IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120601

Docket: M092217

Registry:
Vancouver

Between:

Stephen Michael Jackson

Plaintiff

And

Cory David Jeffries

Defendant

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice Greyell

Reasons for Judgment

[1]            
The plaintiff claims non-pecuniary damages, loss of present and future
wages, cost of future care and special damages arising from a motor vehicle
accident of May 23, 2008 (the "Accident").

[2]            
Liability is admitted although the defendant says the plaintiff was
partially at fault for his injuries as he was not wearing his seat belt at the
time of the collision.

The Accident

[3]            
The Accident occurred as the plaintiff was travelling northbound on
Granville Street about one block north of 31^st Avenue.  The
defendant’s vehicle suddenly veered from the center southbound lane into the
lane in which the plaintiff was travelling.  The two vehicles struck one
another in a head-on collision.

[4]            
At the time of the Accident the plaintiff was driving a GMC truck he
used in his work as a plumber’s apprentice with his employer.  The Accident
occurred with little warning and was, by all accounts, a significant
collision.  The plaintiff’s vehicle was travelling about 40 km/h while the
defendant’s vehicle was estimated to be travelling 50 to 60 km/h.  The plaintiff
had no time to apply the brakes of his vehicle or to take evasive action.  The
impact was severe enough that the defendant driver was rendered unconscious and
pinned in his vehicle, having to be removed by emergency crews.

[5]            
As a result of the impact, the plaintiff was thrown forward out of the
driver’s seat.  He lifted his left arm to protect himself and hit his head on
the windshield and then fell back with the right side of his rib cage coming
into contact with the steering wheel.

[6]            
The plaintiff acknowledged he was not wearing his seat belt at the time
of the Accident.  He had removed it when he got out of his vehicle a short time
earlier to secure an item of equipment which had come loose in the back of the vehicle. 
He forgot to re-fasten it when he recommenced driving.

The plaintiff prior to
the Accident

[7]            
The plaintiff is a single, 29-year-old male.  He was born June 30, 1982
and is right handed.

[8]            
The plaintiff described himself as having had learning difficulties as
he progressed through high school.  He failed several courses in grade 10,
having to take summer school for English and mathematics.  He took special
classes and needed the assistance of the school’s learning centre.  In 2000, he
failed grade 12 English, math and science.  He ultimately completed high school
a year or two later than his peers, in 2001, after taking an adult education
course to complete grade 12.

[9]            
Mr. Jackson was diagnosed with attention deficit disorder and
depression when he was 11 years old.  He was placed on various medications
including Prozac and Ritalin.  He testified that as a result of his depression
he had low self esteem and often felt isolated and "different" from
his school mates.

[10]        
Notwithstanding his feelings of isolation, Mr. Jackson did
participate in such sports as one-on-one basketball, soccer, baseball, roller
hockey and mountain biking.  Most of these sports activities were unorganized
and played with a few friends at a local school ground, weather permitting. 
Following such activities, Mr. Jackson said he would get together with his
friends at a bar or someone’s house to drink a few beers and socialize.

[11]        
Mr. Jackson’s evidence as to his social activities before the Accident
was supported by the evidence of two friends who testified, Mr. Dan
LaFlamme and Mr. Casey Bierle.

Mr. Jacksons’s work history prior to the
Accident

[12]        
Following his graduation from high school, Mr. Jackson worked as a
cook at a fast food restaurant and then in the film industry as a production assistant
at various locations.  He worked in the latter industry for some three years, following
which he worked in construction.

[13]        
Mr. Jackson testified his goal had been to become a plumber since a
plumbing company, Mr. Swirl ("Swirl"), had been called to his
parents’ house to do some work.  He immediately took a liking to the type of
work and the people who were involved in it.  He applied for a job, was given
an interview and in 2003 he commenced working as a helper with Swirl.  His
responsibilities included assisting plumbers with repairing and replacing sinks,
toilets, bathtubs, hot water tanks and unplugging clogged sinks, toilets and
drainage and sewer pipes and other general labour.

[14]        
There were some aspects of the job that required heavy lifting.  When
unplugging sewer and drain pipes, he may be required to use a piece of heavy
equipment such as a mainliner (weighing between 260 and 300 pounds) or a jetter
(230 pounds) to assist in unplugging the pipes.  While the equipment was on a
dolly and often left on the truck, there were times he was required to move it
closer to where he was working and would have to roll it up or down stairs and manoeuvre
it onto the ramp of the truck.

[15]        
The work also often involved crawling into confined spaces.  He was
required to use hand tools or shovels and, on occasion, jack hammers to dig up
clogged drains.

[16]        
Prior to the Accident, Mr. Jackson was able to perform all the
duties of a plumber’s helper, including the heavier work, without difficulty.  He
worked five or, on occasion, six days per week and was on call for emergency
work.

[17]        
Prior to the Accident, his earnings from employment for the eleven
months plus one week he worked for Swirl in 2007 were $30,748.  For the five
months preceding the Accident he earned $18,700.  His T4 slip for income tax
purposes showed his 2007 income as $32,126.

[18]        
Mr. Jackson testified he left Swirl because they wanted him to get
more experience.  He took a plumbing and steamfitting course at B.C.I.T. from
March 2004 to October 2005 when he achieved his entry level plumbing
apprenticeship.

[19]        
Mr. Jackson then worked as a second-year apprentice plumber at
several residential and commercial construction projects.

[20]        
In January 2006, he took his second level apprenticeship at the Pacific
Vocational College.  He testified he needed additional help at both B.C.I.T.
and the College in order to pass his courses, which he narrowly succeeded in
doing.

[21]        
While at the Pacific Vocational Institute, Mr. Jackson was also
working as an apprentice plumber.  When he graduated he quit his work because
of what he considered to be low pay and took a position as a swamper for a recycling
company.

[22]        
In January 2007, Mr. Jackson joined the union representing plumbers
with the hope of finding work through the union’s job board.

[23]        
Two days later he received an offer from Swirl for a position as an apprentice
plumber.  He was to drive a Swirl’s truck on an on-call basis and was to be
dispatched as calls were received from Swirl’s dispatcher.  He was to be paid a
commission which he was advised would be greater than the union rate.

[24]        
The commissions were 26% on all plumbing labour, 25% on drain cleaning
labour and 2% on parts sold.

[25]        
He started employment with Swirl on January 24, 2007, and was working at
the time of the Accident.

