IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120402

Docket: M119014

Registry:
New Westminster

Between:

Antonino Delgiglio

Plaintiff

And

Melissa
R. Becker and Minister of Public Safety and
Solicitor General of British Columbia

Defendants

Before:
The Honourable Madam Justice Gropper

Reasons for Judgment

Introduction

[1]            
On January 6, 2009, Mr. Del Giglio was on his way home from work at
approximately 1:30 a.m. He was driving his 2002 Chevy Silverado truck north on
Clarke Road toward the intersection at Smith Street in Coquitlam, British
Columbia. He had a green light.

[2]            
Constable Melissa Becker was driving her RCMP police cruiser travelling
west on Smith Street. Although she faced a red light, she went through the
intersection without stopping and hit the plaintiff’s vehicle. Liability is in
dispute.

[3]            
Mr. Del Giglio asserts that he suffered injuries because of the
accident and claims non-pecuniary damages, past loss of income, future loss of
earning capacity, costs of future care and special damages.

Liability

[4]            
Although Constable Becker went through a red light, she maintains that
the plaintiff has not proven that she is liable for the accident.

[5]            
Constable Becker says that she was on her way to a restaurant on her
lunch break during her shift at around 1:30 a.m. on January 6, 2009. She was
going with her partner, Constable Farwaha who was immediately behind her in his
police cruiser.

[6]            
Constable Becker says Clarke Road and Smith Street were both plowed. It
was not raining. The temperature was about zero. She had driven Clarke Road and
Smith Street earlier in the evening and had no difficulty driving. She drove
from the police station half a block east of the Clarke and Smith intersection
and as she turned onto Smith, she says she noticed that the light at the
intersection was red. She used her brakes to slow down and it was her intention
to come to a full stop. She says she put her foot on the brake but her cruiser
was not slowing down or stopping as she expected. She thought that she was
sliding although she was going straight. She says it did not feel like she was
on black ice.

[7]            
Constable Becker says she was travelling at a very low speed although
she was not keeping track. She took her foot off the gas and when she got to
the left‑hand turn lane before the intersection, she applied her brake.
She kept both feet on the brake pedal and pressed as hard as she could. She
says the cruiser seemed to slow down with gravity and she thought it would come
to a complete stop at the intersection. She estimates that she attempted to
stop her cruiser when it was about 150 feet before the intersection at Clarke
Road and slid for about 30 seconds. She saw Mr. Del Giglio’s truck either
coming into or in the intersection. After she saw the truck, she looked down at
her feet on the brake. She hoped that the brakes would start to work. She says
she was convinced that the cruiser would stop before the intersection.

[8]            
Constable Becker considered that her ABS brake system was not working.
She says that when she realized that she radioed her partner to say that she could
not stop. She saw Mr. Del Giglio’s truck northbound on Clark. She put on
her seatbelt and the emergency lights. She says that the cruiser did not stop. Her
cruiser stopped as she and the plaintiff’s vehicle collided. She did not recall
feeling a jerk.

[9]            
Constable Becker says that she did not think of steering to the right or
left to attempt to avoid the plaintiff’s vehicle. She did not try to shift
gears; she did not engage the emergency brake; she did not sound the siren or
honk the horn.

[10]        
Mr. Del Giglio says that he was driving north on Clarke Road. The
road was wet but not slippery; there was snow and slush at the side of the
road. He says he was driving under the speed limit. As he approached the
intersection, he had a green light. He says when he was in the intersection the
police cruiser went through the red light and “t-boned” his truck. It spun it
around until it was facing eastbound. He says that the cruiser ended up in the
oncoming lane of traffic (south of the intersection). Mr. Del Giglio says
that at the last second he swerved left when he realized the cruiser was going
to hit his vehicle. It was too late.

[11]        
Following the accident Constable Becker went to the plaintiff’s vehicle
to talk to him. She did not inspect the intersection. She walked back up the
left turn lane she had previously driven on Smith Street to another police
cruiser. She did not have any difficulty walking and did not observe any black
ice.

[12]        
The defence called evidence that the cruiser was serviced regularly. There
was no mechanical defect or malfunction of the brakes observed when the cruiser
was inspected after the accident.

Position of the Parties

[13]        
Mr. Del Giglio maintains that Constable Becker was negligent and
caused the accident. Even though she says that she was travelling at a very low
speed, her cruiser slid over 150 feet through a red light, into the
intersection where it collided with Mr. Del Giglio’s truck.

[14]        
Mr. Del Giglio says that Constable Becker did not do anything to
avoid the accident. She did not pump or release her brakes, steer out of the
slide, drive into the adjacent lane or to the curb, change gears, or make any
attempt to regain control of the vehicle. She did not sound the siren or the
horn.

[15]        
Mr. Del Giglio observes that Constable Becker did not say that she
had encountered black ice. She did not have any difficulty walking back up the
left-turn lane that her cruiser had travelled when she could not stop. If she
maintains that the road was slippery, her partner, Constable Farwaha, could
have corroborated her evidence but he was not called to give evidence. He
asserts that an adverse inference should be drawn from the defendants’ failure
to call Constable Farwaha.

[16]        
The defendants assert that Constable Becker was driving with reasonable
care and is not liable and negligent for any damage suffered by the plaintiff.
The defendants say that merely because a motor vehicle accident has occurred,
it does not necessarily follow that negligence is involved: Goodwin v.
Goodwin et al, 2006 BCSC 218 at para 30. Relying on Nason v. Nunes,
2008 BCCA 203 at para. 14, the defendants assert that because Constable
Becker has shown that she drove with reasonable care she cannot be found liable
for the accident, even if she is not able to explain how it happened.

