IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121109

Docket: M84821

Registry:
Kelowna

Between:

Kayla
Margaret Araujo, an infant,
by her Litigation Guardian John Araujo

Plaintiff

And

Dakota
J. Vincent

Defendant

Before:
The Honourable Madam Justice S. Griffin

Oral Reasons for Judgment

[1]            
THE COURT:

Nature of the Claim

[2]            
The plaintiff, Kayla Araujo, was 15 years old on March 12, 2009 when the
defendant, Dakota Vincent, ran over her with his truck in the parking lot of
Kelowna Secondary School (“KSS”).  He backed up over her, just as or after she
bent over to pick up a dropped cellphone.  She had been walking across the
student parking lot to the school after being dropped off by the school bus.

[3]            
Ms. Araujo suffered many injuries but luckily most have healed.  No
doubt the worst injury to her was the severe ripping of her nose which left her
with a nose deformity.  She has also suffered from knee pain since, as well as
lasting scarring, not just to her nose but also elsewhere.

[4]            
Ms. Araujo brings this lawsuit for damages in relation to her
personal injuries suffered in the accident.

Issues

[5]            
I will address the issues that emerge from the evidence in the following
order:

Liability

1.    
Was the defendant, Dakota Vincent, negligent in driving his vehicle over
Ms. Araujo?

2.    
Was Ms. Araujo contributorily negligent in bending over to pick up
her cellphone while she was standing behind the defendant’s truck in the KSS
parking lot?

Damages

3.    
What injuries did Ms. Araujo suffer?

4.    
Did Ms. Araujo suffer a past loss of income in relation to her part‑time
job during high school?

5.    
What special damages, or out‑of‑pocket expenses, did
Ms. Araujo incur as a result of the injuries suffered in the accident?

6.    
What if any damages should be awarded to Ms. Araujo for cost of
future care?

7.    
What if any damages is Ms. Araujo entitled to as an in‑trust
claim for the services given to her by her father and mother immediately after
the accident?

8.    
What is an appropriate order of damages for Ms. Araujo’s pain and
suffering and loss of enjoyment of life suffered as a result of the accident?

Background

[6]            
I make the following findings of fact.

[7]            
At the time of the accident, Ms. Araujo was a 15‑year‑old
high school student in Grade 10 at KSS.  Mr. Vincent was a 17‑year‑old
high school student at the same school in Grade 12.

[8]            
Ms. Araujo regularly took a school bus to school, which dropped her
and other students off every school day morning.  The school bus routine was to
drop students off on Raymer Avenue at a location that was both adjacent to the
school parking lot and to a sidewalk.  Usually when the bus arrived it was
around 8:45 a.m., give or take five minutes, and other buses were
unloading at the same time.

[9]            
It was around 8:45 a.m. when the bus dropped off Ms. Araujo on the
day of the accident.

[10]        
Students getting off the school buses on Raymer Avenue had two regular
ways of accessing the school.  One way was to follow a sidewalk which ran at
right angles from Raymer Avenue to the front entrance of the school, which was
the main entrance.  One side of the student parking lot was next to the
sidewalk, which I will call the “main entrance sidewalk”.

[11]        
Another path regularly used by students was to walk diagonally through
the student parking lot from Raymer Avenue to doors that were on the side of
the school opposite Raymer Avenue (the “Raymer Avenue entrance”).  Ms. Araujo
estimated in her evidence that it was common for about 70 percent of students
getting off the buses to access the school by walking diagonally through the
parking lot to the Raymer Avenue entrance.  Another former student who took the
same school bus as Ms. Araujo, Bob Cao, gave evidence consistent with this
and I accept this evidence.

[12]        
Classes started at 9:00 a.m. and the first bell reminding students to
get to class went off at 8:50 or 8:55 a.m.

[13]        
Mr. Vincent regularly drove his truck to school.  That morning
after getting out of bed at 8:15 or 8:30 a.m., he drove his truck to school and
he parked it in the student parking lot, in the first or second stall closest
to and parallel to Raymer Avenue.  This was parallel to the area where school
buses dropped off students.  Mr. Vincent parked his truck so that it faced
the main entrance sidewalk, such that he would have to back his truck out of
the stall to leave.  Where he parked his truck faced an area known as “the
smoke pit” where, in the mornings before school, many students would
congregate, smoking or socializing, and doing such things as tossing a
football.

[14]        
That morning just before school there were approximately 30 students in
the smoke pit.  Many of those students also regularly used the Raymer Avenue
entrance to the school, getting there the same way as the school bus students,
by cutting across the parking lot.

[15]        
While Mr. Vincent was in his parked truck, school buses, including
Ms. Araujo’s, unloaded students so that there were at least 60 to 70
students coming off the buses.  The normal path for students towards the Raymer
Avenue entrance to the school took students past the rear of Mr. Vincent’s
truck, and students began walking that way.

[16]        
It was well known by students, including Mr. Vincent, that students
walked through the parking lot to the Raymer Avenue entrance.

[17]        
As Ms. Araujo left the school bus that morning, she decided to
enter the Raymer Avenue entrance, and so started walking towards it and into
the parking lot.  She was about the middle of the pack of students leaving the
school bus.  There were some students ahead of her, heading in the same
direction, cutting through the parking lot.  There were also some students
behind her.

[18]        
As she entered into the parking lot, Ms. Araujo noticed that the
defendant’s truck was parked there and he was in the driver’s seat.  She knew
Mr. Vincent to be a student at the school.  There was also someone in the
passenger seat.  She recalled that there were people around the vehicle, and
the driver, Mr. Vincent, appeared to be talking to some of them who were
near his side of the vehicle.

[19]        
The defendant’s vehicle was distinctive.  It was a white pickup truck
that he had altered to make it ride low to the ground.

[20]        
Ms. Araujo was wearing a hoodie that day which had shallow pockets
in front.  She had her phone in her pocket, but it fell out onto the ground as
she was walking.  She was walking, not running.  Her phone did not break apart
when it dropped.

[21]        
Ms. Araujo’s evidence was that once her cellphone dropped, she
instantly bent over to pick it up, bending from the waist.  Before she could
retrieve it, she was run over by the defendant backing up his truck.

[22]        
The plaintiff was facing away from the back of the truck, bent over,
when it hit her.  It pushed her onto her face and knees and drove over her. 
She could feel the truck wheel drive over her shoulder.

[23]        
Ms. Araujo’s brother Jordan Araujo saw his sister bend down and the
truck back up.  He ran to get the driver’s attention.  Mr. Vincent saw him
and then stopped the truck and drove forward.  Mr. Jordan Araujo rapped on his
window and Mr. Vincent stopped the truck.

[24]        
Mr. Vincent and other students help lift the back of the truck and Mr.
Jordan Araujo dragged his sister out from under it.  Her face was bleeding and
her nose was torn.  An ambulance was called and she was taken to the hospital.

Liability

Was the Defendant Negligent in Driving his Vehicle over Ms. Araujo?

[25]        
Following the accident, Mr. Vincent was charged under s. 193
of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [Motor Vehicle Act],
which provides:

The driver of a vehicle must not
cause the vehicle to move backwards into an intersection or over a crosswalk,
and must not in any event or at any place cause a vehicle to move backwards
unless the movement can be made in safety.

[26]        
I note that the emphasis in that section on moving backwards into an
intersection or over a crosswalk recognizes that there is extra danger in
backing up where people may be walking or other vehicles may be moving.

