IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130903

Docket: M140049

Registry:
New Westminster

Between:

Daroyl Frank Dent

Plaintiff

And

Glenn Arthur Robin
Young

Defendant

Before:
The Honourable Madam Justice E.A. Arnold-Bailey

Reasons for Judgment

Introduction

[1]            
Mr. Daroyl Dent (“the plaintiff”) was the
only passenger in a pickup truck owned and driven by his wife, Evie Vollman Dent,
when the truck was struck from behind by a vehicle driven by Mr. Glenn
Young (“the defendant”) on the evening of June 12, 2010. The plaintiff was in
the front passenger seat of the truck at the time and was wearing his seat
belt. The accident occurred when the truck was stopped facing northbound on 200^th
Street in Langley, BC, waiting to make a left turn into the driveway of a
residence belonging to their friend, Mr. McMartin. The plaintiff, Ms. Dent
and Mr. McMartin who observed the collision from nearby, all described a
collision of considerable force. The truck was pushed across the southbound
lanes. Items came loose and flew about in the cab, including a radio that
struck the plaintiff in the head.

[2]            
The plaintiff felt shaken immediately after the
accident and developed significant pain and reduced mobility shortly thereafter.
He claims injuries to his jaw, neck, shoulders, back and legs arising from the
accident. He also suffered headaches and sleep disturbance; all of which he
attributes to the accident. At the time of trial the plaintiff indicated that
he continues to suffer from neck, shoulder, arm, back and leg pain, as well as
headaches and sleep problems. He is not claiming for a tooth that had to be
re-capped after the accident.

[3]            
When the accident occurred the plaintiff was just
several weeks short of his seventy-first birthday. By all accounts, prior to
the accident he was an active and vital person who loved to take his wife
dancing and go for motorcycle rides. He and his wife took their motorhome on
trips. He also did some house work and considerable yard work at the couple’s large
home. He was a social person with a group of friends significantly younger than
himself, with whom he went motorcycle riding and did other activities.

[4]            
Since the accident the plaintiff, his wife and
his friends all testified that he is plagued by pain that has essentially
immobilized him. He no longer engages in any of the physical activities from before
the accident, and he has become reclusive and socially withdrawn. His marriage has
suffered as a result. His home, garden and the shelter for his motorhome are in
need of maintenance and repairs, which prior to the accident, he would have
performed without difficulty.

[5]            
The plaintiff’s claim is for damages arising
from the accident, namely: non-pecuniary damages of $75,000; special damages of
$5,783; cost of future care of $3,000; and loss of housekeeping capacity of
$10,000.

[6]            
Although liability is denied on behalf of the
defendant in the pleadings, it was not disputed at trial.

[7]            
I find that the defendant is 100% liable for the
accident as all the evidence points to the defendant’s negligence being the
sole cause of the accident. It is clear that the defendant did not see Ms. Dent’s
truck stopped and waiting to make the left turn until it was too late for him to
stop his vehicle. The defendant drove his car into the rear of the stopped
truck at a considerable speed. A collision of considerable force ensued. Both
vehicles were written off.

Issues to be Decided

[8]            
The only issues to be decided pertain to the
amounts of damages to be assessed by the Court as non-pecuniary damages,
special damages, cost of future care and loss of housekeeping capacity. The
credibility and reliability of the testimony of witnesses called on behalf of
the plaintiff are important.

Evidence

The Plaintiff

[9]            
The plaintiff was 73 years old at the time of
trial. He is a retired truck driver and machine operator with a Grade 9
education. He retired from truck driving when he turned 70. He still has a bobcat
that he used before the accident to generate a modest amount of extra income.

[10]        
On the night of the accident, he recalled that
he and his wife were just waiting to turn left into Al McMartin’s driveway when
they were struck from behind with “tremendous force” and “shot across one and a
half lanes of traffic.” He said they were “like rag dolls going in various directions”
with the impact. The truck radio came out of the dashboard and hit him in the
left side of his head. The plaintiff said he was in the passenger seat and
wearing his seat belt. He recalled getting out of the truck and walking around
to get his wife out. He checked to see if the driver of the other vehicle was
alright, and said “he was in his vehicle flailing around with air bags.” He
recalled that police, an ambulance and a fire truck attended, and he was asked
some questions. Later, he and his wife drove the short distance home in the
truck. To make the truck drivable, Mr. McMartin had to help pull up the
truck’s bumper using the bucket of a small bobcat.

[11]        
The plaintiff described how, right after the
accident, he was disoriented and unsteady on his feet. He said he went home to
bed and the next day he developed a terrible headache, his neck seized up, he
felt tightening in his shoulder, his buttocks became numb and tingling and his
right calf muscle tightened up. His jaw was clicking and he found it hard to
turn his head because his neck was tight. He found it hard to chew and swallow,
and one of his teeth had to be re-capped. He also described an incident when he
started to bend to kiss his wife and he seized up and was unable to move. She
had to bring him a chair to sit down on where he stayed for a while because he
was immobile.

[12]        
In terms of his health prior to the accident,
the plaintiff said that he was in good health despite the fact that he had been
seeing doctors and having tests for a colonoscopy and in relation to his
urinary tract. He said that he had been battling bladder cancer for ten years.
At the time of the accident, the plaintiff said that he still had bladder
cancer, but at his most recent checkup he understood he was cancer free.

[13]        
The plaintiff had a work accident in 1995. By
2010, prior to the accident, the plaintiff said he “was all healed up” from the
earlier accident and didn’t have any problems.

[14]        
The plaintiff described all the activities that
he enjoyed before the accident, including going two stepping with his wife and riding
motorcycles. He said that he started motorbike riding at age seven and when he
was young he used to do a lot of off-road riding, go to meets, “mud run or hill
climb” and competed professionally for 12 years. He stopped professional racing
when he was 35 years old. In terms of dirt biking, the plaintiff said that before
the accident he would go out whenever he could, one to three times a month with
Mr. Graham and several other “older gentlemen.” The last time he was dirt
biking was with Mr. Graham in 2009. He said he stopped in 2009 because he
became busy with his bobcat.

[15]        
Other than dirt-bike riding, the plaintiff often
went road riding on one of the several motorcycles he still owns, taking road
trips in Alberta, BC and going down to the annual motorcycle rally in Sturgis,
North Dakota. The plaintiff said that he has not been able to go motorcycle
riding since the accident. He has concerns about his hip and not being able to
put one leg down to steady the motorcycle.

[16]        
The plaintiff described how, since the accident,
he is unable to: play golf; shoot darts; do a physical work out; or shoot
pellet guns in a range that he had set up in his garage. In terms of golf, he
said that he was unable to maintain the stance because his “back won’t allow
him to go there”, and he can’t swing the club because his shoulders are not
strong enough. He cannot put his head down to look at the ball. He cannot stand
straight enough to play darts. He can no longer work out on the universal gym
and heavy punching bag he had in his basement as he did before. In terms of
pellet shooting, he cannot hold the gun steady and his neck, shoulders and back
hurt.

[17]        
The plaintiff also explained how, prior to the
accident, he used to help with household chores and maintenance, like doing
laundry, vacuuming and washing windows, “pitching in here and there”. He would
have dinner ready when his wife came home from work. He would shop with his
wife for groceries and was able to carry three or four grocery bags at a time. He
looked after the couple’s large dogs and cats. As well, he was very active in
maintaining his yard, which included a large bed of flowers, a vegetable garden
and trees. He has been unable to do these activities since the accident. In
particular, he finds being unable to do work in the yard and garden very
depressing.

[18]        
Prior to the accident, the plaintiff often had
friends help him with tasks and chores in his yard and garden; but since the
accident he has had to ask friends to do the tasks in their entirety. For
example, the canopy over his motorhome has collapsed and he has been unable to
fix it.

[19]        
The plaintiff and his wife have not used the
motorhome since the accident as he can’t drive it. He is unable to turn his head
to see out of the mirrors.

[20]        
About three days after the accident, the
plaintiff went to the walk-in Willoughby Medical Clinic in Langley and saw Dr. Soni.
He said that Dr. Roberts was his family doctor but his office was in White
Rock and at the time he did not feel like driving that distance. The doctor he
saw told to him to go for some therapy, He went once to a massage therapist in
June or July 2010. He found it to be too painful and did not go a second time.

[21]        
Next, the plaintiff went to physiotherapy at
Twin Rinks Physiotherapy as recommended by Dr. Roberts. He did not find
that helpful in terms of his recovery or pain management. He also went for laser
therapy, which he did not find helpful.

[22]        
 The plaintiff later went to see a
physiotherapist named Kay Kennedy, who he has found to be very helpful. He continued
to see this physiotherapist until the date of trial and plans to carry on with
this treatment. She has given him exercises to do at home that he finds beneficial.
He does them as needed, up to 20 minutes at a time three times per day. The
plaintiff said that he is a lot better since he began treatments with Ms. Kennedy
and the pain is “not excruciating” as it was when he first started, but that
“it is still there, [in his] back, neck and shoulders.”

[23]        
The plaintiff said that as a result of the
accident he has had trouble with his jaw, neck and back. His back has two
compressed discs. He said that, immediately following the accident, he
experienced lots of pain, heat, “pins and needles” and numbness. His neck has
improved as compared to a year ago, but it is still not entirely healed. He can
turn it more and move his head up and down somewhat. If he bends his head too
much it “snaps” and he gets a headache. He still treats his neck with hot and
cold packs. His shoulders were affected by the accident. He had problems
lifting up his arms. He said he has made progress with his shoulders, and “they
are coming along.” He is left side dominant and his left shoulder is better
than his right. He still has some pain when he lifts his left arm. However, the
pain in his right shoulder is “24/7” and constant. It is a different kind of pain
and more intense than the pain in his neck and left shoulder.

