IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131217

Docket: M137587

Registry:
New Westminster

Between:

Glen Hanson

Plaintiff

And

Jia Y. Yun and
Lottech Solutions Ltd.

Defendants

Before:
The Honourable Mr. Justice G.P. Weatherill

Reasons for Judgment

I.                
introduction

[1]            
This action arises out of a motor vehicle collision that occurred on
Friday, August 17, 2010 at the Highway 10 and 174th street intersection in
Surrey, BC. Liability and damages are both disputed.

[2]            
The plaintiff says the defendant is 100% liable, and the defendant says
the plaintiff is 100% liable.

[3]            
The plaintiff claims he sustained these injuries because of the
accident:

a.         permanent right shoulder injury (which will
significantly deteriorate             with arthritis in the future), including:

 i.          partial rotator cuff tear;

 ii.         disruption of the anterior glenoid;

 iii.         disruption of the biceps anchor;

 iv.        persistent secondary capsulitis.

b.         soft tissue injury to the neck;

c.         soft tissue injury to the back;

d.         headaches; and

e.         exacerbation of pre-existing
depression and anxiety, both of which are ongoing.

Because of persistent pain in his right shoulder, he became
physically dependent on narcotic medication.

[4]            
The plaintiff’s neck, upper back and headache symptoms settled in approximately
four months. The most significant and far more serious injury was to his right
shoulder, his dominant arm.

[5]            
The plaintiff underwent two surgeries to correct the shoulder injury.
Neither surgery was effective. He also had approximately six cortisone
injections that provided some temporary relief, and he underwent nearly two
years of physiotherapy treatments.

[6]            
He has permanent pain and restricted function in his right shoulder. His
ability to do physical tasks at work and at home is limited, and he relies on
prescription pain medication to manage.

[7]            
A joint book of documents, filed as Exhibit 1, included various
photographs of the accident scene at Tab 1. These photographs clearly depict
the accident scene and were helpful in determining how the accident occurred.

[8]            
The plaintiff is age 43 and since 2005 has been employed as contract
sales representative for Southridge Building Supplies Ltd. in Surrey, BC (“Southridge”).
He is married to Tamara Hanson, and the couple have two boys aged 10 and 6
living with them.

[9]            
The accident happened during the noon hour. The plaintiff was driving
his 2009 Dodge Caravan northbound on 174th street and stopped at the Highway 10
stop sign. The intersection is a T-intersection. He intended to turn left onto the
westbound merge lane at Highway 10. In that area, Highway 10 westbound and
eastbound directions each have two lanes.

[10]        
Traffic in both of Highway 10’s eastbound lanes had stopped for the 176th
street traffic light to the east. Before leaving the stop sign and entering the
intersection, he noted a pickup truck in the eastbound right lane and a Handy DART
bus in the eastbound left lane. These vehicles had stopped on the intersection’s
west side. The intersection, however, was clear.

[11]        
The plaintiff activated his left turn signal, and after waiting, he
proceeded across the two eastbound lanes of Highway 10 in front of the stopped
traffic. The plaintiff estimates he accelerated to 25 – 30 km/h. He was about
to enter the westbound merge lane of Highway 10 when the left front side of his
van was struck by a white Ford driven by the defendant Yun and owned by the
defendant Lottech Solutions Ltd. The plaintiff had no time to take evasive
action.

II.              
witnesses

[12]        
The plaintiff called the following witnesses.

A.             
The Plaintiff

[13]        
He left school in grade 11 to work in the lumber/construction industry.
He has been involved in the lumber sales industry all his life. Growing up his
step father owned an interior finishing and cabinetry business, and he learned
the trade through him.

[14]        
Before the accident, the plaintiff would typically arrive at work at 7
a.m. to open the wholesale and retail departments. At 9 a.m., he moved to
outside sales where he assisted new and existing clients obtain construction
materials. He described his job as a physically demanding requiring him to periodically
drop off lumber, hardwood, plywood and other supplies at job sites. In this
capacity, he worked between 40 – 50 hours per week and was paid $5,000 per
month.

[15]        
Additionally, for the spring, summer and fall seasons he worked
approximately 15 – 20 hours per month overtime operating a forklift for Southridge.
He would arrive between 4:30 – 5 a.m. and work in the yard until 7 a.m. running
the fork lift, putting together lumber orders and loading trucks. He described
this work as physically demanding also.

[16]        
While working the additional hours at Southridge, he was paid
time-and-a-half that worked out to about $42 per hour. He estimated that he
earned between $3,000 and $5,000 per year working overtime. Sometimes he took
time off in lieu of pay.

[17]        
Before the accident, the plaintiff also did renovation type work for
friends and acquaintances on weekends earning a few thousand dollars per year.

[18]        
In 2006, he broke his left wrist while operating a fork lift. Rather
than go on WCB, his employer brought him into the sales desk where he learned to
be a salesman. In 2008, he was promoted to contract sales.