The plaintiff’s medical
progress following the Accident

Dr. Wong

[26]        
Mr. Jackson was attended by paramedics at the scene of the Accident
and was then transported to Vancouver General hospital where he was checked. 
His chest hurt, as did his right wrist.  A chest X-ray showed no abnormality. 
He was diagnosed with soft tissue injuries and was then driven home by his
parents.  Shortly after he began to experience neck and back pain and spasms.

[27]        
The following day he attended Elgin Medical Clinic where his attending
physician, Dr. Wong, practised.  He saw Dr. Wong’s partner.  Mr. Jackson
was complaining of pain in his right wrist, neck and chest discomfort.  An
X-ray of his right wrist was ordered which was negative for any fracture.

[28]        
He returned to see Dr. Wong on May 29, 2008.  At this time, in
addition to right wrist pain, Mr. Jackson was complaining of continued
neck pain and thoracic and lumbar pain.  He was diagnosed with multiple soft
tissue injuries of the cervical, thoracic and lumbar spine.  Dr. Wong
recommended physiotherapy and had a cast applied to his right wrist.  Dr. Wong
then saw Mr. Jackson at regular intervals between May 2008 and April 2009.

[29]        
Dr. Wong’s medical legal reports, dated May 19, 2009, and October
12, 2011, were introduced by the plaintiff at trial and Dr. Wong was cross-examined
by defence counsel.

[30]        
Dr. Wong has described his observations on each of the plaintiff’s follow-up
visits.  I will refer to several of his notations.

[31]        
On June 26, 2008, Dr. Wong noted Mr. Jackson had missed "quite
a bit of time from work lately due to his injuries from the motor vehicle
accident and the insomnia and depression that was aggravating his symptoms." 
Mr. Jackson had pain in the low back with lumbar and thoracic tenderness
and tenderness in the lower cervical spine.  Walking more than 15 minutes
resulted in Mr. Jackson having a sore back.  Mr. Jackson was advised
to attend physiotherapy.

[32]        
On July 16, 2008, Mr. Jackson told Dr. Wong his low back felt
compressed and he felt pressure when he stood for 5 to 15 minutes.  Examination
showed full range of motion, however, Mr. Jackson felt his paraspinal
cervical and lumbar spine were tender.  He told Dr. Wong his symptoms had
improved 50%.  Dr. Wong ordered x-rays of his spine and more
physiotherapy.  Mr. Jackson was still off work.

[33]        
On August 27, 2008, Mr. Jackson reported continued low and mid-back
pain and cervical neck pain.  He told Dr. Wong his back pain was
aggravated if he stood too long and his left ribs were tender if he lay down to
reach for things.  X-rays of the cervical and lumbar spine showed no
abnormalities.  The lumbar spine showed grade I spondylolisthesis at L5-S1
which appeared to be of long standing and unrelated to the Accident, although Dr. Wong
opined it may have exacerbated the plaintiff’s symptoms.

[34]        
By the time of a November 15, 2008, visit, Mr. Jackson had returned
to work full time.  Examination was unremarkable, but Dr. Wong noted Mr. Jackson
told him that by noon each day his back started to hurt.  Dr. Wong stated
that "he [Mr. Jackson] had shooting pain in the left side of his
lower back three weeks earlier for two days which sounded like symptoms of
sciatica".  Dr. Wong commented the "diagnosis was slowly
improving soft tissue injury of the lumbar spine and lower thoracic spine."
He noted that Mr. Jackson was "having good days and bad days but …
was definitely sore by noon."  Mr. Jackson "felt that he was 80%
recovered."  Dr. Wong advised Mr. Jackson to keep up with
physiotherapy, which Mr. Jackson had only been attending occasionally at
the time.

[35]        
Mr. Jackson saw Dr. Wong on January 15, February 11 and 25, and
April 14, 2009.  On January 15, 2009, he provided the plaintiff with a note
excusing him from work because of his back pain.  Over the next several months,
Mr. Jackson continued to complain of low back pain with tingling in his
fingers and insomnia and depression.

[36]        
By March 1, 2009, Mr. Jackson had returned to work on light
duties.  He continued to complain of lower back pain brought on by heavy
lifting.

[37]        
In his medical report of May 19, 2009, Dr. Wong was uncertain as to
Mr. Jackson’s prognosis due to the variability in the nature of the physical
activity he was required to perform at work which "put him at risk of
re-injury to his cervical, thoracic and lumbar spine."  Dr. Wong
emphasised the importance on Mr. Jackson to continue his home exercise
program and maintain his physical conditioning.

[38]        
Mr. Jackson continued to see Dr. Wong on a regular basis.  In
his report of October 12, 2011, Dr. Wong noted Mr. Jackson had gone to
physiotherapy three times since March 2011 and that his symptoms appeared to
have plateaued with his back being 70% recovered and his right wrist 80%
recovered.  In his report, Dr. Wong states:

As stated in the previous paragraph, Stephen is still directly
affected in terms of his ongoing symptoms in regards to his household, social,
recreational and employment activities.  He has definitely had to limit his
social activities and recreational activities due to the ongoing pain in his
low back and right wrist. … In terms of employment issues, he has been unable
to gain employment due to his low back and right wrist symptoms.  I feel that
he will not be able to pursue a career which requires heavy manual labour and I
suggest a vocation change which will be easier on his body.

As it has been almost 3-1/2 years
since the accident date of May 23, 2008, Stephen finds that he is still having
symptoms with his back and his right wrist.  In terms of whether Stephen will
completely recover from the injuries suffered in this accident, I do not think
that he will completely recover.  If there is any more improvement to be
gained, I think that it will be very little.  Some days, he will feel more
mobile than others.  When he overdoes things excessively, he will pay for it
the next few days.  I think he will still need the occasionally physiotherapy
appointment.  He has learned to cope properly to the best of his ability with
his current injuries.

Dr. Perey

[39]        
Dr. Perey, an orthopaedic surgeon specializing in hand, wrist and
elbow surgery, saw Mr. Jackson on February 4, 2010, on referral from Dr
Wong.  Mr. Jackson was complaining of activity related wrist pain,
notwithstanding that x-rays and an MRI did not reveal any abnormality.  Dr. Perey
suspected a scapholunate ligament tear which was confirmed during wrist
arthroscopic surgery performed May 10, 2010.

