IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130311

Docket: M128402

Registry:
New Westminster

Between:

Don Harvey

Plaintiff

And

Trevor John Clasen

also known as Trevor Clasen

Defendant

Before:
The Honourable Mr. Justice Funt

Reasons for Judgment

I.                
INTRODUCTION

[1]            
On February 14, 2009, late morning, the plaintiff was in the
driver’s seat of his pick-up truck stopped at a red light when his truck was
hit from behind by a small car driven by the defendant. The plaintiff had his
seatbelt adjusted and properly secured.

[2]            
Weather conditions were not a factor in the cause of the collision. Just
before the collision, the defendant was adjusting his car radio and, as a
result, was not paying proper attention to his driving.

[3]            
The defendant’s car hit the right rear of the plaintiff’s pick-up truck
and the defendant’s car went at least somewhat under the truck’s bumper. The
bumper assembly of the truck was damaged. The damage to the vehicles was not
significant, although the accident was at some speed (probably 10 to 15 km/hr).
The defendant’s counsel described the damage to the plaintiff’s pick-up truck
as “cosmetic”.

[4]            
The plaintiff says he suffered soft tissue injuries of a “whiplash”
nature.

[5]            
The defendant has pleaded that the plaintiff has exaggerated his
injuries, that he had pre-existing injuries which were symptomatic at the time
of the accident, and that the plaintiff “failed to mitigate his loss by failing
to follow and adhere to a prescribed or reasonable treatment plan”.

[6]            
The defendant withdrew the following pleadings:

(a)         
the plaintiff had failed to mitigate his loss “by failing to seek
adequate alternative employment opportunities or return to work in a timely
fashion”; and

(b)          
the plaintiff “failed to wear, properly adjust and securely fasten the
complete seatbelt assembly, and failed to properly adjust the headrest devices”
of the plaintiff’s pick-up truck.

[7]            
As is often the case, where damages for headaches and soft tissue injuries
are claimed, a key issue that the court must determine is the credibility of
the plaintiff. In this case, I found the plaintiff to be a stoic, yet engaging
individual. He did not exaggerate his injuries. He suffered the injuries he
says he suffered. The plaintiff is entitled to an appropriate damage award.

II.              
PLAINTIFF’S BACKGROUND

[8]            
The plaintiff is 50 years old and has been married to his wife for over
24 years. They have three children, ages 23, 20 and 17.

[9]            
The plaintiff and his wife own a home on approximately 4.8 acres in Port
Coquitlam. Some hay is grown on the land.

[10]        
The plaintiff is a pipefitter/welder who works from a union hiring hall,
Local 170 of the United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada.

[11]        
The plaintiff enjoys “Name Hire” status as a pipefitter/welder.

[12]        
The plaintiff suffers from diverticulitis and is understandably wary
about taking more medicines than necessary.

III.            
Vehicle Damage and Injury

[13]        
In Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.), the late
Justice Thackray dismissed the notion that if there is little or no vehicle
damage there should always be little or no injuries:

I do not subscribe to the view that if there is no motor
vehicle damage then there is no injury. This is a philosophy that the Insurance
Corporation of British Columbia may follow, but it has no application in court.
It is not a legal principle of which I am aware and I have never heard it
endorsed as a medical principle.

Significant injuries can be
caused by the most casual of slips and falls. Conversely, accidents causing
extensive property damage may leave those involved unscathed. The presence and
extent of injuries are to be determined on the basis of evidence given in court.
Objectivity is thus preserved and the public does not have to concern itself
with extraneous philosophies that some would impose on the judicial process.

[14]        
I recognize that vehicle damage is one factor to consider. Another
factor is the speed at the time of collision, conservatively estimated at 10-15
km/hr, which I accept as being sufficient speed to cause injury.

[15]        
The plaintiff had testified that the hood of the defendant’s car was
buckled by the collision. Pictures of the car did not show a buckled hood. In
cross-examination, the plaintiff was asked:

Q         You further stated yesterday that most of the
defendant’s vehicle went under your back bumper.

A          Well, a lot of it, and that’s why it’s kind
of — to me it seems kind of puzzling that these gouges abruptly end with no
damage to the hood, because I did witness damage to the hood.