[17]        
The defendants argue that the circumstances in the early morning hours
of January 6, 2009, were those of poor road and weather conditions. In that
context, they argue, Constable Becker took all reasonable precautions and did
not depart from a reasonable standard of care. The precautions that she took
included driving at a very low speed, applying the brakes and continuing to
step firmly on them so that the cruiser’s anti‑lock braking system would
effectively stop her vehicle, advising her partner that she could not stop, buckling
her seatbelt and activating the emergency lights. Constable Becker’s trust in
her anti-lock braking system was reasonable and it was reasonable for her to
believe that she would stop before she went into the intersection.

Discussion

[18]        
The defendants rely on a series of cases where the court declined to
find liability where the defendant demonstrated that his or her driving was
reasonable, but because of icy conditions, was unable to control the vehicle,
which slid out of control. The principle was discussed in Nason at para.
14:

Wherever the court finds on all the evidence that negligence
has not been proven, or that the defendant has shown he drove with reasonable
care, the defendant must succeed, whether or not he is able to
"explain" how the accident occurred. This is not to suggest that an
inference may not be drawn as a matter of fact in a particular case,
where a vehicle leaves the road or a driver loses control; but as the trial
judge states… such an inference will be "highly dependent on the
facts" of the case and the explanation required to rebut it will
"vary in accordance with the strength of the inference sought to be drawn
by the plaintiff.”

[emphasis in original]

[19]        
In Bhangal v. Sloan, 2010 BCCA 205, the court confirmed a jury
award which found no negligence on the defendant’s part, after hearing his
evidence about what he did where the road was icy and he could not stop. The
defendant in that case checked his brakes three times before he came to the
stop sign, did not drive over 20 kilometres an hour, kept pumping the brakes,
honked his horn, flashed his high and low beams, put his hazard lights on,
tried to steer into the ditch, tried to put the gear in reverse and applied his
emergency break.

[20]        
Constable Becker’s evidence did not confirm that the road conditions
were icy or slippery; she specifically said that she did not consider that she
was slipping on black ice and had no difficulty walking up the left-turn lane
which she had earlier driven in her police cruiser. Her faith in her braking
system was not sufficient to avoid a collision. Constable Becker did not take
any steps to avoid travelling through the intersection on a red light or colliding
with the plaintiff’s vehicle. She did not take any steps to warn the plaintiff
that she could not stop. Putting on her seatbelt and radioing her partner are
unhelpful in warning Mr. Del Giglio that she would be entering the
intersection on a red light. Putting on her emergency lights may have alerted Mr. Del
Giglio to her cruiser but would not warn him that she could not stop.

[21]        
Constable Becker says that her anti-lock braking system was not
effective in stopping the cruiser. I cannot accept that evidence in light of
the defendants’ other evidence from the detachment’s fleet mechanic, Gerald
Brown, that no mechanical defect or malfunction of the brakes was found when
the cruiser was examined after the accident. Constable Becker’s explanations of
the cause of her going through the red light are not based on the evidence, neither
her own or that of Mr. Brown.

[22]        
Constable Becker’s reaction, when she saw Mr. Del Giglio’s truck
entering or in the intersection, was not reasonable; she did nothing that would
avoid the collision. It is unnecessary to draw an adverse inference from the
defendant’s failure to call Constable Farwaha as a witness. The
defendants’ own evidence is sufficient to disprove Constable Becker’s
explanation of how the accident occurred.

[23]        
I have no hesitation in determining that Constable Becker was negligent
and the defendants are therefore liable for the motor vehicle accident.

[24]        
The defendants also assert that the plaintiff’s failure to stop his own
vehicle in the circumstances fell below the standard of a reasonable driver and
constitute negligence. Mr. Del Giglio says that he accelerated or perhaps
he braked; he did what he could to avoid Constable Becker’s cruiser when, seconds
before the impact, it appeared that she was not stopping at the red light. I
cannot conclude that the plaintiff was contributorily negligent in the
circumstances.

The Evidence

Before the accident

Health

[25]        
Mr. Del Giglio is presently 57 years of age. He has a checkered
medical history, complicated by seven motor vehicle accidents before that of
January 6, 2009.

[26]        
Mr. Del Giglio also has degenerative back conditions including
diffused idiopathic skeletal hyperostosis (DISH Syndrome) and degenerative disc
disease. He has lymphedema in his lower right leg, which requires him to wear a
leg brace, and a meniscus tear to his left knee. He is obese and de-conditioned.
He has severe sleep apnea which he manages with a sleep mask.

[27]        
On April 24, 1988, Mr. Del Giglio was rear-ended while he was
stopped at a red light in Maple Ridge. He suffered injuries to his back and
neck. As a result of this he had a lumbar fusion in 1991. Mr. Del Giglio
had an improvement in his level of pain after the surgery but was left with
persistent back symptomology.

[28]        
Mr. Del Giglio commenced an action in respect of the 1988 accident.
Judgment was rendered by Mr. Justice Boyle on June 10, 1993. The decision
is indexed as [1993] B.C.J. No. 1371. Damages for non pecuniary loss were
assessed at $70,000.

[29]        
The dates of the other motor vehicle accidents are July 30, 1997,
February 9, 1999, June 21, 2002, November 6, 2002, January 30, 2003 and May 26,
2008. Those accidents were minor rear-end collisions which resulted in a
temporary aggravation of neck and back pain. Mr. Del Giglio says that
after each he returned to his post 1988 pain baseline level.