[24]        
The plaintiff said since the accident, he has also
had pain in the lumbar section of his back and down the right side of his leg.
He has pain in his lower back more to the right but with some involvement of
the left. He experiences “a pain like crazy, really sharp and then it goes
numb.” He gets treatments from Ms. Kennedy and does exercises she has
given him to do. There has been some improvement in his back and he can walk a
little better, but it has not entirely healed. His lower back starts to hurt as
soon as he becomes tired and that happens every day. He still experiences
numbness in his right leg that extends to his foot.

[25]        
When testifying in court on the first day, the
plaintiff became distressed and said that he felt terrible as his back and neck
were hurting and he had a headache.

[26]        
The plaintiff testified about his active social
life before the accident and how he used to like to go out visiting people,
dancing, or to watch hockey games. Since the accident, being in pain, he gets
“so depressed” and doesn’t want to go anywhere. He stated that prior to the
accident physical intimacy with his wife was “great,” but since the accident he
described their intimacy as “nothing.” The pain in his arm, shoulder and neck
is a problem in this regard. However, he said the biggest issue since the
accident is that he isn’t able to do anything and sleeps a lot. This makes him angry
with himself.

[27]        
The plaintiff was cross-examined in some detail.
He was asked when he used the phrase “pushed around like a rag doll” in his
direct examination, who had used those words first, given that he, Ms. Dent
and Mr. McMartin had all referred to “rag dolls” in relation to the
accident. He denied any discussion with the other witnesses and said he used
the term because “that is what we were doing in there.”

[28]        
He agreed that he did not experience any pain at
the scene, and said he was just disoriented. He said he did not have any pain
when he went to bed but the pain started in the morning. When it was put to him
that he said at examination for discovery that he had no pain or stiffness when
he woke up, he said he was not sure when the symptoms started, except to say
they had already started on the evening of the day after the accident. He said
his back started to hurt, his right hand went numb and then he started getting
progressively worse in terms of his neck, back, arms and right leg. He could
not say when the pain in his right leg started.

[29]        
When he was asked why there was a seven month
gap between when he went to see the doctor at the walk-in clinic and went to
see his family doctor, he said, “You got me, I don’t know.” Aspects of his
earlier medical history were put to him, as was his late start with
physiotherapy in June 2011, to which he responded that he had no idea when he
started physiotherapy, but thought he went to the laser place first, where he
was told he had degenerative disc disease in his spine. His history of bladder
cancer was reviewed, including the fact that he had a procedure performed July
3, 2012 in which more cancer cells removed, but as of his last visit was cancer
free. He acknowledged the areas of improvement in terms of his injuries.

[30]        
When it was put to the plaintiff that he had
said in examination for discovery that he did not have symptoms in his
shoulders and did not know when the last time he recalled having symptoms in
his shoulders was, the plaintiff said that some things were “pretty confusing
some days.” He could not recall whether he had symptoms in his shoulder. His
response was essentially the same when it was put to him that at examination
for discovery he said he did not have any injuries to his legs. At examination
for discovery the plaintiff indicated his disappointment at not having sexual
intimacy with his wife after the accident because of the pain he was in, but he
also agreed that aspect of his life was improving. At trial he said that was
the wrong answer and was not true.

[31]        
When he was asked about the invoices from Pam’s
Yard Clean up and Maintenance dated from June 26, 2010 to October 24, 2012 all
being in sequence, the plaintiff said that he had Pam redo them because the
originals were too hard to read. He also admitted that before the accident he
and his wife had talked to Pam, who did garden work for a neighbour, but felt
that perhaps it was going to cost too much to have her work for them.

[32]        
In terms of assessing the evidence of the
plaintiff, I am reminded that persons claiming injury in motor vehicle
accidents come in all shapes and sizes, with a wide variety of skills,
interests, background knowledge, education and varying abilities to express
themselves and what they have experienced as a result of an accident. They do
not all present well. They do not all deal with their injuries in a logical and
consistent way that involves healthcare professionals and their often detailed documentation
at every step of the way. Some, like the plaintiff, are a little more haphazard
in their approach and great care must be taken in assessing their evidence in
light of all available evidence.

[33]        
 In this case, the plaintiff is an older man
with limited formal education but a keen interest in certain things. He is not
sophisticated. At times in court he appeared to be impatient, in pain,
irascible and somewhat inaccurate regarding details of his conditions. Clearly,
after the accident he was slow to seek medical assistance beyond his initial
trip to the local medical clinic and a session of massage therapy. However, his
testimony indicates that he suffered considerable and initially worsening
physical pain and immobility. For many months he experienced severe and almost constant
pain and discomfort in his neck, shoulders, upper arms and lower back, with
some pain extending to his right leg. He continues to suffer intermittent pain in
his neck and lower back. It is also clear that he very much misses the
activities he enjoyed prior to the accident. He has tried to engage in some of
them and has concluded he is unable to do so without considerable improvement
in his physical health. His attitude towards life has suffered.

[34]        
I find that the answers the plaintiff gave at
examination for discovery that tended to minimize the extent of his injuries (upon
which he was challenged in cross-examination) are inconsistent with the overall
picture of his health provided by his doctor and the other witnesses. For
example, he was asked about injury to his legs from the accident which he denied,
but he clearly testified that he has experienced pain and numbness in his right
leg as a result of injuries sustained in the accident. Also, at examination for
discovery, the plaintiff indicated his sex life with his wife was improving,
whereas at trial both he and his wife said it was non-existent. This
inconsistency is perhaps explained by embarrassment or an unfounded optimism,
or a bit of both.

[35]        
The plaintiff’s lack of sophistication extended
to an unfamiliarity with court processes and how best to present himself. An
example of this was when he was asked why the gap in time of almost seven
months between visits to doctors on cross examination, and instead of
describing how he coped or what he did in the interim, he responded, “You’ve
got me there.” Despite this and other less than satisfactory responses in his
evidence, I am satisfied that the plaintiff suffered the injuries he attributes
to the accident, and that his physical condition and mental outlook in his
later years have been markedly changed for the worse as a result of those
injuries. In short, despite some inconsistencies and inaccuracies in his
testimony I find the plaintiff to be a generally credible and reliable witness.

The Plaintiff’s Wife – Evie Vollman Dent

[36]        
Ms. Dent was anxious about testifying in
court, but she proved to be a reliable and credible witness. I accept her
evidence.

[37]        
Ms. Dent is 54 years old. She described the
impact of the collision; she was about to make the left turn into Mr. McMartin’s
place after waiting about 15 seconds when she heard a big loud crash and their
bodies were thrust forward “like rag dolls” and things in the truck were sent
flying, including the radio which came out of the dash and hit the plaintiff.
She said the force was “irresistible” and when the truck came to rest, it was
two and half car lengths into the southbound lanes. She heard the plaintiff
exclaim “Oh my God”. He was wearing a lap and shoulder belt. She said the backs
of their seats had broken, things were all over the place, including her purse
and the coffees they had just bought. She was disoriented, trying to collect
her things and find one of her shoes that had come off. She got out of the truck
and a bit later she talked to the police, ambulance attendants and firefighters
when they arrived.

[38]        
Ms. Dent assumed that the plaintiff must
have gotten out of the truck from the passenger side door. They both went to Mr. McMartin’s
driveway. They both were in shock. According to her, the plaintiff was
stumbling around and not behaving like himself, slurring his words and not
being coherent to the point that a police officer asked if they had been
drinking, which they had not been. Later she drove her damaged truck home with
the plaintiff. It was subsequently written off as its frame had twisted.

[39]        
The night of the accident, Ms. Dent
recalled that the plaintiff complained of neck pain and a headache and had
trouble sleeping. He complained of his neck hurting when he swallowed and the
pain in his neck shooting to his shoulder blade when he moved in bed. He complained
that his whole body was hurting. Ms. Dent said it got worse as days passed.

[40]        
Ms. Dent described in some detail the
various activities she and the plaintiff used to do together prior to the
accident. She said her husband always had an energetic charisma about him and
he was “the center of the party.” He got her into motorcycle riding and bought her
a motorcycle so they could ride together. They would go camping in their
motorhome whenever they could get away. They enjoyed motorcycle and pedal bike riding
together and going out for dinner and dancing. She said the 19 year age
difference between them was not an issue because the plaintiff did not act his
age and had so much energy.

[41]        
Since the accident Ms. Dent said that they have
not been able to do the things together they used to do. They have not been out
in the motorhome. They don’t motorcycle ride together and her husband does not
take his motorcycle out anymore. They don’t go on trips. They have not been
dancing since the accident although it was one of their favorite activities. At
times the plaintiff will stay in bed for a week. He shuts down and will not
talk. She regards this to be as a result of depression and it worries her. He
is unable to do the things he used to do to maintain their house and the yard.
Things pile up. She said that even his taking out the garbage is an issue. He
does not build the things he used to build in his shop. She realized he
gradually moved his hobby of fixing of electronics to the main floor of their
house because it was easier for him to tinker there without having to go
downstairs. He fell behind caring for the couple’s large dogs and cats. After
the accident he could not do yard work or tend the flower beds and trees as he
did before. His work truck sat idle, as did his bobcat. The cover to the
motorhome broke from the snow because he did not clear it. Ms. Dent said
that when she suggested calling someone to come in and tend to some of these
things, the plaintiff got upset.