[27]        
Mr. Vincent paid the ticket.  He suggested in part in his evidence
that he did so because of discussions with his mother, who wanted to just pay
the $90 ticket.  The implication was that his family felt that he should just
do so, due to the upset that was caused to Ms. Araujo and her family by
the accident.

[28]        
The plaintiff does not submit that issue estoppel or res judicata
applies.

[29]        
This case is one of those circumstances in which fairness dictates that
evidence to rebut the prior conviction ought to be admitted because the stakes
in the original proceeding were too minor to generate a full and robust
response.  In this regard, I rely on the Supreme Court of Canada decision in Toronto
(City) v. C.U.P.E., Local 79, 2003 SCC 63 at para. 53.

[30]        
At one time it was considered that s. 193 of the Motor Vehicle
Act or its predecessor, s. 194, imposed near absolute liability, as
was noted in the case of Ireland v. Yun, [1987] B.C.J. No. 653 (S.C.). 
However, that notion would today be considered an overstatement.  As noted by
the British Columbia Court of Appeal in Rinta v. Vanderbasch, 1996
CanLII 2190 (B.C.C.A.) [Rinta]at para. 4, that section of the Motor
Vehicle Act does not impose absolute liability on a driver backing up. 
However, as the Court of Appeal noted:

It imposes a high standard of
care and the conduct of a driver backing up . . . must be
considered in relation to that standard.

[31]        
The standard has been discussed more recently in Dechev v. Judas,
2004 BCSC 1564 [Dechev].  There Madam Justice Boyd held at para. 22:

I agree with defence counsel that
neither the provisions of the Motor Vehicle Act, nor the law generally
require perfection on the part of the defendant.  The defendant is “not bound
to guard against every conceivable eventuality but only against such
eventualities as a reasonable man ought to foresee as being within the ordinary
range of human experience.”  [Citation omitted.]

[32]        
The issue is what was foreseeable in the case at bar, as noted in Dechev.

[33]        
Thus, the question here is what ought Mr. Vincent to have foreseen
when preparing to reverse his truck?

[34]        
It is clear that backing up a vehicle poses greater risks than driving
forward, because of the fact that visibility is impaired and because typically
the driver will have been facing forward, looking in front, and not looking
behind prior to the decision to reverse.  When facing forward, a driver sees
people or objects approaching from the side and can anticipate that they might
be passing in front of the vehicle suddenly or even when they disappear from
view, such as a running dog, a cyclist, or a small child, but the same cannot
be said for what is happening towards the rear of the vehicle.  A driver does
not have rear peripheral vision to alert him to approaching objects.

[35]        
A reasonable and prudent driver foresees the possibility that something
might have crossed into the vehicle’s reverse path, unnoticed by the driver.  A
reasonable and prudent driver understands this and only backs up a vehicle
after taking time to look behind.  A reasonable and prudent driver considers
the circumstances of where the vehicle is and makes an assessment of how much
time is needed to look around to make sure nothing has crossed into the
vehicle’s path.

[36]        
I suggested to defence counsel in closing submissions that the question
of how much time a driver should spend to look behind him before reversing his
vehicle depends on the circumstances.  For example, backing up quickly in an
empty industrial parking lot is one thing; backing up in a shopping mall,
another; backing up in the parking lot of a playground with small children
around is quite another.  The defendant’s counsel agreed with this quite
obvious proposition.

[37]        
Mr. Vincent testified that before he backed up his truck, he did a
full check of his rear‑view mirror, side‑view mirrors, and a right
shoulder check, and he saw no one before starting to reverse his vehicle.

[38]        
His passenger, who also testified at trial, Mr. Scott Reynolds, confirmed
this happened and said that he also shoulder checked.  I was not so convinced
of Mr. Reynolds’ evidence and wondered to what extent his loyalty to his
friend may have created an unreliable impression in his memory. 
Mr. Reynolds’ memory of the events was somewhat cloudy generally, it
appeared to me.

[39]        
No other witness could say, one way or the other, whether or not
Mr. Vincent checked behind him before he reversed his truck over
Ms. Araujo.

[40]        
Mr. Vincent appeared to me to be a decent and likeable young man
who felt remorse for the accident.  However, cross-examination pointed out that
his memory was somewhat self‑serving at times, as compared to when he was
examined for discovery.  He admitted that his memory of the events had faded
somewhat, as well, and that the accident shocked him.

[41]        
But for the fact that Mr. Vincent did not see the plaintiff at all
before reversing the truck and running her over, I would accept
Mr. Vincent’s evidence that he checked his mirrors and over his shoulder
before reversing the truck, but it is hard to explain how it is that he did not
see her.  The only possibility is that Mr. Vincent checked behind him at
the very moment after Ms. Araujo bent down to pick up her dropped
cellphone and before she retrieved it and stood up, and so he did not see her
before he began reversing the truck.

[42]        
If Mr. Vincent truly did check to see if someone was behind him and
did not see Ms. Araujo because she was bent over, then his effort to check
had to be limited to the very precise amount of time that it took
Ms. Araujo to bend over to retrieve her dropped item.  This was a very
small amount of time, and I find that it was not enough time as was required in
all the circumstances.

[43]        
This was not a circumstance of an empty parking lot with no one around. 
Rather, this was a very busy school parking lot, just before school was to
start for the day.

[44]        
Mr. Vincent knew that the parking lot was regularly crossed by
students to get to the school.  He had full opportunity to observe the
unloading of school buses, the gathering of students, and students walking
through the parking lot on the way to classes.

[45]        
Just as it was noticeable and foreseeable that students would cross behind
Mr. Vincent’s truck, it was also foreseeable that a student might drop
something behind his truck and momentarily disappear from sight to pick it up. 
Typically students are carrying multiple objects with them on the way to
class.  Students can playfully jostle each other and throw things to each
other.  Mr. Vincent knew that these children were as young as 15 years
old, some of them were also potentially quite small.  All of this mandated
extra care on his part in not moving his car quickly to reverse it without
allowing sufficient time to check that there was nothing going on behind his
car.

[46]        
While the defence submits that Mr. Vincent was aware generally that
students were around, this was not sufficient.  He was not aware of who was
approaching or who had just passed behind his truck.  Had he taken more time,
he would have noticed that other students had just passed behind his truck, and
he would have expected that others were likely just behind, given that school
buses had just unloaded a number of students and it was just before the school day
was to commence.  If he had been appropriately careful for the circumstances,
he would have understood that to make sure he was safe to proceed, he had
better take time to watch in the area of the rear of his truck for more than
the time it took to look in his mirrors and over his shoulder, to allow for the
movement of anyone that might be there.

[47]        
Had Mr. Vincent taken the proper and necessary time to observe
pedestrian traffic behind his vehicle before beginning to reverse it, he would
have either noticed Ms. Araujo approach the back of his vehicle before
bending over, or he would have noticed Ms. Araujo stand up after she
picked up her phone, because both of these things would have been just a moment
away from the very brief time it would take her to bend over and pick up the
phone.

[48]        
The evidence that Mr. Vincent looked in his mirrors and over his
shoulder and did not see Ms. Araujo, and did nothing more before reversing
his truck, is enough to persuade me that he began to reverse his truck too
quickly in the circumstances.  However, there is plenty of other evidence that
indicates he moved too quickly.

