IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Cumpstone v. Johnson, |
| 2012 BCSC 386 |
Date: 20120316
Docket: M60979
Registry:
Nanaimo
Between:
Geoffrey Graeme
Cumpstone
Plaintiff
And
Wesley Johnson
Defendant
Before:
The Honourable Mr. Justice Truscott
Reasons for Judgment
Counsel for the Plaintiff: | G.R. Phillips |
Counsel for the Defendant: | G.G. Ridgway |
Place and Date of Trial: | Nanaimo, B.C. March 5, 6, and 7, |
Place and Date of Judgment: | Nanaimo, B.C. March 16, 2012 |
[1]
Mr. Cumpstone was involved in a motor vehicle accident on December
17, 2008 on Highway 19, known as the Inner Island Highway, on Vancouver Island,
British Columbia.
[2]
The accident occurred around 7:00 a.m. that day when he was returning
from work for the RCMP detachment in Courtenay/Comox after completing a shift
as a dispatcher.
[3]
He was heading south on Highway 19, by himself, towards his home in
Nanaimo, British Columbia. It was still dark out at the time.
[4]
His evidence is that he was travelling south in the slow lane of two
lanes proceeding south because it had snowed previously at sometime and the
plow had pushed snow off the slow lane into the fast lane.
[5]
He says he was going slower than normal because of the snow, about 70
kms per hour.
[6]
As he was crossing over the bridge deck known as the French Creek
Bridge, apparently without any difficulty, at some point he saw the defendants
truck straddling the two lanes southbound, perpendicular to the lanes, with its
back end blocking the slow lane and its front-end blocking part of the fast
lane and facing east. He says the vehicle did not show any lights at all.
[7]
His evidence is that the truck was right there in front of him and he
only had a split second or so to decide what to do. He had no time to stop.
[8]
Nevertheless, he says he is sure he put on his brakes and also geared
down and he says he had to decide to go around the front of the truck into the
fast lane or go into the ditch on the west side of the highway.
[9]
He decided to go into the fast lane. He says he obviously concluded that
he could do that successfully because that is what he attempted to do.
Unfortunately his vehicle struck the truck. His vehicle was so damaged that it
was written off as not worth repairing.
[10]
It is over three years now to trial since the motor vehicle accident and
Mr. Cumpstone had natural difficulty giving estimates to such matters as
the space between his vehicle and the truck when he first saw the truck, and
the time it took his vehicle to travel that distance before impact.
[11]
His evidence comes down to simply saying that there was not enough
distance and time to do other than what he tried to do by going around the
front of the truck.
[12]
Following the collision he remained in his vehicle until the ambulance
attendants pulled him out and put him on a stretcher. He was then taken to the
Nanaimo hospital.
[13]
Immediately after the collision he felt pain in his knees, pain in his
chest, and in his neck, and back pain principally in his lower back extending
from his spine into the left side of his body.
[14]
He remained in the emergency room of the hospital until 1:00 p.m. that
day when he was discharged and his wife took him home.
[15]
He was off work as an RCMP dispatcher for a couple of weeks with severe
soreness and on medications for pain and muscle relaxants. He could not lie on
his bed but spent his rest time in an easy chair.
[16]
The significant pain was to his back, but he still had some pain in his
chest and neck areas.
[17]
He says he probably lost another week of work in addition, taking a day
off here and there for his pain, and he says he used up all his vacation time
to cover his lost work time. He says his knee pain lasted for only one or two
days while his chest pain, probably caused by the airbag deployment, lasted one
or two weeks.
[18]
His neck pain continued but at some point became periodic and completely
dependent upon his movements and activities.
[19]
Presently he says it might flare up only once every couple of months, if
that, and when it does, lasts only a couple of hours. He takes pain mediation
when it is severe enough.
[20]
His most significant pain remains to his back area.
[21]
His family doctor was Dr. Janssen. He attended Dr. Janssens
clinic for the first time on December 22, 2008, where he saw another doctor.
Thereafter he saw Dr. Janssen for the complaints from this accident on
January 5, 2009 (or January 29, 2009 as it is uncertain from the notes),
February 13, 2009, and finally on June 30, 2009.
[22]
There is no record of seeing Dr. Janssen again after June 30, 2009
for injuries in this accident and Dr. Janssen is not able to give any
different evidence himself at trial.
