IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131108

Docket: M141072

Registry:
New Westminster

Between:

Stanley Baker

Plaintiff

And

Mila Clark

Defendant

Before:
The Honourable Mr. Justice Crawford

Reasons for Judgment

Introduction

[1]            
On April 27, 2011, Mr. Baker’s taxi and Ms. Clark’s car
collided at the intersection of Spadina Avenue and Edward Street in Chilliwack,
British Columbia.

[2]            
Mr. Baker seeks compensation for soft-tissue injuries he sustained
to his neck and back. Ms. Clark contests her liability and the compensation
types and quantums Mr. Baker claims.

Liability

[3]            
Spadina Avenue, at the accident location, is a divided boulevard with
trees planted in the median boulevard. It runs roughly east/west. The
intersection to the west of the accident is Corbould Street. Both Mr. Baker
and Ms. Clark say they were driving north on Corbould Street, stopped at
the stop-sign and then turned right onto Spadina Avenue towards Edward Street.

[4]            
Curiously, neither said they saw the other car at that stage. And from
that time on, their evidence diverges until the two cars collide a minute or so
later.

Mr. Baker

[5]            
Mr. Baker is a taxi driver with lengthy driving experience,
including 17 years driving a BC Transit bus and since 2008 driving for Cheam
Taxi. At the time of the accident, he was age 67 and in good health.

[6]            
He said he was on a way to a call at PriceSmart, which is located several
blocks east of the accident intersection. He said that half-way down the block,
going towards Edward Street, Ms. Clark’s car passed him on the right-hand
side. Spadina Avenue eastbound is a wide lane with parking available on the
right-hand side. Mr. Baker measured the Spadina Avenue eastbound lane at
27 feet, six inches.

[7]            
He made no mention of seeing the red car until it passed him nor how far
it progressed in front of his taxi after it passed him.

[8]            
He said he was doing 40-45 km, close to the median. About 80 feet from
the intersection, he said the red car, without signalling or any other warning,
turned so suddenly across his path that although he braked, the cars collided.

[9]            
The pictures Ms. Clark took show damage to the left or driver side rear-door
of her red Corolla, and Mr. Baker’s taxi was damaged on the right-front.

[10]        
He said that he was stunned. His body went forward, back and then
forward again, and he experienced a terrific pain in his neck and shoulders. He
said he figured his neck was broken, but he reached for his telephone and called
his dispatcher and 9-1-1.

[11]        
He stayed in his taxi until the ambulance came. The attendants put a
neck brace on him, and he said he walked to the ambulance. At the hospital,
x-rays showed nothing. He was discharged and given Tylenol #3 and muscle relaxants.
After an hour-and-a-half at the hospital, a friend came and took him home.

Mr. Baker’s Cross-examination

[12]        
Mr. Baker agreed Ms. Clark passed him on his right and slowed
down. Mr. Baker agreed he was gaining on the Clark car. But he thought the
Clark car would continue on his right-hand side and either park or turn right.
He agreed he did not slow his taxi and proceeded straight ahead.

[13]        
My notes record a question being put two times to Mr. Baker regarding
whether he would have passed the red car at the Edward Street intersection as
both cars went straight on. But the question went unanswered.

Ms. Clark

[14]        
Ms. Clark is a diminutive middle-aged female from the Philippines.
She became a Canadian citizen in 2002. She has been qualified as a Licensed
Practical Nurse for six years.

[15]        
She said she went to the Superstore and then drove along Corbould Street.
She intended to make a surprise visit on a friend who lived on Edward Street.
She got to the intersection of Spadina Avenue and Corbould Street, stopped and
turned right. She made no mention of seeing the taxi at that point.

[16]        
She said Spadina Avenue eastbound was a wide road, with parking on the
right and a driving lane.

[17]        
She said she moved to the driving lane when she was half-way down the
block. She said she saw a car behind her, and put on her left-hand signal
indicating her intention to turn left at Edward Street.

[18]        
She said she drove slowly into the intersection looking right to see if
any traffic was coming from Edward Street. I note Edward Street northbound is
controlled by a stop-sign.

[19]        
She then said she looked to see if there was westbound traffic on
Spadina Avenue and at that point, the taxi hit her car.

[20]        
She said that as she slowed her car it was facing a little towards
Edward Street, so she would have been turning in a northerly direction.