[49]        
Mr. Vincent had a motive to want to move quickly.  Class was about
to start and he wanted to drive to a coffee shop with his friend to buy a
couple of cups of coffee and return.  Since class was starting at 9:00 a.m.,
and on his evidence the accident happened at 8:47 a.m., he had to have been
thinking that he did not have much time to waste.  His friend had caused him a
bit of delay by getting out of the truck to talk to another friend before
returning, and the time before class was getting shorter.  There was evidence
that his teacher was not a stickler for time, but Mr. Vincent knew that
the start time of the class was 9:00 a.m., and already his plan to get coffee
was looking like it would make him late.

[50]        
Mr. Vincent was not an experienced driver.  He had only had a
novice driver’s licence for ten months.

[51]        
Mr. Vincent admitted in cross-examination that he probably put the
vehicle into reverse gear with his foot on the clutch before he did his check
of the mirrors and the shoulder check.  Moving the vehicle out of its parking
gear and into reverse gear, in my view, is indicative of someone getting ready
to drive away immediately.  It is not indicative of someone who wants to take
their time to look around first before moving the vehicle.

[52]        
Mr. Vincent was asked in his direct evidence how long it took him
to perform the mirror and shoulder checks, and he said, "It only takes a
second to glance either way and look back," and then he said, "so two
or three seconds at most."  He did not suggest that he spent any more time
than that to assess the movement in the parking lot and people potentially
walking behind his truck.

[53]        
As mentioned, Ms. Araujo’s brother Jordan Araujo witnessed the
accident.  He was on the same school bus and was walking down the main entrance
sidewalk when the accident occurred.  He saw his sister walk into the parking
lot, and then she bent over and disappeared out of his view, as he was on the
other side of the parked vehicles.  He said that she was struck by the
defendant’s truck instantly after she bent over.

[54]        
Mr. Jordan Araujo’s impression of the truck was that it seemed as though
the driver was in a rush, and he thought it reversed back quite fast, like he
was trying to show off as he was backing up.

[55]        
It was put to Mr. Jordan Araujo in cross-examination that he told the
RCMP that while his sister was bent over, the truck started to move and the
impact occurred shortly after that.  While he agreed he told the RCMP that, he
said that it was not quite accurate because the movement of the truck was
almost at the same time as she bent over.

[56]        
The defendant argued that Mr. Jordan Araujo’s evidence at trial was
somewhat biased, perhaps unconsciously, to assist his sister.  The defendant
pointed out that after the accident, Mr. Jordan Araujo told the RCMP that the
"driver had no way to see the pedestrian where she was” and he did not
mention that the driver was going too fast.

[57]        
I am not persuaded that Mr. Jordan Araujo’s memory has changed to assist
his sister.  Rather, I am persuaded that the RCMP officer’s notes did not
accurately record the gist of Mr. Jordan Araujo’s observations as to the timing
of the bending over and the truck hitting her, nor did it record the entirety
of his impressions.  This kind of record does not mean that the witness changed
his story.

[58]        
I found Mr. Jordan Araujo to be a careful, honest, and reliable
witness.  He used few words and did not seek to amplify any of his
observations.  He did not seek to amplify the nature of his sister’s injuries. 
He did not seem to bear any malice towards the defendant.  He did not inject
any emotions into recalling what must have been a horrible experience for him
too.  He readily admitted he did not see whether or not the driver checked his
mirrors before he backed up.

[59]        
Of all the witnesses to the accident, I give the greatest weight to the
evidence of Mr. Cao who was another KSS student at the
time.  He rode the same school bus as Ms. Araujo that morning, got off the
bus with her, and he decided to walk into the school main entrance, taking the
main entrance sidewalk.  He was an independent witness and he was precise and
articulate.  He also appeared to have a personality which naturally was
observant of details.  I also note that his evidence was consistent with that
of the plaintiff on some of the key facts regarding the accident.

[60]        
As Mr. Cao described it, he also was walking down the main entrance
sidewalk, adjacent to the parked vehicles in the parking lot, when a friend
called his name and he looked back.  He then saw in his peripheral vision
someone bend down behind the parked vehicles, and then the truck back up almost
simultaneously and hit the person who had bent over.

[61]        
This was consistent with Ms. Araujo’s evidence.  When asked how
long she was bent over before she was hit, she said it was instantly, not even
a second.

[62]        
It was suggested to Ms. Araujo in cross-examination that seconds
happened between the time she bent down to pick up the phone and the time she
was struck.  Indeed, when she was examined for discovery, she did use the word
"seconds" to describe the time that passed.  However, she explained
in her evidence at trial that she used the wrong word and meant to use it in
the sense of instantly or immediately.  She said she should have used the word
"milliseconds".   Again, I accept her evidence in this regard, as it
is consistent with that of the independent observer, Mr. Cao.  Furthermore,
it is consistent with ordinary experience.

[63]        
It takes less than a second to bend over to reach to pick up a small
dropped object like a phone, and Ms. Araujo was hit before she picked it
up or stood up again.

[64]        
Several witnesses used the term "seconds" in a way that
suggested they simply meant "very quickly".  I find that the evidence
was consistent in supporting the conclusion that Ms. Araujo was run over
by Mr. Vincent almost instantly after she bent over.

[65]        
There was also evidence that Mr. Vincent was distracted as a driver
that morning.  He knew students in the smoking pit and was likely talking to
other students just before reversing the truck.  I have already mentioned that
he would have felt pressed for time to carry out his plan of getting coffees
before class.  He did not even notice running over Ms. Araujo, even though
his truck was very low to the ground, as low in some places as five centimetres
from the ground, and his tire drove over her shoulder.  He reversed the
direction of the truck over her unwittingly, moving the truck the length of one
and a half vehicles approximately, and then when he noticed a commotion, drove
the truck forward again.

[66]        
The defendant relies on the case of Rinta. In that case, the
plaintiff was a passenger in a car about to leave a pub.  She let the driver
know she wanted to use the washroom and left the car.  She found out that the
pub was locked up, and so she came back to the car, crouched behind it, and
began to urinate.  The driver did not know she was there and decided to move
the car so that he was closer to the pub door.  He checked his mirrors and did
a shoulder check, saw nothing, and then began to back up.  The trial judge
found that the driver was not negligent in running over the plaintiff in that
case, and the Court of Appeal upheld this result.

[67]        
There are important facts in the Rinta case that distinguish it
from the present case.  The plaintiff in that case led the defendant to believe
she had gone into the pub.  There was no evidence of anyone else being around. 
Later when she returned, the plaintiff was crouched behind the car to do an act
that would take much longer than the act of bending over and picking up a
cellphone.  Further, there was nothing said in the Rinta judgment about
the circumstances of the parking lot being such that the defendant ought to
have known people could be behind his car.  It was not foreseeable that the
plaintiff in that case would choose to urinate in public rather than use the
pub facilities.

[68]        
In contrast, in the present case, because of the circumstances of the
unloading school buses, the number of students crossing the parking lot to get
into the school, and the timing, which was just before school was to start, the
defendant ought to have considered that the pedestrian traffic was so busy that
it was foreseeable that a student might drop something and bend over behind his
truck or quickly dart behind his truck, and so he was required to spend more
time than he did to look around and observe the pedestrian traffic behind his
truck before beginning to reverse it.

[69]        
The defendant argued at paragraph 32 of his written submission:

How long does one need to make
checks in their mirrors?  In hindsight, had the defendant taken several seconds
to check his mirrors or checked them multiple times before backing up, he may
well have seen the plaintiff get up from going down to get her phone or the
plaintiff would have simply completed her task and moved on.  With respect
however, that is using hindsight and bringing back the absolute liability test
which would be that a reversing driver has to keep checking his mirrors and
shoulder checking until such time as anyone bent down behind his/her vehicle
would have time to get back into the driver’s line of sight.

