done a
lot of work on recently and now that they are seeing each other again, there is
a greater deal of emotional maturity being exhibited by both of them.
[60]
It appears from the evidence that the most that could be said is that
the motor vehicle accident contributed to the breakup in that it created a
living situation, with Mr. Shinkaruk at home convalescing, in which fundamental
and deep-seated issues between this couple became manifest. To the extent that Mr. Shinkaruk
may have suffered emotionally or psychologically due to their breakup in
December 2006, the defendants negligence is too remote to create liability.
Medical Reports
[61]
There are reports from three doctors in evidence.
[62]
Dr. Mitchell, the plaintiffs family physician, has provided two
reports. The first is dated October 22, 2007. Dr. Mitchell begins this
report by nothing that Mr. Shinkaruk has a history of intermittent low
back pain. He mentions the fact that Mr. Shinkaruk was off work in 1997
and 1999 because of his L4-5 disc prolapse. He does not mention the absence
from work caused by the back pain triggered by the boating incident in
May 2004.
[63]
Dr. Mitchell goes on to say that Mr. Shinkaruk last reported
significant back pain to his office in February 2005. Because Dr. Mitchell
was not following Dr. Shinkaruks work-related injury at that time, he
appears to be unaware that Mr. Shinkaruk was in fact off work up until
April 2005. He also does not mention possibly because he did not know that Mr. Shinkaruk
was off work from June until October 2005.
[64]
Dr. Mitchell expresses the opinion that the persistent symptoms
since the accident were 100% related to the injuries sustained in the accident.
Dr. Mitchells opinion of Mr. Shinkaruks prognosis at the time of
that report was pessimistic. He noted that Mr. Shinkaruk might need to
change his career, and might suffer permanent, partial or complete disability.
The report concluded:
He may require intermittent
medications and physical therapies. He is at risk of spontaneous return of his
symptoms. He is at risk of reinjury to the symptomatic areas. In the event of
reinjury he would likely experience more discomfort at require longer to heal
than an individual with no history of previous injury.
[65]
This report does not mention the essentially normal lower back findings
made during Dr. Mitchells examination for ICBC in May 2007, and does not
mention Dr. Mitchells assessment that Mr. Shinkaruk was 98% better
as of July 9, 2007.
[66]
Dr. Mitchells second report is dated November 14, 2010. He noted
that Mr. Shinkaruk was working normally, and was able to carry out his
normal activities of daily living and usual recreation activities. Mr. Shinkaruk
was much improved and was experiencing no significant limitations. His
prognosis for continued recovery was very good.
[67]
That second report then concludes with Dr. Mitchell substantially repeating
the final paragraph of his previous report, quoted above. Cross-examined on
this paragraph, Dr. Mitchell agreed that in fact, given his history, Mr. Shinkaruk
was always at risk of spontaneous return of symptoms and of re-injury to the
symptomatic area, regardless of the accident. Dr. Mitchell stated that the
motor vehicle accident could have slightly elevated the risk.
[68]
Asked to respond to Dr. Travloss assessment as described below
that the current symptoms of intermittent back pain are wholly attributable to
the existing condition, Dr. Mitchell stated that in his view it was hard
to know if the motor vehicle accident resulted in an increased risk of back
pain. He said:
He did have a long history of
back pain prior to [the accident], and I dont know if his baseline was …
whether the injury resulted in an increased risk of ongoing pain and injury, or
not. It certainly could. But, I dont know whether it does or not.
[69]
Mr. Shinkaruk was assessed by Dr. McGraw, an orthopedic
surgeon, at the request of his legal counsel. His report of that assessment is
dated September 4, 2008. He states his opinion that Mr. Shinkaruks level
of impairment and disability at that point was causally related to the motor
vehicle accident of August 31, 2006. He states that it is possible that Mr. Shinkaruk
might have had a recurrence of low back pain but for the accident, but that it
was by no means probable.
[70]
In cross-examination, Dr. McGraw conceded that Mr. Shinkaruk
did not advise him of his 2005 back injury. He also said that Mr. Shinkaruk
only advised him only that he was unable to ride in small boats due to the
pounding since the accident; Mr. Shinkaruk did not disclose the 2004
boating incident.
