IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120629

Docket: 42661

Registry:
Kamloops

Between:

David Ford Baxter
and 568677 B.C. Ltd.

Plaintiffs

And

David Stewart
Morrison
and Triple "G" Logging Ltd.

Defendants

Before:
The Honourable Mr. Justice Ehrcke

Oral Reasons for Judgment

Introduction

[1]          
THE COURT: This personal injury action concerns a logging truck
that struck some overhead power wires causing the power pole to which the wires
were attached to break into pieces and fall onto another vehicle, damaging that
vehicle and injuring its driver. Both liability and damages are in issue.

Circumstances of the Accident

[2]          
The accident happened in this way. The defendant, David Morrison, was
driving a Kenworth T-800 tractor owned by the defendant, Triple "G"
Logging Ltd., who was Mr. Morrison’s employer at the time. The rig had two
trailers equipped for hauling logs, a configuration known as a Super B-Train because
one of the trailers had two axles and the other had three. Each of the trailers
had tall metal stakes on each side to hold the logs in place when hauling a
load.

[3]          
When a rig returns empty, the practice is to load one of the trailers
onto the tractor and other trailer so that the trailer’s wheels are up off the
road. Because that trailer is then decked or piggybacked, it is much higher
than it would be when it is loaded and its wheels are on the road. For this
reason, the stakes are designed to fold in half so that their height can be
reduced when the rig is empty. In this way, the overall height of the rig can
be kept below the level necessary for it to pass safely under bridges,
overpasses, and overhead power lines.

[4]          
The folding mechanism is spring loaded so that a folded stake will
extend to full length if it is not held in the folded position. Each stake has
a chain that is used to secure the stake in the folded position when the rig is
empty. The spring tension is adjustable.

[5]          
On August 31, 2007, the defendant, Mr. Morrison, had delivered a
load of logs to the Tolko Mill, north of Rayleigh. As he left the mill yard,
one of the two trailers was loaded piggyback onto the trailer and tractor and Mr. Morrison
had folded the trailer’s stakes to reduce their height.

[6]          
Mr. Morrison drove the rig southbound on Highway Number 5 headed
towards Merritt. He was in the slow or curb lane. Shortly before 8:00 a.m., as Mr. Morrison
drove the rig south of the Halston intersection, the front-passenger-side stake
on the piggybacked trailer struck overhead power wires and pulled down the
wooden power pole.

[7]          
At the same time, the plaintiff, David Baxter, happened to be driving
his Jeep Cherokee northbound on Highway 5 on his way to work. He had slowed and
was in the right-turn lane when he saw the broken power pole falling onto his
vehicle. Fearing that the pole would go through his windshield, he twisted his
body and tried to get down to the floor. The power pole and wires did not go
through his windshield, but rather smashed against his vehicle with most of the
damage being to the right-front fender and hood. After Mr. Baxter’s
vehicle came to a stop on the right-hand side of the highway, he called 911. He
waited for assistance in exiting because there were live power wires touching
his vehicle.

[8]          
Constable O’Callahan of the RCMP attended the scene. He had photographs
taken, and he wrote an accident report. It is apparent from the photographs
that one of the stakes on the rig driven by Mr. Morrison had sprung from
the folded position into the upright position and that the excess height caused
it to catch on the power wires. The photographs clearly show that the
front-passenger-side stake on the piggybacked trailer was in the upright
position, but had been severely bent by the impact of the accident. There was
debris from the shattered power pole and transformer littering the pavement.

[9]          
Constable O’Callahan spoke to Mr. Morrison, who told him he
suspected that he must have hit a bump causing the stake to extend to the
upright position prior to the accident.

Liability

[10]       
The defendants take the position that this accident was not caused by Mr. Morrison’s
negligence and that there was nothing to put him on notice that he should check
whether the stakes were in the down position before passing under the overhead
wires. The defendants say that the standard of care is not to be measured
against perfection.

[11]       
In a negligence claim, the onus is on the plaintiff to prove that the
defendant owed him a duty of care, that there was a breach of that duty of care
in that the defendant failed to exercise the standard of care required of a
reasonable and careful person in the circumstances, and that the plaintiff
suffered injuries that were caused by the defendant’s negligence: Basra v.
Gill (1994), 99 B.C.L.R. (2d) 9 (C.A.).