[70]        
I do agree with the defendant’s submission that, had the defendant taken
just a few more seconds to check, he likely would have seen the plaintiff.  I
disagree that this proposition is simply hindsight or approaching absolute
liability.  Rather, as I have noted, it must be the case that the question of
what amount of time should be taken by a reasonable and prudent driver to check
behind a vehicle before reversing it depends on the circumstances.  All drivers
should know that backing up is a very dangerous manoeuvre, as a vehicle can do
serious harm to someone in the way.  A driver has to contemplate the risk that
someone might be in the way of the vehicle.

[71]        
I conclude, in all of the circumstances of this case, that
Mr. Vincent did not meet the standard of care of a reasonable and prudent
driver.  In the circumstances, he should have taken more time to observe
movement behind him before reversing his truck.  It was foreseeable that a
student might have passed behind his truck and might be momentarily out of
view, or that a student might dash out into the path of a vehicle to catch a
football or catch up with a friend.  It was foreseeable, given the amount of
student pedestrian traffic, that a student might drop something and momentarily
bend over to pick it up without giving notice to the driver, because the
student would not be expecting the driver to leave the parking stall right
before the start of school and to leave it so quickly, in the circumstances
where so many students were walking by.

[72]        
I find that had he taken the time to check around him, in accordance
with the standard of a reasonable and prudent driver, Mr. Vincent would
have seen Ms. Araujo and not begun to reverse his truck when he did.  He
is therefore at fault for the accident.

Was Ms. Araujo Contributorily Negligent?

[73]        
The next question has to do with whether or not Ms. Araujo is also
partly at fault for the accident.  Was her conduct contributorily negligent?

[74]        
The plaintiff helpfully provided the Supreme Court of Canada authority
of Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd.,
[1997] 3 S.C.R. 1210.  In that case, the Supreme Court of Canada at
para. 76 adopted the test for contributory negligence that was set out by
Denning L.J. in Jones v. Livox Quarries Ld., [1952] 2 Q.B. 608 (Eng. C.A.)
at p. 615, as follows:

Although contributory negligence
does not depend on a duty of care, it does depend on foreseeability.  Just as
actionable negligence requires the foreseeability of harm to others, so [too]
contributory negligence requires the foreseeability of harm to oneself.  A
person is guilty of contributory negligence if he ought reasonably to have
foreseen that, if he did not act as a reasonable, prudent man, he might be hurt
himself; and in his reckonings he must take into account the possibility of
others being careless.

[75]        
Furthermore, it is worth noting that Ms. Araujo was 15 at the time,
and so was not yet a driver.  While she was old enough to know not to run into
traffic or behind moving cars, she was perhaps not experienced enough or mature
enough to fully appreciate the carelessness of others.  She was, like so many
other students, completely comfortable in walking across the parking lot to the
Raymer Avenue entrance.

[76]        
In this regard, counsel for the plaintiff notes that the standard of
care for contributory negligence can take into account the plaintiff’s age,
following the approach adopted by the British Columbia Court of Appeal in Ottosen
v. Kasper (1986), 37 C.C.L.T. 270 (B.C.C.A.) [Ottosen].  In that
case, the Court of Appeal adopted the approach of the Court of Appeal of the
State of Victoria in Australia in Broadhurst v. Millman, [1976] V.R. 208
at 218 (Austl.), which is set out at 277-276 of Ottosen as follows:

The question as to what effect
the age, the particular activity the plaintiff was engaged in, and the
circumstances might have on the degree of care to be expected of the plaintiff
was one that in our opinion should have been left to the jury’s determination.
It should have been so left with a direction that the degree of care to be
expected of the plaintiff was that which the jury considered to be
proportionate to his age and the circumstances under examination. It should
have been pointed out that that consideration was relevant in relation to the
issue as to the occurrence or otherwise of contributory negligence, and also in
relation to the issue as to the apportionment to be made of the shares in the
responsibility for the damage. That would necessarily have involved in each
case a comparison between the degree of care actually exercised by the
plaintiff and the degree of care that he, as a boy of his years, ought to have
exercised.

[77]        
I find that the differences in age and experience of the plaintiff and
defendant here are entitled to some, but only a little, weight.  The defendant
as a 17‑year‑old driver made the choice to undertake the very adult
responsibility of driving a motor vehicle, and thus to meet all the standards
of care of a driver.  The plaintiff, as a 15‑year‑old, was simply
walking to school amidst a pack of other students.  The 17‑year‑old
defendant had the responsibility of foreseeing the possibility that a number of
students walking behind his car would act like 15‑year‑olds, which
can include immature or clumsy conduct.  While the conduct of students walking
across the parking lot would be above that of young children in a playground,
it could still be reasonably foreseen by a driver to be rather casual.

[78]        
Having made this observation, I also note that an adult could well have
done the same thing as Ms. Araujo: could have dropped an item behind the
defendant’s truck and quickly stooped down to pick it up, not foreseeing that
the defendant would choose to reverse his truck so quickly given all the
circumstances.

[79]        
I find that Ms. Araujo was approximately four or five feet behind
the truck when she bent over to pick up her phone.  She did not check to see if
the truck was running, but did not notice that it was running.  She had just
seen the driver talking to people next to the car and the passenger doing the
same thing.  She did not see any tail lights and she believes that she would
have noticed these lights if they were on before she bent over.  She did not
stop to think that she should get the attention of the driver to make sure he
knew she was there.

[80]        
I disagree with the defendant’s submissions that, in the circumstances
of this case, what the plaintiff did was contributorily negligent.  That is
because the entire circumstances were such that it was not foreseeable to her
that the truck would have reversed in the moment it would take to pick up her
phone.

[81]        
Had she thought about it before she bent over, Ms. Araujo would
have been quite reasonable in believing, given the traffic of students walking
through the parking lot and the fact that this was a usual pattern which would
have been known by anyone who parked there, and it was just before students
were required to be in class, that the vehicle would not be about to reverse.  It
was not foreseeable that the truck would reverse so quickly when school was
about to start, the truck was parked, and the driver was a fellow student
talking to other students.

[82]        
Mr. Vincent said he had his vehicle turned on when it was parked.  However,
he had shortened the exhaust pipes, so that there would have been no exhaust
coming out the rear of the truck.  The defence position is that Ms. Araujo
must have bent over before Mr. Vincent began to reverse his truck.  That
means that there would not have been reverse taillights visible to her before
she bent down.

[83]        
It was suggested to Ms. Araujo on cross-examination that she had
stopped to answer her cellphone when she was behind the truck and then dropped
it.  Apparently a nurse had made a note suggesting that in a hospital record. 
Ms. Araujo denied that evidence and I believe her that she was not taking
a call just before the accident.  The nurse must have got it wrong, probably
making assumptions because the details of this were not important from a
medical perspective.  Not a single witness testified that Ms. Araujo was
on the telephone just before dropping it.  I accept her evidence that her hoody
pockets were shallow and the phone just simply dropped out as she was walking.

[84]        
The plaintiff was a detailed and careful witness.  There were times that
she could have attempted to exaggerate her evidence, but she never did so.  She
came across as a good observer and a fair and reasonable witness, who did not
attempt to reconstruct a story in a self‑serving way, but instead simply
tried to tell the truth as to what she remembered.  I found her to be both a
reliable and credible witness.

