IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20120518

Docket: 1036295

Registry:
Prince George

Between:

Chase Patrick Hahn

Plaintiff

And

Shirley Joan
Barnes, Mary Dell Tomkins,
and Robert John Madsen

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice R.S. Tindale

Reasons for Judgment

[1]          
The plaintiff, Chase Patrick Hahn, seeks damages for injuries that he
sustained in a motor vehicle accident on June 16, 1998. The plaintiff was five
years of age at the time of the accident which occurred in the city of Dawson
Creek, British Columbia.

[2]          
The plaintiff was in the rear seat of a vehicle driven by Mary Tomkins.
Mrs. Tomkins was a friend of the plaintiff’s mother. While Mrs. Tomkins was
waiting to turn left at an intersection her vehicle was rear-ended by a vehicle
driven by Shirley Barnes. Mrs. Tomkins’ vehicle was then pushed into a vehicle
in front of it driven by Robert Madsen.

[3]          
The plaintiff has discontinued or is in the process of discontinuing its
action against the defendants Robert Madsen and Mary Tomkins.

[4]          
The defendant Shirley Barnes did not participate in this trial and her
insurance has been breached by the Insurance Corporation of British Columbia
who is the third party in this action.

[5]          
Based on the evidence of Mrs.Tomkins, as well as the evidence that was
read in from the examination of discovery of the defendant Shirley Barnes which
was conducted on October 6, 2010, it is clear that Shirley Barnes was 100%
responsible for this accident. Mrs. Barnes was under the influence of alcohol
and not paying attention to her driving when she rear-ended Mrs. Tomkins
vehicle.

[6]          
The third party did not call any evidence with regard to liability;
however, because of the breach allegation against Mrs. Barnes they were not in
a position to admit liability. I find that Shirley Barnes was the sole cause of
this accident.

[7]          
The outstanding issue in this case is the assessment of the quantum of
damages for the plaintiff.

[8]          
The first witness called was Mary Tomkins. She testified that the
accident occurred at approximately 2:00 p.m. She viewed the photographs of her
vehicle, which are part of Exhibit 1 in these proceedings, and confirmed that
her vehicle was written off after this accident because of the damage to it.

[9]          
Mrs. Tomkins testified that the plaintiff was in the passenger rear seat
of her vehicle at the time of the accident. After the accident Mrs. Tomkins attended
to her children who were also in the vehicle. She did, however, confirm that
she saw the plaintiff with a neck brace on and on a backboard as he was being
transported by ambulance to the hospital.

[10]       
Sharon Hahn, who is the mother of the plaintiff, was the next witness
called. She described her son as being a happy normal five-year-old with no
emotional problems prior to this motor vehicle accident. She testified that the
plaintiff had surgery approximately 2 weeks before this motor vehicle accident
to repair a hernia. She also testified that the plaintiff was in pain for a
couple of days from his hernia surgery, however, it healed without any further
complications.

[11]       
Sharon Hahn described that she was ahead of Mary Tomkins’ vehicle and was
traveling in a different vehicle to a local mall in Dawson Creek when the
accident occurred. Sharon Hahn testified that when she went back to the
accident scene and saw her son he was very excited and he said "someone
hit us".

[12]       
Sharon Hahn asked her son if he was okay and he told her that his neck
and back were hurting. Sharon Hahn described that her son was, in fact, hurting
all over.

[13]       
Sharon Hahn attended at the hospital with her son and confirmed that he
had an x-ray and that she was told by their family physician, Dr. McKinley,
that the plaintiff had soft tissue damage and he should take some Tylenol or
Advil.

[14]       
Sharon Hahn described that in the first two weeks after the motor
vehicle accident the plaintiff was in a lot of pain and he was constantly
talking about his back and neck pain. The plaintiff also grabbed at his back
and neck. Sharon Hahn described that when he ate at the kitchen table he would
stretch his body out in effect pushing himself from the table and would often
drop food on himself because of his position. She also described the plaintiff bracing
himself on a couch or chair when he was sitting.

[15]       
Sharon Hahn testified that she would rub the plaintiff’s lower back and
neck every night before he went to bed.

[16]       
Sharon Hahn also described that the plaintiff did very little physical
activity in the first two weeks after the motor vehicle accident. She did say
that the plaintiff was a bit better after two weeks.

[17]       
The plaintiff started kindergarten in September of 1998 and Sharon Hahn
describes that during his elementary school years the plaintiff still
complained about his back and neck. She testified that she massaged the
plaintiff’s back and neck every night except for periods of time when he was
not home.

