IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20130801

Docket: M2131

Registry:
Powell River

Between:

Rudolphus Johannes
Franciscus Vander Maeden

Plaintiff

And:

Michael Francis
Condon and Donald Scott Hart

Defendants

– and –

Docket: M2380

Registry:
Powell River

Between:

Rudolphus Johannes
Franciscus Vander Maeden
also known as Rudy Vander Maeden

Plaintiff

And:

Catherine Anne
Mander also known as Anne Mander

Defendant

Before:
The Honourable Mr. Justice G.R.J. Gaul

Reasons for Judgment

Introduction

[1]            
On 20 March 2009, Rudolphus (Rudy) Vander Maeden was the passenger
in a vehicle that was struck broadside by another vehicle as it was making a
left-hand turn across Highway 101 in Powell River, British Columbia (“Accident
#1”). Asserting that he has suffered significant injuries as a result of
Accident #1, Mr. Vander Maeden has sued both the driver of the vehicle he
was in, as well as the driver of the vehicle that struck them (“Action #1).

[2]            
On 5 May 2011, Mr. Vander Maeden was walking on a quiet side
street in Powell River when he was involved in an accident involving a motor
vehicle that was backing out of a driveway (“Accident #2”). Mr. Vander
Maeden has sued the driver of the motor vehicle in question, alleging her
negligent driving caused him additional injuries and or exacerbated those
associated with Accident #1 (“Action #2”).

[3]            
In both lawsuits, which by consent were tried together, Mr. Vander
Maeden seeks damages under the following headings:

 a)       Non-Pecuniary damages for pain, injury, suffering
and loss of enjoyment of life;

 b)       Loss
of Past Income;

 c)       Loss
of Future Earning Capacity;

 d)       Cost
of Future Care; and

 e)       Special
Damages.

[4]            
Mr. Vander Maeden also seeks an “in trust” award for the domestic
services his friend and roommate Ms. Geraldine Bergstrom has performed for
him.

[5]            
The trial of Mr. Vander Maeden’s claims began before a jury. On
account of improper comments made during Mr. Vander Maeden’s counsel’s
final submissions, I acceded to the defendants’ application pursuant to Rule 12-6(12)
of the Supreme Court Civil Rules, discharged the jury and with the
consent of the defendants ordered that the balance of the trial continue before
me.

Issues

[6]            
The defendants in Action #1 have admitted liability for Accident #1. The
defendant in Action #2 has denied she is liable for Accident #2.

[7]            
There are four principle issues that need to be resolved:

 a)       Liability for Accident #2;

 b)       The nature and extent of Mr. Vander
Maeden’s injuries;

 c)       The legal causation of
Mr. Vander Maeden’s injuries; and

 d)       The quantum
of damages Mr. Vander Maeden is entitled to
for the injuries and losses attributable to the accidents.

Background Facts

  Pre-Accident
Condition:  Physical & Psychological Health

[8]            
In the spring of 2009, Mr. Vander Maeden was 60 years old. Since he
was aged 10, Mr. Vander Maeden has experienced significant and chronic
vision problems. It was not until he was 24 that he was formally diagnosed with
retinitis pigmentosa, a progressive degenerative eye disease that causes severe
vision impairment and eventual blindness. By the time that diagnosis was made,
Mr. Vander Maeden was already legally blind. Mr. Vander Maeden’s
vision has not improved and all that remains of his eyesight is some peripheral
vision.

[9]            
Mr. Vander Maeden had been previously married, however in 1979 his
wife died in a catastrophic traffic accident (the “1979 Accident”). They had
been walking together on a local roadway in Powell River when they were struck
by a motor vehicle. Mr. Vander Maeden suffered multiple serious injuries, including
to his neck, back and legs. He also suffered a concussion and spent close to a
year in the hospital convalescing. Tragically, Mrs. Vander Maeden lost her
life.

[10]        
Since the 1979 Accident, Mr. Vander Maeden has had to deal with chronic
pain and discomfort that has, at times, made walking and performing other
ordinary tasks difficult. His condition deteriorated to such an extent that he
needed to undergo back surgery in or around 1999. He also had four operations
on his right knee in the early 2000s. It was around this time that Mr. Vander
Maeden began taking morphine on a regular basis as a means of addressing and
managing his pain.

[11]        
In or around 2002, Mr. Vander Maeden crushed one of his fingers in
a wood splitting device, requiring major surgery. It was also around this time
that Mr. Vander Maeden’s physician discovered Mr. Vander Maeden
suffered from cardiac arrhythmia resulting in the need for him to have a pace
maker implanted. Further heart problems for Mr. Vander Maeden necessitated
a cardiac ablation procedure in 2010.

[12]        
In April 2005, Mr. Vander Maeden sold his house and property on the
outskirts of Powell River and relocated to a new home closer to town. In 2007
or 2008, he moved into the condominium in which he continues to reside.

[13]        
In 2006 and 2007, Mr. Vander Maeden had a number of concussions as
a result of him accidentally colliding with the walls in his home. On at least
one of these occasions the impact was of such force that he lost consciousness.
The transient post-concussion symptoms that Mr. Vander Maeden suffered
included increased visual difficulties, nausea, dizziness, and diminished
cognitive functioning.

[14]        
In 2007, Mr. Vander Maeden sought counselling and psychiatric
treatment for depression and a mood disorder. He was becoming more fearful of
being on the street, given his diminishing eyesight and was disheartened by the
thought that he soon might have to resort to using a seeing-eye dog. In 2008,
Mr. Vander Maeden reported to his general physician that he was again feeling
depressed.

[15]        
Mr. Vander Maeden’s physical and psychological condition in the
spring of 2009 just prior to Accident #1 can be summarized as follows:

·      
Chronic pain in his back as a result of a crushed disk;

·      
Chronic pain in both legs, with osteoarthritis in his knees;

·      
Chronic pain in his shoulders;

·      
Chronis arthritic pain in his hands; and

·      
Depression and sleep loss.

  Pre-Accident
Condition:  Employment & Activities

[16]        
In 1993, Mr. Vander Maeden’s visual impairment had reached such a
degree that he was formally recognized as a person with a disability and began
receiving a government disability pension. He presently receives approximately
$790 per month.

[17]        
In the years prior to 1993, Mr. Vander Maeden had been employed in
a variety of jobs, including working on tug boats and log booms for MacMillan
Bloedel. He had set up a freight business and had been involved in the cutting
and transporting of firewood. For a short while he was also involved in
building houses.

[18]        
Apparently the rules pertaining to his disability pension permit Mr. Vander
Maeden to earn a small income of no more than $500 per month. Until 2005, Mr. Vander
Maeden pursued this option and earned a small supplemental income, principally
from the collection and sale of firewood. This source of income ceased when he
abandoned this work in or around 2005.

[19]        
Notwithstanding his chronic injuries from the 1979 Accident and his
serious visual impairment, in the months leading up to Accident #1, Mr. Vander
Maeden was an avid swimmer. He also attended the local gym where he would
exercise using weights and a treadmill. Mr. Vander Maeden enjoyed riding
his mountain bike and using his power boat for recreational purposes.

[20]        
Mr. Vander Maeden’s exercise routines and social activities were
always subject to and governed by the chronic pain he continued to experience, especially
in his back and legs. Mr. Vander Maeden had difficulty performing chores
around his home and therefore he had the assistance of a housekeeper.

