IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120411

Docket: M104778

Registry: Vancouver

Between:

Kristy Jo Williams

Plaintiff

And

James G. Foster, Gold Key Sales and
Lease Ltd.
formerly known as Gold Key Pontiac Buick (1984) Ltd.,
Hallmark Poultry Processors Ltd. and Jagdip Singh Bariana

Defendants

Before: The Honourable Mr. Justice
Wong

Oral Reasons for Judgment

INTRODUCTION

[1]            
THE COURT: This is a personal injury action
arising from two separate motor vehicle accidents two months apart. Liability
with respect to both accidents are in issue, plus assessment of appropriate
damages.

[2]            
The plaintiff
suffered ankle injury from the first accident and back injuries from both the
first and second accidents. She suffered chronic pain and it has persisted.

THE
BACKGROUND

Liability

The
Accident of October the 4th, 2008

[3]            
On October 4,
2008, the plaintiff, Kristy Jo Williams, was driving her scooter westbound on
Hastings Street in Vancouver, approaching the intersection of Victoria and
Hastings. At this accident intersection there are three through‑lanes of
travel and one left‑turn lane. The defendant James Foster was driving a
white GMC five‑ton truck and was travelling in front of the plaintiff. As
the plaintiff approached the accident intersection, it is alleged the defendant
Foster suddenly turned right across her path of travel, resulting in an
unavoidable collision.

[4]            
The plaintiff
attempted to brake, but was unable to avoid hitting the right rear wheel of the
defendant Foster’s truck.

[5]            
The defendant
stated that he was travelling in the middle lane, the lane adjacent to the curb
lane, prior to the collision, and that he had activated his signal to turn
right and attempted to turn right onto Victoria drive. He further stated that
his vehicle partially entered the curb lane as he made his right turn.

[6]            
The plaintiff
stated that she was travelling behind Mr. Foster and mid‑block
before Victoria Drive she moved to and travelled in either the curb lane or on
the line dividing the middle and curb travelling lanes. She said the defendant
neither signalled nor applied his brakes before making an abrupt right turn.

[7]            
As mentioned,
there is a conflict in the evidence between the plaintiff and the defendant
Foster as to whether Mr. Foster applied his brakes and signalled before he
commenced his right turn. However, Mr. Giovanni Casu and
Mrs. Catherine Casu, who were also travelling westbound on Hastings Street
in the middle lane behind them, behind the plaintiff and the defendant Foster,
testified that without activating his signal, the defendant Foster suddenly
turned right across the plaintiff’s path of travel. They were astounded by this
unanticipated manoeuvre.

[8]            
The Casus are
independent witnesses to the event. Mr. Foster no doubt did not see the plaintiff
striding the dividing line between the middle and curb travelling lanes. Also,
the curb lane had numerous parked vehicles at that time of day. Not
anticipating vehicular traffic on the curb lane, Mr. Foster commenced his
turn from the middle travelling lane. I am satisfied and find that
Mr. Foster did not, in fact, activate his right turn signal. He also
changed lanes from the middle lane to the curb lane, commencing his turn
without ascertaining whether it was safe to do so. Consequently, he is culpable
of driving without due care and attention and is wholly liable for the
accident.

The Accident
of December 15, 2008

[9]            
The second
accident occurred on December 15, 2008, at the intersection of Broadway and
Glen Drive in Vancouver. The plaintiff was travelling eastbound on Broadway and
was in the middle lane of three lanes as she approached Glen Drive
intersection.

[10]        
The defendant
Jagdip Singh Bariana was travelling westbound on Broadway and attempted to turn
left onto Glen Drive, resulting in a collision between the two vehicles. The
plaintiff testified that as the traffic was very heavily backed up that day on
both sides of the intersection, when she was about four to six car lengths away
from the Glen Drive intersection, she changed lanes into the curb lane and did
not see the defendant Bariana until she entered the intersection.

[11]        
Mr. Bariana
commenced his left turn when both the left and middle oncoming travelling lanes
of traffic facing him at Glen Drive were stopped because of the traffic jam
both east and west of that intersection. He made a continuous left turn without
stopping, before entering the oncoming curb lane. He should have stopped to
ascertain whether there was indeed any oncoming traffic, as the other two lanes
of traffic would clearly obscure his line of vision. His failure to do so
caused the collision. The traffic control signal was green and the plaintiff,
travelling in the oncoming curb lane, was an immediate hazard if he continued
to cross into the curb lane.