[18]       
Sharon Hahn also testified that the plaintiff, throughout his high
school years, was observed to be rubbing his back and neck. She continued to
give him massages every night. Sharon Hahn did say, however, that during this
period of time the plaintiff did not vocalize his complaints as often as he had
in the past.

[19]       
Sharon Hahn testified that the plaintiff, from the age of four through
to his grade 12 year, played organized soccer. The plaintiff also played
baseball for 2 years. Sharon Hahn described that during the soccer games she
observed the plaintiff rubbing his back and neck when he was on the sidelines
and that he was clearly sore after the games.

[20]       
Sharon Hahn homeschooled the plaintiff in grade 1 because the bus ride
to school was too uncomfortable for him. Sharon Hahn testified that when she
was homeschooling the plaintiff he would have to get up and move around several
times during the day as his back and neck were sore.

[21]       
Sharon Hahn put the plaintiff back in regular school in grade 2 as she
felt he needed to be around other children. She testified that the plaintiff
had problems with his teacher as he was constantly holding his head up with his
arms in class.

[22]       
Sharon Hahn testified that in grade 9, the school had decided to bring
in exercise balls for the children to sit on to help them strengthen their core
while doing math. The plaintiff was unable to do this and ultimately he was
accommodated by the school and allowed to use a regular chair.

[23]       
Sharon Hahn also testified that their family physician, Dr. McKinley,
died in the fall of 2008.

[24]       
Sharon Hahn testified that she went to every medical appointment with
the plaintiff and she told Dr. McKinley about the plaintiff’s neck and back
problems. She says that Dr. McKinley’s advice was that it would heal in time.

[25]       
Sharon Hahn also testified that Dr. McKinley made a referral to a
specialist Dr. Brown, in approximately 2000.

[26]       
Sharon Hahn testified that she did not seek legal advice for the
plaintiff regarding the motor vehicle accident until March 2008.

[27]       
On cross-examination, Sharon Hahn testified that the plaintiff did not
want to be singled out and made fun of by the other children so he would not
complain to them about his problems. She confirmed that the plaintiff did
everything you would expect a child to do.

[28]       
Sharon Hahn also testified on cross-examination that she stayed with Dr.
McKinley even though he did not seem to be doing anything for the plaintiff
because she trusted him.

[29]       
The next witness called was Wesley Pohl. Mr. Pohl testified that he was
the plaintiff’s soccer coach for the years 2005, 2007 and 2008. The soccer
season ran for the months of May and June during these years. Mr. Pohl
testified that he observed the plaintiff holding his back and putting his hands
on his neck during all three years that he coached him.

[30]       
On cross-examination Mr. Pohl agreed that the plaintiff appeared to be
having fun playing soccer and when he was on the field he did not appear to be
playing any less vigorously than the other children.

[31]       
The next witness called was the plaintiff Chase Hahn. The plaintiff
testified that he was 19 years of age having been born on March 8, 1993. The
plaintiff further testified that he was currently employed with a surveying
company.

[32]       
The plaintiff testified that he remembers the hernia operation and that
he hurt for a couple of days and then he was fine. The plaintiff also testified
that he remembers being in the car at the time of the motor vehicle accident,
though he cannot say whether or not he had a seatbelt on.

[33]       
The plaintiff testified that at the time of the motor vehicle accident
he remembers that he was looking to his left at the little girl seated beside
him. He remembers glass breaking and his head going down to his knees when the
impact occurred. The plaintiff also testified he remembers being pulled out of
the vehicle by a man and that he was sore everywhere.

[34]       
The plaintiff testified that in the first two weeks after the motor
vehicle accident he remembers having significant pain in his neck and back. He
testified that this pain was pretty much constant.

[35]       
The plaintiff testified that from kindergarten through grade 7 his back
and neck still hurt constantly, though the pain was not as bad as it was in the
first two weeks after the motor vehicle accident. The plaintiff testified that
his pain increased after activities, such as soccer.

[36]       
The plaintiff testified that when he got out of bed the pain was very
bad but it would get better during the day as he moved around and then get worse
again at night.

[37]       
The plaintiff testified that his pain has been there pretty much all the
time since the motor vehicle accident. He gave an example that if he was
changing the oil in his car and holding his neck off the ground for 1 or 2 minutes
the pain was so bad that he would have to stop.

[38]       
The plaintiff testified that he began cross-country running in grade 12 and
has had some considerable success in doing that. He also confirmed that since
the accident he receives massages from his parents every night.