[30]        
The May 2008 accident caused a strain to Mr. Del Giglio’s lumbar
spine and to his neck. When he saw his family physician, Dr. Brian Monk,
on November 25, 2008, he complained of some back pain after a day’s work, but
he was able to work full time. Dr. Monks treated Mr. Del Giglio for
the injuries sustained in the May 2008 accident. He felt that accident caused
low back strain and aggravation of a pre‑existing degenerative disc
disease. In his evidence, Dr. Monks says when he asked Mr. Del Giglio
what his state of recovery was from the May 2008 accident, Mr. Del Giglio
said that he was 90% recovered from this accident and back to work as a truck
driver when he was involved in a subsequent collision on January 6, 2009.

Work

[31]        
Mr. Del Giglio has worked steadily since he left high school. From
1972 to 1974 he worked with the BC Forest Service. In 1974 he began work as a
truck driver with CP Transportation doing bulk and heavy haul. From 1978 until
1988 he was steadily employed by Arrow Transport Ltd. By 1988 he was earning
approximately $70,000 per year.

[32]        
The 1988 accident prevented him from returning to his previous work as a
long haul truck driver. He could not lift as he had before or tolerate
prolonged periods of sitting. He was sensitive to rough rides in a poorly
suspended vehicle.

[33]        
Boyle J. assessed his past wage loss at $286,000, pension loss at
$46,400 and future wage loss at $421,940. He determined that Mr. Del
Giglio was not totally disabled from work and applied a 25% contingency. His
conclusion in regard to future wage loss is stated at paras. 151-152 and 156-158:

No one disputes the Plaintiff had a phenomenal work record.
He worked every hour he could get. He took virtually no time off. He was
censured for certain lack of professional care on a few occasions but I did not
conclude these were relevant to past or future wage loss. He was about
mid-way on the seniority list and member of a strong union. If he returned, he
would retain that seniority.

There are lighter, local, four-days-on/ four-days-off jobs at
the trucking firm (Gunn evidence). They are not as high paying as the Seattle
run and they are not free of loading and unloading but some delivery points
have hydraulic aids. It seemed to me the Plaintiff did not give a job of this
kind his best shot.

…

 Nevertheless, assessing past loss of income, some
deduction must be made to signal the conclusion that the Plaintiff has not come
to grips with the fact of long term persistence of symptomatology that will
have to be borne bravely. That is to say, he should have mitigated his losses
by pursuit of employment at a level of tolerable activity. He has not done that
in a practical way. He should have turned to his union for advice and help. I
was not convinced that local light truck driving was beyond his physical reach.
His evidence of contact with his former employer and of a gravel truck ride to
test his back, did not seem to me to cover all potential opportunities nor to
be more than perfunctory.

Had he diligently sought
retraining, it would be fair to say there should be no negative contingency but
he did not. The Plaintiff did not do well in school. I do not know why not. His
evidence sounded to be that of an intelligent, articulate person. His spacial
and mechanical reasoning ability was found by occupational consultant, William
R. Kelley, to be in the top one-third of men.

[34]        
Of the $65,000 per year that he had earned, Boyle J. determined that his
loss was $29,000 annually, calculated to age 65 for its present value. He applied
a 20% deduction for contingencies on the award for future loss of earnings.

[35]        
As he recovered from his injuries from the 1988 accident, Mr. Del
Giglio began playing guitar. In the spring of 1991 he joined a band or
performed as a freelance guitarist. In 1996 he began to play lead guitar with
the Ken McCoy Band The band plays locally and occasionally travels. They were
playing three to four nights a week in the late 90’s, but now the band plays
one to three nights a week,

[36]        
In October 2005, Mr. Del Giglio took a job at J.D.P. Holdings. The
work involved driving short haul and required no significant lifting or carrying.
The trucks operated by J.D.P. are relatively new and have better suspension
than the trucks he operated before 1988.

[37]        
Mr. Del Giglio worked a regular afternoon shift. His job provided
flexible hours and accommodated his music career. Mr. Del Giglio says that
he missed three months of work from J.D.P. Holdings as a result of his May 2008
accident. He returned to work full-time and to his full-time regular duties at
the beginning of September 2008 and was working on that basis when the January
2009 accident occurred.

The Accident

[38]        
The impact to Mr. Del Giglio’s vehicle in the accident was to the
passenger door and down the side of the vehicle to the rear tire. The cost of
repairs was over $8,200.

[39]        
Mr. Del Giglio says that shortly after the accident he began to
feel a burning sensation in his lower back, pain in his neck and a headache. Mr. Del
Giglio also injured his right elbow and right hand.

After the Accident

[40]        
Mr. Del Giglio went to see Dr. Monks on the day of the
accident. Dr. Monks observed that Mr. Del Giglio’s lower para-dorsal
muscles were very tender on palpation and he complained of significant pain
with weight rotation. Dr. Monks diagnosed a strain to his lumbar spine and
to his neck. He advised Tylenol and Advil for pain and inflammation and referred
Mr. Del Giglio to physiotherapy.

[41]        
The hand pain lasted two weeks and the elbow pain resolved around the
same time. Dr. Monks’ reports describe Mr. Del Giglio’s ongoing pain
and restriction of movement in his back which continues. Mr. De Giglio
says he suffers from headaches which started shortly after the accident. They
arise from his neck injury. He has taken pain killers and anti-inflammatory
medication to treat the headaches. The pain varies in strength. He gets them
four to ten times a month and can last as long as a day. He says he also
suffers from dizziness. 

[42]        
Mr. Del Giglio complains of a burning-type sensation and tightening
in his neck at the back and on both sides radiating up the back of his head.
The neck pain increased the day after the accident and then got much worse. It
was only after attending at physiotherapy that the neck pain began to subside.