[12]       
Here, there is no question that the defendant, Mr. Morrison, as the
driver of a large tractor-trailer rig on a public highway, owed a duty of care
to others using that highway, including the plaintiff, Mr. Baxter. There
is also no question that Mr. Baxter suffered injuries that were caused by
the accident. The issue on liability is whether Mr. Morrison failed to
exercise the standard of care of a reasonable and careful person in the
circumstances.

[13]       
The plaintiff called three witnesses on the issue of standard of care. The
first two, Ken Robison and Dave Bunch, have considerable knowledge and
experience with logging trucks, but they were not called as expert witnesses.

[14]       
Ken Robison was a truck driver for 39 years hauling logs. He was
familiar with holding stake extensions, and he explained how they work. He said
they are spring loaded and must be secured with a chain or hook when they are
in the folded-down position in order to prevent them from springing into the
upright position. He said that when driving in conditions where an upright
stake would make the rig over-height, as when a trailer is piggybacked, it is
extremely important to monitor that the stakes remain folded down while driving
because otherwise there is the danger of hitting an overhead obstruction such
as power wires crossing the highway.

[15]       
He said it is important for a driver to make a visual inspection when
leaving the bush to enter onto a public highway. He said that his practice was
to look in the mirrors to verify that the stakes remained folded down whenever
the rig approached an overhead hazard. He said this can be done by looking in
the rig’s West Coast mirrors, that is, the mirrors on the left and right side
of the cab. If all the stakes are not visible, a slight weaving of the rig in
its lane will make them visible. He said that if a folded stake should snap up,
it would make a distinctive sound that would be audible while driving. If he
heard that sound while driving, he would stop to investigate.

[16]       
Dave Bunch was another long-time truck driver familiar with folding
stakes on rigs like that driven by Mr. Morrison. He said it is possible
for the chains securing a stake folded in the down position to become undone,
so it is important to do visual checks. He, too, said that when a folded stake
snaps up, it makes a sound that a driver would recognize, although he admitted
on cross-examination that it is possible a stake could snap up without the
driver being aware of it. He said he always checks the mirrors to ensure the
stakes are down when approaching an overhead hazard.

[17]       
The plaintiff also called Raymond Trenholm, who was qualified as an
expert in commercial truck driver training. He has extensive training and
experience in driving large trucks, including logging trucks. He teaches
professional driver training in a joint project with Thompson Rivers University
and Columbia Transport Training Ltd. In his report, he gave this opinion
evidence:

When driving a commercial
vehicle, it is the responsibility of the driver to ensure the vehicle is safe
to drive and that a pre-trip inspection is completed before putting the vehicle
into service. When driving a logging truck, it is standard practice to inspect
the loaded vehicle before entering a highway to ensure the load is secure and,
when empty, the stake extensions are folded down and secured by the tie-down
chains. If at any time a driver hears a sudden or unusual noise on his route to
his destination, it is the usual practice to stop and do a quick walk-around to
try to identify the source. When hauling empty logging tractors, it is the
usual practice to use the rear-view mirrors to determine that the stake
extensions are folded down and that none of the folded stake extensions have
released to the upright position.

[18]       
In his oral testimony, Mr. Trenholm explained that he performed a
simulation with a rig similar to the Kenworth T-800 with Super B-Train logging
trailer with one trailer decked. He confirmed that the driver could use the
rear-view mirrors to check whether the folded stakes remained in the
folded-down position. In his written report, he continued:

The driver should always pay
special attention to ensure the stake extensions are down before entering an
area where there may be overhead obstructions. This can be done by checking the
mirrors to see that the chains are attached to the stake extensions to hold
them folded down or by stopping the vehicle and visually checking that the
stake extensions are folded down and secured by the chain. If a driver was to
find that a chain had broken and the stake extension had released to the
upright position, the driver would stop and secure the stake extensions in the
folded-down position. The possibility of having a stake extension pop up from
the folded position is something that all drivers who haul logs are aware of
and knowing to check the stake extensions is an essential part of their job. In
my opinion, this accident could have been prevented by stopping to check the
position of the stake extensions when the driver admittedly heard the clunk
from the rear of the vehicle.