[23]
Dr. Janssens records indicate that there was no neurological
impairment and mostly a stiff lower back around the muscles of his lower spine.
Dr. Janssen prescribed painkillers and muscles relaxants.
[24]
Mr. Cumpstone complained to Dr. Janssen of lower back pain and
stiffness which was hurting him particularly when he was at work where he sat
all day doing dispatching work for the RCMP in Courtenay.
[25]
This is the same evidence Mr. Cumpstone gave at trial. He took two
sessions of massage therapy which he says gave him no benefit and took six
sessions of physiotherapy which he says afforded him only short term relief
from his back pain in between sessions. These physiotherapy sessions all took
place between July 14, 2009 and July 31, 2009.
[26]
Mr. Cumpstone was put on a home exercise program which he still
follows to this day with some modifications.
[27]
Presently, he says his low back pain is constant, in the nature of a
dull pain that extends to his left side. Periodically he says it extends up to
his left shoulder blade depending on his activities.
[28]
His back pain will flare up if he sits too long in one position so he
constantly has to change positions. Even when he is sleeping the pain can wake
him up and he has to change positions.
[29]
He says he used to engage in a lot of activities such as walking,
camping with his children, swimming, skating, hiking, and gardening.
[30]
He still does some walking and swimming and yoga and pilates, but he has
to guard his back at all times. He does not play in the pool any longer with
his children, go skating, or camping, because he cannot sleep in the motor
home. He also says he has given up a lot gardening.
[31]
He and his family moved to Australia on January 17, 2012 where his wife
had secured a job. He is presently looking for work there as a police
dispatcher or in another office position.
[32]
He says before the accident he wanted to become an RCMP officer at some
point, although he no longer thinks he can handle the physical aspects of that
job. He agrees however, that he never applied for such a position prior to the
accident.
[33]
Before he moved to Australia and after the accident he says it became
impossible for him to keep up the big garden they had and the general yard work
on their one-half acre property.
[34]
He also says he could not do the housework as quickly as he had done before.
Because he was on shift work and was off four days in a row, he did a lot of
housework for the family.
[35]
He says that instead of taking a couple of hours to do the housework it
was taking him a full day. He finds it extremely frustrating to have to be so
careful of what he does now, in order to guard his back, and he says his
relationship with his wife has changed. He is no longer as energetic as he once
was and he has put on weight.
[36]
He did not see any doctor following his last visit with Dr. Janssen
on June 30, 2009 until he was referred to Dr. MacKean, a physiatrist, or
physical medicine and rehabilitation specialist, who he saw at the request of
his lawyer on November 23, 2011.
[37]
On physical examination, Dr. MacKean found no specific postural
abnormalities in the lower thoracic or lumbar spine region. Mr. Cumpstone
did demonstrate decreased range of movement of the lumbar spine in all
directions and he complained of increased low back pain with flexion, extension
and side flexion of the lumbar spine. He also complained of pain over both
sacroiliac joint regions.
[38]
There were no complaints of neck pain, upper or mid thoracic spine pain
or shoulder blade pain. Dr. MacKeans impression was of mechanical spine
pain involving the mid to lower lumbar spine and sacroiliac joint secondary to
musculoligamentous injuries.
[39]
Her opinion is that almost three years post-accident now, Mr. Cumpstone
will probably have persistent pain systems involving the lower back and
sacroiliac joint region.
[40]
It is suggested by Dr. MacKean that Mr. Cumpstone could
consider trying treatment with acupuncture or injections into the lumbar spine
or sacroiliac joint regions for his lower back pain and his family doctor could
refer him to a pain clinic.
[41]
However, Dr. MacKean says she does not expect these treatment
recommendations to provide a cure for his condition but says it may provide him
with some further management of his lower back pain systems.
[42]
She anticipates that Mr. Cumpstone can continue to work as an RCMP
dispatcher with no significant limitations as long as he can get up and move
around as needed, but he will have difficulty with activities which require
repetitive bending and lifting which will likely cause an increase in his lower
back pain.
[43]
Dr. MacKeans report of November 23, 2011 with all this information
was tendered in evidence without the defence requiring her for cross-examination,
so her opinions stand un-challenged.