[21]        
After impact, she said the car faced the west lane of Spadina Avenue. On
the diagram provided by the expert, Mr. Bowler, her car does face north.

[22]        
She repeated her evidence of looking right and then for the westbound
traffic on Spadina Avenue and that she had positioned herself to make the turn.

[23]        
She said the collision jammed her driver’s door and she had to get out
the passenger door. She said she spoke to Mr. Baker who said “You did a
wide-angled turn”.

[24]        
When asked if she was on the parking lane on Spadina Avenue, she said,
“I was on the left side the whole time”.

[25]        
Ms. Clark said it was raining. She took pictures of the cars with
her cell phone and then got back in her car.

[26]        
The medical attendants treated a big bump where she had hit her
forehead. She said she was in pain and shocked, and she was shaking and
stammering. She too was taken to the hospital. She said she did speak to a
police officer while she was on the stretcher. But the officer did not say it
was her fault or ticket her.

Ms. Clark’s Cross-examination

[27]        
In cross-examination, Ms. Clark agreed no cars were parked on the
right-hand side of Spadina Avenue. She said she stayed by the curb and
continued by the curb to Edward Street.

[28]        
When asked if she stopped, she said it was not a full stop; rather, she
“slightly braked” and moved slowly across Spadina Avenue and was looking to
check traffic coming from her right on Edward Street.

[29]        
Ms. Clark agreed she just used the rear-view mirror before making
the turn and did not use her side-view mirror. She asserted she saw a car
behind her before she turned.

[30]        
She then said she stopped at Edward Street for northbound traffic, but no
traffic was there. She then looked for westbound traffic on Spadina Avenue.

[31]        
She repeated she had put on her left-turn signal half-way down Spadina
Avenue but was unable to state a specific distance; she also looked right for
traffic on Edward Street.

[32]        
She denied passing the taxi on its right-hand side. She said her speed
was 20-30 km on Spadina Avenue and that she did not travel fast.

[33]        
She agreed she used the word “stop” in her examination for discovery,
but then she said “stop” was different in her language. However, using the
interpreter did not assist in explaining her difficulty with using the word
“stop”. She then said she was confused, but it was not evident what the source
of confusion was. I should note that Ms. Clark was otherwise able to give
her evidence in English.

[34]        
She then said she was on the right-side of the curb moving into the
intersection where she turned. She denied she turned before she got to the
intersection.

[35]        
She agreed the pictures she took of the scene were accurate.

[36]        
An engineer’s report was premised on her photos. The engineer’s report
at figures 24 and 25 shows the engineer’s depiction of the cars’ angles at the
point of impact, and the cars’ positions coming to rest after the collision.

[37]        
Based on the figure showing the cars’ angles at point of impact, Ms. Clark
was asked to agree she had started her turn before she got to the intersection
on Edward Street.

[38]        
She said she was about to make a turn when she was hit by the taxi and
then said “Before I turned on my signal, I positioned my car to get to the
intersection”.

[39]        
She disagreed that she had “cut the corner”.

[40]        
When asked how her car got to its rest position, Ms. Clark said she
was pushed there. She said she was hit when she was about to make her turn and
was in the middle of the intersection; she referenced the median as the middle
of the intersection.

[41]        
She denied the proposition that since Mr. Baker’s taxi did not hit
the rear of her car, she must have turned across the taxi’s path.

[42]        
She said she knew the turn signal indicator was on as she heard it going
“cheep-cheep” but agreed she did not know if the signal lights were working.

[43]        
When asked how fast her turn was, she said it was pouring (rain), so she
was cautious and turned slowly. But she could not estimate her speed.

[44]        
In re-examination, Ms. Clark was asked to refer to the Google map picture
of Spadina Avenue and then asked to point to the curb. She pointed to both
sides of the eastbound lane of Spadina Avenue in figures 3(a) and 3(b). She
then said she drove on the road’s left-hand side the whole way.

Police officer

[45]        
Police officer Marlatt testified the pictures taken of the cars at the
scene of the accident were accurate.

[46]        
He interviewed both parties. He concluded the damage to Ms. Clark’s
car was inconsistent with her statement that she was the lead car because the
rear of her car had no damage, and therefore the damage on the car’s side was
consistent with Mr. Baker’s version of events.