[85]        
The defendant relies on the case of Dechev, where the plaintiff,
who was run over by the defendant, was found to be contributorily negligent.  I
find the facts of Dechev to be quite distinguishable.  As an aside, it
is interesting to note that the trial judge did not find the plaintiff to be a
credible witness in that case.  In any event, in Dechev, the trial judge
heard evidence that the plaintiff saw that the defendant had begun to reverse
his vehicle, when she slipped and dropped some items.  The defendant then
stopped his vehicle and got out to assist her, but she waved him away, and so
he returned to his vehicle.  The trial judge specifically found at para. 25
that the plaintiff "knew or ought to have known the defendant had returned
to his truck and was about to resume his backward path of travel," when
she chose to then stoop or crouch to the ground to retrieve some of her items.  In
doing so, the trial judge found that "[s]he knew or ought to have known . .
. she would put herself out of the line of vision of the approaching truck."

[86]        
The circumstances in the present case are very different from Dechev. 
Ms. Araujo had no warning that Mr. Vincent would reverse the vehicle,
unlike in the Dechev case, and I have found that it was not reasonably foreseeable
that he would do so in the moment it would take her to retrieve her dropped
phone.

[87]        
In the circumstances, I find that the plaintiff was not contributorily
negligent.

Damages

What Injuries did Ms. Araujo Suffer?

[88]        
The truck hit Ms. Araujo from behind and threw her forward.  Her
face smashed into the ground and she tried to cover her mouth with her hand. 
She was in a fetal position and the tires went over her shoulder, and then the
truck started to go forward.  When she was pulled out from under the truck, her
face was bloody and cut, and she had a cut and bloody finger, and very badly
cut nose.

[89]        
Ms. Araujo was taken to the Kelowna General Hospital for
treatment.  She underwent various X‑ray imaging.  She was found to have
three right‑sided rib fractures and a small right‑sided
pneumothorax, a collapsed lung.  She also had mild pulmonary contusions.  She
had facial lacerations and lacerations of her left hand.  Her left index finger
was torn down to the tendon.  She had a fractured clavicle.  She also had
reported right knee pain, pain in her left shoulder and left hip.  She had
lacerations on her knees.  She had, as well, what she described as “road rash”
on her legs and face.  She had abrasions over her right shoulder and her right
and left legs, as well as her mid‑back and abdomen.

[90]        
When asked at trial how she felt emotionally after the accident,
Ms. Araujo broke down in tears.  She said that she would have dreams
reliving the accident, which would cause her anxiety and would cause her to
wake up.  Her family physician, Dr. Adrian Morris, diagnosed her with
post-traumatic stress disorder (“PTSD”), which was most severe in the first six
months after the accident.  He was of the opinion at trial that she was now
coping well.  However, in Dr. Morris’s opinion, because of her young age
when the accident occurred, it is possible that another traumatic event could
trigger all the same emotional upset again in the future, as can be the case
with people who have suffered PTSD.

[91]        
Ms. Araujo attended the whole of the trial.  Certainly I observed
that she was often teary and upset when the precise details of the accident
were covered in evidence.  Of course, once this case is behind her, there
should be fewer occasions when she has to hear about it again.

[92]        
The plaintiff was treated in the hospital from March 12 to March 17, 2009,
when she was discharged and went home with her parents.  Ms. Araujo’s
mother is an experienced nurse and helped with her care including the
monitoring of her bandages.

[93]        
Because of the nature of the significant injuries to Ms. Araujo’s
face, a plastic and reconstructive surgeon was called into the hospital on
March 12, 2009.  She was found to have significant facial injuries around her
nose and also her upper lip area and left hand.  The doctor operated on her to
clean and close these wounds.

[94]        
Luckily none of the other injuries were so serious as to require
surgical intervention.

[95]        
For her broken right clavicle, the plaintiff was given a sling to wear,
which she did for about six weeks.  Her pain from that injury subsided over a
few months, until she felt that it was healed by approximately four months.

[96]        
The broken ribs and other injuries caused her considerable pain
immediately after the accident.  Eventually her pain went away as these
injuries healed.

[97]        
Ms. Araujo also had significant pain from her torn left index
finger.  Also, it healed in a bent position and she was required to go to
physiotherapy for exercises to help straighten it out.  Eventually it did
straighten out.  The finger was left with a scar which is sensitive to touch;
otherwise it functions normally.

[98]        
The lacerations to her knees eventually healed, leaving her with scars
only.

[99]        
Ms. Araujo was also left with some scars on her hands, right thigh
and her face.  Her right shoulder was quite sore for a few months, but
eventually that healed as well, after about five or six months.

[100]     After the
initial surgery on her face, the stitches were removed approximately two weeks
later.

[101]     The injury
and resultant surgery to Ms. Araujo’s nose left her with a scar on her
nose and a deformity in the shape of her nose and nostrils.  At the tip of her
nose there was left a dark or a blue‑coloured scar.  The shape of the tip
of the nose was deformed in that the septum was asymmetrical, as were her
nostrils.  This means that her left nostril was left much bigger than her
right, and her nose, when looking straight on at her face, looked like it was
bent towards one side.

[102]     Ms. Araujo
continued through high school without further surgery on her nose, but she was
extremely sensitive about its appearance.  She sought, on recommendations, to
have the scarring colouration treated by laser treatment, but this proved
unsuccessful.  She also invested in various cosmetic cover-ups, which also were
not entirely successful in terms of minimizing the scar, and of course they
could do nothing to address the new shape of her nose.

[103]     Prior to
the accident, Ms. Araujo’s face and nose were symmetrical and she was not
scarred.

[104]     Prior to
the accident, Ms. Araujo was an active and athletic teenage girl.  She was
active in dance, as well as in snowboarding and wakeboarding.

[105]     At age 15,
Ms. Araujo experienced some slight knee pain and hip pain, and at her
father’s suggestion, because his medical insurance covered it, she went to her
family physician and sought a prescription for orthotics.  This was in February
2009, just a short time before the accident.  However, her slight knee and hip
pain had not prevented her from her very active dance schedule and from
participating in sports such as snowboarding and wakeboarding.

[106]     After the
accident, when Ms. Araujo attempted eventually to return to her former
activities of dance and snowboarding and wakeboarding, she found that she did
not have the capacity that she used to have.  Indeed, she found that she was
not able to dance or wakeboard, due to ongoing pain in her knees and hips. 
While eventually she began to snowboard, she can only do so at a much reduced
energy level, without the same enthusiasm, or for the same length of time, but
holding back or quitting early due to the pain in her knees.

[107]     Ms. Araujo
has been diagnosed with a patellofemoral syndrome of the knees causing her some
knee and hip pain.  According to the independent medical opinion of
Dr. Duncan Laidlow, a specialist in physical medicine and rehabilitation
who saw the plaintiff at the request of the defence, the majority of her
symptoms do relate to the accident itself, and she will continue to be prone to
some patellofemoral discomfort.  However, he felt that she might benefit from
an exercise and stretching program, as well as a gradual strengthening
program.  He did not suggest that her symptoms would ever completely go away,
nor did he suggest that they would get worse.