[42]        
In terms of his physical appearance, Ms. Dent
said that before the accident, her husband used to stand tall and hold his head
high. Since the accident he cannot stand straight. He doesn’t have the stamina
or energy he used to have. He is stooped. When he stoops, his legs are spread
and he is in pain. She tells him to sit and he is stubborn. He is in pain and
he starts to do things and gives up, falling into a depression that affects her
and “the whole house.”

[43]        
Ms. Dent recalled one evening in October of
last year when the plaintiff leaned over to give her a kiss his body seized up
and it was like he was frozen. She got a chair for him to hold onto so he did not
fall. After half an hour to an hour he was finally able to lie down. Ms. Dent
said that physical intimacy with her husband stopped after the accident and she
“had lost him in that way.”

[44]        
In terms of the plaintiff’s personality, Ms. Dent
indicated that since the accident he angers easily. He is moody and frustrated
with things and lacks patience. This is a real contrast to how social he was
before the accident. He used to motorcycle race and “everybody” knew him,
whereas since the accident he refuses to go out to social or family gatherings.

[45]        
In cross-examination, Ms. Dent indicated
that up to 2010 the plaintiff had suffered from bladder cancer and had surgery
to remove the cancer cells. He did not have to stay in hospital and he was fine
after two or three days. He has periodic checks and is now regarded to be
cancer-free.

[46]        
She recalled that after the accident, the
plaintiff suffered from cellulitis in his left leg that was treated at Peace
Arch Hospital.

[47]        
Prior to the accident the plaintiff was
semi-retired and would make roughly $7,000 to $9,000 a year, using his bobcat
for snow removal or to dig trenches. Since the accident, she said that he can’t
do those jobs anymore, and even their own driveway does not get cleared.

[48]        
She recalled that after the accident he went for
physiotherapy at Laser Solutions and then at Twin Rinks. It got to the point
that he was driving himself to appointments. This was about a year after the
accident and he went to 10 to 13 visits. Then he started to go to Kay Kennedy
in White Rock for physiotherapy.

[49]        
She said their home is a 4000 sq. ft. house on a
quarter acre lot that the plaintiff bought in 1996 or 1997. She has lived there
with him since 2000. Whereas before the accident the plaintiff embarked upon projects
in relation to their home with the help of others, since the accident he can
only direct others to do what is needed. Ms. Dent indicated that she made
arrangements with her brother, Andres Vollman, in the summer of 2010 to cut
their lawn and to do other things they needed help with. She gave him some
money when she could, to compensate him for his time. She said that her husband
did not have anything to do with these arrangements.

[50]        
Ms. Dent agreed that in the last year she
has noticed that the plaintiff’s condition has improved somewhat, but said she
can tell when he is standing he is in pain. Her view is that he continues to
have pain in his neck that affects his arms, his lower back, hips and legs, and
has headaches quite often that he never used to have. He has to take pain
medication. She noted that her husband is now 73 years old. Whereas prior to
the accident he was organized, kept things up around their home, including the
yard, and was proud of his accomplishments, since the accident he can no longer
do these things and his sense of self-worth has been negatively affected.

Read-ins From the Defendant’s Examination for Discovery

[51]        
The plaintiff’s counsel read in portions of the
examination for discovery of the defendant that occurred on June 20, 2012. The
read-ins confirm the basic facts of the accident and add some details. The
defendant was driving his 2007 Volkswagen Rabbit at about 60 km. per hour. He
hit the brakes and estimated he struck the plaintiff’s wife’s truck at 50 km.
per hour. He did not know how much he was really able to slow his vehicle prior
to impact. The defendant estimated that he was a car length away when he first
saw the truck. He recalled seeing brake lights on the truck but did not recall
if he noticed a left-turn signal light being on. His vehicle sustained damage
in excess of $17,000 and was written off. He agreed that the photographs filed
showed his damaged vehicle, that this was a straight-on, rear-end collision and
the air bags in his vehicle deployed. He described the impact as “hard.” The
defendant indicated that the truck was stopped at the time of impact but he
could not say how long it had been stopped.

The Plaintiff’s Friends

Mr. Andres Vollman

[52]        
Mr. Vollman is the plaintiff’s
brother-in-law. He has known the plaintiff since the late 1980s. Prior to the
accident, he would see the plaintiff almost every weekend when he would stop
by. Mr. Vollman heard about the accident the next day and since the
accident he still goes over to the plaintiff’s house regularly. He now needs to
help the plaintiff with chores around the house when he visits.

[53]        
Mr. Vollman said that the plaintiff “is not
the same person” as before the accident. Prior to the accident he recalled that
the plaintiff was very active. The two of them went motorcycle riding two or
three times a month during the summer, touring the Fraser Valley. Depending on
the weather they would go golfing frequently. He often would see the plaintiff
at Gaby’s Bar, as the plaintiff used to go there to step dance every Thursday
night. Mr. Vollman has not done any of these activities with the plaintiff
since the accident. Although he still goes to Gaby’s Bar, the plaintiff has not
been there.

[54]        
Mr. Vollman now helps his sister, Ms. Dent,
with the groceries on Friday nights as the plaintiff can’t do it. He moves
boxes up and down stairs at their house and helps with basic chores like
hanging Christmas lights and putting away decorations. After the accident, he
helped the plaintiff renovate a room after a broken pipe caused some damage because
the plaintiff could not move the sheets of gyprock or hang doors.

[55]        
Most noticeably, however, Mr. Vollman said
that his brother-in-law’s personality has changed since the accident. After the
accident Mr. Vollman often found the plaintiff in bed where he had been
for days. He has noticed that since the accident the plaintiff hesitates in
answering a question and has to turn his whole body to look at the person
speaking.

[56]        
In cross-examination, Mr. Vollman agreed
that prior to the accident he worked for the plaintiff in his bobcat business
and helped him by mowing lawns and building a dog run. After the accident he
did various tasks that the plaintiff asked him to do, including lawn moving,
and said that it was not unusual to help out the plaintiff both prior to and
after the accident without being paid. If he saw the plaintiff struggling with
the lawnmower, he would take over. However, since the accident Mr. Vollman
said his sister asked him to cut their lawn, and he does it every two or three
weeks. When asked if the plaintiff had improved since the accident in June
2010, Mr. Vollman replied, “No sir, if anything it has deteriorated.”

[57]        
I found Mr. Vollman to be a reliable and
credible witness except insofar as the plaintiff has experienced improvements
in his physical condition as noted by Dr. Roberts.

Mr. Alan McMartin

[58]        
Mr. McMartin resides at 7339 – 200 Street
in Langley, the scene of the accident. He is 55 years old. The night of the
accident he was standing in his driveway about 30 to 40 feet away from where Ms. Dent
was turning in. He had been working in his yard and just happened to spot them
as they were about to turn. He heard a tremendous crash and the truck bolted
ahead. He said he could see their heads move “like a rag doll” and that it was
a horrendous crash. The truck ended up crossing into the first southbound lane
and into part of the second southbound lane. Given the magnitude of the
collision he was worried that his friends had just been killed in his driveway.
He rushed up to the road, first to ask them if they were alright when they were
still in the truck, and then he went to direct traffic with a flashlight as he
was concerned other vehicles might crash into theirs. He said the vehicle
driven by the other driver was about the size of a VW Rabbit. Mr. McMartin
was worried that the other driver would be in pretty bad shape, but he seemed
ok. When he checked, he saw that airbags had protected the other driver. During
that time Mr. McMartin called 9-1-1.

[59]        
When he returned to the truck, Mr. McMartin
noticed that the plaintiff seemed shaken up and in shock. He recalled that
eventually the plaintiff got out of the truck and he was worried about the
plaintiff’s stability on his feet when he started walking. Over the next 15
minutes, Mr. McMartin said that the plaintiff regained some stability, but
he was not moving freely and was very slow in his movements. Mr. McMartin
said that he thought “we pushed the truck off the road” but he also thought
that at some point he drove the truck off the roadway. Later, the plaintiff and
Ms. Dent left his place driving the truck.

[60]        
Mr. McMartin indicated that he had known
the plaintiff for 18 years. For a time they both worked for the same trucking
company. He said they developed a pretty good friendship over the years. They
would meet for coffee and go motorcycle riding. Sometimes, if the weather was
good they would go motorcycle riding two or three times a week, and then not
ride for a month. They both had the same kind of Harley. They would ride
locally around the area and to Fort Langley.

[61]        
Since the accident, Mr. McMartin said that
he has not been able to convince the plaintiff to go out motorcycle riding. The
plaintiff insists that he is not physically up to it. Whereas the plaintiff
used to be “a joker”, walked fast and was very light on his feet prior to the
accident, since the accident he doesn’t stand up straight anymore and has lost
that spring in his step.

[62]        
Mr. McMartin moved to Calgary about eight
months prior to the trial but came back to help the plaintiff as the plaintiff has
sold his Langley place and is moving. Prior to the accident, Mr. McMartin
said that he never helped the plaintiff with chores, whereas since the
plaintiff asks him to lift or move things when he visits. Since he moved to
Alberta, Mr. McMartin has visited with the plaintiff every time he comes
to the coast.

[63]        
On cross-examination, Mr. McMartin
indicated that it was dark when the accident occurred and the truck was black. Ms. Dent
had been stopped for “maybe five or six seconds” waiting to make a left turn
into his driveway. She was stopped in the left lane of travel facing north. The
roadway was marked with two solid yellow lines close together at that point. He
said traffic was really light at the time.