[40]        
Following surgery, Mr. Jackson was placed in a splint for 10 days
followed by a cast for 8-10 weeks.  Dr. Perey wrote in his medical report
of August 31, 2010, that Mr. Jackson was making "remarkable strides"
although he had residual pain and stiffness.

[41]        
It was Dr. Perey’s prognosis that Mr. Jackson’s symptoms would
continue to improve, but that he would likely have some persistent pain and
stiffness with his wrist which would be aggravated by heavy use.  Dr. Perey
recommended "a re-training program to a less physically demanding
occupation than a plumber."  He concluded Mr. Jackson could "resume
intermittent physical activities involved in hobbies and sports."

Dr. Feldman

[42]        
Mr. Jackson was examined by Dr. Feldman on November 5, 2009,
at the request of the defence.  He prepared a medical legal report dated
November 5, 2009, which was filed at trial.

[43]        
Dr. Feldman is a specialist in physical medicine with an expertise
in post-trauma rehabilitation.  Prior to preparing his report, Dr. Feldman
had reviewed the clinical records of Dr. Wong, the physiotherapists Mr. Jackson
had attended, as well as those from Karp Rehabilitation.  Dr. Feldman
concluded Mr. Jackson was "gradually resolving the results of very
severe soft tissue injuries."  He recommended ongoing contact with a
rehabilitation program as a general conditioning exercise program to improve his
strength, endurance and stamina prior to returning to full-time work as a
plumber.

[44]        
Dr. Feldman noted:

It would be my additional opinion that the prognosis for a
full recovery from his injuries is good although it might take a while before
this is achieved because of the severity of his injuries and the slowness of
recovery.  The duration of his symptoms would be considered … totally
appropriate considering the kind of collision that took place and his entry
into the kind of work which may very well cause him additional discomfort over
time.  I do not see any advantage to postponing his work as a plumber as long
as he tries as much as he can to avoid painful movements in the course of his
work.

I would suggest that it is
entirely likely that he will continue to be symptomatic for at least another
year, after the time that I saw him.  This will mean that he would be partially
disabled for that length of time.  However, considering the severity of the
accident, the persistence of the pain and the type of work which he wishes to
do, it would be my opinion that there exists a better than even probability
that he would experience pain for an indefinite period of time, resulting in a
permanent partial disability.  He would need to develop a high degree of
vigilance relative to the work activities that he could perform, so as to avoid
pain while he is working.

[45]        
Dr. Feldman testified at trial he was not surprised to learn Mr. Jackson
was no longer working as a plumber due to his injuries.

Karp Rehabilitation

[46]        
Mr. Jackson was sent to Karp Rehabilitation who provided three
assessments to ICBC’s adjuster, which were introduced at trial.  A "Final
Assessment" issued by Karp on October 24, 2008, indicated that Mr. Jackson
had completed his "active rehabilitation program" and had been
educated to continue exercising at home.  The report is somewhat contradictory.
The author states "We have also successfully achieved our long-term goal
of enabling Mr. Jackson to return to work as a plumber at Mr. Swirl
without experiencing undue discomfort" while at the same time reporting
that Mr. Jackson "states his low back is very sore by the end of his
workday, and states he has to relax "all night" to recover."  I
am inclined to put little, if any, weight on the Karp reports except to note
the second report states that Mr. Jackson was not regularly performing his
home stretching program, nor had he attended sessions as scheduled.

Functional Capacity
Evaluation

[47]        
A functional capacity evaluation was performed by Ms. Louise Craig,
a physiotherapist, on December 6, 2010.  Her report was entered as an exhibit
at trial and Ms. Craig was cross-examined by Mr. Thiessen.

[48]        
Ms. Craig concluded Mr. Jackson did not meet the physical
demands of the position of a plumber apprentice as a result of her test
results.  She concluded Mr. Jackson’s competitive employability had been
reduced by his low back pain and difficulty with his right wrist with tasks
that have impact or strong gripping.  Ms. Craig also concluded Mr. Jackson
"does not appear to have reached maximum physical rehabilitation" and
that he "remains de-conditioned with reduced core stability."

[49]        
Ms. Craig recommended Mr. Jackson participate in an
individualized rehabilitation program guided by a physiotherapist for four to six
weeks, three days per week for a one-hour duration to address core stability
and overall fitness.  She also reported that Mr. Jackson "may at
times, underestimate his physical capacity", although the assessment
findings and clinical observations generally supported his "subjective
reports of pain."  She also confirmed Mr. Jackson provided a "consistent
and high physical effort" during her evaluation.

Vocational
Rehabilitation

[50]        
Mr. Niall Trainor, a vocational rehabilitation specialist,
conducted a vocational assessment of Mr. Jackson in February 2011.  Mr. Trainor
provided a report of his assessment dated June 15, 2011, which was introduced
into evidence and he was cross-examined on his report at trial.

[51]        
Mr. Trainor concluded Mr. Jackson had fewer occupations open
to him as a result of his limitations, was less attractive as a candidate for
employment given his limitations and was more likely to encounter difficulty
finding and keeping employment.  He concluded the "array of occupations
that was open to him previous to the accident has been significantly narrowed." 
Mr. Trainor also concluded Mr. Jackson was a less attractive
candidate for employment given his limitations.  Nonetheless, he concluded his
vocational prognosis was good given professional counselling.

The plaintiff’s work history following the
Accident

[52]        
Mr. Jackson remained off work after the accident until September
14, 2008, when he returned to light duties.  He remained performing light
duties for approximately two months.  He did not perform the heavier duties of
repairing and unplugging drain tiles, sewer lines or replacing hot water tanks.

[53]        
When Mr. Jackson returned to heavier duties in November 2008, he
had an increase in back and wrist pain.  He found it difficult to perform heavy
lifting which aggravated his lower back pain.

[54]        
In January 2009, he experienced an incident of shooting pain in his back
after a day during which he was working cleaning drain tiles.  He saw Dr. Wong. 
Dr. Wong recommended he remain off work.  Mr. Jackson was off work from
January 15 until February 22, 2009, when, after a course of treatment at Karp Rehabilitation,
he returned to light duty work for a week and then to his regular duties.

[55]        
Mr. Jackson’s back and wrist symptoms gradually returned and continued
to bother him throughout the spring of 2009.  When his pain increased he turned
down heavier jobs.  He missed a number of days from work.  Mr. Jackson
estimated he cumulatively lost about two weeks of work in this manner.