[108]     In terms
of the severity of the knee and hip pain, the defence suggests that it was on
the mild end of the spectrum of pain, because there was contradictory evidence
as to which knee was worse, which suggests neither knee is too painful; the
plaintiff has not continued going to physiotherapy; and the plaintiff did not
appear to be very active in pursuing a program of strengthening or stretching
to ease the pain symptoms.  These are somewhat valid points.  However, Ms. Araujo
gave up activities she used to love doing, because they caused such knee pain. 
She did attempt physiotherapy and did attempt exercises to relieve the pain.  I
do find that with increased physical activity, her knee pain increases.  This
has led Ms. Araujo to decrease her activities, and also means that when
she undertakes physical activities in the future that could stress her knees,
she is likely to have increased pain.

[109]     As for Ms. Araujo’s
scars, they will never go away.  She did undergo further surgery to her nose in
August 2012.  This helped diminish the scar to her nose and the discolouration,
and it also helped reduce slightly some of the deformity to her asymmetrical
septum.  However, she remains with a lasting scar to her nose and a deformity
that leaves her nostrils and nose asymmetrical, forever affecting her
appearance.  The evidence is that this can be corrected no further.

Loss of Past Income

[110]     I turn to Ms.
Araujo’s claim for past loss of income.  This claim relates to the period after
the accident in March 2009 until April 2010, when she did not work, and for the
summer of 2010, when she says she worked shorter shifts than she otherwise
would have, because of pain to her knees.

[111]     Ms. Araujo
started working summer jobs and part‑time jobs while she was still a
young student in January 2007.  She worked in a fast food restaurant and then a
breakfast restaurant, and lastly in October 2008 until January 2009, she worked
at a retail clothing store.

[112]     After the
accident, Ms. Araujo did not work again until she took a job at a fast
food restaurant in April 2010, where she was being paid $8.50 an hour.

[113]     After the
accident, Ms. Araujo was initially injured physically, but it was the
emotional stress and the anxiety she suffered that overwhelmed her for a longer
period of time.  She said that she felt unable to work, because she kept having
emotional upset as people would point out the scar on her nose, thinking it was
a mark or some dirt that she needed to clean off.  There was plenty of
corroborating evidence that this did occur and that it did cause her emotional
upset.  There is no evidence to suggest that Ms. Araujo was exaggerating
or choosing not to work for other reasons.

[114]    
I note that Dr. Laidlow said in his October 12, 2011, opinion at
page 12:

I do feel that the time she was
off work and/or school was reasonable in light of her injuries.

[115]     In giving
this opinion, Dr. Laidlow was aware of the period that she was not working.

[116]     I accept
that Ms. Araujo had a history of working in the summers between her school
years and part‑time during her school year, and that due to the physical
and emotional injuries from the accident, she was unable to do so from after
the accident through to when she next became employed, which was in April
2010.  I therefore find that the accident caused her to suffer some past income
loss.

[117]     It is
easiest to approach the assessment of this aspect of the claim by analyzing
certain blocks of time.

Post-Accident to the Summer of 2009

[118]     Ms. Araujo’s
last job prior to the accident of March 2009 was for a clothing store, making
between $7 and $8 per hour.  She had not received shifts in that work since
January 2009.  Her evidence as to why she had not worked from January 2009
until the accident in March was somewhat vague, but had to do with how the
clothing retailer was disorganized in the way it distributed shifts.  The tenor
of her evidence was that she would not have allowed this situation to continue
indefinitely and would have sought out more shifts, but for the accident.  She
testified that she typically worked between eight to ten hours per week during
the school term.

[119]     After the
accident occurred in March 2009, Ms. Araujo needed time to rehabilitate,
both physically and emotionally, and I accept that she was unable to work for
the rest of that school term and summer.

[120]     Because of
her then-recent lull in her work history, I do not accept that but for the
accident Ms. Araujo would have been working eight to ten hours per week
during the rest of that school year (March – June 2009).  However, I do accept
that she would have worked some shifts to earn some spending money for herself,
as this is consistent with her pattern.  I estimate that from the date of the
accident until the end of June 2009, she would have worked approximately ten hours
in March and 20 hours each in April, May, and June, for a total of 70 hours. 
At a part‑time wage of $7.50 per hour, I estimate that she therefore lost
$525 during that time period due to the accident.

Summer of 2009

[121]     The next
period of past loss claimed is for the summer of 2009 when school was out.

[122]     Ms. Araujo
says but for the accident, she would have worked 25 hours per week that summer
at a pay of $8.50 per hour, but instead she did not work at all.  She
calculates this loss at $1,912.50.  The defendant accepts this aspect of the
claim if liability is found, and I agree that it is a reasonable assessment.

Return to School: September 2009 to April 2010

[123]     Ms. Araujo
claims that but for the accident, when she returned to school in September
2009, she would have worked approximately ten hours per week.  She claims lost
income of ten hours per week at $8.50 per hour from September 2009 to when she
started a job on April 22, 2010.  The plaintiff says that this was 34 weeks at ten
hours per week and $8.50 per hour, which equals $2,890.

[124]     I have
already accepted the evidence that the physical and emotional injuries caused
by the accident overwhelmed the plaintiff, so that she was not able to both
work and go to school until April 2010.  I find the damages claim of $2,890 for
this period to be reasonable.

April 2010 to the Summer

[125]     Ms.
Araujo’s counsel argued that Ms. Araujo was not able to work the same
shifts she otherwise would have but for the accident, when she did start working
again in April 2010.  However, my recollection of the evidence was that
Ms. Araujo agreed that when she did recommence part‑time work in
April 2010, she probably worked the number of hours she otherwise would have.

[126]     According
to records from her employer, between April 22, 2010, and October 10, 2010,
approximately 24 weeks, she worked 260 hours.  This works out to approximately eleven
hours per week.  This is higher than the eight to ten hours per week mentioned
by the plaintiff as her past history.  I find that she worked as many hours as
she otherwise would have during the period of April through June 2010, and
suffered no loss.

Summer of 2010

[127]     The
plaintiff testified that when the summer of 2010 rolled around, she could only
work six‑hour shifts rather than longer shifts.  This was because of her
knee pain.  She claims she would have worked longer hours, but for the
accident.  Ms. Araujo claims a loss of one hour per week during that
period.

[128]     If the
summer school break was nine weeks long from the end of June to the end of
August, the loss of one hour per week paid at $8.50 per hour equals $76.50.  I
accept Ms. Araujo’s evidence that knee pain limited the number of hours
she felt capable of working in retail or food industry part‑time work, as
those are jobs where she would be expected to be on her feet all day and are
also jobs typically offered to high school students.  I find her claimed loss
for the summer of 2010 to be quite conservative and reasonable, and I award it.

Summary of Loss of Past Income Claim

[129]     There is
no reason to believe that Ms. Araujo’s injuries will prevent her from
earning income in the future, as she has the ability to obtain other types of
work where she does not have to be standing all day.  There is no claim for
loss of future earning capacity.

[130]     I find the
total damages for loss of income caused by the accident to be the figures I
have just mentioned, added together, which equals $5,404.

Special Damages

[131]     Ms. Araujo
incurred a number of out‑of‑pocket expenses due to her injuries. 
There is some agreement between the parties that a figure of $4,416.96 is an
appropriate award for these claims of special damages.

[132]     In
addition, Ms. Araujo introduced evidence at trial of two other out‑of‑pocket
expenses, for makeup to conceal her scar and for an antibiotic ointment to use
during healing, which totalled $42.55.  I find that the plaintiff is also
entitled to an award of damages to reimburse her for these expenses.  The two
figures total $4,459.51.