[64]        
In terms of what he knew about the plaintiff’s
health, Mr. McMartin indicated that he knew of the plaintiff’s bladder
cancer, but he did not think that the plaintiff had shared details about his
bowel problems.

[65]        
I found Mr. McMartin to be an impressive
and accurate witness, both as to the circumstances of the collision between the
vehicles at the entry to his driveway and regarding his observations of the
plaintiff before, immediately after, and since the accident. I accept his
evidence.

[66]        
I note that the plaintiff, Ms. Dent and Mr. McMartin
all referred to the occupants of the truck being like “rag dolls” with the impact
of the collision. I do not regard this as an indication that they got together
and concocted their accounts, but that one of them at the time, mostly likely Ms. Dent,
used the expression at the time of the accident and the others simply adopted
it as being apt. It is expressive.

Rick Graham

[67]        
Mr. Graham is another of the plaintiff’s
friends. He lives in Surrey and works as a truck driver. He has known the
plaintiff for 21 or 22 years. They both used to work for the same trucking
company. Mr. Graham found out about the accident the day after it happened
because he and the plaintiff were working on the plaintiff’s roof at the time.

[68]        
Prior to the accident, Mr. Graham said he
would see the plaintiff three or four times a month and they would ride
motorcycles together or do things around the plaintiff’s house. How much they
rode motorcycles together would change year to year, some years it was four or
five times. Mr. Graham recalled that the plaintiff was a pretty
competitive motorcycle rider. He said the plaintiff also rode dirt bikes and
had engaged in fairly extreme riding and racing years ago. He and the plaintiff
would go dirt bike riding together up in the Chilliwack area and ride mountain
trails, finding the toughest routes to climb. The last time they went out was
in the summer or fall of 2009. They would take their dirt bikes by trailer or
truck up to the area.

[69]        
Since the accident, Mr. Graham said that
the plaintiff walks differently. He is stooped over all the time. He cannot do
repairs around his house anymore and doesn’t try. For example, Mr. Graham
said that the plaintiff has had a canopy over his motorhome for a number of
years to protect it. The canopy would need to be re-stretched and have the snow
knocked off it, which the plaintiff would do. This past year the snow built up
to the point that the canopy collapsed as the plaintiff was unable to attend to
it.

[70]        
Mr. Graham said that before the accident
the plaintiff did chores by himself and took the initiative. Mr. Graham
was his side kick, just lending a hand. Since the accident, the plaintiff
directs Mr. Graham in relation to tasks that need to be done, and if
possible, Mr. Graham will do them. Fairly close in time after the accident,
Mr. Graham said he had dropped by the plaintiff’s place at 2 p.m. and
found the plaintiff just getting out of bed. He had to ring the doorbell and
wait for the plaintiff to appear. Mr. Graham said it was very unlike the
plaintiff to be lying around in bed, as he was very much a
get-out-and-do-things kind of guy. Mr. Graham had also noticed that the
plaintiff doesn’t go out much anymore and seems to stay at home all the time.

[71]        
In cross-examination when asked about the roof
repairs that he was doing with the plaintiff just prior to the accident, Mr. Graham
said they were patching the roof with plans to re-roof the entire house, which
after the accident they did not do. While he agreed that it was his habit to
help the plaintiff with yard work before the accident, after the accident, Mr. Graham
said he did the physical work while the plaintiff directed him. He also
indicated that the plaintiff has always repaired electronics, being very
interested in why something doesn’t work and trying to fix it, and that has
continued after the accident.

[72]        
The testimony of Mr. Graham corroborates
the evidence of other witnesses as to how the plaintiff became unable to do
household chores in the house and outside after the accident. Like Mr. Vollman,
he noticed that since the accident he had observed the plaintiff to be getting
out of bed at 2 p.m., which would not have happened prior to it. Also, like Mr. Vollman,
Mr. Graham testified to having to do the tasks with directions from the
plaintiff that prior to the accident he would have assisted the plaintiff to
do. I accept his evidence.

Mr. Shyam Lynn

[73]        
Mr. Lynn is 41 years old. He works as a
truck driver. He is also a friend of the plaintiff’s. They worked together
years ago and he has known the plaintiff for about 17 years. Prior to the
accident Mr. Lynn worked with the plaintiff and spent time with him at his
home. Mr. Lynn would help with chores from time to time.

[74]        
Mr. Lynn indicated that he noticed a really
large change in the plaintiff, especially right after the accident. He found
the plaintiff’s personality to be completely different. Mr. Lynn observed
that the plaintiff seemed scattered, disorganized and seemed to not quite know
what was going on, all of which were very out of character. Since that time Mr. Lynn
said that the plaintiff has calmed down, is “not as out of it,” and more
normal, but still is not as sharp as he used to be prior to the accident.
Depending on the visit, Mr. Lynn said the plaintiff tires easily. In terms
of doing things for the plaintiff, Mr. Lynn said that prior to the
accident he would assist the plaintiff, but since the accident the plaintiff
directs him regarding what needs to be done and Mr. Lynn does it.

[75]        
 Mr. Lynn also said that prior to the
accident the plaintiff could “out work” him and was like a 20 year old in terms
of being “go go go”, whereas after the accident the plaintiff has neither the
mobility nor strength that he had previously. They used to ride motorcycles
together, visit and enjoy shooting pellet guns at a small range the plaintiff
had set up at his place. Since the accident they have not gone motorcycle
riding together, although Mr. Lynn said that the plaintiff had stopped
motorcycle riding for a while prior to the motor vehicle accident but wanted to
get back to it. He said that the plaintiff was an excellent rider, but had said
fairly recently that he “just did not trust his body.”

[76]        
I accept the evidence of Mr. Lynn as to how
much energy the plaintiff had prior to the accident and how the plaintiff’s
personality changed after the accident. Like the previous witnesses, his
testimony was that when things needed to be around the plaintiff’s home before
the accident he would assist the plaintiff, whereas since the accident he does
the tasks under the plaintiff’s direction. I do not interpret Mr. Lynn’s
evidence to be that the plaintiff had given up motorcycle riding prior to the
accident for reasons due to his physical health. Overall, I accept Mr. Lynn’s
testimony.

Medical Evidence – Dr. Gerald Roberts

[77]        
Dr. Roberts is an expert witness qualified
to express opinions with regards to injuries arising from motor vehicle
accidents. In addition to his medical training at McGill and two year residency
at the University of Ottawa in intensive care, he has practiced family medicine
for 30 years and emergency medicine for 25 years, splitting his time between
his family practice in White Rock and emergency medicine at the Peace Arch
Hospital.

[78]        
Dr. Roberts indicated that the plaintiff
has been a patient of his since 2004. Dr. Roberts prepared a report
(Exhibit 4), dated October 27, 2012, which contains a summary of his more
recent dealings with the plaintiff and his opinion with regards to the accident
and the plaintiff’s injuries and continuing complaints.

[79]        
The report indicates that the plaintiff first
was assessed at the medical clinic where Dr. Roberts works on January 31,
2011 (the accident having occurred on June 12, 2010). The initial examination
revealed “tenderness of the neck on rotation to the right and left …and normal
range of motion of the hip and knee.” The plaintiff was referred to massage
therapy. When the plaintiff returned on February 15, 2011, he was bothered by
neck pain and an X-ray revealed “changes of mild to moderate degenerative disc
disease at C3-4 and C5-6 levels.” The plaintiff was advised to take
anti-inflammatory medications and to attend physiotherapy. Dr. Roberts
reported that the plaintiff followed the recommended course of physiotherapy
and anti-inflammatory medication throughout the spring and summer of 2011.

[80]        
When the plaintiff was assessed on June 27, 2011,
he continued to have neck and shoulder pain as well as lower back pain;
examination revealed “tenderness of the C3-4-5 levels as well as the L4-5-6
levels.” The range of motion of his cervical and lumbar spine had decreased. Dr. Roberts
noted that a report from physiotherapy in June 2011 “confirms a 30% decrease
range of motion of the cervical spine and lumbar spine with respect to flexion
and rotation.” The physiotherapist recommended continuing strength and
flexibility exercises as well as range of motion exercises.

[81]        
When next seen on July 6, 2011, the plaintiff
continued to have pain in the cervical and lumbar regions and tenderness was
noted on examination at C3-4-5 as well as L4-5. Flexion of the cervical spine
was to 45 degrees and rotation to 30 degrees. In addition to physiotherapy, the
plaintiff was prescribed muscle relaxants (Cyclobenzaprine) and
anti-inflammatory medication (Voltaren). Dr. Roberts expressed the view
that the plaintiff followed the recommended treatment regime but still
continued to have symptoms. When assessed on October 14, 2011, the plaintiff
stated that his neck “snapped” and he continued to have headaches with pain
radiating to his left shoulder and also lower back pain.

[82]        
A further examination on October 28, 2011,
revealed tenderness in the cervical region (C3-4-5-6) as well as the trapezius
muscles and left biceps. An X-ray from October 14, 2011 demonstrated disc
degeneration of the cervical spine. Lumbar spine X-rays showed compression
fracture of the L2 vertebrae as well as a possible compression fracture of the
T11-12 vertebral bodies. (Dr. Roberts explained that disc disease in older
people is also called osteoarthritis and a compression fracture is the term
applied to vertebrae that become crushed and lose some of their height, the
vertebrae being the boney structures between the discs in the spine.)

[83]        
Dr. Roberts noted that the plaintiff’s
continuing recovery was complicated by an episode of left leg cellulitis in
December 2011 that ended his ability to exercise for approximately six weeks.
(He explained that cellulitis is an infection of the skin usually caused by
“staph or strep.”)