[71]
Dr. McGraw was generally aware that Mr. Shinkaruk had
permanent degenerative disc disease in his lower back, and that he had
experienced significant symptomatic degenerative disc problems in 1999. In cross-examination,
he admitted that just knowing those facts, one could expect that Mr. Shinkaruk
would become symptomatic from time to time. He admitted that in a person with
these pre-existing traits, back pain can come on without any apparent
triggering event, or can happen because of something as minor as stepping out
of a car, or picking up a bag of frozen groceries.
[72]
Dr. McGraw wrote a follow-up report dated July 13, 2011, based
solely on a review of further reports and studies from Dr. Mitchells
file. Dr. McGraw agreed that Mr. Shinkaruk had made an excellent
recovery. On cross-examination, he said that there was, by this point, much
more improvement than he had anticipated when he had examined Mr. Shinkaruk
in 2008.
[73]
Given the lack of full disclosure of Mr. Shinkaruks pre-accident
history, I give relatively little weight to Dr. McGraws conclusions as to
causation, i.e. the relative degree of contribution, if any, of the injury
suffered in the accident, to his post-accident, current and future back issues.
[74]
Finally, as noted, Dr. Travlos, a physiatrist, examined Mr. Shinkaruk
at the request of counsel, in February 2010. In his report, Dr. Travlos
states:
Mr. Shinkaruk has no
significant ongoing symptoms other than occasional low back pain. These low
back pain symptoms are likely baseline for him and consistent with that
expected, given his past history of back complaints. These current symptoms are
therefore primarily related to his underlying back condition as opposed to
injuries from the accident. It was expected that with time, he would have
developed some intermittent low back symptoms as he has now when standing or
with excessive physical activities. It was expected that these symptoms would
have been short-lasting, just as they are now for a few hours or even a day or
two at a time at most.
[75]
Dr. Travlos continues:
Mr. Shinkaruk has, to all intents and purposes,
recovered from the injuries that he sustained in the accident of August 31,
2006. His residual symptoms are those expected for his underlying condition.
Mr. Shinkaruk remains at risk for injury to his back
with increased symptoms related to activities. He therefore does have some
restrictions in terms of making sure he does not do anything that could
potentially aggravate his back. This is the reason why I recommend that he
partake in a regular exercise program to reduce these restrictions and improve
his activities…
…
Mr. Shinkaruk is able to
continue working and should be able to continue working into the future. He
will have to be a little cautious with activities in order to avoid causing
himself harm and injury, but by and large he should be able to continue
working. He is at increased risk of injury and time out from the workplace,
primarily due to his pre-accident problems but at least to some extent
contributed to by additional injuries from the accident, given the problems
that he has had since the accident. Any additional time off work from this
point on would be primarily related to new events and his past history prior to
the accident.
[76]
Dr. Travlos also expresses the opinion but for the accident, it was
possible that Mr. Shinkaruk would have gone on to develop the spontaneous
onset of back and leg symptoms at some point in the future, and probable that
he would have had occasional low back symptoms from certain types of
activities. However, he states that the symptoms would not have been to the
extent or duration of the symptoms he had after the accident.
[77]
Dr. Travlos does not examine in detail the question of whether the
symptoms experienced by Mr. Shinkaruk following the April 2007 and June
2007 incidents were materially contributed to by the motor vehicle accident. In
fact, it does not appear from the detailed record of the history provided Dr. Travlos
by Mr. Shinkaruk, that those two incidents were described in any detail; Mr. Shinkaruk
simply described his attempt to return to work, in November 2006, and that he
recalled being off and on work for a period of time until he finally returned
in July 2007, following which he was laid off. Not having been given a complete
history, Dr. Travlos appears not to have considered the question of
whether the two incidents were themselves discrete, independent causes of the
back pain and associated absences from work, or whether they were materially
contributed to by the accident.
Discussion
[78]
The test for causation in this case is as discussed by the Supreme Court
of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th)
235, [1997] 1 W.W.R. 97. The defendant will be liable if the plaintiff has
established on a balance of probabilities that the motor vehicle accident
materially contributed to the proven losses.