[43]        
Mr. Del Giglio attended physiotherapy upon his doctor’s advice from
February 2009 until December 2009, two days a week. He has daily pain and
continues to have a limited range of motion.

Current Situation

Health

[44]        
Mr. Del Giglio continues to have pain in his lower back. It’s
varies with what activities he has undertaken. Mr. Del Giglio says that
his previous (before the January 2009 accident) back pain did not occur on a
daily basis and did not prevent him from doing whatever he wanted to do. This
back pain is different. His back is aggravated by sitting too long, getting
dressed in the morning and immediately after sleep. It is painful for Mr Del
Giglio to get out of bed and get in and out of the car. Physiotherapy was of
some help that did not return Mr. Del Giglio to his previous level of
function. His headaches and mid back flare-up from time to time, but those
symptoms have improved.

[45]        
Mr. Del Giglio says that he has also suffered emotional
difficulties and depression symptoms. He is grouchy and negative and depressed
about not being able to do what he wishes because of the pain. He feels he
lacks focus: he has difficulty remembering upcoming events and does not retain
information. He relies on his wife to remind him of appointments. Mr. Del Giglio
also has continuing problems with sleeping: when the pain medication wears off
the back pain wakes him up.

[46]        
Mr. Del Giglio is overweight. He has attempted to achieve weight
loss through dieting. He has changed his eating habits but finds it difficult
to exercise to burn calories. Mr. Del Giglio is interested in attending a
weight-loss clinic and a dietitian consult.

[47]        
Mr. Del Giglio’s physicians have recommended continuing with physiotherapy.
He continues to utilize ibuprofen, Advil and aspirin on a frequent basis.

Work

[48]        
Mr. Del Giglio has not been able to return to work as a truck
driver at J.D.P. Holdings Ltd. He is unable to fulfill the duties of the job
which includes prolonged sitting, bending and twisting and other physical
aspects. His job remains open. Paul Caravetta, the owner of J.D.P., confirms
that he has a demand for drivers and would continue to employ Mr. Del Giglio
in the future as long as he wanted if he if he was able and willing to drive.
He says there are no less physically demanding jobs at his company.

[49]        
Mr. Del Giglio has attempted to return to work in other capacities.
He worked one shift as a security guard but the lymphedema in his leg impaired
his mobility and caused his hospitalization the next day. He has attempted to
teach music and repair guitars but neither has proven to be successful.

[50]        
Mr. Del Giglio continues to play with the Ken McCoy band. He does not
claim any wage loss related to his musical career. He has been able to continue
to work with the band and sustain his earnings. Others in the band have had to
accommodate Mr. Del Giglio’s inability to lift or move heavy items.

Medical Evidence

Dr. Brian Monks

[51]        
Dr. Monks has been Mr. Del Giglio’s family physician since
April 2007. He treated Mr. Del Giglio for back pain after the accident of
May 26, 2008. He diagnosed a strain to the lumbar spine and recommended
ibuprofen and physiotherapy. As stated, when Mr. Del Giglio attended Dr. Monks’
office on November 25, 2008 he reported some back pain but described his
recovery as 90%.

[52]        
 In his medical legal report of November 24, 2009, Dr. Monks was of
the opinion that the accident of January 6, 2009 caused strain to Mr. Del
Giglio’s neck and upper and lower back. He says "the impact also caused an
aggravation of his pre-existing degenerative disc disease in his cervical and
lumbar spines.” He continues:

It is now almost 11 months since [the
January 2009] accident which I believe is his eighth accident. This one may
well be the one that is most serious as it appears unlikely that he will be
able to return to his job as a truck driver. He really has made very little progress
over the last six months. I would support Mr. Del Giglio’s idea that he
should train for different work

[53]        
Dr. Monks provided a report on April 25, 2011 after his examination
of Mr. Del Giglio on March 28, 2011. Mr. Del Giglio informed him that
there was no improvement in the six months prior to that appointment. His
sitting was limited, household chores aggravated his back pain and performing
the duties associated with being a truck driver aggravated his low back pain.
Walking did not cause a problem. In that medical legal report Dr. Monks says:
"I believe that the last of his many accidents has tipped the scales to
render Mr. Del Giglio medically unfit to return to his former job
safely."

[54]        
Dr. Monks did not diagnose Mr. Del Giglio to be suffering from
depression.

Dr. G.M. McKenzie

[55]        
Dr. McKenzie is an orthopedic surgeon. At the request of his counsel,
he examined Mr. Del Giglio on October 7, 2009 and May 4, 2011. Dr. McKenzie
had also assessed Mr. Del Giglio after two previous accidents on April
2004 and October 2005.

[56]        
In his medical legal report of October 7, 2009, Dr. McKenzie
stated:

With the May 26, 2008 accident in my opinion, he aggravated
his neck and back problems. It sounds by his history that those reverted back
to his baseline neck and lower back pain prior to his most recent motor vehicle
accident January 6, 2009.

In January 2009, in my opinion he again aggravated his neck
and lower back. Comparing his neck complaints today to his neck complaints
prior to his June 2002 accident and January 2003 accident it sounds quite
similar to what he describes now. In my opinion his most recent accident
although aggravating his neck pain is unlikely to give him any long term
residual effects. In my opinion he has almost returned back to his baseline
pre-accident neck pain and in fact may have reached that situation now.

In my opinion the January 6, 2009
accident also aggravated his lower back pain. By his history he still seems to
be somewhat worse in his lower back and prior to this motor vehicle accident
but it is very similar to the pain complaints that I documented in my last
visit with him October 26, 2005.