[44]
The defendant, Mr. Johnson, says he was travelling southbound on
Highway 19 in the slow lane coming from Port Alberni and heading towards
Departure Bay to take the ferry to Vancouver.
[45]
He was driving a 2006 Dodge quad cab 4×4 pick-up truck. He had left Port
Alberni at approximately 5:30 a.m., and at the time of this accident it was
still dark out. The slow lane was bare according to his evidence while the fast
lane was compacted snow, although no snow was falling at the time.
[46]
There was no artificial lighting in the area of the French Creek Bridge.
[47]
As he approached the French Creek Bridge deck a bigger pick-up passed
him going south in the fast lane and started fishtailing. He says he either
touched his brakes at that time or turned his steering wheel and he lost
control of his own vehicle.
[48]
He knew the bridge deck would be icy as he was familiar with it from
previous travel and he slowed down to 80 to 85 kms per hour. His own truck
fishtailed south on the bridge deck until it hit the concrete barrier on the
bridge near the end of the bridge on the west side. He said his vehicle came to
rest against the barrier facing west and perpendicular to the south lanes with
his back end facing east.
[49]
He says he could not start his vehicle again and he got out of his truck
to walk south to get away from it. He does not think his headlights were on,
nor his hazard lights.
[50]
As he was moving away from the truck he saw a van coming south through
the fast lane out of control and ending up in the ditch after the bridge on the
west side of the highway.
[51]
As he was standing south of his truck he also saw the plaintiffs vehicle
come up the slow lane towards his truck and he says it simply ran into the
truck in the slow lane without slowing down. The plaintiffs vehicle then spun
off his truck and ended up in the fast lane facing north. The plaintiffs
vehicle hit his truck on the passenger side at the back of the box of the
truck.
[52]
He says it was 10 to 15 minutes after he hit the concrete barrier before
the plaintiffs vehicle came along and hit his truck.
[53]
At some point before the plaintiffs vehicle came along he says another
vehicle had stopped and asked him to move his vehicle.
[54]
He did not ask that vehicle to shine its lights northward to warn
southbound approaching traffic.
[55]
He also saw a witness that turned out to be Mr. Logan, approach and
stop his vehicle on the west shoulder of the road south of his own vehicle. He
did not approach Mr. Logan to ask him to shine his headlights either.
[56]
He sort of recalls a school bus stopped on the west side of the highway
prior to the plaintiffs vehicle coming along, but he also did not approach
that vehicle for assistance with its headlights or flashers.
[57]
Mr. Logan was also driving south that morning from Comox heading
towards Duncan for work. He says he approached the French Creek Bridge about
6:30 a.m., when it was fairly dark out. He believes both southbound lanes were
clear of snow but the road conditions were slippery and he was going roughly 90
kms per hour. He says he slowed to 70-80 kms per hour as he approached the
bridge because he knew it would be slippery. On the bridge deck he slowed down
more as he saw an obstruction on the highway on the far end of the bridge and
on the far side of that obstruction he saw flashing lights.
[58]
He says he slowed down further and pulled into the fast lane and drove
around the obstruction and parked 50 to 75 meters on the south side of it.
[59]
After parking, he went back and saw there was another vehicle rendering
assistance to people in a van in the ditch.
[60]
He says the front of the truck creating the obstruction was facing west,
not east.
[61]
He says the truck did have its headlights on as well as its four way
flashers, but they were all facing east/west and not north/south.
[62]
The next vehicle that came along was the plaintiffs. He also says the
plaintiff continued in the slow lane and drove right into the side of the
defendants truck.
[63]
He says he was standing beside the truck at the time and it did not
appear to him that the plaintiffs vehicle slowed down at all. He estimates its
speed at about 90 kms per hour.
Submissions on Liability
[64]
Plaintiffs counsel submits that the defendant should be found 100%
responsible for traveling too fast and losing control and for his failure to
notify oncoming traffic, including the plaintiffs vehicle, of the serious and
dangerous hazard on the roadway created by his vehicle.
[65]
It is submitted that his failure to ask other motorists for assistance,
such as the driver of the vehicle assisting the van, or Mr. Logan, or the
driver of the school bus, to assist, by shining their lights in a northward
direction to alert oncoming southbound vehicles of the hazard, including the
plaintiffs vehicle, constitutes negligence.