[19]       
The defendant Mr. Morrison testified. He has been a professional
truck driver since 1990. He took a one-month training course at Caribou College
in order to obtain his Class 1 Airbrake Licence. The course included the topic
of folding stakes.

[20]       
Mr. Morrison said that on the date in question, he started off in
Merritt at around 4:30 a.m. He walked around his rig doing a visual inspection
and did not notice anything unusual about the stakes or their chains. He had
driven this same rig thousands of times. It had a Super B-Train configuration
used for short logs. The tractor had a sliding 5th wheel hitch that allowed the
trailer to be secured closer to the cab in order to put more weight on the
steering axle for better handling. In this way, his rig was different from the
one used by Mr. Trenholm in his simulation because that rig did not have a
sliding 5th wheel hitch. Another difference is that the rig driven by Mr. Morrison
did not have a sleeper. According to Mr. Morrison, both of these factors
would affect the visibility of the fold-down stakes in the West Coast mirrors. According
to Mr. Morrison, when looking in the mirrors of his rig, it was not
possible to see the top of the stakes when extended.

[21]       
After leaving Merritt, Mr. Morrison drove to the Tolko mill and
unloaded his logs. He lowered the stakes on the trailer that was then
piggybacked onto the tractor and other trailer. He did a visual inspection to
ensure that all those stakes were secured by their chains in the down position.
He did not see anything unusual about the condition of the chains.

[22]       
He then drove southbound on Highway 5. He said there are constant
noises, but he was familiar with his rig and he did not hear anything that
caused him any concern. At one point near Rayleigh, he went over a bump caused
by a frost heave and, as he did so, he heard a clunk that he believed was
simply the sound of the piggybacked trailer settling. He looked through his
back window, but nothing tipped him off that there was a problem. He said that
he knows the distinctive sound that is made when a stake extension flips up and
he never heard that kind of sound as he drove from the Tolko mill to the place
where the accident happened. He said his rig is equipped with a VHF radio and
it is the custom that when other professional drivers see something wrong, they
usually try to signal by flashing their lights or pointing to the problem. As Mr. Morrison
drove from Tolko that day, no one signalled him that anything was wrong.

[23]       
When he approached the Halston intersection, which is about eight
kilometres from Tolko, he slowed down because it is a busy intersection. The
light turned green, and he slowly carried on through the intersection. Shortly
thereafter, he heard commotion in the back, and he stopped. At first, he did
not realize what had happened, but then he saw that one of his stakes was
extended and had caught the wires that went over the highway. He was shocked. He
went over to Mr. Baxter’s vehicle and asked him if he was okay. He called
911, but they were already aware of the situation. He called his employer, and
he also spoke to the police officer at the scene.

[24]       
In cross-examination, Mr. Morrison said that he agrees generally
with the safety routine described by Mr. Trenholm, but he disagreed with Mr. Trenholm’s
evidence that it is possible to see all of the stakes by looking in the
rear-view mirrors while sitting in the driver’s seat. He said that when he hit
the frost heave bump, he looked through his rear window and in his left and
right West Coast mirrors, but he could not see whether all the stakes were up
or down. He agreed that from that point until the Halston intersection, the
road is long and straight and there are suitable places where he could have
pulled over to stop, but he did not do so as he did not believe he had any
indication that anything was wrong. He said that when he was at the Halston
intersection, he did not perceive the wires over the highway as being a hazard
and he did not at that point check his mirrors. He said he realized that
overhead services are always a potential hazard, but not if the stakes are
down.

[25]       
Gregory Ware also testified for the defence. He is one of the owners of
the defendant Triple "G" Logging Ltd. He said that Mr. Morrison
was working for the company at the time of the accident. He said he had no
complaints about Mr. Morrison’s professionalism as a driver. Sometime
after the accident, he measured the height of an extended stake on a similar
piggybacked trailer and found it to be 17-feet-six-inches. In
cross-examination, he agreed with what he had said in his examination for
discovery at questions 163 to 167, namely, that from his days as a truck driver
on the same kind of rig, you could check whether the stakes were up or were folded
down by looking in the left and right West Coast mirrors and, if you could not
see a stake folded down, you could pull over and stop to check.