[56]        
In mid-August 2009, Mr. Jackson discussed his work situation with Swirl. 
He testified it was agreed he would go back to school to complete his third-year
apprenticeship courses and to give his injuries a chance to get better.  Mr. Jackson’s
last day of work at Swirl was August 18, 2009.

[57]        
In the following six weeks, Mr. Jackson completed his third-year
apprenticeship courses and obtained his fourth-year apprenticeship standing.

[58]        
He testified when he then phoned Swirl to renew his employment he did
not receive a return call.  Ms. Ronner, Swirl’s office manager, testified Mr. Jackson
was advised that due to a lack of work there was no work available for him at
the time.  She also testified the downturn in work was a temporary one and that
Swirl has had an increase in business since that time.

[59]        
Mr. Jackson worked for another plumbing company for about a week in
December 2009.  He earned $15 per hour and was fired.  There was no evidence
why.

[60]        
In late 2009 and early 2010, Mr. Jackson also worked for a friend, Mr. LaFlamme,
as a labourer building houses.  His symptoms in his lower back and wrist were
aggravated by this work.  He was only able to work three or four days a week.  Mr. LaFlamme
testified that if Mr. Jackson had not been his friend he would not have
continued his employment.

[61]        
Mr. Jackson earned between $3,000 and $4,000 while working for Mr. LaFlamme.

[62]        
Mr. Jackson saw Dr. Perey in February 2010.  On May 10, 2010, he
had a right wrist arthroscopy.  His right wrist was put in a splint for 10 days
followed by a cast for some 10 weeks.

[63]        
Mr. Jackson then began to look for work.  By this time he had
decided he could not do plumbing work as a career because of the impact of such
work on his back and wrist.  He was unsuccessful finding work.  He, ultimately,
sought the assistance of a job counsellor who worked with him on preparing a résumé.

[64]        
Mr. Jackson was interviewed by and obtained a position with
Canadian Tire commencing December 20, 2011.  The job entailed moving
merchandise around the store.

[65]        
He testified he aggravated the symptoms in his back and wrist performing
such work and has been off work since December 27, 2011.  At the time of trial
he was undertaking further physiotherapy and hoped to return to work for
Canadian Tire as a retail clerk.

Findings of fact concerning the plaintiff’s credibility

[66]        
Mr. Jackson was 29 years old at the time of the trial.  As
described, he struggled to complete high school and required assistance to
complete the various levels of his apprenticeship as he progressed to try to
become a journeyman plumber.  He had a goal of becoming a plumber for a number
of years.  His persistence in pursuing his goal, as well as his persistence in
trying to work through the pain he suffered in his lower back and wrist was
impressive.  Mr. Jackson was not a malinger.  He asked for lighter work
when his back pain required it or Dr. Wong directed him to do so.  He soon
returned to heavier work when he felt he was able, often to his detriment.

[67]        
I am satisfied that had the motor vehicle accident not occurred, Mr. Jackson
would have gone on to become a journeyman plumber.  I also think it likely that
had he not had to take time away from work on such a frequent basis, he would
have remained employed by Swirl, although there likely would have been a period
of several months in 2009 when there would have been little, if any, work
available because of the slowdown in Swirl’s business.

[68]        
The defendant says Mr. Jackson’s injuries were 80 – 90% recovered
within ten months of the accident.  It is clear from a reading of Dr. Wong’s
report that Mr. Jackson’s state of recovery at any time varied depending
on the nature of the work he was performing.  When he returned to perform
heavier work his back pain worsened.  In Dr. Wong’s last report of October
12, 2011, Mr. Jackson reported his back was 70% recovered to where it was
prior to the accident.

[69]        
I do not accept the defendant’s assertion Mr. Jackson’s ongoing complaints
are "not as limiting as alleged."  While I accept Mr. Jackson
did not rigorously follow through with physiotherapy treatments as he should
have, there is no evidence his failure to do so contributed to his ongoing back
problems.

[70]        
The defendant’s position, as I understand it, is that although heavy
lifting and the use of his wrist when he tried to work as a plumber aggravated
the plaintiff’s back and wrist injuries, he should nonetheless perform the
work.  I do not accept such an argument.  I have no doubt that had the
plaintiff further injured himself, the defendant would have taken umbrage and
suggested the plaintiff was not taking care of himself and following his
doctor’s advice.  His doctor’s advice was that if he continued performing heavy
work, he put himself at risk of reinjuring himself.

[71]        
As Dr. Feldman described, Mr. Jackson has a partial permanent disability
which will result in him not being able to continue as a plumber in the
future.  He will be left with ongoing back pain and stiffness and weakness in
his wrist.

[72]        
Mr. Jackson is not fitted to labouring-type work or other work
which will place strain on his back and wrist.  The range of potential
occupations has been narrowed as a result of the injuries.

[73]        
Further, the plaintiff is not able to enjoy the activities he once
enjoyed, in particular ball hockey, because of his wrist injury.  He is also
less social, not wanting to socialize with his friends as he did prior to the
accident.  Mr. LaFlamme described him as he and his friends having tried
to encourage Mr. Jackson to participate in ball hockey and to come out
socially.  He said after the accident Mr. Jackson could not do the former
because of pain and appeared reluctant to do the latter.

Plaintiff’s position

[74]        
The plaintiff relies on Trites v. Penner, 2010 BCSC 882; Bergman
v. Standen 2010 BCSC 1692 and Ferguson v. All-Can Express Ltd., 1998
CanLII 4718 (B.C.S.C.), var’d on other grounds 2001 BCCA 57, to suggest a range
of non-pecuniary damages between $100,000 and $125,000.  In addition, the plaintiff
claims a past wage loss of $100,745; a loss of future earnings in the amount of
$507,000; cost of future care of $10,000 and special damages of $1,767.52.

Defendant’s position

[75]        
As stated, the defendant says Mr. Jackson’s injuries were not as
significant as he makes them out to be; he had reported to Dr. Wong he was
80 – 90% recovered within about ten months of the accident.

[76]        
The defendant also says the plaintiff’s right wrist injury was suffered
not as a result of the accident, but as the result of playing ball hockey with
his friends.  However, if the court finds the right wrist swelling and surgery
were caused by the accident, non-pecuniary damages should be assessed in the
range of $35,000 to $50,000.  The defendant relies on Perez (aka Gillespie)
v. City of Vancouver, 2002 BCSC 1773; Michaud v. Machtaler, 2004
BCSC 829; Borth v. Lee, 2005 BCSC 1517; Mawji v. Hendry,
2007 BCSC 1880; Shergill v. Vuong, 2008 BCSC 784 in support of his range
of non-pecuniary damages.