[66]
Plaintiffs counsel relies upon two decisions in this Court: Foan v.
Shadforth, 1993 CanLll 1540 and McMillan v. Siemens, [1994] B.C.J.
2546.
[67]
Foan was a summary judgment decision on affidavits. The accident
had happened on the Knight Street Bridge. Ms. Diniz lost control of her
vehicle because of black ice and her vehicle came to rest on the divider
separating the southbound lanes from the northbound lanes. She turned on her
four way flashers but then left the scene to summon help, returning one-half to
one hour later.
[68]
It was dark and rainy that night and it was difficult to see. It was
found that the hazard lights were of little use because the car was sitting at
right angles to oncoming traffic.
[69]
The plaintiffs vehicle came onto the bridge and saw the Diniz vehicle in
sufficient time to stop or go around it. However, a transport truck following
behind the plaintiffs vehicle was speeding and following too closely and about
to hit its rear, so the plaintiff attempted to change lanes to avoid it, but
was still rear ended.
[70]
It appears the Diniz vehicle, which was in a position akin to the
defendants vehicle here, was not struck at all.
[71]
Nevertheless, Diniz was found 10% at fault for failing to turn on her
headlights and interior lights which might have alerted approaching motorists
and failing to request a passing motorist to stop in front of her vehicle and
put its four way flashers on.
[72]
In McMillan, the plaintiffs vehicle struck the rear end of a
logging truck that was parked substantially off the road but intruding slightly
onto the road.
[73]
It was also dark out at the time, slightly foggy with blowing snow.
[74]
The logging truck was not properly marked and visibility was poor and
its running lights and hazard lights were not activated. It constituted a
hazard on the highway.
[75]
The driver was found to be negligent in not turning on the hazard lights
of the truck and trailer and was assigned 75% liability.
[76]
The plaintiff was found contributorily negligent to the extent of 25%
for not taking reasonable care for his own safety when he saw something on the
road ahead of him and did not react in time.
[77]
In the case before me it is submitted that the plaintiff did all that he
could in attempting to take evasive action once he saw the defendants vehicle
right in front of him. He said he could not stop even though he was able to
gear down and his choices were to move into the fast lane, or go into the ditch
on the west side.
[78]
The plaintiff says that he tried to go into the fast lane to get around
the defendants truck, and expected to be successful, but he came into
collision with the truck.
[79]
The plaintiffs evidence is that the defendants truck was off the
bridge deck to the south where the ditch was not protected by the concrete
barriers of the deck.
[80]
Defence counsel on the other hand submits it is the plaintiff who was
solely at fault in not going around the defendants truck when other vehicles
had been successful in doing so, such as the van and Mr. Logans vehicle.
[81]
The defendants evidence is that his truck was still on the bridge deck
pushed against the concrete barrier and was not beyond the bridge deck.
[82]
Mr. Johnson and Mr. Logan both say that the plaintiff took no
evasive action but simply drove into the defendants truck in the slow lane.
[83]
Mr. Johnson says his truck had died and could not be started so
there was no possibility of him turning on his headlights and four way
flashers.
[84]
He says he could not go back to his truck after having left it to go
south, because he was chased further south by the fishtailing van and he
considered it too dangerous for him to go back to his truck.
[85]
Defence counsel relies on the Court of Appeal decision in Goett v.
Febi 1998 C.A. 023048, Vancouver, where the court reversed the degree of
liability found by the trial judge of 70% to the vehicle creating a hazard on
the highway and 30% to the oncoming plaintiffs vehicle, on the basis that the
plaintiffs vehicle was driving too fast at a speed which was imprudent in the
circumstances and should be assigned 70%, with the vehicle creating the hazard
on the highway assigned the other 30%.
Analysis of Liability
[86]
The plaintiff says he only saw the defendants vehicle when it was too
late to stop and he tried to go around it into the fast lane after breaking and
gearing down, but was unsuccessful.
[87]
The defendant and the independent witness, Mr. Logan, both say that
the plaintiffs vehicle proceeded along the slow lane to the point of collision
with the defendants vehicle, without slowing down or deviating, when other
motorists had seen it and were able to go around it.