[19]        
Following the accident, he attempted to return to his contract sales
position. It was too difficult for him and he lasted only a day. He was off
work on long term disability until February 1, 2012 when he returned to work

[20]        
He testified that because of being off work he has lost his momentum in cultivating
customers. Consequently, his income was negatively affected. In effect, the 1.5
years he was off work put him 1.5 years behind in building customer relations
and a new customer base. He described this as having a snowball effect. In
addition to lost income and overtime, he has also missed out on bonuses.

[21]        
Before the accident, his gross sales at Southridge were between $1.6 and
$1.8 million. When he returned in February 2012, his gross sales dropped to
$1.4 million. Had he not been injured and been off work for 17 months, he
estimates with the increase in customers he would be earning between $70,000 –
$75,000 annually.

[22]        
He described his pre-accident health as good. He did have an issue with
his low back that caused his trouble from time to time. Approximately five
years before the accident, he started experiencing low back pain. He explained
that this was because of working in the lumber industry and being physical all
his life. It started with a pulled muscle in his lower back. Although his low
back was sore and he took medication for it,  it did not really impact his work
or other activities. If his back flared up, he took it easy. He did not miss
any work or curtail his activities, and generally did not cut back in anything
other than very physical labour. He purchased a new bed that helped his back considerably.

[23]        
Before the accident, he did not turn down any work due to his low back.

[24]        
After the accident, the plaintiff felt dazed. He does not believe he
lost consciousness. The RCMP attended, and with their assistance, his van’s front
bumper was removed and he drove home. He stayed home for the balance of the day.
As the day progressed, he began to experience pain in his neck, upper back and
right shoulder. He had a bad headache. He tried sleeping but could not. By 4 a.m.,
his shoulder pain was severe enough that he called a taxi to take him to the
Peace Arch Memorial Hospital where the emergency room doctor assessed him. He
was discharged later that morning in his wife’s care.

[25]        
On August 30, 2010, he saw Dr. Petrovic, his family doctor. At that
time, his symptoms were in his neck, upper back and right shoulder. He also had
pounding headaches.

[26]        
His neck and upper back symptoms soon settled, but his right shoulder
pain did not. Dr. Petrovic referred him to an orthopaedic surgeon, Dr. Smit,
for an assessment.

[27]        
Dr. Smit performed various cortisone injections into his right shoulder
to attempt to relieve and control the pain. Dr. Smit also performed two surgeries
on his right shoulder, February 5, 2011 and October 29, 2011. The first surgery
was to investigate the right shoulder problem. It revealed an avulsed glenoid rim,
an extensively disrupted anterosuperior labrum, a type I SLAP lesion, and a partial-thickness
tear of the rotator cuff. Dr. Smit debrided the rotator cuff and labrum and
performed a subacromial decompression.

[28]        
The surgery did not cure the problem and the plaintiff was in a sling for
most of 2011.

[29]        
The second surgery was more invasive than the first. It involved cutting
tendons and clipping them to the bone. It helped somewhat and managed to get
him out of the sling, but again it did not cure the problem.

[30]        
His treatment has included physiotherapy, massage therapy and various
medications including Hydromorphone, Emtec and over the counter medication such
as Advil.

[31]        
He was on anti-depressants and having sleep difficulties before the
accident because of a tough time he was having with his wife’s family. He was
on Prozac, 20 mg, approximately 6 to 12 months before the accident. It did not
affect his work.

[32]        
He said the injuries from the accident impacted his pre-accident
depression. The right shoulder was incapacitating him. For a relatively active
person, it had a significant impact on his emotional health. He had severe
bouts of depression that have improved with an increased use of Prozac, but
they still plague him.

[33]        
His work duties aggravate his shoulder on a daily basis. The pain is a constant
throbbing type pain. He takes various medications throughout the day to allow
him to function, including Hydromorphone (average of 5 times per day), Emtec-30
(4 – 6 times per day), and ibuprofen as required.

[34]        
After work, he is restricted with what he can do at home. He does not play
with his children to the extent he would like to. He finds that he is short
tempered. In short, he finds life a struggle.

[35]        
The plaintiff lives with his wife and 2 young children aged 10 and 6 in
the lower level of a 2800 sq. foot home. His wife’s grandfather lives in the home’s
upper portion.

[36]        
Before the accident, he did nearly all of the outside yard maintenance
and split the inside chores 50-50.

[37]        
His injuries now restrict the amount of home making activities he can do
to lighter duties. He no longer maintains his yard and hires people to do it for
him.

[38]        
I found the plaintiff to be a straightforward witness who was doing his
best to accurately describe how the accident occurred and how it has impacted
his life. I generally accept his evidence.