[84]        
When next assessed on March 26, 2012, Dr. Roberts
noted that the plaintiff “continued to have discomfort related to his motor
vehicle accident” and he complained of persistent shoulder pain as well as low
back pain. He was advised to continue with physiotherapy and the use of
anti-inflammatory medication.

[85]        
When next examined on June 12, 2012, it was
noted that the plaintiff continued to have tenderness in the right anterior
shoulder, his right lower back and sacroiliac joints with reduced flexion of
the cervical and lumbar spine, but some response to therapy was noted with
improved symptoms. When seen again on June 22, 2012, the plaintiff continued to
have low back pain but shoulder and neck symptoms had improved.

[86]        
More progress was noted on July 25, 2012 when it
was noted that the plaintiff had “some residual pain” in the paravertebral
lumbar muscles with “minimal tenderness of the cervical muscles.” His range of
motion had improved to 90% and he was advised to continue with physiotherapy,
muscle relaxants and anti-inflammatory medications. When assessed again on
September 21, 2012, the plaintiff advised that his neck and shoulder discomfort
was improving and his range of motion on this visit was 90%.

[87]        
The plaintiff was last assessed on October 23,
2012, at which time he reported “intermittent tenderness and occasional “snapping”
of his neck.” On examination tenderness was noted in his trapezius muscles and
cervical muscles. He was advised to continue with his active exercise program
and physiotherapy.

[88]        
Dr. Roberts also reviewed the plaintiff’s
medical history in his report, which included a work-related injury to his
right shoulder and right arm in 1994 and a work-related back injury in June 2001
that was treated with physiotherapy and manual therapy. Of particular
significance is the following comment at p. 2 of the report;

Mr. Dent
underwent a complete physical exam in my office on September 16, 2008 at which
time he had no musculoskeletal complaints or findings on physical examination.
To my knowledge he had no symptoms of neck or back discomfort at the time of
the motor vehicle accident.

[89]        
Dr. Roberts summarized his opinion as
follows:

In summary this seventy-three year old male
was involved in a motor vehicle accident on June 12, 2010 resulting in injuries
to his neck, shoulders, upper arms and lower back. Since that time he has had
persistent pain and loss of mobility requiring ongoing use of anti-inflammatory
and muscle relaxant medications as well as physiotherapy. He has followed the
recommended treatment program which has resulted in gradual improvement of his
symptoms. At present he continues to have some mild residual symptoms and does
require ongoing physiotherapy and use of medications. X-rays obtained during
the course of treatment revealed evidence of degenerative disc disease in the
spine and lower back.

In my opinion,
in light of Mr. Dent’s age and his existing disc disease it is unlikely he
will achieve full recovery. He will probably continue to have residual
discomfort requiring the use of anti-inflammatory medication as well as
intermittent physiotherapy.

[90]        
In cross-examination, Dr. Roberts indicated
there are some patients whose subjective reports he is more likely to trust
than others, and he was of the view that the plaintiff fell into “the trust
category.” Although he is the plaintiff’s primary physician, Dr. Roberts
indicated that on occasion when the plaintiff attended their clinic he would
have been seen by other doctors. The clinic has an electronic system for
medical records into which each doctor enters his or her notes. Dr. Roberts
confirmed that he managed the referrals of the plaintiff to specialists for
complaints relating to cancer of the bladder, urinary tract problems,
intestinal issues and vision problems. He also confirmed that there was no
complaint by the plaintiff of lower back pain until the appointment on June 27,
2011, although the plaintiff had been in earlier.

[91]        
Dr. Roberts also indicated that he did not
consider the plaintiff’s bladder cancer and urinary problems to be relevant to
his musculoskeletal complaints, and hence did not mention them in his report.
The plaintiff’s bladder cancer had been treated and even with the finding of
further cancer it would not affect his health very much unless it spread. The
swelling that the plaintiff experienced in his lower limbs in December 2011 and
early 2012 was related to the cellulitis and would have been fairly disabling
for him for about two months.

[92]        
With regards to the degenerative disc disease in
the plaintiff’s cervical spine as shown in the February 2011 X-ray, Dr. Roberts
agrees that it is a cause of pain in aging patients and can cause a decreased
range of motion. He regarded the plaintiff’s level to be consistent with the
normal aging process. He also agreed that this condition is progressive and
often does get worse over time. It also can be stable. Dr. Roberts said
the degenerative disc disease in the plaintiff’s cervical spine was not caused
by the accident. Although the plaintiff did not have symptoms prior to the
accident, the fact the degenerative disc disease showed on the X-ray means that
it was present. He agreed that degenerative disc disease can certainly add to
complaints of pain in the neck and shoulder.

[93]        
With regards to the plaintiff being diagnosed
with osteopenia, Dr. Roberts said that is a radiological term that
describes thinning of the bone and means that the patient should be checked for
osteoporosis. He also confirmed that the plaintiff’s compression fractures were
present in 2001 and were caused by prior trauma or injury. They are unconnected
to osteopenia. Dr. Roberts indicated that he did not include reference to
the earlier compression fractures as the plaintiff did not complain about them
prior to the accident and old compression fractures can be stable, such that
the plaintiff could have ridden motorcycles and dirt bikes pain free.

[94]        
Continuing in cross-examination Dr. Roberts
confirmed that on June 27, 2011, he did a driver’s medical examination of the
plaintiff in order that the plaintiff was able to renew his driver’s license. Dr. Roberts
found the plaintiff fully capable of driving and on the required form (Exhibit
5) under the heading “musculoskeletal”, he indicated no concerns. In
cross-examination, he agreed that whether or not the plaintiff could shoulder
check or use his side mirrors was a “good question,” but then answered in the
affirmative in court.

[95]        
Dr. Roberts recognized that the plaintiff
had shown improvement to his range of motion to 90% as of his visit on
September 21, 2012, and that his shoulder and neck discomfort was improving. He
also agreed that he had seen improvement in the plaintiff’s symptoms over the
last six months.

[96]        
I found Dr. Roberts to be a highly reliable
and credible witness. He impressed the Court as a careful and accurate expert
who, with other members of his clinic, maintained accurate records in relation to
their patients, including the plaintiff. I found his opinion to be sound and
based on the evidence to which he referred. He was not seriously challenged on
his findings. Further, I note that based on his years of experience as a family
physician and emergency medicine doctor he is extremely well qualified to opine
on matters in relation to the plaintiff and his injuries from the accident.

[97]        
Dr. Roberts concluded that the plaintiff
suffered injuries to his neck, shoulders, upper arms and lower back, which
based on the plaintiff’s report to him, arose from the accident (June 12,
2010). There is ample evidence to support that conclusion. In Dr. Roberts’
opinion since the time of the accident the plaintiff has suffered from
“persistent pain and loss of mobility” that has required the ongoing use of
anti-inflammatory and muscle relaxant medications and physiotherapy. By the
July 25, 2012 visit, following the treatment regime recommended by Dr. Roberts,
the plaintiff showed signs of significant improvement. At the time of Dr. Roberts’
report (October 27, 2012) the plaintiff continued to have mild residual
symptoms and required ongoing physiotherapy and medications. Dr. Roberts
concluded that in light of the plaintiff’s age and his existing disc disease it
is unlikely that he will achieve full recovery and will probably continue to
have “residual discomfort” requiring the use of anti-inflammatory medication as
well as intermittent physiotherapy.

[98]        
Most noteworthy is that when Dr. Roberts
examined the plaintiff in September 2008, just over two years before the
accident, the plaintiff had no musculoskeletal problems. Dr. Roberts
acknowledged that degenerative disc disease occurs with normal aging. The
plaintiff’s degenerative disc disease in his neck and the lumbar area of his
back and the compression fractures (a compression fracture at L2 and a possible
compression fracture at T11-12) were most likely present before the accident. He
indicated that “old compression fractures” could be stable and not inhibit the
plaintiff in pursuing such activities as motorcycle riding. According to Dr. Roberts,
in the plaintiff’s case neither the degenerative disc disease nor the
compression fractures were symptomatic prior to the accident as the plaintiff
had not indicated complaints in those regards. Therefore, while these
conditions were pre-existing they were not causing the plaintiff problems or
pain prior to the accident.

[99]        
I also accept that the plaintiff’s other health
concerns including his bladder cancer and urinary issues were irrelevant to Dr. Roberts’
opinion regarding the extent of the plaintiff’s injuries from the accident. The
cellulitis suffered by the plaintiff, primarily in his left leg, was unrelated
to injuries sustained in the accident but likely slowed the plaintiff’s
recovery somewhat.

[100]     Based on the evidence of Dr. Roberts, I find that as of
September 2012, the plaintiff had substantially recovered from the injuries to
his neck, shoulders, upper arms and back. He continued to have headaches and pain
in his arms and legs upon occasion. It is also clear that the plaintiff will
continue to experience pain and discomfort arising from these injuries into the
future for an indeterminate time and that the physical activities he enjoyed
prior to the accident may remain beyond his capabilities. Insofar as that is
the case it is likely that his outlook and mood, and therefore his social
interactions, will be negatively impacted.

Summary of Findings

[101]     The following is a brief summary of key findings on the evidence:

1.    
The plaintiff, an active 70 year old, was
involved in a motor vehicle accident on June 12, 2010. He was a passenger in a
truck driven by his wife and was wearing a lap and shoulder seatbelt at the
time.