[88]
The evidence is that two or three other vehicles passed the defendants
stationary truck before the plaintiffs vehicle struck it. The van successfully
passed by, although out of control, but another vehicle had passed by and had stopped
to give assistance to the occupants of the van, and Mr. Logans vehicle
successfully passed by as well without incident.
[89]
The defendants vehicle did create a hazard on the highway and was a
possible source of negligence for the defendant in not slowing down to a speed
before the bridge deck to negotiate the deck in safety, and failing to obtain
assistance to put up warning lights for oncoming vehicles, except for the fact
that I accept the evidence of the defendant and the independent witness Mr. Logan
that the plaintiff made no attempt to avoid the collision, contrary to his own
evidence that he saw the truck in time to brake, even gear down, and then
attempt evasive action.
[90]
Instead he simply carried on in the slow lane for some reason to the
collision point without slowing down.
[91]
I find the plaintiff 100% liable for the accident and dismiss his claim.
[92]
I will go on, however, to assess his damages, in case my analysis of
liability is faulty.
[93]
Plaintiffs counsel sites the case of Boyle v. Prentice, 2010
BCSC 1212 on the issue of non-pecuniary damages. He seeks an award for Mr. Cumpstone
of $65,000.
[94]
In Boyle, the plaintiff was 31 years of age. His vehicle was
rear-ended and she sustained soft tissue injuries to her neck and lower back.
The neck injuries resolved in five days but the lower back pain continued on a
constant basis on the right side low back area.
[95]
She attended physiotherapy, massage therapy, and used Ibuprofen.
[96]
At the time of trial she was experiencing pain in the low back of about
two out of ten in intensity with occasional flare-ups to six or seven out of
ten with certain activities, notably twisting and bending.
[97]
The plaintiff had been extremely dedicated to an exercise program to
alleviate her pain, but the court concluded she had persistent ongoing low back
pain and had to restrict her physical activities and interaction with her
children.
[98]
Non-pecuniary damages were assessed in the amount of $65,000.
[99]
Defence counsel submits that the plaintiffs low back pain should be
considered as having resolved by the end of July 2009, approximately seven
months after the accident, on the basis that his complaints were all subjective
and he ceased seeing his family doctor, Dr. Janssen at the end of June
2009 and finished his physiotherapy treatments by the end of July 2009.
[100] It is
submitted that with no evidence that he sought any further medical treatment
thereafter for his back, the inference should be drawn that he did not have any
back or neck pains after that point in time.
[101] Defence
counsel submits that the plaintiffs non-pecuniary damages should command an
award of only $5,000 – $10,000.
[102] It may be
that most or all of the plaintiffs back complaints are subjective in nature
but neither Dr. Janssen, his family doctor, nor Dr. MacKean, the
physiatrist, have suggested that the plaintiff is not to be believed.
[103] Neither doctor
was cross-examined on this theory of the defence that the plaintiff is
malingering or exaggerating. Neither was that suggested to the plaintiff
himself in cross-examination.
[104] Accordingly,
the court is denied the opportunity to hear what answers they might have given to
this suggestion.
[105] I observed
the plaintiff give his evidence on video from Australia. I believe him when he
says he has constant dull low back pain which affects his activities and for
which he is on constant guard against aggravating. I conclude his low back pain
is caused by the motor vehicle accident.
[106] I echo the
comments of Smith J. in Edmondson v. Payer, 2011 BCSC 118, that a
plaintiff whose condition neither deteriorates nor improves is not obliged to
constantly bother busy doctors with reports that nothing has changed,
particularly if the plaintiff has no reason to expect the doctors will be able
to offer any new or different treatment.
[107] I find Boyle
to be very helpful on the issue of non-pecuniary damages. It has a lot of similarities
to the plaintiffs complaints here and to the effects on his activities. I assess
the plaintiffs non-pecuniary damages at $65,000.
[108] Past wage
loss is basically agreed on in the net amount of $531.73.
[109] I would
not allow anything for cost of future care because there is no evidence of any
need or cost for it.
[110] Special
damages are also agreed upon in the amount of $476.31.
[111]
If it were not for my finding that the claim is to be dismissed on the
issue of liability, the total award to the plaintiff would have been in the
amount of $66,008.04.
The
Honourable Mr. Justice Truscott