Assessment of Damages

Non-pecuniary Damages

[77]        
In Trites, Madam Justice Ker outlined the purpose and principles
of non-pecuniary damages at paras. 188-189.

Non-pecuniary damages are awarded to compensate the plaintiff for
pain, suffering, loss of enjoyment of life and loss of amenities.  The compensation
awarded should be fair and reasonable to both parties …

For the purposes of assessing non-pecuniary damages, fairness is
measured against awards made in comparable cases.  Such cases, though
helpful, serve only as a rough guide.  Each case depends on its own unique
facts …

[Citations omitted.]

[78]        
In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined
the factors to be considered when assessing non-pecuniary damages 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 (QL), 2005 BCCA 54).

[79]        
The assessment of non-pecuniary damages is necessarily "influenced
by the individual plaintiff’s personal experiences in dealing with his or her
injuries and their consequences, and the plaintiff’s ability to articulate that
experience": Dilello v. Montgomery, 2005 BCCA 56 at para. 25.

[80]        
While the cases cited by counsel are useful as a guide, each case must
be decided on its particular facts.  Each plaintiff has unique circumstances; no
injury, course of recovery or treatment is the same.

[81]        
I have reviewed the authorities cited by counsel.  As noted earlier in
this judgment, I do not accept the plaintiff had recovered from his injuries as
the defendant has suggested.

[82]        
The plaintiff is a young man who was in the process of working toward
becoming a journeyman in the trade he wanted to be his life work.  The accident
cut his aspirations short.  He will not become a plumber.  He is left unable to
do heavy work because of the resulting aggravation to his back and wrist.  He
has become more socially withdrawn as a result of the accident and its consequential
effects on him.  He no longer enjoys the recreational pursuits he participated
in prior to the accident.

[83]        
In my view, of the cases cited by counsel, a case most comparable to the
facts of the present case is Trites. In Trites, Madam Justice
Ker awarded the plaintiff $75,000 for injuries similar to those suffered by Mr. Jackson
in this case.  In Trites, the plaintiff was a 30-year-old apprentice plumber
(although he subsequently obtained his certification) who had ongoing chronic
neck and lower back pain that "continues to affect most every facet of Mr. Trites’
work and non-work life": at para. 195.

[84]        
As the cases are similar on their facts, I award Mr. Jackson
non-pecuniary damages of $75,000.

Lost Wages

[85]        
Compensation for past loss of earning capacity is to be based on what
the plaintiff would have, not could have, earned but for the injury that was
sustained: M.B. v. British Columbia, 2003 SCC 53 at para. 49; see
also Rowe v. Bobell Express Ltd., 2005 BCCA 141.

[86]        
Pursuant to s. 98 of the Insurance (Vehicle) Act, R.S.B.C.
1996, c. 231, a plaintiff is entitled to recover damages for only his or
her past net income loss.  This means that in the ordinary course the court
must deduct the amount of income tax payable from lost gross earnings:  Hudniuk
v. Warkentin, 2003 BCSC 62 at para. 22.

[87]        
There is no issue Mr. Jackson was absent from work at Swirl between
May 24, the day after the accident, and September 14, 2008.  He was also
absent for five and a half weeks from January 15 to February 22, 2009, for a
second rehabilitation program.  The issue between the parties relates to loss
of income from the time Mr. Jackson last worked for Swirl and the date of
trial.

[88]        
I also note that Mr. Jackson testified he missed a total of about
two weeks of work (made up of one- to two-day absences) between February 22 and
August 2009, when he returned to school.  The plaintiff claims for such loss on
the basis he would have been called back to work at Swirl when he finished his
apprenticeship training in late September 2009.

[89]        
The defendant argues Mr. Jackson was not rehired by Swirl because
there was no work available and that he was unable to find work within the
plumbing profession despite his efforts.  Accordingly, the defendant says the
plaintiff should not recover wage loss from the time he finished his
apprenticeship program in late September 2009 to the date of trial.

[90]        
Mr. Jackson testified that when he finished his courses, he
telephoned Swirl but his calls were not returned.

[91]        
Ms. Elke Ronner, Swirl’s office manager, testified Mr. Jackson
left employment to return to school following discussions with the company to
the effect that work had slowed down and that he should use the time to "get
better."  She testified that when he finished his course "not too
much had changed" and that when he called she told him Swirl had no work available
for him.

[92]        
She testified there was a downturn in the economy in 2008/2009 and
employees had been laid off, but that Swirl’s business had recovered.

[93]        
Based on this evidence, I conclude Mr. Jackson was not rehired by Swirl
in the fall of 2009 because there was no work available for him.  Mr. Jackson
apparently did not follow up with Swirl about employment after his initial
call.  He did apply to other plumbing companies.  He was successful at finding
a week of employment with another plumbing firm in late 2009 before being
advised his services were not needed.  He was given no reason why.

[94]        
In late 2009, Mr. Jackson began working as a construction labourer
for his friend, Mr. LaFlamme, earning $18/hour.  The work bothered his
lower back and wrist.  He had surgery on his hand in May 2010, and then again
looked for work sending out over 100 résumés.  He was unsuccessful finding work
except for a day he worked for Mr. LaFlamme on a roofing job.  He again found
that work difficult because of lower back and wrist pain.

[95]        
I conclude that had it not been for the accident, Mr. Jackson would
have remained employed by Swirl, but for periods of absence from work to obtain
his journeyman’s certification, as well as during periods where there was no
work available as a result of an economic downturn in 2009.  Although the
evidence did not establish the economic downturn precisely, it is clear from Ms. Ronner’s
evidence it had done so.

[96]        
I turn to Mr. Jackson’s earnings as there is some controversy
concerning the amount he earned while in the employ of Swirl.

[97]        
Swirl reported to ICBC that Mr. Jackson’s earnings were $50,272 in
the 12 months preceding the accident.  I have some difficulty accepting
this figure as it does not appear to compare to Mr. Jackson’s earnings as
shown on his T4 slips or on correspondence from Swirl setting out a history of Mr. Jacksons’s
earnings.