[57]        
Dr. McKenzie considered that Mr. Del Giglio had returned to
work after each accident but after the January 2009 accident he was no longer
working as a truck driver. Nevertheless, Dr. McKenzie felt that Mr. Del
Giglio’s progress for improvement was good.

[58]        
In his medical report of May 4, 2011, Dr. McKenzie related Mr. Del
Giglio’s complaints of back and neck pain. Dr. McKenzie asked Mr. Del
Giglio which accident, May 2008 or January 2009, was most significant. Mr. Del
Giglio felt he was almost back to its baseline level of pain after the May 2008
accident. After the January 2009 accident, Mr. Del Giglio said that he
could not return to his previous activities and stated "I could get past
the pain before but not now."

[59]        
Dr. McKenzie considered that the May 2008 accident caused a
“transient aggravation of his pre-existing problems… [t]hat accident will not
give him any long-term problems in his neck and lower back." Dr. McKenzie’s
opinion is that the January 2009 accident aggravated his pre-existing
condition. Dr. McKenzie also considers it Mr. Del Giglio "to be
quite susceptible to injury in his neck and back as he had previously
significant degenerative changes in the neck and lower back.”

[60]        
Dr. McKenzie considered that Mr. Del Giglio’s prognosis for
improvement was good when he saw him in October 2009. He acknowledges that this
prognosis has not proven to be the case and that Mr. Del Giglio had
plateaued. Nevertheless Dr. McKenzie suggests that Mr. to Giglio may
show some further improvement but the prognosis would be "guarded at best."

[61]        
In his evidence, Dr. McKenzie says:

My main opinion was largely unchanged. I concluded that
without the accident [of January 2009], he may have had problems anyway but the
accident precipitated this at an earlier rate and it would be impossible to say
how much earlier.

He would likely have problems
with his ongoing problems and increasing age. The cervical spine injury –the
disc tends to dry up and narrow and you can get associated changes which is not
uncommon, but we don’t know if it would cause any pain. There is no predicative
value to whether it will cause pain. Same in the lower back area – same loss of
disc space.

[62]        
Dr. McKenzie does not consider Mr. Del Giglio to be totally
disabled. He is partially disabled particularly in regard to returning to work
as a truck driver.

Dr. J. Purtzki

[63]        
Dr. Purtzki is a physical medicine and rehabilitation consultant.
She examined Mr. Del Giglio at the request of his counsel on July 8, 2011.
Her medical legal report of July 11, 2011, describes the injuries caused by the
January 2009 accident; the nature and extent of any probable or possible
residual disability; and any recommendation for treatment in the future. She
refers to Mr. Del Giglio describing that he feels “somewhat depressed…
related to chronic pain and a change in his lifestyle…[and] that he is
worried and stressed…related mainly  to his finances.”

[64]        
Dr. Purtzki’s opinion is that the January 2009 accident aggravated Mr. Del
Giglio’s pre-existing degenerative changes in his neck and lower back. She
recommended that he engage in core strengthening exercises, physiotherapy,
diagnostic and therapeutic injections, weight loss with a dietitian consult and
the use of regular anti-inflammatory medication.

[65]        
Dr. Purtzki considers that Mr. Del Giglio is “suffering from low-grade depression
since the MVA with increased stressors” and “think[s] his presentation is due
to chronic pain and adverse life circumstances.” She recommends counseling for
depression.

[66]        
In her evidence, Dr. Purtzki says that Mr. Del Giglio’s
lymphedema in his right calf adversely affected mobility and may worsen his
back pain. Mr. Del Giglio’s excess weight was counterproductive to good
spinal mobility and core strength. His Dish syndrome makes the spine immobile.

Functional & Vocational Evidence

Paul Pakulak

[67]        
Paul Pakulak is an occupational therapist. He conducted a functional
capacity assessment of Mr. Del Giglio. Mr. Del Giglio demonstrated
the capacity for activity requiring modified medium light level strength. He
has specific limitations related to prolonged and repetitive below waist level
work, overhead work and sitting. Prolonged activity above the medium-light level
will adversely impact his productivity and safety.

[68]        
Mr. Pakulak considers Mr. Del Giglio’s overall capacity to
compete for work in the open job market has been reduced. He cannot continue in
his previous work as a truck driver.

Derek Nordin

[69]        
Mr. Norton completed of vocational assessment and Mr. Del
Giglio on October 27, 2010. He conducted a battery of tests to gauge Mr. Del
Giglio’s academic achievement and intellect. He does not recommend retraining.
He considers that Mr. Del Giglio age and ongoing back problems, limited
experience in jobs other than truck driving are barriers to Mr. Del Giglio’s
successfully marketing himself to a new field in competition with younger and
more able-bodied competitors.

Natalia Allende

[70]        
Ms. Allende is also an occupational therapist. She completed a cost
of future care assessment at the Del Giglio household, on September 9, 2011.
She recommends one-time care costs for physiotherapy/kinesiology, the healthy
heart program, dietitian, psychological and occupational therapy amounting to
$3,537-$6,611. The annual care costs include a gym membership, home
maintenance, housekeeping and non-prescription medications amounting to $1,859.85
– $2,897.92 annually.

Causation

Position of the Parties

[71]        
The plaintiff’s position is that he suffered a re-aggravation of his
neck and lower back pain in the January 2009 accident. While there was some
initial improvement with physiotherapy, Mr. Del Giglio did not return to
his previous baseline level of pain. His lower back pain levels have increased
and his neck pain has gone from intermittent to constant. He is no longer able
to perform the activities associated with driving a truck.