[12]        
As driver in the
servient position, he failed to yield the right‑of‑way, see Raie
v. Thorpe, [1963] B.C.J. No. 14, and Pecheco (Guardian ad litem) v.
Robinson, [1993] B.C.J. No. 154, both decisions of the British Columbia
Court of Appeal, and is  therefore wholly liable for that collision.

[13]        
Although the
plaintiff was unlawfully travelling in an HOV curb lane restricted to bus and
bicycle traffic at the time of the second motor vehicle accident, absent
negligence in terms of excessive speed prior to the collision, that
contravention is irrelevant, see Nonis v. Granata, 2010 BCSC 1570.

Injuries

[14]        
Ms. Williams
is 32 years of age. She is an Australian citizen who came to Vancouver on a
work visa in July 2007. The plaintiff has a Grade 12 education and has
completed a certificate in broadcast operations and film and television at a
college in Perth, Australia. Since arriving in Vancouver, the plaintiff has
worked primarily in office administration on a temporary contract basis. As
well, she attended Langara College and obtained a diploma in publishing.

[15]        
Ms. Williams
suffered an injury to her right foot and right ankle in the first accident,
shock, depression, and soft tissue injuries to her back, neck, shoulders, right
knee, and bruising to her left arm. The primary injury in the first accident
was a sprain to the plaintiff’s right foot and right ankle.

[16]        
Her right foot and
ankle continue to flare up at the current time when she walks more than two to
four city blocks. The plaintiff had substantially recovered from her back,
neck, left arm, shoulder, and right knee injuries before the second accident.

[17]        
In the second
accident, the plaintiff suffered primarily a back injury. The plaintiff
continues to suffer from chronic back pain as a result of the second accident.

[18]        
Dr. Judith
Bus, the plaintiff’s family physician, medical‑legal report stated:

In summary,
Ms. Williams was in a motor vehicle accident on October 4, 2008, which resulted
in a right foot and ankle injury. This injury caused her to be unable to engage
in her employment opportunities for at least several months. Her ankle is still
occasionally symptomatic. It seems likely that she sustained an ankle strain
injury, but if she continues to be restricted by her ankle, I would recommend
further assessment by a sports medicine physician or an orthopedic surgeon.
Without further assessment, I am unable to give a prognosis for this injury.

Ms. Williams
suffered back muscle strain injuries from her December 15, 2008 motor vehicle
accident. She continues to have some limitation of both occupational and recreational
activities due to her back. She benefits from episodic non-prescription
analgesics and would benefit from episodic massage therapy for pain relief and
activity guidance. I do expect her back injuries to continue to improve over
the next couple of years, and they should likely resolve. She is, however, more
vulnerable to re-injury at this time.

Lastly,
Ms. Williams reports an exacerbation of a pre-existent tendency to depression
since these accidents. It is understandable that reduced employability and
ability to exercise could both impair her mood. I do believe that she would
benefit from some counseling to address her confidence issues.

[19]        
Dr. Gerard
McKenzie, orthopedic specialist, assessed the plaintiff in an independent
medical examination and opined the following:

In my opinion
this lady had a motor vehicle accident October 4, 2008 and injured her right
ankle. This may have been a sprain to the ankle but I am concerned about the
x-ray report and I need to see the x-rays myself to comment further. As well
she needs some new x-rays as I have detailed above. She has either had an ankle
sprain or she has had a more significant injury causing some widening of the
ankle mortise. Once I have new x-rays I will be able to comment further. A
final prognosis will depend on her previous and new x-rays. She is having some
ongoing problems in the right ankle. In my opinion the sole causation of this
is the first motor vehicle accident. I will give a final prognosis with the old
and new imaging.