[98]        
Mr. Jackson began working for Swirl at the end of January 2007. 
His T4 earnings for 2007 were $30,826.  Had he worked a full 12 months for Swirl
in 2007 his annual earnings would have been ($30,826/11 x 12) $33,628.36.  I
note his T4 earnings from employment for 2005 and 2006, during which he was
working for other employers as an apprenticeship plumber, were $21,955 and
$15,857 respectively.

[99]        
In the five months prior to the accident, Mr. Jackson earned an
average of $3,483 every four weeks.  This would result in annual earning of ($3,483
x 13) $45,279 or $870.75 per week.  This amount closely compares to the amount Mr. Kevin
Turnbull, the plaintiff’s economist, reached in reviewing the same figures. 
His figure was $45,411.

[100]     The
evidence was that work was slower during the summer or drier months of the year
and, as Mr. Jackson was paid on commission, his earnings would have been
less than the above as the figure is based on his earnings from January to May. 
There is no comparable year during which Mr. Jackson’s earnings during the
drier season can be determined.  Despite commencing work for Swirl in January
2007, his monthly income was not delineated in evidence for any period prior to
October 2007.  Any other relevant period was post accident and either during
the period Mr. Jackson was absent or during the summer of 2010 when he was
taking more time off as a result of his injuries.

[101]     I assess Mr. Jackson’s
annual earnings for the purposes of determining his wage loss at $41,500 per
annum or $800 per week.

[102]     In my view,
Mr. Jackson is entitled to be compensated for the following:

1.       the
initial period off work after the accident from May 24 – September 13, 2008, (16
weeks x $800) or $12,800;

2.       the
period off work from January 15 – February 22, 2009, (5 ½ weeks x $800) or
$4,400;

3.       diminished
earning capacity between February 22, 2009, and August 31, 2009, as a result of
missed work and light duties, totalling $2,500; and

4.       loss
of income from January 1, 2010, (the date I estimate Mr. Jackson would
have been offered work with Swirl) to the date of trial (105 weeks x $800) or
$84,000.

[103]     The amount
totals $103,700.  From this sum there must be deductions for the amount earned
by Mr. Jackson following January 1, 2010.  This would include any amount
he earned on the roofing job for Mr. LaFlamme and at Canadian Tire. 
Although the evidence of his earnings from these two sources was unclear, I
assess such income at a total of $500.

[104]     Mr. Jackson
has had no paid employment since May 2010.  He commenced searching for work in
September 2010 when he had recovered from his wrist surgery.  He received $3,536
in employment insurance benefits in 2010.

[105]     Taking
these amounts into consideration, there is a net amount payable for loss of
wages to date of trial of $99,664.

Future Loss of Income

[106]     In Simmavong
v. Haddock, 2012 BCSC 473, I discussed the law regarding future loss of
income:

[95]    A
claim for loss of future earning capacity raises two key questions:

(1)      has the plaintiff’s earning capacity been impaired by his or
her injuries; and, if so,

(2)      what compensation should be awarded for the resulting
financial harm that will accrue over time?

[96]    The
assessment of loss must be based on the evidence and is a matter of
judgment.  It is not an application of a purely mathematical
calculation.  The appropriate means of assessment will vary from case to
case:  Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); Pallos
v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.);
Pett v. Pett, 2009 BCCA 232; Rosvold v. Dunlop, 2001 BCCA 1.

[97]    The
essential task of the court is to compare the “likely future of the plaintiff
if the accident had not happened and the plaintiff’s likely future after the
accident has happened”: Gregory v. Insurance Corporation of British Columbia,
2011 BCCA 144 at para. 32.  I also note that “insofar as
is possible, the plaintiff should be put in the position he or she would have
been in if not for the injuries caused by the defendant’s negligence”:  Lines
v. W & D Logging Co. Ltd., 2009 BCCA 106 at para. 185.

[98]    The
principles that apply in assessing loss of future earning capacity were
summarized by Low J.A. in Reilly v. Lynn, 2003 BCCA 49 at para. 101:

The
relevant principles may be briefly summarized. The standard of proof in
relation to future events is simple probability, not the balance of
probabilities, and hypothetical events are to be given weight according to
their relative likelihood: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 27. 
A plaintiff is entitled to compensation for real and substantial possibilities
of loss, which are to be quantified by estimating the chance of the loss
occurring: Athey v. Leonati, supra, at para. 27, Steenblok v. Funk
(1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.).  The valuation of the loss of
earning capacity may involve a comparison of what the plaintiff would probably
have earned but for the accident with what he will probably earn in his injured
condition: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.).
However, that is not the end of the inquiry; the overall fairness and
reasonableness of the award must be considered: Rosvold v. Dunlop, …
2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995] B.C.J. No. 644
(C.A.) (Q.L.). Moreover, the task of the Court is to assess the losses, not to
calculate them mathematically: Mulholland (Guardian ad litem of) v. Riley
Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.).  Finally, since the course
of future events is unknown, allowance must be made for the contingency that
the assumptions upon which the award is based may prove to be wrong: Milina
v. Bartsch, supra, at 79. …

[99]    The
test is set out in Perren v. Lalari, 2010 BCCA 140 at para. 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 that 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. [Emphasis in original.]

[100]   There
are two possible approaches to assessment of loss of future earning
capacity:  the “earnings approach” discussed in Steenblok v. Funk
(1990), 46 B.C.L.R. (2d) 133 (C.A.); and the “capital asset approach” discussed
in Brown.  As noted in the above quote from Perren, both
approaches are correct and will be more or less appropriate depending on
whether the loss in question can be quantified in a measureable way:  at para. 32.

[101]   The
earnings approach and the capital asset approach were described in Gilbert
v. Bottle, 2011 BCSC 1389, by Madam Justice Dickson, at para. 233:

In Perren v. Lalari, 2010
BCCA 140, Garson J.A. identified the two approaches to assessment of loss of
future earning capacity commonly adopted by courts in British Columbia. 
One is the “earnings approach” described in Pallos; the other is the
“capital asset approach” described in Brown.  The earnings approach
involves a form of math-oriented methodology such as i) postulating a minimum
annual income loss for the plaintiff’s remaining years of work, multiplying the
annual projected loss by the number of remaining years and calculating a
present value or ii) awarding the plaintiff’s entire annual income for a year
or two.  The capital asset approach involves considering factors such as
i) whether the plaintiff has been rendered less capable overall of earning
income from all types of employment; ii) is less marketable or attractive as a
potential employee; iii) has lost the ability to take advantage of all job
opportunities that might otherwise have been open; and iv) is less valuable to
herself as a person capable of earning income in a competitive labour market.