[72]        
The defendants’ position on causation is twofold: first they argue that Mr. Del
Giglio’s injuries from the January 2009 accident and the May 2008 accident are
indivisible. Because the plaintiff settled his claim against the driver
involved in the May 2008 accident and signed a release, the release releases
all other joint tortfeasors, specifically these defendants. Second, they assert
that the "crumbling skull" rule applies to Mr. Del Giglio.

The Law

Divisible and Indivisible Injuries

[73]        
Divisible injuries are those which are capable of being separated, such
as injuries to different body parts or injuries to which the defendant has not
contributed ( Bradley v. Groves, 2010 BCCA 361, at para. 20;
see also Athey v. Leonati, [1996] S.C.J. No. 102, at paras. 22-25.)
Whether damage derived from multiple sources is divisible for the purpose of
determining the extent of the liability of one defendant is a question of fact.

[74]        
If the injuries are divisible, the devaluation approach from Long v.
Thiessen (1968), 65 W.W.R. 577 at 591 (B.C.C.A.) is the appropriate method
for determining the amount of damages that can be attributed to the defendant.
This was discussed in Bradley at para. 33:

The approach to apportionment in Long v. Thiessen is
therefore no longer applicable to indivisible injuries. The reason is that Long
v. Thiessen pre-supposes divisibility: Long requires courts
to take a single injury and divide it up into constituent causes or points in
time, and assess damages twice; once on the day before the second tort, and
once at trial. Each defendant is responsible only for their share of the injury
and the plaintiff can recover only the appropriate portion from each
tortfeasor.

[emphasis
in original]

[75]        
Indivisible injuries are those that cannot be separated, such as
aggravation or exacerbation of an earlier injury, an injury to the same area of
the body, or global symptoms that are impossible to separate: Bradley,
at para. 20; see also Athey, at paras. 22-25.

[76]        
If the injuries are indivisible, the court must apply the “but for” test
in respect of the defendant’s act. Even though there may be several tortious or
non-tortious causes of injury, so long as the defendant’s act is a
cause, the defendant is fully liable for that damage: Bradley, at paras. 32-37;
see also Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 19-23.

The “Thin Skull” and “Crumbling Skull” Rules

[77]        
A basic principle of damages in tort cases is that “the defendant need
not put the plaintiff in a better position than…his original position and
should not compensate the plaintiff for any damages…he would have suffered
anyway”: Blackwater v. Plint, 2005 SCC 58 at para. 78; see
also Bradley at para. 25. This is known as the “crumbling skull
rule”: Athey at para. 35; see also Blackwater, at
para. 80.

[78]        
On the other hand, the defendant “takes his victim as he finds him”: Blackwater,
at para. 79. This means, the defendant is “liable for the plaintiff’s
injuries even if the injuries are unexpectedly severe owing to a pre-existing
condition”: Athey, at para. 34. This is known as the “thin
skull rule”: Blackwater, at para. 79.

[79]        
Mr. Del Giglio must establish that the defendants’ negligence
caused or materially contributed to his injuries. The defendant’s negligence
need not be the sole cause of the injury as long it is part of the cause: Athey
at paras. 13 – 19.

Discussion

[80]        
Mr. Del Giglio advised Dr. Monks in November 2008 that he was 90%
recovered from the injuries he sustained in the May 2008 accident. He was back
at work full-time. He had returned to his baseline level of pain when the
January 2009 accident occurred. His evidence is supported by Dr. Monks who was
in contact with Mr. Del Giglio from April 2007, but most particularly between
March and November 2008. Dr. Monks was in the best position of all the
physicians to assess Mr. Del Giglio’s condition before the January 2009
accident. While Dr. Monks relies on Mr. Del Giglio’s statement to him
concerning his 90% recovery, there really is no better evidence upon which I
can rely to determine that his situation was otherwise. It is also supported by
other facts, most particularly, that Mr. Del Giglio was working full-time, pursuing
his music career and engaging in his normal level of activity.

[81]        
Dr. McKenzie explains that Mr. Del Giglio’s injuries from the May 2008
accident were aggravated in the January 2009 accident. Nonetheless, he
considers that the May 2008 accident was a “transient aggravation of his
pre-existing problems” whereas the January 2009 accident has resulted in a more
permanent though partial disability.

[82]        
Dr. McKenzie acknowledges that Mr. Del Giglio would like have developed
symptoms associated with his ongoing health problems and increasing age. Nevertheless,
Dr. McKenzie is of the view that he could not predict whether these
pre-existing problems would cause pain. Dr. Purtzki has referred to the
plaintiff’s other health problems, including the lymphedema, the DISH syndrome
and his weight of as counterproductive to spinal mobility and core strength.

[83]        
I find that the medical evidence supports that the injuries sustained in
the May 2008 accident are divisible from those sustained in the January 2009
accident. While Mr. Del Giglio’s back was susceptible to injury, the May 2008
accident did not put him in the position which he is in now: restricted from
working as a truck driver at all and from many of his normal activities.

[84]        
Because the injuries which Mr. Del Giglio sustained in the May 2008
accident and the January 2009 accident are divisible, I reject the defendants’
position that because he settled his claim against the driver involved in the
May 2008 accident and signed a release that he has released all other joint
tortfeasors, specifically these defendants.

[85]        
In respect of the defendants’ assertion that the crumbling skull
condition applies, the plaintiff has established that he had a baseline which
was not free of pain, but had a manageable amount of pain. There is no evidence
that he was worsening or deteriorating before the motor vehicle accident from
that baseline. Dr. McKenzie agrees that with his ongoing problems and
increasing age he may have had problems anyway. His opinion was that the
accident precipitated this at an earlier rate but he could not say how much
earlier.