[26]       
Daniel Von Holland, an employee of BC Hydro, gave evidence about power
lines crossing the highway. He said BC Hydro lines are supposed to be at least
7.1 metres above the highway and any Telus lines are supposed to be at least
5.9 metres above the highway. According to the records in the BC Hydro
database, there are currently 12 locations where hydro lines cross Highway 5
between Tolko and the Halston intersection, but Mr. Von Holland could not
say if that was the case in August 2007, nor could he say how many of those
crossings also had Telus lines.

[27]       
Finally, Dennis Pryhitko testified for the defence. He works for B.C.
Commercial Vehicle Safety and Enforcement, and he issued a citation to Mr. Morrison
for operating over-height with the extended stake. He himself had experience as
a logging truck driver. He said he had stakes pop up on him and sometimes he
realized it, but other times he did not. He said, "Sometimes you hear it,
and sometimes you do not." He said that mirrors are a great tool, but they
have blind spots. He said that if he heard a noise he could not identify, he
would either stop or check his mirrors.

[28]       
From all the evidence, I am satisfied that the plaintiff proved on a
balance of probabilities that the accident was caused by the negligence of Mr. Morrison
in failing to ensure that the stakes on his piggybacked trailer were in the
down position when he passed under the wires just past the Halston intersection.
Any reasonable professional truck driver would have realized that those wires
crossing the highway posed a potential hazard of serious harm unless the stakes
on the trailers were in a position that would allow proper clearance. As such, Mr. Morrison
should have checked his mirrors at that point to ensure that the stakes were in
the down position and he should have stopped his rig if he could not ascertain
this by looking in the mirrors. He was negligent in failing to do so. It is no
answer for Mr. Morrison to say that he could not see whether the stakes
were up or down by looking in his mirrors.

[29]       
Moreover, Mr. Morrison should have stopped his rig for a visual
walk-around inspection after he heard the clunk from going over the frost heave
near Rayleigh. Although he thought that he knew what caused the clunking noise
when he looked through his rear-view mirror and when he looked in his left and
right mirrors, he testified that he could not see whether the stakes continued
to be in the down position. At that point, any reasonable professional driver
would have stopped to do a visual inspection. Mr. Morrison was negligent
in failing to do so.

[30]       
I find, therefore, that the accident was caused by the negligence of Mr. Morrison
as the driver of the rig. Triple "G" Logging Ltd. is vicariously
liable.

How the Accident has Affected the Plaintiff

[31]       
Mr. Baxter is 52 years old. He was 47 at the time of the accident. He
graduated from high school in 1978 and then obtained a two-year forestry
technician certificate. After working in the forestry industry for several
years, he started his own company, Trout Creek Enterprises, producing high-end
millwork products for log homes and custom flooring.

[32]       
Mr. Baxter is divorced and has two children. He has a long-term
partner, Ms. Beecroft, who has four children. They met in January 2007.

[33]       
Mr. Baxter owns his own home on the river, to which he has done
extensive renovations using the kinds of products produced by his company. He did
most of the renovation work himself prior to the accident.

[34]       
Before the accident, Mr. Baxter led an active life both at work and
at leisure. He enjoyed sledding, quading, motorcycling, camping, and downhill
skiing. He was able to work full days at his business and doing the renovations
to his home.

[35]       
Following the accident, his leisure activities are more restricted. He
now does only cross-country skiing. He still rides a motorcycle, but for
shorter distances. He goes camping, but not as often. He says he has gained 30
pounds. He is unable to do many chores around the house and has had to hire
others to do garden work and house maintenance. Mr. Baxter’s evidence on
these issues was confirmed by the testimony of Ms. Beecroft as well as a
next-door neighbour, Ross Davidson, and another acquaintance, Robert Thompson.

[36]       
Mr. Baxter testified that at work, he still tries to do his job,
but he finds that when putting in a long day, he pays the price afterwards in
terms of pain and discomfort. He cannot easily lift heavy pieces of wood, and
it is difficult for him to bend over the machine used for sharpening heads. As
a result, he has had to hire others and delegate some of the work he used to do
himself.