[133]     Ms. Araujo
also claims an additional award of $1,044 for extra makeup which she purchased
to help conceal the scar on her nose.  She has tried to estimate the difference
between the makeup she would ordinarily use and the extra makeup that she found
it necessary to use as a result of the scar on her nose.  Unfortunately, she
did not keep all of her receipts, but this does not mean that I must reject the
evidence that she has used more makeup than she otherwise would have.  It has
been four years since the accident, and during the majority of this time the
plaintiff had quite a dark scar on her nose that was very embarrassing to her. 
In an effort to conceal it, she was required to use higher‑quality makeup
on her nose and the rest of her face, so that it would all blend together.

[134]     I accept Ms.
Araujo’s evidence and that of her father that much more money was spent on her
makeup than what is shown in the schedule of special damages currently
totalling $274.50, which is included in the special damages I have already
mentioned.

[135]     Given the
evidence as to how much makeup Ms. Araujo used every two to three months
and three to four months, I find the estimate of additional damages of $1,000
to be quite conservative.  I therefore award Ms. Araujo an additional $1,000 in
relation to the makeup expense she incurred due to the injuries caused by the
accident.

[136]     The total
special damages awarded are therefore $5,459.51.

Cost of Future Care

[137]     I turn now
to the cost of future care.  Ms. Araujo claims a number of expenses will
be incurred by her in the future due to her injuries.  The ongoing expenses
will be for: physiotherapy; a personal trainer and gym membership for a
strengthening and yoga program; and makeup.  There will also be a one‑time
cost for a patellofemoral brace.  The total costs estimated by plaintiff’s
counsel are $35,700 approximately, but recognizing the inexactitudes of the
evidence, he suggests a figure of $5,000 would be a conservative assessment of
these damages.  The defence suggests a more reasonable figure is $2,893.52.

[138]     The
evidence left me unconvinced that Ms. Araujo over the long term will continue
incurring physiotherapy expenses and a gym and personal trainer expenses. 
However, I accept that she will incur some of these expenses due to her knee
injuries.  I also accept that she will have ongoing makeup expenses, but
perhaps less so now that the scar is a little less visible due to the surgery
in August 2012.

[139]     I find
that the defendant’s submission as to the assessment of this category of
damages is fair and reasonable, and I award the plaintiff $2,893.52 in damages
for the cost of future care.

In-Trust Claim

[140]     Ms. Araujo
was a 15‑year‑old girl at the time of the accident and her injuries
were serious enough to require hospitalization for five days.  Both her mother
and father decided that she needed their emotional support during the time she
was in hospital and immediately afterwards, as well as their assistance in
caring for her.  Thus, an in‑trust claim is advanced for her parents’
loss of income during the time they assisted in her recovery.

[141]     The
parties agree that the law with respect to the need for and level of services
required to substantiate an in‑trust claim is set out in Bystedt
(Guardian ad litem of) v. Hay, 2001 BCSC 1735 at para. 180, aff’d 2004
BCCA 124.

[142]     As
submitted by the defendant, for the purposes of this case the court need only
look at the first two relevant factors: (a) the services provided must replace
services necessary for the care of the plaintiff as a result of the plaintiff’s
injuries; and (b) if the services are rendered by a family member, it must be
over and above what would be expected from the family relationship.

[143]     Dealing
with Ms. Araujo’s claim with respect to her mother taking time off work
and losing income, this claim was not proven.  Ms. Araujo’s mother was out
of the country for employment reasons during the course of this trial and was
unable to testify.  While some hearsay evidence was introduced regarding the
loss of income, I was left unpersuaded that pay loss had been incurred or, if
it had, I was unable to determine what the amount of that loss was.

[144]     For
example, there was evidence that Ms. Araujo’s mother took one week off
work when Ms. Araujo was in hospital and helped with nursing care there,
but there was also evidence that her employer had a paid leave policy which
reimbursed her for one week.  There was some evidence that Ms. Araujo’s
mother may have taken additional time off work for which she was not
compensated, but this was  too confused and unreliable to persuade me that I
could give it any weight.  Thus, I do not allow any in‑trust claim with
respect to loss of income suffered by Ms. Araujo’s mother in taking care
of her.

[145]     As for
Ms. Araujo’s father, John Araujo, he did testify.  He was clearly very
emotionally upset by the accident and felt a need to take time off work to
provide his daughter with emotional support because she was very upset.

[146]     As for an
appropriate compensation, Mr. Araujo gave a rough estimate that he lost $3,000
in wages for approximately two weeks’ leave from his work.  This was not a
precise calculation.  However, one week of the time he took off work was time
that Ms. Araujo was in the hospital and her mother was providing any
necessary medical assistance not provided by the hospital.  Mr. Araujo’s
emotional support was no doubt of considerable comfort to his daughter, but I
find it was not necessary for both parents to be off work at the same time.

[147]     When
Ms. Araujo first returned home after the accident, her father slept on the
floor of her bedroom for a short while, because she had nightmares regarding
the accident, and also to assist her moving when she needed to move or in
helping her get to the bathroom, as she was very stiff and sore from her
multiple injuries, including the broken ribs.

[148]     Ms. Araujo’s
accident occurred just before the start of the two‑week school spring
break.  After the two‑week spring break, Ms. Araujo took another two
weeks recuperating before she returned to school.  She returned to school
gradually, initially not lasting full days.

[149]     Mr. Araujo
testified he felt he was needed to help take his daughter to school and pick
her up at the beginning of her return to school.  However, sometime in that
period, he also returned to work for one week.  He was unhappy returning to
work.  As can often happen after a serious threat to a loved one’s health, it
appears that to some extent the accident gave him pause to rethink his
priorities and he wished to spend more time with family.

[150]     The court
can only order damages that are caused by the accident.  Part of the causation
equation requires that the damages be foreseeable.  In this way, a damages assessment
is fair to the defendant, who cannot be held liable for unforeseeable damages. 
I am not convinced here that it was foreseeable that Ms. Araujo’s father
would choose to stay home from work after the accident, given the nature of
Ms. Araujo’s injuries.  I am not convinced that the comfort and assistance
provided by Mr. Araujo went over and above what would be expected from the
family relationship.

[151]     I also
note that Ms. Araujo’s mother for the most part worked from the home. 
While she had some day trips or meetings outside the home, for the most part
she was sufficiently available to provide Ms. Araujo with emotional
support in the days when Ms. Araujo was home and had not yet returned to
school.

[152]     I find,
therefore, that it was not necessary in the legal sense or medical sense for
Mr. Araujo to take time off work after his daughter’s accident.  I do
think that his presence and availability to his daughter was a comfort to her. 
I have taken her emotional upset after the accident into account in assessing
her damages for pain and suffering and loss of enjoyment of life, and I do not
consider it appropriate to also compensate Mr. Araujo for the time he took
off work.

Non-Pecuniary Damages

[153]     I turn now
to non‑pecuniary damages.  This is a category of damages also referred to
as general damages or damages for pain and suffering and loss of enjoyment of
life.

[154]     As I have
mentioned already, prior to the accident Ms. Araujo was very active.  She
had been dancing since she joined a class at a dance studio in Grade 5.  She
attended that continuously until the time of the accident, and just before the
accident was taking three different dance classes, attending the studio three
times a week.  Also, in Grade 10, Ms. Araujo tried out for and made her
high school’s dance team.  This was a competitive dance team and she was proud
of this achievement.  It was a credit course.

[155]     As
mentioned, Ms. Araujo also enjoyed snowboarding and wakeboarding.  She had
no trouble managing her schoolwork, a part‑time job, and her other activities.