Expert Report

[47]        
Mr. Bowler, P. Eng., provided a written report that essentially
concluded:  “the angle of collision was 45 degrees; the point of impact was
before Spadina Avenue entered the Edward Street intersection; the rest
positions of Mr. Baker’s taxi was before it entered the Edward Street intersection;
and the rest position of the Clark Corolla was just a few feet from the median
on Edward”.

Discussion

[48]        
The curious feature of both parties’ evidence was failing to mention the
other car. Both must have stopped at the stop-sign on Corbould before they made
turned right onto Spadina Avenue. However, both parties’ first reference to the
other is some half-way down Spadina Avenue.

[49]        
The damage to the cars in Mr. Bowler’s report are consistent with Ms. Clark
having moved from the right-hand side of Spadina Avenue across the path of Mr. Baker’s
taxi.

[50]        
Ms. Clark is clearly wrong in asserting she kept to the median curb
and slowly drove down Spadina Avenue signalling her left turn half-way down the
block and then making her left turn. The damage to her car plainly proves the
contrary.

[51]        
As well, the turn radius for Ms. Clark’s car, as diagrams 24 and 25
of Mr. Bowler’s report show, bears no resemblance to the statutory requirement
the Motor Vehicle Act, R.S.B.C. 1996, c. 318, s. 165(2) sets out: a
turning vehicle must enter an intersection so as to be able to enter the
cross-street in the correct lane. Ms. Clark’s car plainly “cut the
corner”.

[52]        
Even If I accept Mr. Baker’s version of events, I still need to
address the argument that he, as the rear driver, should have the better chance
of avoiding a collision with a left turning vehicle in front of him and
therefore has a greater obligation to take care of the vehicles ahead.

[53]        
The premise, of course, is that if a left turning vehicle is ahead, the rear
driver consequently has the better opportunity to avoid the accident. No
evidence was put before me regarding exactly where Ms. Clark’s car was
relative to Mr. Baker’s taxi when she began to make her left-hand turn
onto Edward Street.

[54]        
Mr. Baker said Ms. Clark passed him on the right and then
slowed down. Given the width of Spadina Avenue eastbound and the inference that
must be drawn from the expert report that Ms. Clark was to the right of Mr.
Baker’s line of travel, Mr. Baker reasonably assumed that as Ms. Clark slowed, she
was either going to park on the side of the road or make a right turn.

[55]        
Mr. Baker’s evidence was that he saw no signal from Ms. Clark’s
car and the car’s left-turn in front of his taxi was so sudden he was barely
able to brake before impact. That he did brake is evident from the photos and Mr. Bowler’s
diagram. i.e., Mr. Baker’s taxi was at rest but a few feet from the point
of impact. In other words, he had substantially reduced his stated speed before
the impact.

[56]        
Given normal reaction times, I conclude Ms. Clark did indeed change
direction from Mr. Baker’s right-hand side, and Mr. Baker’s taxi was
so close at hand he was unable to avoid the collision, Therefore, I find Ms. Clark
wholly at fault for the collision.

[57]        
 I distinguish the cases put before me where the turning vehicle was
well-ahead of the rear vehicle yet the passing vehicle persisted in going past the
turning vehicle on the left-hand side.

[58]        
I conclude Ms. Clark was right of Mr. Baker’s taxi, probably
not very far ahead when she began to turn left into Mr. Baker’s path and
he was unable to avoid the collision. I also note that Ms. Clark’s car did
not proceed very much further past the point of impact, but her car would be
subject to forces to which no expert opinion was tendered.

Mr. Baker’s injuries

[59]        
I am satisfied Mr. Baker sustained soft-tissue injuries to his neck
and upper-back. He attended physiotherapy, but no report was tendered from the
physiotherapist. That treatment evidently was for his neck and upper-back. Mr. Baker
made no complaint of headaches. He was off work for three months and returned in
late July 2011. After experiencing difficulty with both his neck and his
low-back that became evident with the hours of sitting required of a taxi
driver, he purchased an ObusForme to help his seated posture. He found that
getting in and out of the cab regularly when he would stand-up and stretch eased
his neck and back pain.

[60]        
Dr. McKenzie’s independent assessment confirmed the neck injury though
the doctor was somewhat guarded in his ongoing opinion. However, regarding Mr. Baker’s
low-back pain, the doctor concluded the pain was due to de-conditioning and not
because of the car accident. I am driven to an opposite conclusion for it seems
equally sensible, if not more sensible, that Mr. Baker’s de-conditioning
was because of the car accident.