  Accident
#1

[21]        
On the afternoon of 20 March 2009, Mr. Vander Maeden and his
friend Michael Condon, the defendant in Action #1, were proceeding southbound
on Highway 101 in Mr. Condon’s 2003 Dodge Ram pickup truck. They were en
route to their regular “Happy Hour” event at a mutual friend’s home in
Powell River. Mr. Condon was driving and Mr. Vander Maeden was a
passenger in the vehicle. At around the same time, the defendant Donald Hart
was driving his 1991 Ford Ranger truck northbound on Highway 101. As
Mr. Condon attempted a left‑hand turn across Highway 101, Mr. Hart’s
oncoming vehicle collided with the passenger side of Mr. Condon’s truck.
The force of the impact propelled Mr. Vander Maeden sideways causing his
head to strike the passenger door window as well as the front windshield. He
faded in and out of consciousness and he described feeling considerable pain in
his right shoulder, some of his fingers as well as his right hip, knee and
foot. He also described the sensation as “heating up” and “hurting like hell”.

[22]        
After rescue personnel from the fire department were able to extract Mr. Vander
Maeden from Mr. Condon’s vehicle, he was transported by ambulance to the
local hospital where he was examined by the emergency room physician on duty.
Mr. Vander Maeden was released from the hospital early the next morning and
he returned home.

  Accident #2

[23]        
On 5 May 2011, Mr. Vander Maeden was walking along the side of
Courtenay Street heading towards his home. Courtenay Street has no sidewalk.
Just ahead of him was a friend who was walking her dog. As a truck approached,
Mr. Vander Maeden stepped off of the roadway and onto the defendant
Catherine Mander’s driveway. As Mr. Vander Maeden did this, Ms. Mander
was very slowly backing her vehicle out of her driveway. Mr. Vander Maeden
moved out of the way of Ms. Mander’s vehicle however, in doing so, his
cane struck the bumper of her vehicle. Mr. Vander Maeden did not fall.

Liability
for Accident #2

[24]        
Mr. Vander Maeden asserts that he was
within Ms. Mander’s field of vision when she was backing her car out of
her driveway and consequently she should be found 100% responsible for Accident
#2.

[25]        
Ms. Mander says she acted appropriately
when she was moving her car and that Mr. Vander Maeden is entirely
responsible for Accident #2 because he is the one who walked behind her moving vehicle.
In the alternative, Ms. Mander submits that liability for Accident #2
should be divided between herself and Mr. Vander Maeden with a higher
percentage of responsibility falling on Mr. Vander Maeden.

  Evidence
of Ms. Mander

[26]        
The driveway of Ms. Mander’s home was
approximately 6 meters long. As she backed out of her driveway on the morning
of 5 May 2011, she was travelling very slowly, at a speed of less than 10
km hour. She had seen Mr. Vander Maeden on Courtenay Street about 10
meters away from her home.

[27]        
As she backed out, she looked over both
shoulders and did not see anyone or anything in her path. Consequently, she
continued to back out. It was then that she heard something strike her vehicle.
She moved her car forward, stopped it and then got out. She then saw Mr. Vander
Maeden walking towards her. The two spoke briefly before they carried on their
respective ways. According to Ms. Mander, Mr. Vander Maeden said he
was fine.

  Evidence of Mr. Vander Maeden

[28]        
According to Mr. Vander Maeden, he was walking on Courtenay
Street a short distance behind a friend of his who was walking her dog. When he
observed a truck approaching, he stepped off of Courtenay Street and onto Ms. Mander’s
driveway. He explained that as he traversed the driveway, his friend called out
to him just as Ms. Mander’s car was approaching. Mr. Vander Maeden
quickly moved out of the way of Ms. Mander’s car. He described his actions
as “overcompensating” and “torquing” out of the way of the vehicle. Mr. Vander
Maeden did not think Ms. Mander’s vehicle struck him, though he did
believe his cane struck the vehicle. In any event, Mr. Vander Maeden
remained on his feet. According to Mr. Vander Maeden, this encounter with
Ms. Mander’s vehicle was a fairly minor event and simply involved him
quickly getting out of the way of Ms. Mander’s car.

[29]        
Mr. Vander Maeden and Ms. Mander spoke afterwards.
According to Mr. Vander Maeden, he apologized for striking Ms. Mander’s
car with his cane and she said she will take more care the next time she is
backing out of her driveway. Following this brief conversation, both parties parted.

  Evidence
of Dana Carriere

[30]        
Mr. Carriere lives across the street from Ms. Mander.
On the morning of 5 May 2011, Mr. Carriere was sitting at his kitchen
table looking out onto Courtenay Street. He saw Mr. Vander Maeden and a
woman with a dog walking together on Courtenay Street. He also saw Ms. Mander
backing her vehicle down her driveway towards Courtenay Street.
Mr. Carriere could not remember if the vehicle was in motion before Mr. Vander
Maeden and woman with the dog crossed Ms. Mander’s driveway.

[31]        
Mr. Carriere saw Mr. Vander Maeden’s arms go up in the
air and his cane strike the bumper of Ms. Mander’s vehicle.

  Conclusion

[32]        
In my opinion, Ms. Mander should have seen
Mr. Vander Maeden as she was backing her vehicle out of her driveway. I
accept that she was proceeding very slowly and with caution. However Mr. Vander
Maeden was there to be seen and he should have been seen. In my view Ms. Mander
is partially responsible for what happened with Mr. Vander Maeden.

[33]        
I am also of the view that Mr. Vander
Maeden knew or should have known that Ms. Mander’s vehicle was proceeding
down her driveway towards him. In my opinion, his decision to walk across the
path of a car that was moving in reverse towards him was a dangerous and unwise
one. In my opinion, Mr. Vander Maeden is equally responsible for the
incident that resulted in his cane striking Ms. Mander’s vehicle.

[34]        
In the result, I find Ms. Mander and Mr. Vander
Maeden are each 50% responsible for Accident #2.

The Nature and Extent the
Plaintiff’s Injuries

[35]        
Mr. Vander Maeden only experienced very minor stiffness following
Accident #2. This discomfort dissipated quickly and within a day or two it was
completely gone and he was back to his pre-incident condition.

[36]        
Mr. Vander Maeden testified that he did not think Accident #2
caused him any injuries. He also agreed in cross-examination that at his first
appointment with his family doctor following Accident #2 on 11 May 2011 he
told his doctor that he felt “perfectly well” and that he had only felt “a bit
sore for a few days” after the accident.

[37]        
In my opinion, the consequences to Mr. Vander Maeden of his
encounter with Ms. Mander’s vehicle were of such a minor and trifling
nature that they constitute de minimis. As such, I find Mr. Vander
Maeden suffered no compensable damages or losses as a result of Accident #2.

  Plaintiff’s
Physical and Psychological Health Post-Accident #1

[38]        
Mr. Vander Maeden says that in the days following
Accident #1, he experienced headaches, dizziness, nausea and the occasional
bout of vomiting. He explained that he felt as if he had had too many martinis
and the room was swaying. He felt tired and confused, his vision was blurrier
than normal and he had difficulty committing things to memory. His back, ribs,
right arm and right leg were sore and he had a tingling sensation in the
fingers of his right hand.

[39]        
Mr. Vander Maeden also described how within a couple of days of
Accident #1, he noticed how his neck was becoming increasingly painful and how his
hearing had diminished. He compared the feeling to having just come out of the
swimming pool; he could hear sounds, but not make out all of the words. He also
noticed that he had a ringing in his ears, described as a dull roar, which was
worse at night and caused him to lose sleep.

[40]        
Mr. Vander Maeden says his hearing loss was a significant problem
for the first few months after Accident #1, but that this condition improved
considerably over the course of the year. Mr. Vander Maeden’s tinnitus
continues to be troublesome for him and it continues to impact his sleep.