She has also
had an injury to the upper and mid back area. Clinically she has some chronic
myofascial pain in the upper thoracic area. She also has some non-specific
lower back pain. In my opinion the causation of this is primarily the second
motor vehicle accident. She is now over 2 years from the time of the accident.
As she is having significant ongoing pain in the area on a constant basis with
no obvious trend or tendency towards improvement it is my opinion that the
prognosis for resolution of this pain [the upper mid back pain] is guarded at
best. The only treatment I would recommend at present would be an ongoing
stretching/strengthening exercise program and to continue on non-narcotic
medication.

In my opinion
the complaints that she has are consistent with the injuries that she
describes. In my opinion the issues that she is having with work and recreation
are also consistent with these injuries and my diagnoses.

I
will comment further when I receive the imaging of her ankle.

[20]        
In a later report,
Dr. McKenzie stated the following:

With regard to
the x-rays, the initial x-rays dated October 5, 2008 do show some widening of
the tibial talar part of the joint surface on the lateral side. As well there
is a significant osteophyte on the talar neck and early osteoarthritis of the
ankle particularly in the anteromedial aspect. These x-rays were done one day
following her first motor vehicle accident. In view of the changes already
present, it would be my opinion that this lady had some pre-existent
degenerative changes in the form of osteophytes of her ankle. Reviewing my
previous letter to you, she was asymptomatic in the ankle and had no known
history of previous right ankle pain. I will continue to assume that that
history is correct.

Her newer
x-rays show some progression [in my opinion] of this degenerative change. She
has a larger osteophyte on the anterior tibia on these x-rays than she did on
the previous x-rays. As well there is some narrowing of the joint space between
the medial aspect of the medial talar dome and the medial malleolus. The
osteophyte also appears somewhat larger off the talus. In other words in my
opinion there is some indication that the osteoarthritis has progressed.

Upon review of
these x‑rays and my report it would be my opinion that this lady likely had
dome pre-existent but asymptomatic degenerative changes in her right ankle. She
had an injury with her initial accident October 4, 2008 as evidenced by the
fact that she was symptomatic in that area and had x‑rays.

She is now
having ongoing symptoms.

It is my
opinion that this lady had some pre-existing but asymptomatic problems in her
right ankle. Were it not for this motor vehicle accident she may have developed
similar symptoms in the ankle that she has now. Having said that in my opinion
the motor vehicle accident is the causation of the onset of her symptoms
(pain). I base this on the fact that she had no pain prior to the accident
despite these x‑ray changes and had pain in the ankle immediately
following the motor vehicle accident and ongoing until now.

As to whether
or not the motor vehicle accident is the causation of the progression of her
osteoarthritis that is difficult to say. This osteoarthritis may have
progressed to its current degree were it not for the motor vehicle accident but
in view of the obvious injury there, the injury may have caused an accelerated
progression. In my opinion there is no scientific way of determining that.

With
regard to further treatment, this young lady might benefit by seeing a sub
specialized foot and ankle surgeon. She might benefit by treatment in the form
of debridement of her ankle joint. She might also benefit by an arthroscopic examination
of the ankle or steroid injection into the ankle. Ankle bracing could also be
considered.

DAMAGES

[21]        
Prior to the accident,
the evidence disclosed the plaintiff was a happy, energetic person who enjoyed
walking, hiking, travelling, and taking photographs. Her friends testified that
there are now changes in her moods. She is tired more often and has reduced
ability to perform household tasks.

[22]        
The plaintiff
testified that she now has reduced energy. She is unable to sit at the computer
for extended periods of time, and walking more than two or four blocks results
in pain or discomfort in her right foot. With respect to her right foot/ankle
injury caused by the first accident, she was on crutches for approximately
eight weeks and used a cane for approximately two weeks. Although there has
been some minor improvement, essentially her right foot/ankle injury plateaued
in its progress in late 2009. The ankle pain varies, but is aggravated by
walking.

[23]        
With respect to
her back pain, both Dr. McKenzie and the plaintiff relate the causation of
her back pain to the second accident. Since late 2009 and early 2010, her back
pain has essentially also plateaued. It is located in her mid‑back, more
on the right side.

[24]        
The plaintiff
testified that there is a constant low‑level pain in her back with spasm
lasting from a few minutes to several hours once or twice a week to several
times per week. This has continued into the years 2010, 2011, and 2012.