[86]        
I am satisfied that Mr. Del Giglio’s current symptoms would not be
present, but for the accident of January 6, 2009. I accept that Mr. Del Giglio
has challenging health issues; he was able to function at his baseline level
with a manageable amount of pain. While there may have been deterioration in
his ability to function as he aged, the evidence satisfies me that the accident
of January 6, 2009 caused the abrupt physical and mental decline that Mr. Del
Giglio experienced.

Damages

Duty to Mitigate

[87]        
Once the plaintiff establishes that the defendant is liable for his
injuries, the burden shifts to the defendant. In order to prove that the
plaintiff did not meet his duty to mitigate, the defence must prove that he
acted unreasonably and that reasonable conduct would have reduced or eliminated
the loss. Whether the plaintiff acted reasonably is a factual question: Gilbert
v. Bottle, 2011 BCSC 1389 at para. 202. Gilbert continues at
para. 203:

A
relevant circumstance in cases such as this is the plaintiff’s personality and
condition before and after the accident. The law does not require a plaintiff
to do that which cannot be controlled, nor does it require perfection in the
pursuit of rehabilitation. In addition, the defendant must take the victim as
found, which may affect what is to be reasonably expected. For example, a
person who has struggled with life-long obesity may not be expected to lose
substantial weight to discharge the duty to mitigate, even though weight loss
would assist recovery. What the law requires is that the plaintiff makes
contextually reasonable and sincere efforts to limit his or her damages and
loss [citations omitted].

[emphasis added]

[88]        
The evidence is clear that Mr. Del Giglio has struggled with lifelong
obesity. He has attempted to lose weight in accordance with his doctor’s advice
and has been somewhat successful. The plaintiff asserts that with assistance,
including physiotherapy, kinesiology, the healthy heart program, a dietician
and a gym membership he will likely lose weight and build his core strength.

[89]        
I find that Mr. Del Giglio has made “contextually reasonable and
sincere efforts” to lose weight, but would benefit considerably from professional
assistance. I disagree with the defendants that his damages should be reduced
to reflect his reflected failure to mitigate. The defendants have not proven a failure
to mitigate.

Non-Pecuniary Damages

[90]        
Non-pecuniary damages are awarded to compensate the plaintiff for pain,
suffering, loss of enjoyment of life and loss of amenities. Many cases refer to
a list of  factors (Stapley v. Hejslet, 2006 BCCA 34 at para. 46), which
generally address the plaintiff’s age, the nature of the injury, the severity
and duration of the pain, the level of the disability and the loss of lifestyle
or impairment of life. The compensation should be fair to all parties and
fairness is measured against all awards made in comparable cases which provide
general guidance. Each case must be decided on its own facts.

[91]        
The evidence supports, and I have found, that Mr. Del Giglio
suffered a re-aggravation of his neck and lower back pain in the January 2009
accident. He has reached a plateau in his recovery. He has not returned to his
baseline level of activity which he enjoyed before the accident. He has not
returned to his pre-accident level of pain. Though initially optimistic,
Mr. Del Giglio’s physicians are all of the view that his prognosis is
“guarded at best.”

[92]        
Mr. Del Giglio has suffered pain and loss of enjoyment of his life.
The injuries have had a serve impact. I accept that Mr. Del Giglio’s pain
has been distressful and have affected his emotional state. Despite
Dr. Monk’s not having diagnosed depression, Dr. Purtzki did find such
symptoms, which are anticipatable, given the reduction in the activities,
including the ability to work, which Mr. Del Giglio has experienced.

[93]        
On the other hand, Mr. Del Giglio has been able to maintain his musical
career, a vocation that he clearly thrives upon. That is a factor which I will
take into account.

[94]        
A further factor is that Mr. Del Giglio is aging and some deterioration
in his cervical spine is, in Dr. McKenzie’s words, “not uncommon.”  I
accept that he would have had some increased pain at some point, but the
accident accelerated the onset.

[95]        
 Mr. Del Giglio argues that the non-pecuniary damages should be
between $72,000 and $90,000. The defendants assert that the decline in
Mr. Del Giglio’s health was not the result of the soft-tissue injuries he
sustained in the January 2009 accident and asserts that non-pecuniary
damages should be in the range of between $20,000 and $30,000.

[96]        
I have specifically found that the plaintiff’s pain is the result of the
injuries that he sustained in the January 2009 accident, and that they are
not of a mild or moderate nature. The prognosis is that they will continue,
likely without abatement, throughout Mr. Del Giglio’s life. None of Mr. Del
Giglio’s physicians suggest that he will have much improvement.

[97]        
Having reviewed the cases provided, I conclude a fair and reasonable
award for non-pecuniary damages is $80,000.

Loss of Earning Capacity

Past

[98]        
Mr. Del Giglio is 57 years old. At the time of the accident, in
January 2009, he was employed as a truck driver with J.D.P. Holdings Ltd.
The evidence of his previous employer, Paul Caravetta, is that he would
continue to be employed as long as he was able and willing to drive. There is
no alternative work with J.D.P., which could accommodate Mr. Del Giglio’s physical
limitations.

[99]        
Mr. Del Giglio relies on the evidence of Stephen J. Bush, a
chartered accountant, who calculated his past loss of income as $91,460 based
on the following:

1.       Mr. Del Giglio
would have continued driving trucks for J.D.P. Holdings Ltd. during the period
between January 6, 2009 and the present;

2.       A reasonable pattern
of work, based on his work history prior to the accident and the availability
of work, would have been 142 hours per month;

3.       The hourly rate of pay
during the period would be $19.75, or $20.54 including 4% holiday pay;

4.       Mr. Del Giglio
would work 11 months per year; and

5.       The tax calculations
are made by applying the appropriate marginal tax rate to the pre-tax loss
determined each year in the loss period.