[41]        
Mr. Vander Maeden also noticed that after Accident #1 his
self-confidence began diminishing and he started experience anxiety and fear of
being on a roadway or in a public place. He also felt a growing sense of
frustration, anger and depression.

[42]        
Mr. Keith Miller has known and been friends with Mr. Vander
Maeden since 1990. Mr. Miller described how in late 2010 or early 2011, Mr. Vander
Maeden was able to attend at his residence and cut some wood that was on the
property. Mr. Vander Maeden and Mr. Miller worked the entire day,
taking the occasional rest. Mr. Miller did not notice any significant
change in Mr. Vander Maeden’s physical abilities since Accident #1, though
he did observe that Mr. Vander Maeden was moving more slowly than he had
in the past.

[43]        
Ms. Sharon Nash, Mr. Miller’s wife, has been a friend of
Mr. Vander Maeden for approximately 20 years. Ms. Nash testified that
before Accident #1 Mr. Vander Maeden was an outgoing and energetic person,
notwithstanding his physical disability. She explained that after Accident #1,
Mr. Vander Maeden appeared less confident and more withdrawn in public and
was prone to being less socially active.

  Expert
Evidence

[44]        
Mr. Vander Maeden presented the evidence of a number of expert
witnesses to explain the nature and extent of the injuries he says are
attributable to Accident #1. The defendants presented the evidence of one
medical expert.

  Dr.
Gordon Robinson

[45]        
Dr. Robinson is a neurologist with an expertise in
headache disorders who testified on behalf of Mr. Vander Maeden. Dr. Robinson
prepared a medical-legal report dated 4 January 2012 and his testimony at
trial was presented by means of video deposition.

[46]        
Dr. Robinson examined Mr. Vander Maeden on
one occasion on 7 December 2011. In his report under the heading
“opinion”, Dr. Robinson concluded:

This man was
involved in a motor vehicle accident on March 20, 2009. As a result of the
accident he sustained soft tissue injury to his head, neck and low back. He may
have had brief loss of awareness, however I doubt he sustained a traumatic
brain injury.

Ever since the
accident he has had constant headache usually felt at the back of his head. The
headaches were improved following injection of local anesthetic and
corticosteroid into the upper neck well over a year ago. Headaches are now mild
to moderate in intensity and do not affect his ability to function.

***

I believe that
his history and examination are consistent with a diagnosis of chronic
posttraumatic headache related to head and neck injury.

Before the
accident he was disabled due to profound visual loss related to retinitis
pigmentosa as well as chronic back pain. The latter came on following an injury
in 1979 and was possibly worsened after back surgery 20 years later. He
was unable to work full-time but does describe an active lifestyle despite his
limitations.

He has had an
increasing disability over the last few years. Although this may be partly due
to accident related physical symptoms it appears that he has had further
worsening of vision related to his retinisis pigmentosa. In addition he has
developed signs and symptoms of neuropathy and ataxia which may occur in
association with this disorder.

I believe it is
probable that the symptoms of pain and numbness in his hands and feet, as well
as his unsteadiness walking, are related to neuropathy-ataxia-retinitis
pigmentosa (NARP), an inherited mitochodrial disorder. This disorder may have
associated cardiac conduction defects.

[47]        
In cross-examination, Dr. Robinson confirmed that even if Mr. Vander
Maeden did suffer a mild or brief concussion in Accident #1, in his opinion,
the symptoms that Mr. Vander Maeden continues to exhibit would likely still
be unrelated to that concussion.

  Dr. Neil
Longridge

[48]        
On 15 February 2011, Mr. Vander Maeden was examined by
Dr. Neil Longridge. Dr. Longridge is a medical doctor with a
specialty in otololanryngology, and a particular interest in tinnitus, hearing
loss and dizziness. Dr. Longridge conducted a number of tests and
experiments on Mr. Vander Maeden during the course of the examination. In
his medical-legal report dated 20 April 2011, Dr. Longridge noted:

Studies have attempted to
determine how loud a sound is when a patient is complaining about tinnitus but
studies have been unable to measure the sound reliably. Unfortunately, it is
purely dependent on the patient’s statement about how much incapacity there
is…. My experience with tinnitus is that it is usually at its worst when it
first comes on, it can be expected to improve for a period of approximately a
year and at the end of that time whatever is present is likely to be present on
a long-term, permanent basis. Whether the tinnitus improves or the patient just
becomes inured to it over that period I do not know.

Beltone hearing test on
May 25, 2009… showed a conductive hearing deficit and this appears to
largely have remitted with a remaining high tone deficit compatible with a
history of previous noise exposure.

[49]        
With respect to Mr. Vander Maeden’s hearing loss, Dr. Longridge
concluded:

It is unclear what the cause of
this temporary hearing loss was. Pure tone testing shows normal hearing up to 2
K, dropping at 4 and 8 K to a mild to moderate sensorineural hearing loss. His
difficulties with hearing could be related partly to this accident and part of
this could be related to noise exposure in his earlier activities and life.

[50]        
Dr. Longridge reported on Mr. Vander Maeden’s balance problems
as follows:

In the first two weeks following
the accident [Mr. Vander Maeden] was significantly incapacitated with
severe vertigo, nausea, vomiting, requiring wall support to get to the bathroom
and at first he would even need to crawl to do so. These complaints are
characteristic of an acute labyrinthine dysfunction and coming on following
trauma probably represent labyrinthine concussion, a well recognized form of
post-traumatic malfunction of the inner ear.

[51]        
Although he could have articulated his opinion in a clearer fashion, I
take it Dr. Longridge is of the opinion that Mr. Vander Maeden’s
balance system has been compromised as a result of Accident #1.

  Dr.
John le Nobel

[52]        
Dr. le Nobel is a medical doctor with an
expertise in physical medicine and rehabilitation who examined Mr. Vander
Maeden on 9 March 2011.

[53]        
Dr. le Noble diagnosed Mr. Vander Maeden
as suffering from chronic post traumatic headache. In his medical-legal report
dated 11 March 2011, Dr. le Noble concluded:

I diagnose
Rudolphus Vander Maeden’s pain as chronic… He reports a period of discontinuous
memory of the motor vehicle collision [Accident #1] consistent with a brief
period of altered cognitive function.

***

At the time of
this assessment, Rudolphus Vander Maeden’s cognitive difficulties are
multi-factorial, and contributed to by chronic pain and sleep interference, use
of medications and substances, depression, as well as any contribution from
brain trauma including with the March 20, 2009 motor vehicle collision…

I diagnose
Rudolphus Vander Maeden’s headaches as chronic post traumatic headache. There
are likely contributions from cervical spine (cervicogenic headache) as well as
from trauma directly to the head (post concussion headache). He has chronic
neck pain post-accident due to symptomatic cervical spondylosis. Post Accident
x-rays showed degenerative changes in the cervical spine. Rudolphus Vander
Maeden had episodes of neck pain before the motor vehicle collision (June 5,
2006). He did not however have such severe neck pain before the motor vehicle
collision. Absent the motor vehicle collision I would not have anticipated him
developing chronic neck pain such as he has subsequent to the motor vehicle
collision.

***

Rudolphus Vander
Maeden indicates problems with depression. Based on depression earlier in his
life, Rudolphus Vander Maeden was at increased risk for development of
depression with exposure to trauma and injuries from the March 20, 2009
motor vehicle collision.