2.    
The defendant’s car drove into the rear of the
stopped truck at a considerable rate of speed, given that he indicated he
applied his brakes about one car length from the rear of the truck and had been
travelling at about 60 km. per hour. It was a significant collision, and both
the plaintiff and Ms. Dent testified that they felt considerable force in
the cab of the truck upon impact. Both vehicles were written off.

3.    
The defendant was negligent in failing to see
the stopped truck earlier and in failing to avoid the collision. The defendant
is 100% liable for the accident.

4.    
In the accident, the plaintiff sustained
injuries to his neck, shoulders, upper arms and lower back. He suffered also debilitating
and persistent pain to his legs and arms, and suffered from intermittent headaches
for almost two years. The plaintiff, after treatment by medication and
physiotherapy, began showing some improvement in his symptoms in June 2012 and
then showed considerable improvement between June and October 2012. He is unlikely
given his age and existing degenerative disc disease to achieve full recovery.
He will probably continue to have residual discomfort and require the use of
anti-inflammatory medication and intermittent physiotherapy.

5.    
Prior to the accident the plaintiff was an
energetic, robust individual who enjoyed physical activity, including dancing,
and motorcycle and dirt bike riding. He enjoyed gardening and doing physical
tasks. He was a very social person with many friends.

6.    
Prior to the accident the plaintiff had
degenerative disc disease in his cervical and lumbar spine and one or possible
two compression fractures in his vertebrae but they were not symptomatic.

7.    
Since the accident the plaintiff has been unable
to resume the physical activities he previously enjoyed. It seems unlikely he
will be able to resume his prior level of physical activity. Now 73 years old,
the plaintiff has become reclusive and no longer enjoys social situations. His
wife worries he is depressed, they are no longer able to do the activities
together they enjoyed and they are no longer sexually intimate.

Damages

Non-pecuniary damages

[102]    
The plaintiff seeks an award in the range of $75,000
for non-pecuniary damages. The defendant argues that given the lesser nature of
the plaintiff’s injuries and his predisposition to pain and injury from
pre-existing or unrelated medical problems, the appropriate award is between
$25,000 and $30,000.

[103]    
As succinctly summarized by Mr. Justice Johnston in Stovel v.
Paul, 2013 BCSC 30:

[52] A defendant is only liable for injuries to another that
he or she caused. The general principles for causation are discussed in Athey
v. Leonati, [1996] 3 S.C.R. 458, and recently re-affirmed in Clements v.
Clements, 2012 SCC 32, 346 D.L.R. (4th) 577. The plaintiff must prove that
the defendant’s negligence caused or contributed to his or her injuries (Athey
para. 16). The test is whether the plaintiff’s injuries would not have
occurred “but for” the defendant’s negligence (Athey para. 14).
This test is not to be applied too rigidly. It is a practical question of fact,
which may be answered by ordinary common sense and does not require scientific
precision (Athey para. 16).

[53] It is not necessary for the
plaintiff to show that the defendant’s negligent conduct was the sole cause of
the injury (Athey para. 17). It is sufficient to show that the
defendant was part of the cause. The Court held in Athey: “There is no
basis for a reduction of liability because of the existence of other
preconditions: defendants remain liable for all injuries caused or contributed
to by their negligence” (para. 17).

[104]    
In the same case, Johnston J. also summarized the issue of
divisible and indivisible injuries as follows:

[61] This case presents a combination of divisible and
indivisible injuries. The Court of Appeal discussed the principles to be
applied in Bradley v. Groves, 2010 BCCA 361, 8 B.C.L.R. (5th) 247, and
recently restated them in Moore v. Kyba, 2012 BCCA 361.

[62] The court in Bradley stated: “Divisible injuries
are those capable of being separated out and having their damages assessed
independently. Indivisible injuries are those that cannot be separated or have
liability attributed to the constituent causes” (para. 20).

[63] If injuries are divisible, then the defendant is liable
only for the injury he or she caused. If an injury is indivisible, then the
plaintiff is entitled to compensation for the losses resulting from that
indivisible injury, regardless of whether it had multiple tortious or non-tortious
causes (Moore para. 43; Bradley para. 24). In the case
of multiple tortfeasors, liability for indivisible injuries is joint and
several (Bradley para. 21).

[64] The court in Bradley
confirmed that the aggravation of a pre-existing injury creates an indivisible
injury (para. 37).

[105]     Therefore,
indivisible injuries include pre-existing conditions activated or aggravated by
the defendant’s negligence. In the present case, to the extent the plaintiff’s
pre-existing condition of degenerative disc disease and compression fractures
in his spine were aggravated by the accident and caused the plaintiff’s
injuries to be more severe, they are indivisible injuries and the plaintiff is
entitled to the losses resulting from them.

[106]    
The decision of Stapley v. Hejslet, 2006 BCCA 34 [Stapley]
reviews the factors that inform an award 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).

[107]    
In support of his claim for non-pecuniary
damages the plaintiff relies on the following authorities:

Pingitore v. Luk, (1994) 49 A.C.W.S. (3d) 900: The 67 year old plaintiff was in good
health prior to the motor vehicle accident when his vehicle was struck from
behind. He was active, described as “robust” and was “substantially free of the
ordinary complaints of advancing age.” Since the accident, he experienced major
chronic back pain and headaches and was unable to continue running his
restaurant for which he was also compensated. He was awarded $45,000 in
non-pecuniary damages, which, using the Inflation Calculator, amounts to
$63,198 in 2012.

Raponi v. Phagura et al, 2005 BCSC 567: The 45 year old plaintiff was in a motor vehicle accident
and suffered soft tissue injuries to the back and neck, spinal compression and
distortion, chronic pain syndrome and depression. Since the accident, four
years earlier, his injuries had improved dramatically. He was involved in two
subsequent motor vehicle accidents. Other factors unrelated to the subject accident
were recognized to have prolonged his recovery period (a pre-existing condition
of ankylosing spondylitis), and to have contributed to his pre-existing depression,
namely the financial downturn and marital difficulties. After the accident he
did less well in his law practice and could no longer participate in the sporting
activities he had enjoyed. He was unable to participate to the same degree in
his home life and interact with his wife and five children. In part as a result
of the accident, he and his wife separated and became divorced. The plaintiff
was awarded $60,000.

Ulfimzeff v. Brown, 2008 BCSC 1188 (Ulfimzeff) : The 63 year old plaintiff was in
a motor vehicle accident injuring her chest muscles significantly and her neck
and back to mild to moderate severity. She and her husband ran a farm. Over the
years she had worked off the farm doing night shifts dish washing or assembly
line work. She cared for the couple’s eight children, largely by herself
because her husband’s work as a carpenter occupied much of his time. On the
farm she engaged in the raising of various fruits and vegetables and they kept
a milk cow and sheep. About 10 years prior to the trial the plaintiff had given
up other work and devoted her energies to working on the farm. Her husband was
eight years her senior and had retired five years before trial. After the
accident she was not able to do her household chores and eventually the couple had
to sell the farm. She experienced ongoing pain, loss of sleep, inability to do
activities and generally an impact on her independence and ability to enjoy
life. The plaintiff was awarded $50,000.

Larlee v. Shier, 2008 BCSC 1610: The 62 year old plaintiff suffered injuries to her
neck, shoulders, wrists and knees as a result of a motor vehicle accident. She
experienced significant pain and loss of enjoyment of life. The accident
impacted her work and lifestyle including: day-to-day household activities,
gardening, her ability to play piano and accordion, and caused difficulty for
her at work. She suffered extreme anxiety while driving and was unable to
pursue the wide range of physical and social activities she had enjoyed prior
to the accident. Her intimate life with her husband had suffered. She had availed
herself of all treatments and therapies. Her husband described how her fatigue,
chronic neck pain and back pain debilitated her and how the accident “totally
changed our lifestyle, upside down.” The plaintiff was awarded $60,000.

Jacobsen v. Beaton, 2009 BCSC 231: The plaintiff, a 69 year old semi-retired landscaper,
was injured in a motor vehicle accident. He suffered significant neck pain,
described as chronic but not constant, and tinnitus that had not resolved in
the two-and-one-half years since the accident. The accident impacted his
ability to sleep, partake in community activities and maintain his independent
and healthy lifestyle. The plaintiff was awarded $50,000 in non-pecuniary
damages.

Strazza v. Ryder, 2012 BCSC 1693: The 29 year old plaintiff suffered injuries to his
neck and back from a motor vehicle accident. Following the accident he
experienced pain at his work as well as when engaging in other activities such
as sports, outdoor activities and working on cars. His pain was described as
chronic but not debilitating. The plaintiff was awarded $60,000 in
non-pecuniary damages.

Stovel v.
Paul, 2013 BCSC 30: As a result of a motor vehicle
accident the plaintiff, who was 61 year old at the time, suffered neck,
shoulder and upper back soft tissue injuries, and an injury to a finger, as
well as partial hearing loss, tinnitus and balance problems. She continued to suffer
almost daily headaches, anxiety and muscle spasm problems. The plaintiff had
prior injuries that were triggered by this accident. Since the accident she has
had to reduce her recreational and leisure activities. The accidence has also impacted
her involvement with Alcoholics Anonymous. The plaintiff was awarded $90,000 in
non-pecuniary damages.

[108]    
Counsel for the defendants rely on the following
authorities:

Williamson v. Nakashimada, 2004 BCSC
1348: Prior to his accident, the 37 plaintiff had regular headaches and
backache. Following the accident he was unable to work full-time, suffered neck
and back pain as well as headaches. The court found his injuries to be mild to
moderate with a protracted recovery. They affected his marital relationship and
his recreational activities. However his protracted recovery was due, in part,
to his pre-existing problems. The plaintiff was awarded $20,000 in
non-pecuniary damages.