[37]       
This is confirmed by the testimony of a work associate, Dwayne Svenson,
who testified that the plaintiff is less productive than he was before the
accident. He said a different employee now sharpens the heads and this may stop
production for a few hours. Mr. Svenson said that he attends tradeshows
with the plaintiff, but the plaintiff does not have the same stamina as before
the accident. As a result, he is often not there for the entire eight to 12
hours, especially on the second and third day. Nevertheless, he said that the
business is doing well and the plaintiff is crucial to the business.

[38]       
Mr. Baxter testified that immediately after the accident he felt he
was in shock, but not much pain. Later, he felt himself kinking up with neck
and arm pain, particularly his right arm. He felt what he described as a knot
in his shoulder blade that radiated into his neck. He experienced numbness in
his right arm, thumb, and first finger.

[39]       
Despite his discomfort, he felt that he could not take time off work as
he was responsible for his 12 employees. He initially took Tylenol 3, but
discontinued them. He currently takes Aspirin and Celebrex which he finds
helpful. He continues to do physiotherapy.

[40]       
The day of the accident, he went to a walk-in clinic and he subsequently
saw his family doctor. The symptoms started getting worse a few months later. He
received physical therapy and was referred to a neurologist, Dr. Collier,
who investigated with an MRI.

[41]       
He was subsequently referred to Dr. Brownlee, a neurosurgeon, and
he underwent anterior cervical spine fusion on September 23, 2009. Mr. Baxter
testified that this provided immediate relief and he told Dr. Govender, a
neurosurgeon who provided a medical-legal report on June 16, 2010, that this
operation provided about 70% improvement of his symptoms.

[42]       
Dr. Brownlee provided two reports. In the first, dated August 26,
2010, he opined that the right arm pain was caused by compression of the C7
nerve root by disk herniation as identified in the MRI. In his opinion, this
was caused by the accident and was relieved by the surgery in which the disk
herniation was removed. In his opinion, the plaintiff has a mild permanent
disability. Dr. Brownlee wrote:

I do not believe that Mr. Baxter
has any permanent neurological impairment, except for some decreased sensation
in his right index and middle fingers. I believe that Mr. Baxter does have
a mild degree of permanent disability as a result of his ongoing neck pain. This
has had an impact on his occupation. He now delegates physical activities that
he would have done himself prior to the onset of his neck pain which resulted
from the motor vehicle accident.

[43]       
At the end of his report, Dr. Brownlee gave this summary:

In summary, Mr. David Baxter
is a self-employed 50-year-old man who was previously healthy with no history
of neck or right arm pain. He was involved in a motor vehicle accident on
August 31, 2007, which caused him to develop neck and right arm pain. This was
due to a disk herniation between the sixth and seventh vertebrae in his neck
which I believe was caused by the motor vehicle accident. Because of his
unrelenting pain, Mr. Baxter went on to have surgery on his neck to remove
the disk herniation and relieve the pressure on the nerve. This resulted in
resolution of his arm pain and improvement in his neck pain. However, he does
have ongoing neck pain which is of undetermined origin. Mr. Baxter had
some pre-existing asymptomatic degenerative changes in his neck. The motor
vehicle accident did not cause the degenerative changes, but did cause the neck
pain which he continues to have. This ongoing neck pain will be a source of
mild permanent disability. The neck operation, which is a direct consequence of
his motor vehicle accident, does increase the chance of further degenerative
changes. It also reduces the range of motion of his neck by approximately five
percent. The accident and surgery increased his risk of needing further surgery
in the future. The exact chance of this is not possible to determine, but is
probably between 10 and 30 percent compared to the normal population. Mr. Baxter
has had to modify his working conditions because of his ongoing neck pain. He
delegates physical activities that he was able to perform himself prior to the
accident. This is probably a permanent change in his functional capacity. He
also attends physiotherapy on a regular basis and will probably need to do so
in the foreseeable future.

[44]       
In his second report, dated April 4, 2011, Dr. Brownlee noted that Mr. Baxter
is having predominantly neck pain and that he is attending physiotherapy, which
Dr. Brownlee encouraged him to continue. He said that, "at this
point," he did not think Mr. Baxter has another disk herniation and,
therefore, he did think he would require another fusion operation.