Rudolphus
Vander Maeden has tingling in his hands, consistent with irritation of the
nerves supplying his hands. Rudolphus Vander Maeden did not have sustained
sensory symptoms in his hands before the motor vehicle collision. Absent the
motor vehicle collision March 20, 2009, he would not have been anticipated
to develop the bilateral hand symptoms such as has been the case since the
motor vehicle collision.

  Dr.
Desmond Coen

[54]        
Dr. Coen is a registered psychologist who specializes in
neuropsychology. Dr. Coen examined Mr. Vander Maeden on 27 June
2011. During the course of this examination, Mr. Vander Maeden performed a
number of tests, the results of which are recorded in Dr. Coen’s report
dated 28 September 2011. In his report, under the heading “Impression,
Summary & Recommendation”, Dr. Coen concluded:

Based on the results of review
background documentation, clinical interview, behavioral observation, and
psychological and neuropsychological testing, there are converging lines of
clinical findings to support two primary diagnoses. First is a Cognitive
Disorder (not otherwise specified), to describe the transient auditory
confusion that is seen on a measure of auditory discrimination, and impaired
(initial) verbal list learning. This may represent the fleeting disruption of
attention in Mr. Vander Maeden caused by his emotional upsets, which will
be diagnosed separately. However given the history of loss of consciousness,
and the diagnosis of concussion on file, plus his specific concentration
complaints since the accident in question, I cannot rule out concussion residue
as the cause, or as an additional causal factor. This difficulty is compounded
by the smaller than average test battery used (due to his limited vision). In
addition by his self-report he is sleeping rather poorly most evenings, so some
transient cognitive impairment could also result from that cause also. Finally
he also appears to have a prior history of at least one or two prior head
injuries, so pre-existing cognitive impairments cannot be ruled out. In short
the causation appears multi-factorial at this time, but the nature of the
cognitive lapses appears on a clinical judgment basis to exceed that normally
expected due to anxiety or mood disorders alone, so is diagnosed separately
here.

Second Mr. Vander Maeden
meets diagnostic criteria for Post-Traumatic Stress Disorder (PTSD), chronic
type. He remains hyper-vigilant and distrusting in a variety of driving
situations, has disturbed sleep and intrusive recollections of his accident,
and is prone to angry and irritable outbursts. Earlier in his recovery he
reported more PTSD symptoms, including more frequent bad dreams-to the point he
awoke with soaked night wear. Despite these limited improvements in some select
symptoms, he continues to meet sufficient diagnostic criteria to quality for a
PTSD diagnosis. Given the severity of his prior MVA, and the tragic loss of his
first wife, his threshold to PTSD may have been lowered prior to the accident
in question [Accident #1], but he was functioning well psychologically in terms
of mood, sleep and productivity, so it appears there was no residual PTSD from
the first accident.

  Dr. Brad
Schweitzer

[55]        
Dr. Schweitzer is a medical practitioner who has been
Mr. Vader Maeden’s family doctor for 13 years. Dr. Schweitzer
prepared reports relating to Mr. Vander Maeden. In his report dated
16 July 2009, Dr. Schweitzer observed:

After the motor
vehicle accident of March 20, 2009, and for some months afterwards Rudy
had ongoing symptoms, including:

·       
Congestion and ringing in his ears with
decreased hearing

·       
Severe sprain of the 5^th digit of his
right hand and of the thumb of his left hand

·       
Neck pain and stiffness

·       
Headaches

·       
Contusions of his right elbow, right hip and
right knee

·       
Shoulder pain and stiffness on the right side

·       
Stiffness of his right leg.

At this time
Rudy is almost fully recovered from the above injuries, although does
unfortunately continue to have ringing in his right ear (tinnitus) with
occasional forgetfulness and slower thought processes, particularly mathematics
which he has always been very quick at, but notes that he is much slower at it
now.

[56]        
Dr. Schweitzer’s follow-up report of
22 September 2010, confirmed that Mr. Vander Maeden continued to
complain of tinnitus, pain and stiffness in his neck, lower back, right hip,
right shoulder, right elbow and right hand. Mr. Vander Maeden also
continued to report suffering from daily headaches, though they had decreased
in intensity.

[57]        
In his report dated 24 January 2012,
Dr. Schweitzer described the following:

Rudy continues to be bothered by numerous
physical symptoms:

·       
The ringing in his ears (tinnitus) has continued
unabated with no signs of improvement. He continues to have hearing deficit in
both ears.

·       
The sprain and injuries to his right hand and
thumb have improved, although he continues to have paresthesia.

·       
The neck pain and stiffness continues and does
cause him much disability.

·       
The headaches also continue to bother him,
although these have improved somewhat.

·       
Rudy continues to be bothered by significant low
back pain for which he takes analgesic medication.

The contusions
and bruising of his right elbow, hip and knee of course have all resolved.

[58]        
In his final report, dated 2 February 2013,
Dr. Schweitzer provided the following opinions regarding Mr. Vander
Maeden’s condition:

My opinion is
based on my personal experience with Mr. Vandermaeden (sic) as his family
physician upon medical records in my chart and also I have relied upon the
opinions of several specialist that Mr. Vandermaeden has attended, which
include:  Dr. Desmond J. Coen (Registered Psychologist), Dr. Gordon
Robinson (Neurology), Dr. John Le Nobel (Physical & Rehab Medicine)
and Dr. Neil S. Longridge (Otolaryngology).

[59]        
Although he offers no new opinion in his final report,
Dr. Schweitzer does agree with the views expressed by
Dr. le Nobel, Dr. Robinson, Dr. Longridge and Dr. Coen.
Worthy of note is the fact that in cross-examination, Dr. Schweitzer
confirmed that he agreed with Dr. Robinson’s opinion that Mr. Vander
Maeden’s reduction in vision was more likely attributable to his retinitis
pigmentosa than Accident #1 and that the numbness and tingling sensation in Mr. Vander
Maeden’s hands and feet and his balance problems were probably unrelated to
Accident #1 and more likely caused by his NARP.

[60]        
Dr. Schweitzer confirmed that in the fall
of 2009 he referred Mr. Vander Maeden to Dr. J.P. Claasen, and
ophthalmic surgeon for a assessment of Mr. Vander Maeden’s vision issues.
Dr. Classen provided Dr. Schweitzer with a consultation report dated
24 August 2009 setting out his examination of Mr. Vander Maeden. That
report was not admitted into evidence during the trial. However, during his
cross-examination, Dr. Schweitzer agreed with and in essence adopted the
following observations contained in Dr. Claasen’s report:

Mr. Vandermaeden
has what appears to be end stage Retinitis Pigmentosa accounting for his near
total vision loss in both eyes. He also has signs of meibomian seborrhoea of
posterior blepharitis which can account for his symptoms of sore eyes…I don’t
feel his symptoms are related to his blunt head injury…

  Dr.
A. Sidki

[61]        
Dr. Sidki is a medical practitioner who specializes in
orthopaedics. At the request of the defendants, Dr. Sidki reviewed all of
the plaintiff’s expert medical reports, including the supporting materials that
were used to prepare those reports. In his expert report dated 22 February
2012, Dr. Sidki opined:

Mr. Vander Maeden had a
variety of principally musculoskeletal issues and complaints prior to the motor
vehicle accident [Accident #1]. Since the accident Mr. Vander Maeden has
had increased pain in his previously painful shoulder, knee and back and also
has new complaints of ringing in his ears (tinnitus), numbness of his right
hand and thumb, neck pain and stiffness, dizziness, hearing loss and headaches.
In the period after the accident, Mr. Vander Maeden had complained of
other musculoskeletal complaints such as hip and knee pain as well as right
elbow pain although these do not seem to be consistent long-term complaints and
they appear to have essentially resolved.