Moore v. Cabral et. al., 2006 BCSC 920: The 28 year old plaintiff suffered injuries to the
neck, knee and back and also developed headaches from a motor vehicle accident.
The soft tissue injuries resolved within three months, although he received
massage therapy for six months for lingering discomfort. Five years
post-accident the plaintiff still experienced what the Court described as
“mild, intermittent pain or discomfort …from the plaintiff’s contusion to his
tailbone and left ankle sprain.” The Court held that the plaintiff was
exaggerating his injuries. He received $20,000 in non-pecuniary damages.

Reichennek
v. Archibald, 2008
BCSC 1304: The plaintiff suffered injury to her neck and back and had a painful
headache immediately following the motor vehicle accident. For several months
after the accident, she found sitting and standing uncomfortable. The Court
concluded she sustained a moderate soft tissue whiplash injury. The symptoms
were initially acute causing her to miss three weeks of work, but then improved.
Some lingering discomfort has affected her recreational activities, house work
and sleep patterns. The plaintiff was awarded $22,000 in non-pecuniary damages.

Golam v. Fortier, 2005 BCSC 598: The plaintiff suffered mild to moderate soft tissue
injury to his right shoulder, neck and mild soft tissue injury to his lower
back from a motor vehicle accident. He continued to work as a cook in the
restaurant that he and his wife operated because he had no choice. His symptoms
did not resolve as quickly as had been expected. He continued to experience
some pain and discomfort from his injuries. The Court found that the plaintiff
had not suffered a permanent disability and that the pain should resolve. The
Court also found that the plaintiff was not malingering or attempting to
mislead his doctors or the Court for the purposes of obtaining compensation. He
was awarded $25,000 in non-pecuniary damages.

Lopez v. VW Credit Canada Inc., 2008 BCSC 320: Arising
from a motor vehicle accident, the 37 year old plaintiff suffered injury in the
area of his left shoulder blade, the left side of his back, and experienced
some pains shooting down his left arm that resulted in moderate chronic pain,
including bursitis and muscle problems not considered to be permanent. Before
the accident the plaintiff was athletic and able to concentrate for long
periods of time as a software architect. These aptitudes were negatively
affected by the accident. The Court found the plaintiff to be credible. The
plaintiff was awarded $25,000 in non-pecuniary damages

Job v. Van Blankers, 2009 BCSC 230:The evidence in this case was “extremely generalized
and vague” and at most could be used to conclude that the 29 year old plaintiff
suffered mild to low moderate soft tissue injuries the neck, back and shoulder
as well as tingling in her left arm, headaches and discomfort sitting. The
plaintiff failed to follow the advice of her family physician to attend
physiotherapy, chiropractic treatment, massage or other rehabilitation which aggravated
her injuries. The injuries affected her ability to work as an architectural photographer
and perform some housekeeping chores. Her injuries were still ongoing to some
degree. The plaintiff was awarded $25,000 in non-pecuniary damages reduced by
10 percent due to her failure to mitigate.

Majewska v. Partyka, 2009 BCSC
175: In this case the middle-aged plaintiff, with a home cleaning business, suffered
an acute neck and lower back sprain and a mild concussion in a motor vehicle
accident. At trial, almost two years after the accident, her condition had
improved but she had not made a full recovery. The Court concluded that these injuries
had a significant impact on the plaintiff’s life, especially on her social and
recreational activities. She was awarded $30,000 in non-pecuniary damages.

Elgood v. Ellison, 2010 BCSC 442:  The 65 year old plaintiff was
struck by a motor vehicle as a pedestrian crossing in a marked crosswalk. He suffered
injury to his shoulder and neck and had chronic lower back pain due to a soft
tissue injury with a possible compression fracture. The plaintiff was able to
continue to work as a “paymaster” in bingo hall after the accident despite his
level of chronic pain, although his supervisor testified that he was somewhat
more irritable at work and refused extra shifts. His leg and shoulder injuries
resolved very quickly and his neck pain diminished gradually over time to the
point that he experienced only occasional and non-debilitating pain. The
plaintiff was awarded $35,000 for non-pecuniary losses.

[109]    
Keeping in mind the findings on the evidence set out above and considering
the Stapley factors, I note that the plaintiff was almost 71 years old
at the time of the accident and 73 years old at trial. While he had
degenerative disc disease and one and possibly two compression fractures in his
back prior to the accident, they were not causing him difficulties. By all
accounts, the plaintiff was an active and vital man who witnesses, including his
wife, said typically behaved with the energy of someone considerably younger. The
injuries he received in the accident have eliminated his prior recreational
activities such as gardening, driving his motorhome, riding his dirt bike and
motorcycles, dancing, and socializing with friends and family. They have also negatively
impacted his intimate relationship with his wife. His residual level of
discomfort, likely contributed to by his aggravated degenerative disc disease and
compression fractures in his vertebrae, is likely chronic. I find his injuries,
prolonged period of pain and disability, and anticipated residual discomfort
into the future to be generally more severe than those in cases relied upon by
the defendant. It can fairly be said that the accident has robbed the plaintiff
of considerable satisfaction and enjoyment that he otherwise may have
experienced in his “golden years.”

[110]    
When an older person is injured and suffers these impairments to
their mobility, the negative change in their physical abilities must be
considered with all due seriousness. As stated by Lord Justice Sachs in Frank
v. Cox (1967), 111 Sol. Jo. 670 (C.A.), which was adopted by Fraser J.
in Moody v. Windsor (1992), 64 B.C.L.R. (2d) 83 at
93 (S.C.):

I take the view myself that when
one has a person in advancing years, in some respects an impairment of movement
may perhaps be more serious than it is with a younger person. It is true,
as Mr. Chedlow has stressed that he has not got as many years before him
through which he has to live with this discomfort, pain and impairment of
movement. But it is important to bear in mind that as one advances in life,
one’s pleasures and activities particularly do become more limited, and any
substantial impairment in the limited amounts of activity and movement which a
person can undertake, in my view, becomes all the more serious on that account.

[111]     While
assessing non-pecuniary damages is very case specific, I find the facts here
are most akin to those cases in which older plaintiffs have suffered significant
negative changes to their lifestyle and independence due to their injuries. Of
the cases referred to I find the cases of Pingitore v. Luk and Larlee
v. Shier to be most similar to the case at bar. In both those cases, older
plaintiffs suffered significant injuries that impaired their post-accident
lives to a substantial degree, depriving them of their prior levels of physical
activity, productivity and enjoyment. I look to those cases in assessing a fair
and reasonable amount in non-pecuniary damages in this case.

[112]     In
the present case, I find that an award $65,000 in non-pecuniary damages is
appropriate.

Special damages

[113]     The plaintiff seeks $5,783 in special damages, which includes the
supplementary list of special damages up to and including physiotherapy charges
incurred on January 17, 2013. On the evidence I am satisfied that it is proper
for the plaintiff to be reimbursed for special expenses up to this date as he
continues, based on the evidence of Dr. Roberts, to need physiotherapy and
medications for pain arising from the injuries sustained in the accident.

[114]     Apart from the amount of $1,590 attributed to Pam’s Yard Clean-up
and Maintenance, which is disputed on behalf of the defendant, the other
expenses claimed as special damages are not disputed.

[115]     Although I have found the plaintiff and Ms. Dent overall to be
reliable and credible witnesses, I find that I am not satisfied as to the
legitimacy of the claim for amounts attributed to Pam’s Yard Clean-up and
Maintenance. The invoices that were “rewritten” in sequence are unusual.
Although the evidence indicates that after the accident the plaintiff was
unable to perform the garden and yard work he did before, Ms. Dent
testified that she enlisted the help of her brother, Mr. Vollman to assist
with yard tasks including lawn mowing, which is also the main service provided
by Pam’s Yard Clean-up and Maintenance on the invoices. The plaintiff in
particular testified as to his frustration in relation to the unkempt state of
their garden and yard, which to some extent is contradictory with the provision
of regular services by an independent service. I find it is not proved that the
charges to Pam’s Yard Clean-up and Maintenance were incurred during the
relevant time period and I decline to permit the $1,590 claimed for this
service as a special expense. I find the balance of the special expenses
claimed by the plaintiff in the amount of $4,193.68 to be proven and award that
amount.

Cost of Future Care

[116]    
The plaintiff seeks $3,000 in cost of future care.

[117]    
In Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 affd’ in 49
B.C.L.R. (2d) 99, McLachlin J. (as she then was) sets out the test to be
applied in awarding the cost of future care as follows at 84:

[…] The test for determining the appropriate award under the
heading of cost of future care, it may be inferred, is an objective one based
on medical evidence.

These authorities establish (1) that there must be a medical
justification for claims for cost of future care; and (2) that the claims must
be reasonable.

[…] The award for cost of care
should reflect what the evidence establishes is reasonably necessary to
preserve the plaintiff’s health.

[118]    
As noted in Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2011
BCSC 762 at para. 182:

[182] There must be a
medical justification for claims for cost of future care, and those claims must
be reasonable and fair to both parties. The court must determine the services,
medications and aids that are reasonably necessary to promote the health of the
plaintiff and assess the likelihood that he will use them in the future.
See: Aberdeen v. Zanatta, 2008 BCCA
420 at paras. 41-42; and Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (B.C.S.C.).