Q         It’s possible that you’re incorrect, that most
of the vehicle went under your vehicle?  Most of the hood?

A          Well, I wouldn’t say — well, not most of the
vehicle, but a substantial part of it and that’s why it’s puzzling to me that
this hood is in the condition it’s in.

Q         And it’s possible that you’re incorrect?

A          About what?

Q         About the impact, the damage.

A          The damage to what, my truck or to the —

Q         To the defendant’s vehicle.

A          From what I
remember his — this was quite more — quite substantially more damaged when I
say — that’s why he expressed concern about getting it home.

[16]        
I observed the plaintiff closely and I find that he was “puzzled” by the
discrepancy of the photographs and his recollection. I do not find him to be
exaggerating matters. He was a forthright person who was puzzled. The collision
did occur with sufficient speed to cause the injuries pleaded.

IV.           
Previous Accidents

[17]        
The plaintiff was involved in previous motor vehicle accidents from
which he suffered whiplash-type injuries and headaches. At the time of the
February 14, 2009 accident, the plaintiff was not suffering any symptoms
from any previous accident. The plaintiff had essentially recovered. The plaintiff
was cross-examined on this assertion.

[18]        
I am satisfied with the plaintiff’s testimony that he was re-injured as
a result of the February 14, 2009 accident. The plaintiff’s wife’s testimony
corroborated a re-injury. She described a family trip to Disneyland in
California. In examination-in-chief, she testified:

Q         Do you recall — do you have any recollection
of — be prior to this accident and again, let’s say in the, you know, few
months prior to the accident, him having any limitations in terms of his
activities or his tolerance for various activities?

A          Well, I know in 2008, Fall of 2008, we went
away on a family road trip to Disneyland and he — he was swimming and going on
rides and seemed fine there, so…

Q         And when you say — so the Fall of 2008, so it
would be a few months before the accident?

A          Yes.

Q         When you say a road trip, did you drive from
here to California, to Disneyland?

A          Yes.

Q         And did Mr. Harvey do any of the driving?

A          Yeah.

Q         And did — as far as your own observations did
he have any difficulty sitting in the vehicle and driving throughout the day?

A          I think just like any person would that’s
driving a long way, a little — get up and stretch every once in awhile.

Q         And what kind of duration of driving would you
do in a day — would he do in a day on the way to California or the way back?

A          We got there in two days, so I think it was
like 14 hours driving.

Q         Per day?

A          Yeah.

V.             
plaintiff’s Injuries

[19]        
By the time of trial, the plaintiff’s injuries had fully resolved. As a
result of the accident, the plaintiff suffered neck, shoulder and back
stiffness and soreness consistent with a whiplash-type injury, together with
headaches.

[20]        
The injuries caused the plaintiff to lose approximately two days’ work
immediately after the accident and between 10 to 20 further days in the first
year after the accident.

[21]        
The plaintiff is a hard worker. He frequently works out of town for 10‑hour
days, seven days in a row. Work as a pipefitter/welder is strenuous and, as the
plaintiff described, he is often required to work in “contorted” positions.

[22]        
For the first four to five weeks following the February 14, 2009
accident, the plaintiff’s symptoms were the most intense. After this period,
his symptoms improved gradually and within approximately two and a half years
were resolved following the accident.

[23]        
The plaintiff testified that after work he was often fatigued and in
pain, and had to rest to recover. He had sleepless nights. Within the first
year, the symptoms had sufficiently subsided so that the plaintiff did not miss
any further work. However, on many occasions, he worked with pain and headaches.
He did not enjoy work as he had previously.

[24]        
As a union hall hire, the plaintiff was not paid if he did not work. Understandably,
the plaintiff also wished to maintain his Name Hire status and testified that
if he took time off, especially while working away from home, this could risk damaging
his reputation. It is easy to infer that Name Hire status likely results in
more overtime work (time and one-half), weekend work (double time), and greater
protection when economic activity slows.

[25]        
In my view, the plaintiff is the stoic type of individual who went to
work and worked through soreness, pain and headaches when many others might not
have done so.