[79]
It is not contested by the defence that Mr. Shinkaruk is entitled
for compensation that reflects his pain and discomfort, and income lost, secondary
to his mid-and low-back pain, for the period up to the end of January 2007; a
total period of approximately five months. The defence, however, says that beyond
that, the plaintiff has failed to discharge his burden of proving the accident
accelerated the appearance of intermittent low back pain. Though the evidence
of Dr. Travlos, who did not examine the plaintiff until February 2010, is
that from that point in time the pre-existing condition had become the
predominant explanation for the plaintiffs symptoms, the defence says that
this must also have been the case from an earlier in point in time, as early as
the spring of 2007, when Dr. Mitchells objective examination of the
plaintiff revealed essentially normal findings. To find otherwise, the defence
argues – to find that the accident was a material cause of the continuing
intermittent low back pain, or the incidents of April and June 2007 – could
only result from applying the logical fallacy of post hoc ergo propter hoc.
[80]
This mode of reasoning was commented on by Ehrcke J. in White v.
Stonestreet, 2006 BCSC 801:
[74] The inference from a temporal sequence to a causal
connection, however, is not always reliable. In fact, this form of reasoning so
often results in false conclusions that logicians have given it a Latin name. It
is sometimes referred to as the fallacy of post hoc ergo propter hoc: after
this therefore because of this.
[75] In searching for causes, a
temporal connection is sometimes the only thing to go on. But if a mere temporal
connection is going to form the basis for a conclusion about the cause of an
event, then it is important to examine that temporal connection carefully. Just
how close are the events in time? Were there other events happening around the
same time, or even closer in time, that would provide an alternate, and more
accurate, explanation of the true cause?
[81]
If Dr. Mitchells opinion is discounted due to his lack of
understanding of the full extent of Mr. Shinkaruks pre-accident back
pain, as I think it must be, then, given Mr. Shinkaruks history, it can
be fairly argued that there is nothing to connect the April 2007 and June 2007
incidents with the August 2006 accident. It is certainly possible that Mr. Shinkaruks
physical exertions which immediately preceded the onset of back pain, during
those incidents, provide a sufficient causal explanation in themselves.
However, these do seem from the limited testimony I heard to have been common,
everyday activities. The evidence did not establish, for example, that the
bending and lifting Mr. Shinkaruk was undertaking at the supermarket, in
June, was a type of manoeuvre he had habitually avoided. The lack of further
incidents of significant back pain, during the summer of 2007 or subsequently,
leads me to conclude that those two incidents probably occurred in part because
Mr. Shinkaruks back was still healing from the effects of the subject
motor vehicle accident, rendering him more susceptible to injury from
overexerting himself in the course of everyday events. I find that the accident
materially contributed to the discomfort he suffered because of those
incidents, that the discomfort is compensable as a component of his
non-pecuniary damages, and that the income loss for those two periods of time
is also recoverable against the defendant.
[82]
Further, in addition to the period in which he was effectively totally
disabled from his physical job, of approximately five months duration, up to
his return to work in late January 2007, and, in addition to the two discrete episodes
of low back pain in the spring of 2007, I find that there was a continuing material
contribution made by the accident to his intermittent episodes of back pain, up
until the end of 2009, though the degree of contribution would have diminished
over time.
[83]
However, I cannot find, on the evidence, that Mr. Shinkaruks
dismissal from his employment in July 2007 was as a result of his absences from
work, as he contends. This is simply conjecture on Mr. Shinkaruks part. Mr. Ceron,
Mr. Shinkaruks supervisor at Knelson, testified that the procedure at
Knelson was of an escalating series of disciplinary measures in case of an
infraction of the companys rules: verbal warnings, written warnings,
suspension, and then finally termination as the last resort. Mr. Ceron
testified that this procedure was not followed in the case of Mr. Shinkaruk.
He could not think of another case where this had happened. He was not
consulted regarding Mr. Shinkaruks dismissal, as he ought to have been
given his role as supervisor, and again this was unique. Although this evidence
does give weight to the claim that his dismissal was improper or irregular, it
does not lead to one drawing a causal connection to the accident. Mr. Ceron
also testified that Mr. Shinkaruk was a skilled and valued employee, whom
he looked to as his right hand man. He could not remember Mr. Shinkaruks
absences from work in the spring of 2007 and did not remember that Mr. Shinkaruks
absences caused any disruption to his shift. Mr. Shinkaruk was not paid during
his absence in June 2007. Given these facts, I cannot find that the employer
would have been motivated to dismiss Mr. Shinkaruk simply because of his
absences.