[25]        
The plaintiff
attended physiotherapy for approximately one year until the spring of 2010. She
has also attended massage therapy and chiropractic treatments. She further
testified that she went swimming, walked, and performed the exercises given to
her by a physiotherapist.

1. Non‑Pecuniary
Damages

[26]        
The plaintiff has
suffered chronic pain for over three years and future prognosis for improvement
is guarded. Her recreational activities have been somewhat curtailed. For pain
and suffering and loss of amenities of life, damages are fixed globally at
$50,000.

2. Past
Income Loss

[27]        
 The evidence
disclosed that the plaintiff lost two jobs as a result of the first accident. The
first job was at Wilkinson Steel and paid $14 per hour for a five‑day
week, from 6:30 a.m. to 5:00 p.m. The plaintiff worked the first day of October
the 6th, 2008. She should have worked until October the 20th, but her employer
requested a replacement due to the fact that the plaintiff was on crutches.

[28]        
The second job was
with Daniel Le Chocolat Belge. The plaintiff worked from December 1 to December
4, 2008, but should have worked until December the 23rd. The rate of pay was
$13 an hour from 9:30 a.m. to 6:00 p.m., five days per week.

[29]        
The plaintiff is
claiming a gross past wage loss of $2,930 for both jobs. The loss is therefore
fixed at $2,930, which is the gross amount for both jobs. In the event the
amount is taxable to the plaintiff, the net amount after tax should be recalculated.

3. Loss
of General Earning Capacity

[30]        
The plaintiff
submitted that her back and ankle injury makes her overall less marketable and
less attractive to potential future employers. Also, occupations requiring more
physical labour are likely closed to her. At 32 years of age, she will
certainly have a long working life ahead of her with this potential disability.
Damage is therefore set at $15,000.

4. Cost
of Future Care

[31]        
Dr. Bus
recommended massage and counselling. Dr. McKenzie has recommended an ongoing
stretching/strengthening exercise program, non‑narcotic medication, and
an ankle brace. In the event that the plaintiff undergoes an arthroscopic
procedure of an ankle joint, she may require future physiotherapy. The
plaintiff seeks $2,000 for future care costs.

[32]        
I think this
amount is appropriate, and I would therefore grant that amount of $2,000.

5. Special
Damages

[33]        
The first accident
appears to be fixed at $1,436.55, which I think is in order, the second
accident is established at $884.90, with a global amount of $2,321.45.

CONCLUSION

[34]        
The plaintiff is
entitled to the following awards:

‑
Non‑pecuniary damages, $50,000;

‑
Past income loss at a gross amount of $2,930;

‑
Loss of general earning capacity, $15,000;

‑
Cost of future care, $2,000;

‑
Special damages for the first accident, $1,436.55, special damages for the
second accident, $884.90, with a global amount of $2,321.45.

Making a
total of $72,251.45.

[35]        
If applicable, the
plaintiff is entitled to costs. There will also be court order interest on
applicable items of damages.

[36]        
Is there anything
further, Ms. ‑‑ 

[37]        
MS. MA:  My
Lord, with respect to costs, the plaintiff made a formal offer on March 23,
2012, of $25,000 plus costs. The plaintiff will be seeking double costs in this
matter, and I expect that I will have further discussions with my friend with
respect to that.

[38]        
THE COURT:  All
right, because of the amendment to the rules, of course, it is not automatic.

[39]        
MR. KILLAS: 
My Lord, would you like us to address that now then or to appear before you at
another time if need be?

[40]        
THE COURT:  Well,
are counsel in a position to address this now?

[41]        
MS. MA:  I’m
not in a position to address it now. If need be, I can address it at a later
date.

[42]        
THE COURT:  All
right, I think that might be appropriate then, Mr. Killas.

[43]        
MR. KILLAS: 
All right.

[44]        
THE COURT: 
Because it is a little bit more complicated than it used to be.

[45]        
MR. KILLAS: 
Yes, that’s agreeable, My Lord.

[46]        
THE COURT:  I
would like to also commend both counsel for their expedition and their
assistance to the court in this case.

 [DISCUSSIONS]

[47]        
THE COURT:  If
necessary, leave is granted to argue the matter of costs.

“Wong
J.”