[107]     I conclude
the plaintiff has established a sound basis that he is entitled to damages for
loss of future income based on the fact he can no longer fulfill the job requirements
of a plumber.

[108]     Mr. Jackson
persevered in his efforts to achieve his ambition to become a journeyman
plumber, but was unable to reach his goal because of the injuries he sustained.

[109]     Ms. Craig
opined Mr. Jackson no longer met the job demands of a plumber apprentice
and both Drs. Wong and Perey recommended he retrain to a different
vocation as a result of his injuries.

[110]     Mr. Trainor’s
evidence was that average annual earnings for plumbers in British Columbia in
2006 were $50,448.  Ms. Ronner testified journeymen plumbers employed by Swirl
earned on average $90,000 to $95,000 annually.

[111]     Mr. Turnbull,
the plaintiff’s economist, prepared a report calculating Mr. Jackson’s
loss of future earnings.  The assumption he used was that Mr. Jackson
would earn the average earnings for a B.C. journeyman plumber as determined by Mr. Trainor.
He adjusted his calculation, however, for the following contingencies:  the
probability an individual would be participating in the labour market (that is,
working or actively looking for a job); the possibility an individual will become
unemployed; and the possibility an individual will take early retirement. 
Based on these contingencies, Mr. Turnbull estimated a present value of Mr. Jackson’s
without accident future earnings as a plumber at $1,012,000.

[112]     Mr. Turnbull
then assumed Mr. Jackson would not return to work as a plumber in the future
and he took the average earnings of the 14 alternate occupations identified by Mr. Trainor
as being within the plaintiff’s vocational potential to determine the present
value (after taking into account labour market contingencies) of the amount Mr. Jackson
could expect to earn over his working lifetime.  The amount he determined by
using this method of calculation was $796,000.

[113]     Mr. Turnbull
also calculated an earnings amount taking into consideration Mr. Trainor’s
caveat that Mr. Jackson’s future earnings may be below average because an
employer may have to provide some form of accommodation to him as a result of
his physical limitations.  He concluded such lesser earning amount to be $505,000.

[114]     Subtracting
the second figure from potential earnings as a plumber, he calculated Mr. Jackson’s
loss at either $216,000 or $507,000.

[115]     Because of
the contingencies present in this case and Mr. Jackson’s young age, I
consider it appropriate to use the capital loss approach to the assessment of
his future wage loss.  For the reasons expressed earlier, I find Mr. Jackson
has been rendered less capable overall of earning income from all types of
employment, he is less marketable or attractive as a potential employee, he has
lost the ability to take advantage of all job opportunities that might
otherwise have been open to him and he is less valuable to himself as a person
capable of earning an income in a competitive labour market:  see Brown v.
Golaiy (1985), 26 B.C.L.R. (3d) 353 at para. 8 (S.C.).

[116]     Taking
these factors into account, I award Mr. Jackson $250,000 for loss of
future income.  In doing so I take into account Mr. Trainor’s rating of Mr. Jackson’s
"vocational prognosis as fair to good" with the rehabilitation
measures he suggests.  I will return to this issue under cost of future care.

Cost of Future Care

[117]     Once
again, my discussion of the law from Simmavong is on point.  I stated
the following regarding cost of future care:

[124]   The
plaintiff is entitled to compensation for the cost of future care based on what
is reasonably necessary to restore her [or him] to her [or his] pre-accident
condition in so far as that is possible.  When full restoration cannot be
achieved, the court must strive to assure full compensation through the
provision of adequate future care.  The award is to be based on what is
reasonably necessary on the medical evidence to preserve and promote the
plaintiff’s mental and physical health:  Milina v. Bartsch (1985),
49 B.C.L.R. (2d) 33 (S.C.); Williams v. Low, 2000 BCSC 345; Spehar et
al. v. Beazley et al., 2002 BCSC 1104.

[125] In his text The Law of Damages, loose-leaf ed.
(Toronto: Canada Law Book, updated November 2011, release 20), Professor
Waddams states, at 3-63:

. . . the tenor of Dickson J.’s judgment in Andrews v Grand &
Toy makes it clear that the court will lean in favour of the plaintiff in
judging the reasonableness of his claim.  The court made it plain that the
restraint imposed on damages for non-pecuniary losses was an added reason for
insuring the adequacy of pecuniary compensation.

[126]   The
test for determining the appropriate award under the heading of cost of future
care is an objective one based on medical evidence.  For an award of
future care:  (1) there must be a medical justification;
and (2) the claims must be reasonable:  Milina, at 84. 
Furthermore, future care costs must be likely to be incurred by the
plaintiff.  The award of damages is thus a matter of prediction as to what
will happen in future.  If a plaintiff has not used a particular item or
service in the past it may be inappropriate to include its cost in a future
care award:  Izony v. Weidlich, 2006 BCSC 1315 at para. 74.

[127]   Contingencies
must also be considered when assessing cost of future care.  In Gilbert,
the court discussed adjusting for contingencies at para. 253:

The extent, if any, to which a
future care costs award should be adjusted for contingencies depends on the
specific care needs of the plaintiff.  In some cases negative
contingencies are offset by positive contingencies and, therefore, a
contingency adjustment is not required:  see Spehar (Guardian ad litem
of).  In other cases, however, the award is reduced based on the
prospect of improvement in the plaintiff’s condition or increased based on the
prospect that additional care will be required:  see Morrison
(Committee of).  Each case falls to be determined on its particular
facts.

[128] An
assessment of damages for cost of future care is not a precise accounting
exercise:  Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at para. 21.

[118]     Several of
the witnesses who assessed Mr. Jackson made recommendations concerning his
future care.

[119]     Ms. Craig
opined that Mr. Jackson remained "de-conditioned with reduced core
stability."  She recommended he undertake an individualized rehabilitation
program guided by a physiotherapist for one hour, three days per week for four
to six weeks.  Although I was provided with no estimate as to the cost of such
a program, I have made an allowance for it in my award.

[120]     Dr. Perey
recommended a re-training program to a less physically demanding occupation
than a plumber.

[121]     Dr. Wong
also recommended a vocational change.