[61]        
Mr. Baker was an enthusiastic camper and fisherman and enjoyed
taking his wife to the Kamloops area to camp and fish. As well, he was a
“handyman” and in demand to fix mowers, clippers and other household items. Also,
he ran a garbage detail for the trailer park where he and his wife lived. His
neck and back injuries have affected all these activities.

[62]        
Another important issue is his wife’s health. Unfortunately, her Chronic
Obstructive Pulmonary Disease worsened and resulted in Mr. Baker stopping
work in August 2012 so he could care for his wife. In the six months preceding
the accident, Mr. Baker evidently began to reduce his hours of work, and
even when he returned to work in July 2011, he did not increase his work hours.
In August 2012, he stopped working to care for his wife’s worsening condition.

[63]        
I also note his evidence that his neck and back-pain had lessened once
he stopped driving the taxi. Mr. Baker was not optimistic about his wife’s
longevity and said he planned to return to work in a limited capacity for
several more years. On examination for discovery, he conceded he planned to
retire earlier on his wife’s sixty-seventh birthday.

[64]        
A fair conclusion is that Mr. Baker is a “old-school” man: he is
robustly built and of few words; he does not complain, and indeed, he rarely
saw a doctor before the accident and then only to get his health check as the
taxi company requires.

[65]        
He also has not seen his family doctor about his injuries for some two
years. Dr. Jones, his family doctor, wrote his letter of opinion in
December 2011, some eight months after the accident. Both Dr. Jones and Dr. McKenzie
were guarded about the long-term prognosis for complete recovery of Mr. Baker’s
soft-tissue injuries. I conclude they were guarded due to Mr. Baker’s age
and the likelihood that patients in their sixties are not going to recover from
soft-tissue injuries as they might have in their earlier decades.

[66]        
Mr. Baker’s evidence regarding his current difficulties – e.g., maneuvering
his 12 foot aluminum fishing boat onto the top of his truck – make it clear he
needs assistance for that. Presently, his ability to enjoy his activities is
affected by his obligations to his wife. However, that responsibility is also a
factor in being available for his odd jobs or as I would call it, Mr. Fix-it,
but he says he is not as able as he once was.

Damage awards

Non-pecuniary damages

[67]        
Counsel provided a number of cases, and of course, none are precisely
alike. But I do find the defendant’s cases more on point or more similar to Mr. Baker’s
situation. On the other hand, Mr. Baker’s leisure activities in his
retirement are being substantially affected. I accordingly award him $30,000
general damages.

Past wage-loss

[68]        
Defence counsel put forward a calculation based on the evidence while
plaintiff’s counsel “ball-parked” the potential loss.

[69]        
Defence counsel’s calculations highlighted that from October 2010, Mr. Baker
evidently reduced his work-week from three days to two days.

[70]        
Mr. Baker resumed work in August 2011 but did not work a great deal
until December 2011. And he apparently then worked on a two-day a week basis
through to June 2012 and then stopped working at the end of July 2012.

[71]        
While I accept the numeric argument defence counsel made, I will make
some allowance for the months from August through to December 2011 as also
being affected by Mr. Baker’s injuries, and I round-out the past wage-loss
figure to award $10,500.

Future wage-loss

[72]        
I accept that ambiguity exists regarding the accident’s ongoing effect
on Mr. Baker’s health. Although plaintiff’s counsel regularly used the
word “chronic” to describe Mr. Baker’s condition, I did not read the
medical reports as being chronic in a day-to-day sense. Nor was that Mr. Baker’s
evidence. He indicated his neck and back issues were more in the nature of once
or twice per month albeit he is in a reduced capacity. On the other hand, Mr. Baker
does not appear to be one who was concerned about undertaking any exercise
program to remedy the de-conditioning. Other factors at play are Mr. Baker’s
age and his decreasing days at work pre-accident. His employers unquestionably speak
highly of him, and he is a leader in terms of the driver’s at Cheam Taxi. His
employers will be happy for him to work as much or as little as he sees fit. I
also accept he may not work as much as he might due to the lingering effects of
the neck and low-back discomfort that he has and that would impact his
potential future earning capacity.

[73]        
I have considering the leading authorities counsel put forward, and
having done so, I award $15,000.

Special Expenses

[74]        
These expenses were put forward in the amount of $588.39, and I award
that amount. As to costs, Mr. Baker is entitled to his costs at Scale B.

“The Honourable Mr. Justice Crawford”