[39]       
The plaintiff testified that riding the bus to school and sitting in
class was very painful for him and he would often have to get up and move around.
He also testified to an incident in grade 9 when he had to sit on an exercise
ball in math class and he could not do it. Ultimately, his father had to come
to the school and explained to the school that the plaintiff could not sit on
the exercise ball, and after that he was allowed to use a chair again.

[40]       
The plaintiff testified that he remembers seeing Dr. McKinley and, on
one occasion when he was complaining about his back and neck, Dr. McKinley told
him to “wait until he was 18 and see what happens”.

[41]       
The plaintiff testified that he continues to participate in sports even
though it hurts because he enjoys it and he believes the pain would be worse if
he did not do the sporting activities.

[42]       
The plaintiff testified that during the summers of grade 11 and 12 he
worked for a construction company. His job responsibilities included shoveling
sand and vigorous labor activities. He testified that he was very sore and
stiff at the end of the workday. The plaintiff also testified that during the
summer after grade 12 when he worked for the construction company he was
packing wooden boards and doing a lot of hammering of nails.

[43]       
The plaintiff testified that in September of 2011 he obtained employment
with a land surveying company. He testified that he thought this would be a
good job because it was not as physical as construction work and he was able to
move around more. He did testify, however, that he was still very sore at the
end of the work day.

[44]       
The plaintiff testified that he has no intentions of going to
university. He also testified that his father and grandfather were both
welders. The plaintiff tried doing some welding work with his father and that
was very painful and difficult for him.

[45]       
On cross-examination the plaintiff confirmed that he cannot think of any
activities that he did not do because of the pain. He also confirmed that he
had done quite well in two cross-country running races. This included a second-place
finish in the Emperor’s Challenge which is a 20 km race.

[46]       
The plaintiff also confirmed on cross-examination that he did not miss
any days of work, either at his summer employment or his current job with the
surveying company. The plaintiff also confirmed that his grades in school were
B’s and his attendance was good.

[47]       
The next witness called on behalf of the plaintiff was his father Keith
Hahn. He testified that he is a welder and is self-employed. Mr. Hahn also
testified that he has worked as a millwright. Mr Hahn testified that being a
millwright and a welder are very physically demanding jobs.

[48]       
Mr. Hahn testified that after the motor vehicle accident the plaintiff
had problems with his neck and back and he would often massage these areas. He
also testified that he saw the plaintiff’s mother, his wife, messaging the
plaintiff’s neck and back as well.

[49]       
Mr. Hahn testified that when the plaintiff was approximately 15 years of
age he had the plaintiff assist him with a welding job. Mr. Hahn’s hope was
that the plaintiff would take over his welding business. Mr. Hahn testified
that the plaintiff could only last 1 to 2 minutes when attempting any of his
assigned tasks before he had to take a break.

[50]       
The next witness called for the plaintiff was Dr. Travlos. Dr. Travlos
testified that he prepared two reports regarding the plaintiff. The first being
on September 30, 2010, and the second being June 10, 2011. Dr. Travlos is a
specialist in physical medicine and rehabilitation. Dr. Travlos testified that
if one assumes the history as given by the plaintiff and his witnesses are
correct, then it would be probable that the plaintiff’s problems were caused by
the accident in 1998.

[51]       
On cross-examination Dr. Travlos agreed that he would have expected to
see notations of the symptoms shortly after the accident in the clinical
records of the treating doctors. He also agreed that he felt it was unlikely
that the low back problem was a result of the accident as there were no
notations in the clinical records regarding the back.

[52]       
Dr. Travlos also agreed that it was not common for a young child to have
persistent pain as described by the plaintiff; however, he did say it was not
beyond the realm of possibility.

[53]       
Dr. Travlos also agreed in cross-examination that other factors, such as
the plaintiff learning that if he complains about his injuries he may not have
to do school work, could be a factor regarding the persistent complaints of the
plaintiff. I note that it was never put to the plaintiff on cross-examination that
he was fabricating his symptoms.

[54]       
On redirect, Dr. Travlos agreed that the two slip and falls that the plaintiff
had in 2001 and 2004, given there was no evidence of any follow-up medical
treatment for these falls, likely did not affect the plaintiff’s injuries from
the motor vehicle accident.

[55]       
The third-party called one witness, Dr. Dommisse, who is a specialist in
orthopedic surgery. Dr. Dommisse testified that he felt the plaintiff had
suffered a grade 1 strain, which is a soft tissue injury that produces pain for
a short period of time. He also confirmed that he found no objective symptoms
of injury during his examination of the plaintiff.