[45]       
Cara Humphreys is a physical therapist who has been treating Mr. Baxter.
In her report dated March 28, 2011, she described the treatment provided,
including dry needling technique. Under the heading "Prognosis," she
wrote:

Dave has chronic complaints of
neck and shoulder girdle pain following the MVA. Though these symptoms have improved
significantly over the last few years, it is unlikely that they are going to
spontaneously resolve. It is common for clients with this presentation to have
periods that are relatively free of symptoms and periods of symptom
exacerbation. It is likely that Dave will continue to experience periods of
symptom exacerbation that requires medication, self-management strategies,
and/or hands-on interventions. Dave has developed the ability to self-monitor
and seek hands-on treatment as needed. As noted above, Dave will need guidance
to gradually increase his strength and resume more of his regular activities. He
has been educated about the need to start slowly and gradually increase the
duration and intensity of his activities in order to minimize provocation of
symptoms. I have encouraged Dave to try to be more consistent with a gym
program to increase his general fitness and right-arm control and strength. A
focused short-term physical therapy program may be a good bridge into a more
structured community gym program.

[46]       
Carol Burden, a registered occupational therapist provided a functional
capacity evaluation report dated May 12, 2010, based on the tests she performed
on April 27, 2010. In her summary, she wrote:

Mr. Baxter does not meet the
full range of physical demands associated with his current work. It is also
important to consider that Mr. Baxter does not recover from heavy work
such that his level of discomfort builds over the course of the week
(cumulative effect). Mr. Baxter is currently best suited for work in the
limited and light demand with restriction in overhead reach and work-intensive
postures requiring either neck flexion or extension. As he is self-employed, he
may be able to compensate for his physical limitations through staffing and scheduling.
The final impact and feasibility of this are beyond the scope of this report. From
a functional perspective at home, Mr. Baxter has a large home and yard
that require regular maintenance now beyond his capacity. He is no longer able
to extend his neck to work overhead and has reduced tolerance for repetitive
work at or above shoulder level. It is my opinion that Mr. Baxter now
requires assistance for heavier aspects (labour only) of outdoor home
maintenance tasks which he previously would have performed himself (replacement
of the retaining wall, raking, and such).

[47]       
Ms. Burden recommended allowance for 30 to 50 hours per year for
access to heavy home maintenance assistance, ergonomic office equipment
including an adjustable chair, and the cost of medication particularly Celebrex.
Her budget for these items was approximately $3,100 initial costs and $2,650
ongoing per year.

[48]       
Gordon Wallace, a registered psychologist, wrote a report assessing the
plaintiff’s "residual employability potential." He noted at page 5 of
his July 22, 2011 report that he could not comment on the effect of Mr. Baxter’s
limitations on the efficiency and profitability of his business as this would
be outside of his area of expertise as a psychologist. He therefore went on to
consider the possibility that Mr. Baxter no longer operated his own
business. In that case, Mr. Wallace opined that Mr. Baxter would not
be precluded from obtaining employment, but his ability to maintain employment
is an issue. He described a phenomenon that he called "presenteeism,"
meaning that an employee shows up for work, but is unproductive due to personal
health or life issue distractions. He went on to note at page 9:

However, it also my opinion that
he has also demonstrated positive work-related factors including his ability to
maintain his company even in the face of the ongoing pain and discomfort that
he has experienced. From a rehabilitation psychology perspective, this
demonstrates not only a commitment to competitive employment, but also the
perseverance to maintain work even in the face of pain and discomfort.

[49]       
Mr. Wallace recommended psychological treatment for Mr. Baxter
regarding his mood, adjustment difficulties and pain management.

Special Damages

[50]       
The parties are agreed that the proper assessment of special damages is
$9,000, which is primarily for physiotherapy at $75 per hour and for
medications such as Celebrex from the time of the accident to the time of trial.

General Damages

[51]       
In Stapley v. Hejslet, 2006 BCCA 34, at paragraph 46, our Court
of Appeal discussed some of the factors that ought to be considered when
assessing non-pecuniary damages:

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).