***

Based on the records available
for review Mr. Vander Maeden is almost three years from the motor vehicle
accident. He continues to describe significant ongoing issues. Although some of
these issues have improved it does appear that Mr. Vander Maeden continues
to complain of ongoing tinnitus, hearing deficit, hand parastheisa, neck pain
and stiffness, headaches, low back pain and dizziness.

***

Overall Mr. Vander Maeden’s
complaints are likely multifactorial and are partially related to pre existing
conditions and partially related to the motor vehicle accident [Accident #1].

  Conclusion

[62]        
I have approached the medical evidence presented by Mr. Vander
Maeden with a certain degree of caution. Although I found Mr. Vander
Maeden to be a credible witness, his reliability in recounting his medical
history to the various health care professionals who have treated him has been less
than consistent. Mr. Vander Maeden clearly does not have a strong memory
for details and he confirmed during his testimony that the medications that he
has been taking for years, particularly the morphine, have affected his ability
to recall matters in a consistent manner. Moreover, the medical evidence itself
is, at times, inconsistent or contradictory. For example, the opinions of Dr. Robinson
and Dr. Coen, two witnesses presented by Mr. Vander Maeden conflict
on the question of whether Mr. Vander Maeden suffered a traumatic brain
injury in Accident #1. In my respectful view, Dr. Robinson as a medical doctor
with an expertise in neurology is better suited and able to opine on the issue
of traumatic brain injuries in this case than Dr. Coen.

Causation

[63]        
In order to prove causation, Mr. Vander Maeden
must satisfy the court that the negligent acts of the defendants caused or
materially contributed to his injuries (see: Athey v. Leonati, [1996] 3
S.C.R. 458).

[64]        
In Ng v. Sarkaria, 2011 BSCS 1643, Butler J.
helpfully summarized the relevant principles of causation as follows:

[8]        The primary test for
causation asks: but for the defendant’s negligence, would the plaintiff have
suffered the injury? The "but for" test recognizes that compensation
for negligent conduct should only be made where a substantial connection
between the injury and the defendant’s conduct is proven: Resurfice Corp. v.
Hanke, [2007] 1 S.C.R. 333, at paras. 21-23.

[9]        Causation must be established on a balance of
probabilities before damages are assessed. As McLachlin, C.J.C. stated in Blackwater
v. Plint, [2005] 3 S.C.R. 3, at para. 78:

 Even though there may be
several tortious and non-tortious causes of injury, so long as the defendant’s
act is a cause of the plaintiff’s damage, the defendant is fully liable for
that damage. The rules of damages then consider what the original position of
the plaintiff would have been. The governing principle is that the defendant
need not put the plaintiff in a better position than his original position and
should not compensate the plaintiff for any damages he would have suffered
anyway: [Athey v. Leonati].

[10]      The most basic
principle of tort law is that the plaintiff must be placed in the position he
or she would have been if not for the defendant’s negligence, no better or
worse. The tortfeasor must take his or her victim as they find them, even if
the plaintiff’s injuries are more severe than they would be for a normal person
(the thin skull rule). However, the
defendant need not compensate the plaintiff for any debilitating effects of a
pre-existing condition which the plaintiff would have experienced anyway (the
crumbling skull rule): Athey v. Leonati, at paras. 32-35.

  The
Plaintiff’s Position

[65]        
Mr. Vander Maeden acknowledges that he had pre-existing physical
ailments, such as limited vision and chronic pain in his back. However, he
maintains that his pain and discomfort have been exacerbated to a large degree
by Accident #1 and that the accident has left him with additional new injuries.
Mr. Vander Maeden points to the fact that he did not suffer from
headaches, dizziness and hearing loss before Accident #1. He maintains that his
degenerative eye disease had stabilized prior to Accident #1 and that the force
of that collision caused head injuries that have prompted a further diminishment
of his vision. He also maintains that his emotional state has deteriorated
since Accident #1 and in particular he now claims to suffers from Post-Traumatic
Stress Disorder. In essence, Mr. Vander Maeden claims he is someone who
fits within the “thin skull” rule of causation.

  The Defendants’
Position

[66]        
The defendants accept that Mr. Vander Maeden suffered some soft injuries
as a result of Accident #1. Specifically, the defendants acknowledge that
Mr. Vander Maeden suffered transient pain and discomfort as well as
temporary hearing loss following the accident. The defendants deny the balance
of Mr. Vander Maeden’s complaints arguing his evidence regarding them was
inconsistent and therefore unreliable. The defendants also point to Mr. Vander
Maeden’s long-standing serious disabilities, including his retinitis
pigmentosa, his NARP, and the pre-existing chronic pains associated with the
1979 Accident to support their argument that Mr. Vander Maeden would have
suffered many of the ailments he is attributing to Accident #1, irrespective of
the accident. In other words, the defendants argue many of the physical
ailments Mr. Vander Maeden attributes to Accident #1 are more properly
because of his latent condition (i.e., crumbling skull) and not the accident.

  Conclusion
– Causation

[67]        
In Athey, Mr. Justice Major explained the concepts of “thin
skull” and “crumbling skull” as follows:

33 In the present
case, there was a finding of fact that the accident caused or contributed to
the disc herniation. The disc herniation was not an independent intervening
event. The disc herniation was a product of the accidents, so it does not
affect the assessment of the plaintiff’s "original position" and
thereby reduce the net loss experienced by the plaintiff.

 (5) The Thin Skull
and "Crumbling Skull" Doctrines

34        The respondents argued
that the plaintiff was predisposed to disc herniation and that this is
therefore a case where the "crumbling skull" rule applies. The
"crumbling skull" doctrine is an awkward label for a fairly simple idea.
It is named after the well-known "thin skull" rule, which makes the
tortfeasor liable for the plaintiff’s injuries even if the injuries are
unexpectedly severe owing to a pre-existing condition. The tortfeasor must take
his or her victim as the tortfeasor finds the victim, and is therefore liable
even though the plaintiff’s losses are more dramatic than they would be for the
average person.

35        The so-called
"crumbling skull" rule simply recognizes that the pre-existing
condition was inherent in the plaintiff’s "original position". The
defendant need not put the plaintiff in a position better than his or her
original position. The defendant is liable for the injuries caused, even if
they are extreme, but need not compensate the plaintiff for any debilitating
effects of the pre-existing condition which the plaintiff would have
experienced anyway. The defendant is liable for the additional damage but not
the pre-existing damage: Cooper-Stephenson, supra, at pp. 779-780 and John
Munkman, Damages for Personal Injuries and Death (9th ed. 1993), at
pp. 39-40. Likewise, if there is a measurable risk that the pre-existing
condition would have detrimentally affected the plaintiff in the future,
regardless of the defendant’s negligence, then this can be taken into account
in reducing the overall award: Graham v. Rourke, supra; Malec v. J. C. Hutton
Proprietary Ltd., supra; Cooper-Stephenson, supra, at pp. 851-852. This is
consistent with the general rule that the plaintiff must be returned to the
position he would have been in, with all of its attendant risks and
shortcomings, and not a better position.

[68]        
I accept that Mr. Vander Maeden’s pre-existing physical conditions
made him unusually susceptible to injury and was to a certain degree someone
with a “thin skull”. In this regard, I find Mr. Vander Maeden suffered an
exacerbation of the chronic pain he had in his back, shoulders and legs as a
result of Accident #1. He also suffered an exacerbation of his depression and
mood disorder, resulting in the diagnosis of PTSD. Accident #1 also caused new
physical ailments for Mr. Vander Meaden:

 a)       mild soft tissue injuries to his upper body, right elbow,
and right hip.
All of these injuries have resolved themselves, except for the elbow that continues
to cause Mr. Vander Maeden some occasional pain;

 b)       mild
headaches;

 c)       moderate
hearing loss and tinnitus;

 d)       minor cognitive impairment (i.e.,
mild loss of ability to concentrate).