[56]       
On cross-examination Dr. Dommisse confirmed that he only saw the
plaintiff on one occasion. He also confirmed that the plaintiff’s flexion and
extension of the cervical spine were less than normal. Dr. Dommisse also found
that the plaintiff’s lateral flexion of the cervical spine was less than
normal. Dr. Dommisse noted that the plaintiff’s flexion of his thoracolumbar
spine was less than normal. Dr. Dommisse also found that the rotation of the
plaintiff’s thoracolumbar spine was less than normal.

[57]       
Dr. Dommisse agreed that the radiographs that were done at the Dawson
Creek and District Hospital, on June 16, 1998, indicated that the plaintiff had
some "pre-cervical soft tissue swelling". He did testify, however, that
it was not clear whether these findings had any significance.

[58]       
Dr. Dommisse, after persistent cross-examination, somewhat reluctantly
agreed that it was possible that if you accept the plaintiff’s history of
physical symptoms that these symptoms were caused by the motor vehicle
accident.

Position of the Parties

[59]       
The plaintiff’s position is that his ongoing symptoms of the back and
neck are probably relatable to the motor vehicle accident. The plaintiff
stresses that this is a credibility case. If I accept the evidence of the
plaintiff and his witnesses, then it is clear that the plaintiff has ongoing
injuries which are chronic in nature and caused by the motor vehicle accident.

[60]       
The plaintiff is seeking $85,000 under the heading of Non-Pecuniary
damages.

[61]       
The plaintiff is also seeking damages for a Loss of Future Earning Capacity. 
The plaintiff’s position is that he can no longer do some types of physical
work, such as welding, which is likely what he would have done given his father
and grandfather’s occupations.

[62]       
The plaintiff is seeking $90,000 under this heading of damages.

[63]       
The plaintiff is also seeking an In Trust claim for Sharon Hahn in the
amount of $2,185.84.

[64]       
The third party’s position is that the plaintiff sustained a minor
whiplash injury to his neck from the motor vehicle accident of June 16, 1998,
which was substantially resolved within two or perhaps three weeks.

[65]       
The third party points to the lack of notations in the clinical records
of Dr. McKinley. They also point to the July 2, 1998, clinical note of Dr.
McKinley that indicates the plaintiff had a “good recovery” to that point. The
third-party points to the fact that there are no notations of a back injury in
Dr. McKinley’s clinical notes. They also argue that it is not likely both Dr. Brown
and Dr. McKinley would overlook a back injury if they had been told about one.

[66]       
The third party argues that the award for non-pecuniary damages should
be in the range of $3,500 to $15,000.

[67]       
The third party argues that given the minor nature of the plaintiff’s
injuries there should be no award for loss of future earning capacity.

[68]       
The third party is in agreement with the In Trust claim for Sharon Hahn
except they ask that I deduct one trip to Vancouver in the amount of $44.91.

Non-Pecuniary Losses

[69]       
In the decision of Bagasbas v. Atwal, 2009 BCSC 512, Madam
Justice Satanove, at para. 7, states the following:

…. It has been said many times
in many cases that the court must be careful in awarding compensation where
there is little or no objective evidence of continuing injuries, or in the
absence of convincing evidence that is consistent with the surrounding
circumstances (Butler v. Blaylock, [1981] B.C.J. No. 31 (S.C.); Price
v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.)).

[70]       
Both doctors Dommisse and Travlos found that it was unlikely that the
plaintiff’s ongoing back symptoms were as a result of the motor vehicle
accident. This was primarily due to the lack of notations regarding the back in
the clinical records of Dr. McKinley around the time of the motor vehicle
accident.

[71]       
Credibility is the central issue in this case. I have had an opportunity
to view the plaintiff, his mother, his father and his soccer coach Mr. Pohl
give evidence. I accept that they are all honest witnesses. There are no
notations regarding the back problems of the plaintiff in the clinical records
of Dr. McKinley. Unfortunately, Dr. McKinley is not here to give evidence
regarding the accuracy of his clinical records. I accept the evidence of the
plaintiff, Sharon Hahn, and Keith Hahn regarding the plaintiff’s back symptoms.
I find the plaintiff’s back symptoms are from the motor vehicle accident on
June 16, 1998.

[72]       
I also accept the plaintiff’s, Sharon Hahn’s and Keith Hahn’s evidence
relating to the neck symptoms. The plaintiff clearly had neck pain after the
accident and there was some radiographs suggesting pre-cervical soft tissue
swelling at the time of the accident. I find that the plaintiff’s neck symptoms
are from the motor vehicle accident of June 16, 1998. I also find, given the
evidence of doctors Dommisse and Travlos, the plaintiff’s neck and back
symptoms can be defined as chronic in nature.