[52]       
The plaintiff submits that in the present case, non-pecuniary damages
should assessed at $100,000 to $150,000. In support of that submission, the
plaintiff has referred to a number of cases, including:

Love v. Pai, 2003 BCSC
900;

Deol v. Narcisse, 2002
BCSC 1748;

Larwill v. Lanham, 2001
BCSC 1597;

Switzer v. Buchi, [1998]
B.C.J. No. 1904 (S.C.); and

Dyson v. Purnell, [1997] B.C.J. No. 741
(S.C.).

[53]       
The awards for general damages in those cases ranged from $95,000 to
$126,000, but the plaintiff submits that that range should be adjusted upwards
for inflation, as many of those cases were decided more than 10 years ago.

[54]       
The defendants referred to the following cases, where the awards for
general damages ranged from $75,000 to $100,000:

Jackson v. Rooney, 2007
BCSC 761;

Smusz v. Wolfe Chevrolet Ltd.,
2010 BCSC 82; and

Ng v. Sarkaria, 2011
BCSC 1643.

[55]       
Here, the plaintiff, who was 47 at the time of the accident and who
enjoyed an active lifestyle both at home and at work, suffered injuries to his
neck, right shoulder, and arm. Dr. Brownlee found that his right arm pain
was caused by a disc herniation resulting from the accident. He performed an
operation on his neck to remove the disc, and this relieved about 70% of the
pain. Dr. Brownlee’s opinion is that following the operation, Mr. Baxter
has a "mild degree of permanent disability as a result of his ongoing neck
pain." This discomfort continues to affect Mr. Baxter both at home and
at work.

[56]       
While reference to previous cases provides useful guidance, every case
must be assessed on its own particular facts. Taking account of all of the
factors mentioned in Stapley v. Hejslet, I would assess general damages
in this case at $100,000.

[57]       
In addition, the plaintiff submits that the award should be increased by
30% to account for the possibility that a second surgery will be necessary. He
refers to Athey v. Leonati, [1996] 3 S.C.R. 458, where the Court said at
para. 27:

Hypothetical events (such as how
the plaintiff’s life would have proceeded without the tortious injury) or
future events need not be proven on a balance of probabilities. Instead, they
are simply given weight according to their relative likelihood: Mallett v.
McMonagle, [1970] A.C. 166 (H.L.); Malec v. J. C. Hutton
Proprietary Ltd. (1990), 169 C.L.R. 638 (Aust. H.C.); Janiak v. Ippolito,
[1985] 1 S.C.R. 146. For example, if there is a 30 percent chance that the
plaintiff’s injuries will worsen, then the damage award may be increased by 30
percent of the anticipated extra damages to reflect that risk. A future or
hypothetical possibility will be taken into consideration as long as it is a
real and substantial possibility and not mere speculation: Schrump v. Koot (1977),
18 O.R. (2d) 337 (C.A.); Graham v. Rourke (1990), 74 D.L.R. (4th) 1
(Ont. C.A.).

[58]       
In my view, this is not a case in which the award needs to be increased
for the possibility of a second surgery. Although Dr. Brownlee observed in
his first report that Mr. Baxter may have an increased likelihood of a
second operation and he set that increased likelihood at between 10% and 30%,
he wrote in his second report dated April 4, 2011, that he did not think Mr. Baxter
would require another fusion operation. On the basis of that more recent
opinion, I would not increase the award to account for a possible second
operation.

Loss of Future Earning Capacity

[59]       
The plaintiff makes no claim for past wage loss or past loss of earning
capacity, but he submits that the evidence demonstrates a loss of capacity in
the future for which he should be compensated. He seeks an award in the range
of $200,000 to $300,000.

[60]       
The defendants submit that there should be no award for loss of future
earning capacity as there is no evidence to support a real and substantial
possibility of such loss. The defendants submit that the evidence does not
demonstrate any diminishment of Mr. Baxter’s personal income or
diminishment of the finances of his company. On the contrary, the defendants
submit that his company has thrived since the accident, despite a difficult
economic climate.