[100]     On that
basis, Mr. Del Giglio’s pre-tax wage loss would be $91,460 and his after
tax wage loss would be $74,291.

[101]     The
defendants submit that the plaintiff is not entitled to any income claimed to
have been lost because of the accident. The defendants submit that Mr. Del
Giglio has already been compensated for loss of his truck driving income in the
earlier trial judgment of Boyle J.

[102]     I accept
the plaintiff’s calculation of Mr. Del Giglio’s past loss of income. He was not
compensated for that loss in the decision of Boyle J. in 1993.

[103]     As I have
pointed out, in para. 33 above, Boyle J. assessed Mr. Del Giglio’s
past loss of income related only to his long-haul truck driving. He did not
compensate Mr. Del Giglio for a total disability from truck driving. He
explicitly found that “local like truck driving was [within] his physical reach.”
As it happened, Boyle J. was accurate in his assessment. Mr. Del
Giglio was able to return to truck driving and did so in 2005, when he took a
regular job at J.D.P. Holdings Ltd.

[104]     I
therefore award Mr. Del Giglio, in accordance with s. 98 of the Insurance
(Vehicle) Act, R.S.B.C. 1966, c. 231, damages reflecting his past net
income loss of $74,291.

Future

[105]     Mr. Del
Giglio’s physicians unanimously conclude that the accident of January 6,
2009, has rendered him unfit to pursue his career in truck driving.
Mr. Del Giglio has provided evidence of his attempts to find other work,
which have been either unsuccessful or un-remunerative.

[106]     The
plaintiff asserts that Mr. Del Giglio’s loss of future wages, due to his
inability to drive a truck is approximately $32,000 per year. Using the
multipliers provided by Mr. Robert Carson, a consulting economist, the
future loss of income to Mr. Del Giglio’s age 65 has a present value of
$210,496. The plaintiff argues that an appropriate contingency of 20% should be
applied to that future loss of earning capacity.

[107]     The
defendants argue, as they did with past loss of earning capacity, that
Mr. Del Giglio has already been compensated for all future loss truck driving
income in his personal injury award in 1993. The defendants say that the
evidence supports that Mr. Del Giglio’s can return to truck driving and
that any future loss of earning capacity is unreasonable and unfair.

[108]     A claim
for loss of earning capacity raises two questions:

1.       Has the plaintiff’s
earning capacity been impaired by his injuries;

2.       If so, what
compensation should be awarded for the resulting financial harm that will
accrue over time?

[109]     This requires 
an assessment of damages, not a mathematical calculation.

[110]     There are
two approaches to assessment of loss of future earnings capacity described in Perrin
v. Lalari, 2010 BCCA 140 at para.32: the earnings approach and capital
asset approach. The plaintiff is urging the earnings approach in its submission.
It is unnecessary to consider the capital asset approach, as neither party is
advocating that approach.

[111]     In this
case, Mr. Del Giglio had a job that would have had continued to employ him
as long as he wished, where he could earn a determined rate of pay for a
specified number of hours during each calendar year. He has demonstrated that
there is a real and substantial possibility of a future income loss: Chang
v. Feng, 2008 BCSC 49.

[112]     I assess
Mr. Del Giglio’s future loss of earning capacity at $150,000.

Cost of Future Care

[113]     Mr. Del
Giglio relies on the opinion of Ms. Allende, the occupational therapist.
She assessed the residual effects of Mr. Del Giglio’s injury on his
current and future ability to function independently at his home. She made
several recommendations including those to which I have already referred.

[114]     The defendants
say that Mr. Del Giglio is not entitled to any future cost of care award
on the basis that the plaintiff stated that he felt that the best therapy for
his back was walking his dogs. The defendants also suggest that
Ms. Allende assumed that Mr. Del Giglio had no limitations in
function before the January 2009 accident, which the defendants assert is
incorrect.

[115]     The
plaintiff is entitled to compensation for the cost of future care based on what
is reasonably necessary to restore him to his pre-accident condition so far as
that is possible. The court must assure full compensation through the provision
of adequate future care based on what is reasonably necessary on the medical
evidence: Gilbert para. 250.

[116]     I am
satisfied that the medical evidence, particularly that of Dr. Purtzki
supports an award as calculated by Ms. Allende. There is no other evidence
before me concerning future care costs.

[117]     I therefore
award one-time costs to include physiotherapy, kinesiology, healthy heart
program (YMCA), dietician, psychology and occupational therapy, at $5,000;
annual care costs including gym membership, home maintenance, housekeeping and
non -prescription medications at $2,000 annually. A calculation of that cost
exceeds the award which the plaintiff seeks under this head of damage which is
$25,000. I assess damages for cost of future care as $25,000.

Special Damages

[118]     Mr. Del
Giglio claims a total of $3,110.71 in special damages. Of that, he claims $1,067.90
for moving and temporary storage charges. The move occurred in January 2009, a
few weeks after the accident. Mr. Del Giglio could have done the move himself
with a couple of friends and a truck he would have borrowed from his employer. He
could not do that because of the injuries he sustained in the January 2009
accident. He also sustained expenses for storage.

[119]     I allow
special damages in the amount of $2,577 which reflects those that are claimed
and half of the moving expenses. I cannot find that the storage fees are
attributable to the accident.

Summary

[120]     The
defendants are liable for the accident of January 6, 2009.

[121]     Damages
are assessed as follows:

[122]    
Mr. Del Giglio is entitled to his costs. If there are matters which
I ought to consider in regard to costs, the parties may appear to address those
matters.

“Gropper J.”