[122]     Mr. Trainor
recommended Mr. Jackson attend a multi-disciplinary pain program where he
"would be exposed to the synergistic efforts of a team of experts
including a Pain Specialist, a Physical Therapist, and a Psychologist." 
Defence counsel, in my view, appropriately objected to Mr. Trainor
offering such a recommendation as he was, in essence, opining in an area
outside his training and area of expertise.  While Mr. Trainor has had
experience in pain management he is qualified to give an opinion in vocational
assessment, not medicine.  None of Mr. Jackson’s attending physicians made
any comment about the necessity for Mr. Jackson’s pain to be managed which
might form a basis for Mr. Trainor’s recommendation.  Accordingly, I do
not accept this recommendation.

[123]     Mr. Trainor
also recommended Mr. Jackson would benefit from the services of a
vocational case manager who might assist in defining job goals, develop job
leads, revise his résumé, prepare him for interviews and otherwise coach Mr. Jackson
in finding appropriate employment.  Mr. Trainor opined the cost of such
assistance would approximate $3,000 to $4,000.  I consider some award for
vocational relocation assistance is appropriate given the recommendation of Mr. Jackson’s
physicians and Ms. Craig.

[124]     The plaintiff
testified he takes Advil to relieve his lower back pain.  He took Advil daily
when he was working; otherwise he takes one to two tablets per week.

[125]     I award a
lump sum of $7,500 to cover the cost of future care for the above items,
excluding Mr. Trainor’s recommendation for pain management as set out
above.

Special
Damages

[126]     It is well
established that an injured person is entitled to recover the reasonable
out-of-pocket expenses they incurred as a result of an accident.  This is
grounded in the fundamental governing principle that an injured person is to be
restored to the position he or she would have been in had the accident not
occurred:  see Jamie Cassels & Elizabeth Adjin-Tettey, Remedies: The Law
of Damages, 2 ed. (Toronto: Irwin Law Inc., 2008) at 111-112, 119-120; Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 78 (S.C.), aff’d (1987), 49
B.C.L.R. (2d) 99 (C.A.).

[127]     The
defendant concedes Mr. Jackson incurred the out-of-pocket expenses claimed
in the amount of $1,767.52, with the exception of a mileage expense claim in
the amount of $694.20, to attend various physiotherapy, medical and other
appointments.  Defence counsel argues there was no evidence on the cost for
travel expenses or justification for the amount claimed.  It is not disputed Mr. Jackson
did attend the various appointments nor is it argued he did not need to travel
to attend the appointments.  Travel expense is claimed at the rate of 50¢ per
kilometer.

[128]     I allow Mr. Jackson’s
claim for special damages in the amount of $1,767.52.

Summary

[129]     To
summarize my conclusions, I award the following to Mr. Jackson:

Contributory Negligence

[130]     Mr. Jackson
was not wearing his seat belt at the time of the accident.  The issue is
whether Mr. Jackson would have sustained the injuries he did had he been
wearing his seat belt.

[131]     In Fitch
v. Prosko (1979), 11 B.C.L.R. 70 (B.C.S.C.), Chief Justice McEachern, said
the defendant bears the onus of establishing the injuries sustained by the plaintiff
would not have occurred or would have been lessened if the seat belt had been
worn:  at 74.  See also Greenwall v. Watson, 1995 CarswellBC 2358 at para. 41
(WL Can.) (B.C.S.C.).

[132]     The
evidence the defendant called in support of his assertion the plaintiff was
contributorily negligent by failing to have the vehicle’s seatbelt affixed was
from Mr. Jean-Francis Goulet, a mechanical engineer who specializes in
motor vehicle accident reconstruction, and Mr. Dennis Chimich, a
biomechanical engineer.  Both experts are employed by MEA Professional
Engineers and Scientists.

[133]     Following
their respective investigations both Mr. Goulet and Mr. Chimich
issued reports which were admitted into evidence and both were cross-examined
at trial.

[134]     Mr. Goulet
concluded the velocity change which occurred to the plaintiff’s truck was
between 14 and 39 km/h.  He opined that a properly seated driver wearing a seat
belt would "probably not have hit the steering wheel with his stomach or
chest."  In cross-examination, Mr. Goulet acknowledged he was only
asked to investigate whether the plaintiff would have hit the steering wheel
with his stomach.  He was not familiar with the injuries sustained by the plaintiff. 
It is, therefore, my view that the defendant has not shown that had Mr. Jackson
been wearing his seat belt he would not have been injured or, at least, would
not have suffered back and neck injuries to the same extent.

[135]     Mr. Chimich’s
focus was on Mr. Jackson’s right wrist injury.  He was requested to assess
whether Mr. Jackson would have sustained his right wrist injury had he
been properly restrained by his seat belt.  In addressing this issue, Mr. Chimich
states at page 5 of his report:

Would Mr. Jackson’s scapholunate disruption from this
incident have been prevented or lessened with proper seat belt usage?

If Mr. Jackson sustained his wrist injury as he was
propelled forward over the steering wheel and came down vertically and struck
the wheel with his chest with his right wrist pinned in between, this mechanism
would not be available with proper seat belt usage.

A mechanism for his wrist injury
would exist with seat belt usage if his hand was low on the steering wheel and
in an underhanded grip position.  However, the forces applied to his wrist
would be reduced due to the restraining action of the seat belt, and as a
result, his risk for injury is expected to be lower with this mechanism.

[136]     Again, the
difficulty with the defendant’s case is that he has the onus of establishing Mr. Jackson’s
injuries would not have occurred or would have been lessened by his proper use
of his seat belt.  Mr. Jackson was unable to recall where he placed his
right hand immediately prior to the sudden onset of the collision.  He had very
little time to react as the defendant’s vehicle swerved into his lane of
traffic.  He recalled putting his left hand up to his head.  He testified he
did not recall where his right hand was.  He said it could have been on the
steering wheel.

[137]     Mr. Chimich
acknowledged in cross-examination that Mr. Jackson’s injury could have
been caused if he had braced his hand against the steering wheel.  Indeed, Mr. Chimich
allowed for the fact the wrist injury could have occurred even with use of a seat
belt if Mr. Jackson’s hand was "low on the steering wheel and in an
underhanded grip position."

[138]     I am of
the view that the defendant has not established on the balance of probabilities
that Mr. Jackson’s wrist was in such a position at the time of the collision
that the injury would not have occurred or would have been less had he been
properly secured by a seat belt.

[139]     Accordingly,
I hold the defendant fully responsible for the cause of the accident and for
the damages assessed above.

[140]     Counsel
may speak to the issue of costs should they be unable to resolve the issue.

"GREYELL J."