[69]        
With respect to Mr. Vander Maeden’s assertion that the onset of
dizziness, vertigo, tingling in his arms, hands and feet as well as his further
reduction in vision are attributable to Accident #1, I find myself unconvinced
that these symptoms would not have occurred but for the accident. In other
words, I am of the opinion that the pre-existence of retinitis pigmentosa, NARP
and the chronic ailments associated with the 1979 Accident, made it very likely
that Mr. Vander Maeden would have suffered from these symptoms at some
point in the future irrespective of whether Accident #1 had occurred or not.

  Plaintiff’s
Post Accident Condition:  Employment & Activities

[70]        
Mr. Vander Maeden has not earned any type of income to speak of
since 2005 when he wound-down his firewood business. Although Keith Miller did
give Mr. Vander Maeden $150 in 2010 for the assistance he provided in
cutting some wood on Mr.  Miller’s property, that payment was more of a
gratuity than a wage. According to Mr. Miller, the work was difficult but
Mr. Vander Maeden was able to complete it as he was “still a bear for
work”. Mr. Miller had confidence in Mr. Vander Maeden’s physical
ability to handle the work and expressed his view that he never felt any danger
being around Mr. Vander Maeden.

[71]        
Since Accident #1, Mr. Vander Maeden has continued to regularly attend
at the gym; however his routine has changed in that he is now more cautious,
uses lower weights and has to hold onto items to steady himself. Mr. Vander
Maeden no longer rides his bicycle and he has reduced his social activities and
in particular he no longer attends the Happy Hour at his friend’s home, nor
does he participate in the breakfast group that he had been a part of.

Damages

[72]        
Mr. Vander Maeden argues that as a result of Accident #1 he has
suffered significant and permanent injuries warranting a substantial award of damages.
I will address each of the head of damages under which Mr. Vander Maeden
is making a claim.

  Non
Pecuniary Damages

[73]        
Our Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34, at para.
46, outlined the following factors that need to be considered when assessing
the quantum of non-pecuniary damages:

46        The inexhaustive list of common factors cited in Boyd
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).

[74]        
For his non-pecuniary damages, Mr. Vander Maeden seeks an award of between
$125,000 and $185,000. In support of this position, Mr. Vander Maeden
relies upon the following case authorities:  Dionne v. Romanick, 2007
BCSC 436; Millar v. Waring, [2009] O.J. No. 1865 (S.C.J.), supplemental
reasons [2009] O.J. No. 1866 (S.C.J.); Place v. Ali, [2007] O.J. No.
2526 (S.C.J.); and Chancey v. Chancey, [1999] B.C.J. No. 551 (S.C.).

[75]        
In Dionne, the 54-year old claimant was a pedestrian who was
struck by a motor vehicle while she was crossing a marked pedestrian crosswalk.
The accident caused a traumatic brain injury for Ms. Dionne and left her
with headaches, pain in her neck and back and impairment of her hearing and
sense of smell. The court found Ms. Dionne suffered many losses from the
accident, including having to leave an employment that she enjoyed and was an
important part of her identity. In the result, Ms. Dionne was awarded
$185,000 for non-pecuniary damages.

[76]        
In Millar, the 42-year old claimant was intentionally struck in
the face with a sledgehammer. The resulting injuries to Mr. Millar
included a fractured skull and resulting brain injury that required surgical
intervention. Mr. Millar also lost the sight in one of his eyes. The court
accepted the parties’ joint submission of $185,000 for non-pecuniary damages.

[77]        
In Place, the claimant’s vehicle was struck from behind by the
defendant’s vehicle. The collision left Ms. Place with damage to her inner
ear that caused a moderate loss of hearing as well as a loss of balance. The
court found this injury to her inner ear would this have a permanent and
serious effect on her future life including preventing her from pursuing her
intended career as a correctional officer. The claimant also suffered chronic
and permanent soft tissue injuries to her neck, shoulder, back, and hip. She
also developed a major depression / adjustment disorder. The court awarded
Ms. Place $125,000 in non-pecuniary damages.

[78]        
In Chancey, the claimant was a 48-year old realtor who was a
passenger in a motor vehicle accident. Miraculously, neither the driver nor
Mr. Chancey were physically injured. The court found that Mr. Chancey’s
pre-existing psychiatric condition made him a “classic ‘thin skull’
personality” and consequently awarded him $100,000 in non-pecuniary damages for
what were described as severe psychological injuries.

[79]        
The defendants submit that a just award for Mr. Vander Maeden’s
non-pecuniary damages would fall within the range of $60,000 to $90,000. In
support of this position, the defendants cite the following cases: Zen v.
Readhead, 2011 BCSC 190; Trevitt v. Tobin, 2009 BCSC 1249; Haile
v. Johns, Plasman and I.C.B.C., 2005 BCCA 517; and White v. Nuraney,
2000 BCCA 536.

[80]        
In Zen, a 45-year old claimant suffered multiple injuries in a
motor vehicle accident. Madam Justice Fenlon described Mr. Zen’s condition
post-accident at para. 54:

[54]      …Mr. Zen is now
45-years-old. He used to be an outgoing, charismatic athlete who weekly ran 40
km, did the Grouse Grind, and took an active role in the lives of his
daughters, all while working long days in the family business including most
Saturdays. Today he is a different man. He is sleep-deprived and in chronic
pain, which makes him irritable and prone to frustration and anger. He can no
longer push himself athletically, which was a central part of his life and the
way he managed stress. He is a diminished role in the lives of his daughters,
and in particular his youngest daughter, Olivia. Mr. Zen’s relationship
with his wife has been significantly affected and he has, in his words, “missed
out on the best years of [his] life”.

[81]        
Mr. Zen was awarded $110,000 for his non-pecuniary damages.

[82]        
In Trevitt, the claimant had been riding his motorcycle when it
collided with a car that was making a left-hand turn across the traffic. Mr. Trevitt
suffered chronic soft tissue injuries to his shoulders, left elbow, left knee
and left ankle. He also suffered damage to his inner ear that caused dizziness
and balance problems. The court awarded Mr. Trevitt $60,000 for his
non-pecuniary damages.

[83]        
In Haile, the 24-year old complainant suffered soft tissue “aches
and pains” as a result of a motor vehicle accident. Those injuries resolved
themselves reasonably quickly. The accident also left Mr. Haile with mild non-intrusive
tinnitus and dizziness. The trial judge awarded Mr. Haile $30,000 for his
non-pecuniary damages and that award was upheld on appeal.

[84]        
In White, the 55-years old complaint suffered dizziness,
tinnitus, and benign positional vertigo as a result of a motor vehicle
accident. The jury that tried Ms. White’s case awarded her $55,000 for her
non-pecuniary damages. In upholding that award, Braidwood J.A. observed at
para. 51:

[51]      It is somewhat
difficult to pinpoint an exact “range” for tinnitus awards, since plaintiffs
always suffer the injury in conjunction with other (often more serious)
injuries. However, the range for non-pecuniary damages seems to extend from
$20,000 to $90,000 depending on whether there are other injuries present.
Perhaps the bottom end of this range, when adjusted for inflation, is now in
the neighbourhood of $35,000. At any rate, the jury award in this case of
$55,000 is not “inordinately low” and, following the traditional test, this
Court cannot interfere with it.