[156]     The
accident was shocking and out of the blue.  It caused Ms. Araujo severe
injuries requiring immediate surgery, and she was hospitalized for five days. 
She was extremely sore for a period thereafter and had extreme emotional upset
for at least six months.  After that, many of her injuries were healed, but she
was left with some residual injuries.

[157]     Ms.
Araujo’s injuries significantly detracted from her enjoyment of the rest of
high school.  She tried to continue in dance team, but was unable to do so due
to her knee and hip complaints.  She tried wakeboarding again, but was unable
to do it because of knee pain.  She also tried snowboarding again.  As I have
already mentioned, she was able to do it, but with less enjoyment, and she had
to make her runs less challenging and her days shorter.

[158]     Ms.
Araujo’s knee pain increases with activity, and so it appears she will likely
avoid or limit activities that aggravate or stress her knees, and she will need
to have an exercise program that strengthens and stretches other muscles.

[159]     After the
accident, Ms. Araujo was constantly reminded of her nose deformity as
other students and strangers would tell her she had a mark on the end of her
nose, thinking it was a dirt or pen mark.  She had ongoing effects of PTSD and
these reminders about her nose would cause her emotional upset.

[160]     Fortunately,
the recent surgery in August 2012 has made some improvement, but she will
always have some deformity to her nose which, to state the obvious, is in the
middle of her face and so, from her point of view, highly visible and
embarrassing.  I feel that as she ages this defect will become more and more
minor in her life, there is no doubt that it has been a very significant
feature of her life from age 15 to young adulthood.

[161]     In summary,
in the days after the accident, Ms. Araujo went through significant pain. 
She has had two surgeries on her face, and the lasting visible reminder of the
accident in the centre of her face with her scarred and deformed nose.  In the
six months after the accident, she went through significant emotional anxiety. 
Since then, she continues to have stress and anxiety, but it is less and less.

[162]     Ms. Araujo
has also been left with other scars, including on her knees and on her left
index finger, the latter of which remains sensitive.  In addition, she has a
lasting syndrome in her knees which will likely plague her to varying degrees,
although will not be so disabling that it will affect her employment or limit
her from enjoying some activities.

[163]     Ms. Araujo
no doubt appreciates that the courts must try to assess damages in a way that
recognizes the differing degree of injuries caused to victims of accidents. 
For example, someone rendered a paraplegic will have far greater loss of
enjoyment of life than someone left with a limp.

[164]     Both
parties referred the court to the case of Biggar v. Felker, 2002 BCSC
998 [Biggar].  That case involved a plaintiff who was 18 years old when
she was run over by a truck.  She was trapped under the truck for about 45
minutes until she was rescued.  She suffered facial contusions and abrasions,
lacerations, and a left ankle fracture.  She had to undergo an operation for
the ankle.  She was hospitalized for four days and then her leg was in a cast
for four weeks.  She was generally confined to bed for three weeks.  She walked
with the aid of crutches for six weeks.  She continued to have pain in her
ankle.  She also suffered abrasions in her mouth, which caused her lips to be
swollen and resulted in drooling and difficulty with chewing for about two or
three months.  She was left with a residual traumatic tattooing under her chin,
which caused her significant cosmetic concern.  In that case, she had not
undertaken procedures to alleviate the scar.

[165]     As a
result of the injuries, the plaintiff in the Biggar case reportedly
became irritable, angry, and tearful and belligerent.  She was, in short,
miserable.  That appeared to last for approximately a year.  She was found to
be likely to continue to experience some pain in her ankle in the future.

[166]     The court
in that case assessed her non‑pecuniary damages as $50,000.

[167]     There are
some differences between the facts of the Biggar case and the facts here. 
I find that the facial injury suffered by Ms. Araujo here was somewhat more
serious and disfiguring than the injury described in the Biggar case. 
As well, I find that the accident occurred at a more vulnerable time in the
plaintiff’s life as compared to that of the plaintiff in Biggar, because
here Ms. Araujo was still in high school and she had to go through two
more years of high school feeling that her face was disfigured and receiving
constant reminders of it.  I consider that Ms. Araujo’s emotional
injuries, such as the PTSD, were more severe than that caused to the plaintiff
in Biggar, and there is a risk of ongoing issues from them.  Also, as
counsel for the plaintiff points out, Biggar is a decision that is some
10 years old and so some inflationary factor would have to be considered in
comparing the $50,000 figure for non‑pecuniary damages.

[168]     The
defence referred to the case of Sandhu (Guardian ad litem of) v. Chong,
2002 BCSC 1753 [Sandhu].  In that case, the ongoing issue was a painful
chest, but the court felt it should go away and awarded $40,000 in
non-pecuniary damages.

[169]     In my view,
in the present case, there is a more permanent visible deformity and more
severe initial trauma, as well as a permanent knee injury, making the injuries
here somewhat more severe than in the Sandhu case.

[170]     The
defendant submits that the case of Catalano v. Donald, 2002 BCSC 1232,
is comparable in the sense of relative injuries and losses.  In that case,
$40,000 was awarded for non‑pecuniary damages.  There the plaintiff was
17 at the time of the accident, which left her with a left facial scar and
instability of the right knee.  I find that in comparison, in the present case
the plaintiff suffered a more visible and severe deformity to her face, and
again the fact that she was only 15 and in the middle of high school when it
occurred means the injury had a bigger emotional impact.

[171]     The
plaintiff refers to the case of Fox (Guardian ad litem of) v. Edwards,
2001 BCSC 321 [Fox].  There, $85,000 was awarded for non‑pecuniary
damages.  However, in that case, the injuries were much more severe than in the
case here.  In Fox, the plaintiff was an eight‑year‑old girl
and the accident involved an explosion and flash fire, resulting in second‑
and third‑degree burns to 14 to 20 percent of her body surface, leaving
her with permanent scarring, including to her face.

[172]     The
closest example on the facts of this case, it seems to me, is the case of Ford
v. Henderson, 2005 BCSC 609.  That case left the plaintiff with lacerations
to his forehead, injuries to his neck, shoulders, and upper back.  The
plaintiff underwent two surgeries, but he was left with permanent scarring on
his forehead.  The trial judge found that his other injuries resolved after
approximately one year.  The trial judge awarded $65,000 in non‑pecuniary
damages.

[173]     Considering
all of the injuries here, the emotional trauma to this plaintiff, and her age
at the time of the accident, considering the long life ahead of her where she
will have to live with the lingering effects of the accident, I find that a
reasonable assessment of non‑pecuniary damages is $70,000.

Conclusion

[174]     In
conclusion, Ms. Araujo suffered a horrific accident but luckily has come
through it without any lasting severe injuries.  She does, however, have some
lasting reminders of the accident, including a deformed and scarred nose, scars
to her left index finger which has continuing sensitivity, scars to her knees,
and ongoing knee pain which increases with activity.

[175]     The
accident was not her fault, it was the fault of the defendant driver.

[176]     I assess
damages as follows:

[177]    
I assess no damages for the in‑trust claim.

[178]     That
concludes my ruling, other than as to costs.  Counsel, do you need any of the
figures read out again?

[DISCUSSION]

[179]    
THE COURT:  In that respect, all I would ask is that if you do seek to
argue costs, that you do not leave it for another year, for example.  I would
like to know that you are going to do that within 45 days, because otherwise it
is hard to get up to speed again.  Thank you.

“S.A. Griffin, J.”
The Honourable Madam Justice Susan A. Griffin