[73]       
The plaintiff submits an award of $85,000 would be appropriate
compensation for Non-Pecuniary damages and provides the following cases in
support of that: Raun v. Suran, 2010 BCSC 793 (award of $75,000); Collyer
v. Boon, 2008 BCSC 1745 (award of $70,000); Cripps v. Overend, 2010
BCSC 1779 (award of $75,000); Testa v. Mallison, 2009 BCSC 957 (award of
$75,000); Gold v. Joe, 2008 BCSC 865 (award of $80,000).

[74]       
The third-party also submitted a number of cases however they are not of
assistance as they are for minor soft tissue injury cases. I have found that
the neck and back injuries of the plaintiff are chronic in nature.

[75]       
In the decision of Collyer v. Boon, supra, Madam Justice L.
Russell, at para. 105, states the following:

There are a number of factors that courts must take into
account when assessing this type of claim. The majority judgment in Stapley
v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4^th) 19, outlines a number
of factors to consider, at para. 46:

The inexhaustive list of common
factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that
influence an award of non-pecuniary damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of
pain;

(d)        disability;

(e)        emotional suffering; and

(f)        loss or impairment of
life;

I would add the following factors, although they may arguably
be subsumed in the above list:

(g)        impairment of family, marital
and social relationships;

(h)        impairment of physical
and mental abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s stoicism (as a
factor that should not, generally speaking, penalize the plaintiff: Giang v.
Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54).

[76]       
In this case, the plaintiff is young, and has a long standing neck and
back injury. However, the plaintiff’s injuries are not severe or disabling. I
do not have any evidence that the injuries have caused the plaintiff any
emotional suffering.

[77]       
The cases cited by the plaintiff involve individuals that have severe
and ongoing symptoms, or some disability, or have been substantially precluded
from participating in recreational or vocational activities.

[78]       
An appropriate award for Non-Pecuniary damages, given the length of the
plaintiff’s symptoms and the nature of the neck and back strain, is $40,000.

Loss of Future Earning Capacity

[79]       
In the case of Perren v. Lalari, 2010 BCCA 140, the court states
the law with regard to loss of future earning capacity as follows:

[30]      Having reviewed all of these cases, I conclude that
none of them are inconsistent with the basic principles enunciated in Athey
v Leonati, [1996] 3 S.C.R. 458, and Andrews v. Grand & Toy Alberta
Ltd., [1978] 2 S.C.R. These principles are:

1.         A future or hypothetical
possibility will be taken into consideration as long as it is a real and
substantial possibility and not mere speculation [Athey at para. 27],
and

2.         It is not loss of
earnings but, rather, loss of earning capacity for which compensation must be
made [Andrews at 251].

[31]      Furthermore, I conclude that there is no conflict
between Steward and the earlier judgment in Pallos. As mentioned
earlier, Pallos is not authority for the proposition that mere
speculation of future loss of earning capacity is sufficient to justify an
award for damages for loss of future earning capacity.

[32]      A plaintiff must always
prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, that there is a real  and substantial
possibility of a future event leading to an income loss. If the plaintiff
discharges the burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset approach,
as in Brown. The former approach will be more useful when the loss is
more easily measurable, as it was in Steenblok. The latter approach will
be more useful when the loss is not as easily measurable, as in Pallos
and Romanchych. A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment. That was the case in both Pallos and Parypa.
But, as Donald J.A. said in Steward, an inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss.

[80]       
The plaintiff was only five years of age when the accident occurred. He
has just recently graduated from high school and is working at a surveying
company. He has no plans to go to university and wishes to work with his hands.
I have heard evidence that his father and grandfather both worked as welders.

[81]       
In my opinion, the neck and back injury that the plaintiff sustained as
a result of the motor vehicle accident and its associated symptoms have created
a real and substantial possibility that the plaintiff will suffer a loss of
future earning capacity. The plaintiff will not be able to take employment
involving physical exertion and which requires him to maintain poor body
posture, such as in welding.

[82]       
The appropriate award for Future Loss of Earning Capacity is $35,000.

In Trust Claim for Sharon Hahn

[83]       
The plaintiff has proved its case for the In Trust claim for Sharon
Hahn. None of the expenses are unreasonable. The plaintiff is awarded $2,185.84
in trust for Sharon Hahn.

Summary

[84]       
I find that the accident was caused solely by the negligence of Shirley
Joan Barnes. The plaintiff is entitled to the following damages:

[85]       
The parties may address the issue of costs in the event that is
necessary.

“ R. Tindale, J.”

Mr.
Justice Tindale