[85]        
I accept that as a result of Accident #1, Mr. Vander Maeden
suffered soft tissue injuries to his upper body, right elbow and right hip. He
has been left with mild headaches, moderate hearing loss and tinnitus and minor
cognitive impairment. He has suffered exacerbation to the existing chronic
injuries he had to his neck, back, shoulders and legs, as well as his
pre-existing mood disorder. The temporary dizziness and vertigo Mr. Vander
Maeden experienced essentially resolved themselves within a year of Accident #1
and, in any event, they were more likely unrelated to this accident. Finally, I
accept that that Accident #1 exacerbated Mr. Vander Maeden’s pre-existing
depression causing him to reduce his social activities.

[86]        
Considering all of the circumstances of this case, especially the fact
that Mr. Vander Maeden is legally blind and thus much more reliant on his
hearing that those with regular eyesight, I find an award of $110,000 would be
fair compensation for his non-pecuniary damages.

  Loss
of Past Income

[87]        
Mr. Vander Maeden was unemployed when Accident #1
occurred. Notwithstanding that fact, he claims that in the Spring of 2009 he
was thinking of starting a business collecting wood off of the local Powell
River beaches and then transporting and selling it to local residents. While
nothing was definitive and no concrete plans had been made, Mr. Vander
Maeden argues that he could have started this business and therefore he is
entitled to some compensation for the loss of this opportunity.

[88]        
In my opinion, there is no convincing evidence that supports Mr. Vander
Maeden’s claim under this heading. The law is quite clear that an award for
past loss of earning capacity is based on what the plaintiff would have earned,
but for the injuries sustained. A claim that the plaintiff could have earned an
income will not suffice (see: Rowe v. Bobell Express Ltd., 2005 BCCA
141; M.B. v. British Columbia, 2003 SCC 53).

[89]        
There is no evidence that Mr. Vander Maeden actually lost income as
a result of the injuries he suffered in Accident #1, nor in my opinion is there
any convincing evidence that there was a real and substantial possibility that
he would have earned income after Accident #1. As Mr. Vander Maeden has
not made out this portion of his claim, it is denied.

  Loss
of Future Earning Capacity

[90]        
Mr. Vander Maeden seeks modest compensation for the loss of a capital
asset, namely, his ability to earn income in the future. While he acknowledges
that he has been on a disability pension for many years, Mr. Vander Maeden
asserts that he could have worked cutting firewood or doing other manual labour
but for the injuries he suffered in Accident #1. In essence, Mr. Vander
Maeden seeks compensation for income that he says he would have or could have
earned in the future, but that he will be unable to earn because of the
injuries he has suffered as a result of the accidents.

[91]        
Much like their position with respect to Mr. Vander Maeden’s claim
for loss of past income, the defendants argue there is no real possibility this
loss of future income will occur, given his non-existent employment history in
the four years prior to Accident #1 and the serious and progressive
pre-existing health issues he had.

[92]        
In order to obtain an award under this head of damages, Mr. Vander
Maeden must prove a real and substantial possibility that his earning capacity
has been impaired (see: Perren v. Lalari, 2010 BCCA 140). If he can do
so, then the assessment of his loss will require the consideration of the
following four factors articulated by Finch J. (as he then was) in Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) 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.

[93]        
In my opinion, Mr. Vander Maeden has failed to show that there is a
real and substantial possibility that his earning capacity has been impaired on
account of Accident #1. While Mr. Vander Maeden did suffer injuries as a
result of Accident #1 the fact of the matter is, in the Spring of 2009 he had
been on a disability pension for 16 years, had earned no supplementary income
for close to four years and he was suffering from chronic pain and a
degenerative condition that required him to take potent analgesics regularly.
With all due respect to Mr. Vander Maeden, in my view, he had no realistic
earning capacity prior to Accident #1. For the same reasons, were I to consider
and apply the four questions posed in Brown to Mr. Vander Maeden’s
circumstances I would be compelled to answer each in the negative.

[94]        
Mr. Vander Maeden’s claim under this heading is denied.

  Cost
of Future Care

[95]        
An award under this heading will be justified if there is medical
justification for the claim and the claim is a reasonable one (see: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), aff’d (1987), 49
B.C.L.R. (2) 99 (C.A.)).

[96]        
The expert medical evidence, as well as the evidence of Dr. Coen
satisfies me that there is a real and substantial possibility that Mr. Vander
Maeden will incur expenses in the future as a result of the injuries he sustained
in Accident #1.

[97]        
Dr. le Nobel recommended that Mr. Vander Maeden continue
with acupuncture and pain block injections as necessary. He did not recommend
any other type of therapy (e.g., physiotherapy or massage therapy), nor did he
recommend any chiropractic treatment. Dr. le Nobel did recommend
counselling and possibly medication for Mr. Vander Maeden’s depression. I
accept Dr. le Nobel’s evidence in this regard.

[98]        
In Dr. Coen’s opinion, Mr. Vander Maeden requires additional
counselling to address his psychological problems, particularly the Post
Traumatic Stress Disorder. Dr. Coen suggested 10 to 25 counselling
sessions at an approximate costs of between $1,600 and $4250. He also
recommended that Mr. Vander Maeden be referred to a sleep clinic and pain
clinic to address the sleep difficulties he is having and the continuing
problems he is having managing his pain. No cost estimate was provided for this
additional assistance.

[99]        
On the issue of Mr. Vander Maeden’s need for future care and
assistance, Dr. Robinson observed in his report:

He will probably continue to
have headaches indefinitely. His ability to function will remain compromised
related to back pain and symptoms related to NARP. It is unlikely that he will
ever be gainfully employed. He will continue to require assistance for
activities of daily living, particularly maintaining his home.

[100]     Dr. Schweitzer
concluded that Mr. Vander Maeden is going to require domestic assistance
at home. I accept Dr. Schweitzer’s opinion as well as that of Dr. Robinson,
however in my view the claim for the cost of future domestic assistance should
be discounted because Mr. Vander Maeden already had an established need
for homecare assistance prior to Accident #1 and given his pre‑existing
chronic pain and his degenerative condition, it was practically certain that
his need for this assistance would have continued and likely grown even if the
accident had not occurred.

[101]     Although
the evidence on the point conflicts, I accept that Mr. Vander Maeden
needed the assistance of a housekeeper and had such assistance prior to
Accident #1. When that assistance began is somewhat of a controversial and
convoluted issue. Initially in his evidence-in-chief, Mr. Vander Maeden
could not remember when Ms. Cheryl Yungen began helping him at home. He
guessed that it was sometime after he moved into his Powell River condominium
and shortly before Accident #1. He indicated that she worked one day per week
for between 2 to 4 hours, cleaning his home and doing other tasks around his
home. He paid her $15 per hour for her services. At his examination for
discovery on 25 October 2010, Mr. Vander Maeden said Ms. Yungen
began working for him after Accident #1. He then changed that evidence and
indicated that that she began assisting him a few months before Accident #1,
and that it could have possibly been up to a year before the accident. At his
examination for discovery on 14 February 2012, Mr. Vander Maeden said
Ms. Yungen had worked for him for “a couple of years”. In
cross-examination, Mr. Vander Maeden indicated again that Ms. Yungen
had begun providing him with homecare assistance a few months prior to Accident
#1, most likely in January of 2009. He also indicated that she stopped working
for him in April of 2009, a few months after Accident #1, around the time Ms. Geraldine
Bergstrom moved into his condominium complex and began assisting him. Mr. Vander
Maeden testified that Ms. Yungen worked for him from January 2009 until
April 2009, for a total of three or four months. He also asserted that after
April 2009, Ms. Yungen did not provide him with any homecare assistance
after that date.