[84]
The testimony of Mr. Ceron did support Mr. Shinkaruks
evidence that there were in fact no issues with the quality of his work. This gives
credence to the contention that there was no basis for the employer using
quality or performance issues as a justification for terminating his employment.
That does not, however, lead to the conclusion that his absence from work was
the real explanation. The conflict with his superior with which Mr. Shinkaruk
testified to may possibly have been, in the mind of his employers, reason
enough to want him gone from the workplace, with performance issues simply
being alleged to give weight to what may have been a weak legal case for
termination.
[85]
I therefore do not find the defendant responsible for Mr. Shinkaruks
income losses from July 2007. Without the employer representatives responsible
for the decision having given evidence, I cannot draw that conclusion on the
balance of probabilities.
[86]
With regard to Mr. Shinkaruks future, on the basis of the evidence
of Dr. Mitchell and Dr. Travlos I find no entitlement to a loss of
future earning capacity. As noted by Dr. Mitchell, Mr. Shinkaruk
faces some increased risk of future injury; but that is on account of his
pre-existing degenerative disc disease. His current baseline, in the words of Dr. Travlos,
is consistent with that expected given his past history of back complaints.
Physiologically, at a microscopic level, it is certainly possible that the
trauma of the motor vehicle accident could continue to play some incidental role
in any future symptoms. But the plaintiff has not established the probability
of his motor vehicle injury continuing to play a material role, sufficient to
justify an award of damages.
[87]
With respect to the award of non-pecuniary damages, the cases cited by
the plaintiff, which are in the range of $50,000 – $105,000, largely deal with
situations in which the subject accident was found still to be a materially
contributing cause at the time of trial. Although they serve only as rough
comparators, I have been given greater assistance in determining the
appropriate range by the cases cited by the defence, including Lee v. Jarvie,
2010 BCSC 1852; Dial v. Grewal, 759; and Iwanik v. Hayes, 2011 BCSC
812. I assess the plaintiffs non-pecuniary damages at $45,000.
[88]
With respect to the past income loss, I calculate the total time at work
missed by Mr. Shinkaruk in 2006 due to his injuries at 563.75 hours. This
does not include the family vacation taken in December 2006, which I find would
have been taken by him in any event. His wage rate at that time, including an
afternoon shift differential, 4% vacation pay, and 3% employer RRSP
contributions, totalled $29.69. I assess his total income loss in 2006 at a
gross amount of $16,737.74.
[89]
Mr. Shinkaruk lost a further 160 hours in the month of January 2007;
and a further 106 hours in April and June 2007. By April, his wage rate had
increased to a total of $30.55. I assess his total income loss in 2007 at a gross
amount of $7,988.70.
[90]
A table showing the taxes and employment insurance contributions for
B.C. residents, prepared by the economist Mr. Robert Carson, is in
evidence. For the sake of expedience, the defence is agreeable to a 17%
deduction of the gross income figures being applied across the board, so as to
arrive at the net income loss recoverable pursuant to s.98 of the Insurance
(Vehicle) Act, R.S.B.C. 1996, c.231. I therefore award Mr. Shinkaruk,
past income losses totalling $20,522.95.
[91]
Special damages have been agreed at $1,036.01.
[92]
In summary, the damages have been assessed under the following heads:
Non-Pecuniary Damages: $45,000.00
Net Past Income Loss: $20,522.95
Special Damages: $
1,036.01
Total: $66,558.96
[93]
Applying a 20% deduction on account of Mr. Shinkaruks contributory
negligence, I award him the total sum of $53,247.17.
[94]
Mr. Shinkaruk will be entitled, in addition, to court order
interest.
[95]
Mr. Shinkaruk will also be entitled to 80% of his costs, at Scale
B.
[96]
If the parties wish to make submissions as to costs because of factors
not within my knowledge, arrangements may be made to appear before me, through
New Westminster Trial Scheduling.
A. Saunders J.