VI.           
Mitigation

[26]        
The defendant says that the plaintiff failed to mitigate his damages by
not attending physiotherapy as recommended by his doctor. As a result of his
previous accidents which resulted in similar soft tissue injuries to those of
the February 14, 2009 accident, the plaintiff was familiar with the type
of exercise that would help him. He testified that he did these exercises
“religiously”. That said, a physiotherapist may have been able to provide
further assistance. For example, a physiotherapist may enable certain stretches
to be undertaken that cannot be done on one’s own. On the other hand, attending
physiotherapy sessions would probably have caused the plaintiff to miss further
work resulting in a larger claim for lost wages.

VII.          
Damages

[27]        
In Szymanski v. Morin, 2010 BCSC 1, Justice Ker provides a
useful update of the factors a court may wish to consider in determining
non-pecuniary damages. In Szymanski, Justice Ker states:

The relevant factors in assessing non-pecuniary damages were
recently reiterated by Mr. Justice Voith in Lakhani v. Elliott,
2009 BCSC 1058 at para. 104, citing the majority opinion of the Court of
Appeal in Stapley v. Hejslet, 2006 BCCA 34 (see also Kuskis [Kuskis
v. Hon Tin, 2008 BCSC 862] at para. 138):

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

a.   age of the
plaintiff;

b.   nature of
the injury;

c.   severity
and duration of pain;

d.   disability;

e.   emotional
suffering; and

f.    loss or
impairment of life.

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

g.   impairment
of family, marital and social relationships;

h.   impairment
of physical and mental abilities;

i.    loss of
lifestyle; and

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

[28]        
I have considered the foregoing factors, including the plaintiff’s
stoicism, in coming to what is, in my view, an appropriate award. Plaintiff’s
and defendant’s counsel referred me to many cases as a guide in determining the
appropriate quantum.

[29]        
Plaintiff’s counsel submitted that an award of $27,000 to $40,000 for
non-pecuniary damages and $1,000 to $1,500 for past loss of household and yard
chores capacity would be appropriate.

[30]        
Plaintiff’s counsel also suggested that any award for past loss of
household and yard chores capacity could be incorporated into an award for
non-pecuniary damages. This is a sensible and simple suggestion which I have
followed.

[31]        
Defendant’s counsel argued that an appropriate award for non-pecuniary
damages should be in the range of $5,000 to $7,000 with no award for loss of
household and yard chores capacity. He also suggested a 20% reduction for the
plaintiff’s failure to mitigate.

[32]        
No two cases are ever exactly comparable. Some of the cases which
provide some guidance and which were referred to me by plaintiff’s counsel are:
Vela v. MacKenzie, 2012 BCSC 438; Lehtonen v. Johnston,
2009 BCSC 1364; Hussainyar v. Miller, 2012 BCSC 405; and Bartel v.
Milliken, 2012 BCSC 563.

[33]        
On the facts of this case and without considering a failure to mitigate,
I find that a combined award for non-pecuniary damages and loss of household
and yard chores capacity to be $35,000. With some reluctance, I find that the
plaintiff did fail to mitigate by not attending recommended physiotherapy
sessions. I will reduce the otherwise $35,000 award by 10% to $31,500.

VIII.        
Past Wage Loss

[34]        
The plaintiff lost approximately two days of work and then a further
estimated 10 to 20 days as a result of the accident. I will err on the
conservative side and find that the plaintiff lost 12 days of work. Based
on plaintiff’s counsel’s computations, the gross loss would be $4,443.84. I
will adjust for an estimate of income tax and other deductions and round the
number to $3,000.

IX.           
Special DAmages

[35]        
The quantum of special damages was fortunately low. The plaintiff had a
benefit plan that covered many expenses. The plaintiff testified that he spent
approximately $100 to $150 per year on medication. Plaintiff’s counsel
recommended special damages in the range of $200 to $500. I will award $200.

X.             
CONCLUSION

[36]        
In summary, the Court awards the plaintiff the following damages:

[37]        
Unless there are matters of which I am not aware, the plaintiff is
entitled to party and party costs in accordance with Appendix B.

“Funt J.”