[102]     Mr. Vander
Maeden testified that when Ms. Bergstrom moved into his condominium
complex, she “kind of slid in” and replaced Ms. Yungen. This, according to
Mr. Vander Maeden occurred about six weeks after Accident #1. Ms. Bergstrom
began working 10 -15 hours per week helping Mr. Vander Maeden in his home.
At some point Ms. Bergstrom moved into Mr. Vander Maeden’s home and
became his roommate. Mr. Vander Maeden explained that they are not
romantically involved and are simply friends. According to Mr. Vander
Maeden, Ms. Bergstrom has been instrumental in getting him prepared and
ready for the trial of his legal actions. She has also assisted him greatly
with an ongoing dispute he has with a government ministry. As Mr. Vander
Maeden described it, “she has done yeoman’s work” for him.

[103]     In her
examination-in-chief, Ms. Yungen said she could not remember the specific
length of her employment with Mr. Vander Maeden. She initially testified
that she began working for Mr. Vander Maeden in late 2008 and continued to
do so until April or May of 2010. That would have meant she had worked for
Mr. Vander Maeden for approximately a year and a half. Ms. Yungen
corrected herself and said the finished working for Mr. Vander Maeden in
April or May of 2009 and therefore she had only worked for him for 5 or 6
months. In cross-examination, Ms. Yungen admitted telling an investigator
from the Insurance Corporation of British Columbia that she had worked for
Mr. Vander Maeden for approximately one year after Accident #1. Ms. Yungen
explained that was what she thought at the time but, since telling the
investigator that, she had had the opportunity of speaking with
Ms. Bergstrom and Mr. Vander Maeden’s counsel about her term of
employment. Having done so, she now insists she only worked for Mr. Vander
Maeden for three or four months.

[104]     While counsel
for the defendants is correct in saying the evidence of Mr. Vander Maeden
and Ms. Yungen is not particularly reliable on the question of how long
she worked for him and the evidence in general regarding Mr. Vander
Maeden’s housekeeping needs was less than satisfactory, I find there is a
realistic possibility that the nature of the injuries caused by Accident #1, as
well as those existing injuries that were aggravated by the accident will call
for additional housekeeping services, beyond those provided prior to the
accident and therefore a modest award for the future cost of these additional
housekeeping services should be granted.

[105]     Aside from
the costs for psychological counselling and the hourly rate Mr. Vander
Maeden paid Ms. Yungen for her housekeeping services, there very little
evidence regarding Mr. Vander Maeden’s potential or projected costs of
future care. While such evidence would have been of assistance, the calculation
of future care costs is based upon what is reasonable and does not require a
precise accounting (see: Krangle (Guardian ad litem of) v. Brisco, 2002
SCC 9).

[106]     In my
view, a reasonable award for the costs of Mr. Vander Maeden’s future pain
relief treatments, his psychological counselling and the additional domestic
assistance he will need is $10,000.

  Special Damages

[107]     Mr. Vander Maeden says he has paid approximately $2,100 for
various “out‑of‑pocket expenses” he claims are directly
attributable to the injuries he suffered in the accidents. The defendants have
accepted that Mr. Vander Maeden has paid these expenses and all but one of
them are justifiable. The one item the defendants take issue with is the
approximate $500 spent on physiotherapy in February 2012. The evidence relating
to this particular therapy suggests it was required not because of any injury
suffered in Accident #1 but as a result of another incident. I agree with the defendants
and will consequently award Mr. Vander Maeden $1,600 in Special Damages.

  In
Trust Claim

[108]     Mr. Vander Maeden and Ms. Bergstrom testified that since
she moved into his condominium in 2009, she has provided him with unpaid housekeeping
assistance. They both also confirmed that she has assisted Mr. Vander
Maeden with his mail and paper work and has been especially instrumental in
getting Mr. Vander Maeden prepared for this trial. She has also been a
significant help to Mr. Vander Maeden in his dealings with the Ministry of
Social Services. Mr. Vander Maeden explained that in his
discussions with Ms. Bergstrom, he told her he would reimburse her for her
work once these legal proceedings have been resolved. It is unclear to me
whether that reimbursement would be for the work she has done providing
homecare or whether it is for all of the administrative assistance she has
provided him in his on-going dispute with the ministry and preparing for trial,
or both.

[109]     Ms. Bergstrom confirmed in her evidence that she and
Mr. Vander Maeden have discussed the topic of her being reimbursed from
the proceeds of any award from this litigation for all of her work, although
she claimed there was no amount discussed or agreed upon.

[110]     I am not
convinced that Mr. Vander Maeden’s in trust claim is meritorious. I am
of that view for two principal reasons. First, I found Ms. Bergstrom to be
a less than reliable witness. She also suffered from serious credibility
lapses. On more than one occasion she was inexplicably evasive and unresponsive
to the simple questions being posed of her. For example, when she was asked in
cross-examination whether she knew Mr. Vander Maeden suffered from vision
problems before Accident #1, her puzzlingly non-responsive answer was to the
effect that she too wore glasses. Secondly, and of significant importance, I
found Ms. Bergstrom was deliberately untruthful with the court when she
was asked whether she had ever spoken with Ms. Yungen about Ms. Yungen’s
evidence. When in cross-examination Ms. Bergstrom was first asked that
question, she replied that she had not. That answer was surprising because Ms. Yungen
had testified that she had spoken about her evidence with Ms. Bergstrom
prior to the trial and had done so again very recently when they were both sitting
outside of the courtroom waiting to testify at this trial. Ms. Yungen
explained that it was on account of her discussions with Ms. Bergstrom
that she was able to determine the dates when she had worked for Mr. Vander
Maeden. Given the startling response of Ms. Bergstrom, counsel for the
defendants asked the question a second time, carefully wording it so that there
would be no misunderstanding of what was being asked. Ms. Bergstrom again
said she had not spoken with Ms. Yungen about Ms. Yungen’s evidence
and more particularly about the dates when Ms. Yungen worked for Mr. Vander
Maeden. Between the two, I accept the evidence of Ms. Yungen, for her
evidence is logical and credible. Moreover, she had no reason for fabricate her
evidence in this regard. The same cannot be said of Ms. Bergstrom and
consequently I find she was not being truthful when she testified that she had
not spoken with Ms. Yungen about her evidence.

[111]     In
addition to her being an untrustworthy witness, counsel for the defendants also
underscored the fact that Ms. Bergstrom had a clear financial interest in
this case and consequently had a good reason to colour or exaggerate her
evidence in order to advance Mr. Vander Maeden’s claim.

[112]     I am not
satisfied Mr. Vander Maeden has made out this aspect of his claim. Moreover,
I would be leery about making such an award in light of what I have found to be
the misleading nature of Ms. Bergstrom’s evidence.

[113]     Mr. Vander
Maeden’s in trust claim is denied.

Order

[114]     Although I
found Ms. Mander 50% liable for Accident #2, as there were no damages that
resulted from the accident, Mr. Vander Maeden is entitled to no award of
damages in Action #2.

[115]     With respect
to Action #1, the defendants are liable for Mr. Vander Maeden’s damages
and expenses associated with Accident #1 and consequently I make the following
awards:

[116]    
If the parties are unable to agree on costs, they may speak to the issue
upon obtaining a date from the trial manager’s office.

“G.R.J. Gaul J.”