[61]       
The factors to be considered in assessing the value of the impaired
asset were discussed in Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393
(C.A.) at p. 399. There, the British Columbia Court of Appeal referred
with approval to the list set out in Brown v. Golaiy (1985), 26 B.C.L.R.
(3d) 353 at 356 (S.C.), as follows:

The means by which the value of the lost, or impaired, asset
is to be assessed varies of course from case to case. Some of the
considerations to take into account in making that assessment include whether:

1.         The
plaintiff has been rendered less capable overall from earning income from all
types of employment;

2.         The
plaintiff is less marketable or attractive as an employee to potential
employers;

3.         The
plaintiff has lost the ability to take advantage of all job opportunities which
might otherwise have been open to him, had he not been injured; and

4.         The plaintiff is less valuable
to himself as a person capable of earning income in a competitive labour
market.

[62]       
In the present case, there is expert evidence from Carol Burden,
who carried out a functional capacity evaluation of Mr. Baxter in April
2010. At page 4 of her report, she expressed her opinion that: “Mr. Baxter does not meet the full
range of job demands for his current job.” She considered the job
demands for work as a carpenter, a cabinet maker, a woodcutting machine
operator, primary production manager, and retail salesperson. She said that his
target job is mill working and woodworking. However, Ms. Burden also noted
at page 6 of her report that:

As he is self-employed he may be
able to compensate for his physical limitations through staffing and scheduling;
the financial impact and feasibility of this are beyond the scope of this
report.

[63]       
I do not agree with the defendants that there is no evidence of a real
and substantial possibility of a loss of earning capacity. On the other hand, I
am of the view that the evidence shows a far more modest limitation than would
be suggested by the plaintiff’s submission that an award in the range of
$200,000 to $300,000 is called for.

[64]       
Based on the evidence before me, Mr. Baxter’s business seems to be
doing very well notwithstanding the effects of the accident. While he has had
to delegate certain work to others in the company, the financial impact of this
appears to be quite limited. I take note of the fact that Mr. Baxter
testified that he has no present intention of selling the business to take up
different work and that he is within 15 years or less of a typical retirement
age.

[65]       
I thus find that Mr. Baxter is entitled to some limited
compensation under the head of loss of future earning capacity, and I assess
damages for that loss at $30,000.

Cost of Future Care

[66]       
Based on the recommendations of Carol Burden and the economist report of
PETA Consultants, the plaintiff seeks an award of $62,000 for the cost of
future care.

[67]       
The defendants agree that there should be some award for continuing
physiotherapy and for the cost of Celebrex, but they reject the other aspects
of this claim, particularly Ms. Burden’s recommendation of $2,000 per year
for home maintenance based on 40 hours per year at $50 per hour.

[68]       
In my view, the evidence demonstrates that Mr. Baxter will likely
continue to require assistance in the heavier tasks of home maintenance. However,
I would set the number of hours and the rate per hour at the lower end of the
range, namely, 30 hours per year and $35 per hour for a total of $1,050 per
year. I would allow $570 per year for the cost of Celebrex, and $675 for
physiotherapy. I would not make an award for "office ergonomics." I
would thus award a total of $2,300 per year. Using the multiplier of 17,747 set
out in the PETA report to determine the present value based on normal life
expectancy, I assess damages for the cost of future care at $41,000.

[69]       
I make no award under this head for psychological treatment. Mr. Baxter
in his evidence did not evince any interest in such treatment, and no evidence
has been put before me as to the cost, duration, or form such treatment would
take.

Summary

[70]       
To summarize, I find the defendants liable in negligence for the
accident.

[71]       
The plaintiff is awarded special damages of $9,000, non-pecuniary
damages of $100,000, loss of future earning capacity of $30,000, and $41,000
for the cost of future care.

[72]       
Are there any submissions on costs?

[73]       
MR. HOGG:  No, they just should follow the event in the normal case
at the normal scale.

[74]       
MR. HORNE:  No submissions, thank you, My Lord.

[75]       
THE COURT:  All right. There will be the usual order that the plaintiff
have his costs on Scale B.

[76]       
MR. HORNE:  Right.

[77]       
THE COURT:  Yes.

[78]       
MR. HOGG:  Mr. Horne and I are totally familiar with that.

[79]       
THE COURT:  I thank both counsel for your professionalism and the
careful way that you prepared and presented the case.

The
Honourable Mr. Justice W.F. Ehrcke