[119]     In the
present case, the evidence of Dr. Roberts, particularly the summary from
his report as quoted above, makes it quite clear that the plaintiff will
continue in the future to require physiotherapy and anti-inflammatory
medications to assist him in further recovery and pain management for mild
residual symptoms arising from injuries sustained in the accident. It is not
possible to assess an exact amount, but the amount of $3,000 sought by the
plaintiff seems imminently reasonable given the amount and frequency of costs
incurred for medications and physiotherapy up to trial. I assess the cost of
future care in this case to be $3,000.

Loss of housekeeping capacity

[120]    
The plaintiff claims an amount of $10,000 for loss of
housekeeping capacity. The defendant submits that the plaintiff lacks the necessary
evidence to prove this aspect of his case.

[121]    
In McTavish v. MacGillivray, 2000 BCCA 164, Huddart J.A.
sets out how to assess loss of housekeeping capacity. In this case the Court of Appeal upheld the trial judge’s award for loss of
household services based on a cost of replacement of services formula under a
separate head of damages. The trial judge awarded both past and future lost
capacity. Future losses were estimated to the age of 60 when the plaintiff
presumably would no longer have been able to perform housekeeping services
without assistance. It was not relevant that a housekeeper was not actually
hired and family members took over these tasks; loss of housekeeping capacity
is not analogous to future care costs where expenses must be proven. As to
estimating both pretrial and future losses, Huddart J.A. said this:

[63]     As we have seen, it is now
well established that a plaintiff whose ability to perform housekeeping
services is diminished in part or in whole ought to be compensated for that
loss. It is equally well established that the loss of housekeeping capacity is
the plaintiff’s and not that of her family. When family members have
gratuitously done the work the plaintiff can no longer do and the tasks they
perform have a market value, that value provides a tangible indication of the
loss the plaintiff has suffered and enables the court to assign a specific
economic value in monetary terms to the loss. This does not mean the loss is
that of the family members or that they are to be compensated. Their provision
of services evidences the plaintiff’s loss of capacity and provides a basis for
valuing that loss. The loss remains the plaintiff’s loss of economic capacity.

[64]     This approach to valuation
of the plaintiff’s loss has the advantage of encouraging family benevolence,
without providing a windfall to the wrongdoer. It discourages the hiring of
less satisfactory and perhaps more expensive substitute services. It allows a
court to determine what services are reasonably necessary by reference to what
services family members were prepared to provide. Two Australian authorities
not among those provided by counsel contain an interesting discussion of those
and other policy considerations. Griffiths v. Kerkemeyer (1977-78), 139
C.L.R. 161 (Aust.H.C.) and Hodges v. Frost (1984), 53
A.L.R. 373 (F.C.A.) both concern household services
gratuitously provided for a plaintiff in the pre-trial period.

[65]     The appellants recognize
that it would be somewhat of a legal fiction to characterize pre-trial or past
loss of housekeeping capacity as intangible "pain and suffering,"
under the non-pecuniary general head of damages, and then to place an economic
market value on these same household services when compensating a victim for
future loss of housekeeping services that might not be incurred. They would
avoid that fiction by ensuring a plaintiff is compensated by pecuniary damages
only for money spent or likely to be spent on replacement services. Otherwise,
in their view, a plaintiff will be overcompensated; that is, she will gain from
the award. Moreover, the principle of restraint will not have been respected.
They would compensate intangible losses consequent on a decision not to replace
needed services by a modest non-pecuniary conventional award determined
globally by comparison with like cases.

[66]     In my view, this suggested
approach is inconsistent with the authorities. Moreover, as the Australian
legal scholar, Regina Graycar, suggests, reliance on this approach tends to
equate "hoovering" with a hobby as a loss of amenity.

[67]     This characterization
undervalues or devalues housework, and comes into direct conflict with the
well-established recognition of the economic value of housework at common law.
Hoovering in Canada has never been seen as a hobby. It is work of economic
value, although the person who "hoovers" may not be remunerated
directly in money for what he or, more frequently she, does. It is well to keep
the distinction between unpaid work of economic value and hobby in mind. The
loss of a hobby requires compensation by an award for a functional replacement.
The loss of the ability to perform household tasks requires compensation by an
award measured by the value of replacement services where evidence of that
value is available.

[68]     In
my view, when housekeeping capacity is lost, it is to be remunerated. When
family members by their gratuitous labour replace costs that would otherwise be
incurred or themselves incur costs, their work can be valued by a replacement
cost or opportunity cost approach as the case may be. That value provides a
measure of the plaintiff’s loss. Like the trial judge I would prefer to
characterize such compensation as general damages assessed in pecuniary terms,
reserving special damages for those circumstances where the plaintiff actually
spent money or incurred a monetary liability, although I do not wish to state a
settled view on that question in the absence of full submissions as to the
consequences of the distinction, if any.

[122]    
McIntyre v. Docherty, 2009 ONCA 448 reviews
the introduction of a separate head of damages for loss of housekeeping
services. The analysis of past housekeeping services is broken down into the
following categories: work left undone; work done by the plaintiff with
difficulty and; work done by third parties. As discussed below, each aspect of
loss of housekeeping capacity is compensable and should be considered:

[67]     The current approach
denying a separate pecuniary award for housekeeping may mean that unpaid work
is unjustifiably treated differently than paid work. In the case of paid work,
the plaintiff will make a claim for the pre-trial income she or he would have
earned but for the accident. Such a claim is one for a pecuniary loss, or
special damages, since it is calculable with a reasonable degree of certainty
based on the available evidence. As I have observed, in contrast, unpaid
housekeeping left undone is often recognized only as a non-pecuniary loss on
the basis that the only loss is the intangible one arising from the loss of the
amenity of an orderly household and a loss of a sense of contribution.

[68]     However, an argument can be
made to support a pecuniary award on the basis that it is consistent and fair
to compensate the loss of "unpaid" work on the same basis as
"paid" employment and that it is unfair to relegate
"unpaid" undone housekeeping, in this case past lost housekeeping, to
the homogeneous basket of non-pecuniary damages. Non-pecuniary damages are
restricted both by the cap imposed on them by the Supreme Court of
Canada and by the Andrews admonition that such awards
must be modest.

[69]     It can also be argued that
a pecuniary award would achieve a measure of recognition for the economic value
of unpaid housekeeping. The denial of such an award may be seen to unfairly
diminish the contribution of those responsible for the bulk of housekeeping,
still largely women, and to perpetuate inequalities that society has worked
hard to overcome.

[70]     On the other hand, treating
undone housekeeping on the same basis as lost wages arguably does not conform
to the traditional view or current Canadian case law regarding the nature of a
"pecuniary" loss during the pre-trial period: see MacLean
v. MacDonald (2002),
201 N.S.R. (2d) 237 (C.A.), and British Transport
Commission v. Gourley, [1956] A.C. 185 (H.L.). This is because lost
wages are clearly a pecuniary loss that is ascertainable at the time of trial.
However, an unpaid homemaker does not suffer a loss of wages, but rather the
loss of the benefit of having done the housekeeping, including the personal
intangibles such as the sense of purpose and contribution referred to earlier,
as well as the loss of the amenity of an organized household.

[Endnote omitted]

[123]     The plaintiff testified that prior to the accident he did a variety
of chores in and outside of the couple’s home. In relation to the home, he
helped with grocery shopping, meal preparation, laundry, window washing and
other chores. Outside, he cut the lawn, weeded the garden and trimmed trees. To
my mind, other tasks he described, for example the spreading of manure and the
needed repair to the canopy over the motorhome, are more in the realm of hobby
(versus “hoovering” as discussed above) and therefore do not fall into the
category of housekeeping.

[124]     It is clear that while suffering the effects of the accident the
plaintiff struggled to perform some very basic household tasks (like taking out
the garbage) and did not perform others, which then his wife performed. Both
the plaintiff and his wife relied on friends and relatives to help out with other
household and home maintenance tasks (that the plaintiff otherwise would have
attended to) over the period when he was physically debilitated from injuries
sustained in the accident – a period just over two years. Mr. Vollman
attended to lawn mowing and other chores. Some tasks remained undone.

[125]     As of September 2012, I have found the plaintiff to be substantially
recovered but likely to experience pain and limitations on his physical ability
and strength going forward. He is also advancing in age and in any event is
likely to experience some decline in his ability to perform household chores unrelated
to injuries he sustained in the accident.

[126]     Drawing on the evidence, I assess $2,500 for the plaintiff’s past
loss of housekeeping capacity for chores he would have performed inside and
outside the home but was unable to perform due to the accident; and an
additional $2,500 in relation to household tasks he would have performed but
which were performed by his wife and other friends and family, including Mr. Vollman.
However, I find there is insufficient evidence with regards to the plaintiff’s
loss of housekeeping capacity in the future and decline to award an amount in
that regard. Therefore, the total award for loss of housekeeping capacity is
$5,000.

Conclusion

[127]     For these
reasons I find that the plaintiff is entitled to the following relief and so
order:

1.     Non-pecuniary
damages in the amount of $65,000;

2.     Special
damages in the amount of $4,193.68;

3.     Cost of
future care in the amount of $3,000;

4.     Loss of
housekeeping capacity in the amount of $5,000; and

5.     Pre-judgment
interest at the prevailing rate from the date of the accident to the date of
judgment pursuant to the Court Order Interest Act, R.S.B.C. 1996,
c. 79.

[128]     With
regards to costs, unless there are offers which have been exchanged which affect
the matter of costs, I find that the plaintiff as the successful party is
entitled to his costs at Scale B.

[129]     If parties
still wish to make submissions based upon offers that have been made, then arrangements
may be made through the registry.

“The Honourable Madam Justice E.A. Arnold-Bailey”