B.             
Dr. Sean Petrovic

[39]        
The plaintiff’s family doctor for the past 10 years is Dr. Petrovic. From
a medical perspective, he knows the plaintiff well. Additionally, he has over
24 years’ experience managing medical problems for car accident patients. He
was qualified as a general practitioner without debate.

[40]        
Dr. Petrovic prepared a medical/legal report dated June 19, 2013 that was
filed as part of Exhibit 1. He also testified.

[41]        
He saw the plaintiff shortly after the collision for complaints of neck
pain, right shoulder pain, mid and lower back pain, anxiety and panic attacks. He
referred the plaintiff for physiotherapy and prescribed an anti-inflammatory,
muscle relaxant and pain medications.

[42]        
Over the next several months, all injuries except the right shoulder
settled down. Dr. Petrovic’s impression at the time was that the plaintiff was
suffering from adhesive capsulitis (frozen shoulder) and a right AC joint
strain. An MRI Arthrogram confirmed a right rotator cuff tear.

[43]        
The plaintiff continued to complain of right shoulder issues. In
December 2010, Dr. Petrovic referred the plaintiff to Dr. Smit, an orthopedic
surgeon, for an assessment and treatment recommendations.

[44]        
Dr. Smit became the physician in charge of the right shoulder issues and
kept Dr. Petrovic updated from time to time with consultation reports.

[45]        
Before the accident, Dr. Petrovic was treating the plaintiff for low
back pain and depression. The low back problem was mechanical in nature and intermittent.
Physical activities would sometimes exacerbate it. From his perspective, in the
years preceding the accident, the low back was mostly asymptomatic. When it did
flare up, he would prescribe Naproxen, Flexeril, Emprocet, Tramadol and
Arthrote to control the pain. During these flare ups, he agreed the plaintiff
did have limitations with heavy lifting, heavier homemaking chores and the like.
He did not consider the back issue to be significant enough to warrant a
referral to a specialist.

[46]        
In August 2010 shortly before the accident, the plaintiff had such a low
back flare up. He testified that he fully expected this flare up to resolve as
it had in the past.

[47]        
The plaintiff’s pre-accident depression was brought on by
personal/family issues a year or two before the accident. He could not recall
the details. He prescribed 20 mg Prozac that seemed to be controlling the issue
nicely. The plaintiff’s mood was stable, and he showed no signs of anxiety.

[48]        
Following the accident, the plaintiff’s anxiety and depression issues
were worse. Dr. Petrovic treated it by doubling the Prozac dose (now 40 mg) and
supplementing Prozac with Wellbrutrin, another anti-depressant. Since then, his
depression has stabilized, but is not cured. His plan is to keep the plaintiff
on the current dose of anti-depressants until spring 2014 and gradually start
the weaning process. He hopes, but by no means is assured, that by summer 2014,
the plaintiff will be off the anti-depressants completely. If during the
weaning process, it becomes evident that anti-depressants are still needed, he
will keep him on medications for another year and try again. If, after the
second attempt the plaintiff remains depressed, he will likely require the
medications permanently.

[49]        
He agreed that the plaintiff can continue working at his present job for
at least the next 10 years. By then, the shoulder will quite likely have
degenerated to the point that the plaintiff will have to consider retirement.

[50]        
His diagnosis was that the plaintiff suffered multiple severe injuries
to his right shoulder including a tear to the glenoid’s articular surface, a
tear of the biceps tendon anchor, a right rotator cuff partial thickness tear, and
adhesive capsulitis. He agreed with Dr. Smit’s prognosis that the injury was
permanent with a high probability of future degenerative osteoarthritis caused
by the injury and subsequent surgeries. He states:

it is my medical opinion that
the patient’s right shoulder injuries significantly impair his employability,
activities of daily living, and recreational activities, both presently and in
the future. …He currently remains symptomatic with ongoing right shoulder pain
that is aggravated with his work and he is managing with pain medications. It
is probable that he may require early retirement at some point in the future as
his arthritis progresses.

He was
cross-examined on this point:

Mr. Chadwick  You commented on the early retirement of Mr.
Hanson

Dr. Petrovic     It’s possible

Mr. Chadwick  And that is really speculation I would say

Dr. Petrovic     It’s
something that is a little bit uncertain because it will have to be followed
over time depending on how much ongoing disability he has from his injury –
arthritis – these things are guessable they are not completely predictable

Mr. Chadwick  If
I can summarize that in a way, it is something you cannot accurately predict at
this time.

Dr. Petrovic     I
can accurately predict that there will be some permanent level of impairment to
his right shoulder and that he is right hand dominant and that he will have
significant impairments regarding activities of daily living and probably
employability. Whether his employer can accommodate those restrictions on an
ongoing basis is uncertain

Mr. Chadwick  I
am thinking directly of the statement of early retirement – at this point you
can’t say whether that will be necessary

Dr. Petrovic     I would say it is a probability

Mr. Chadwick  It’s a possibility

Dr. Petrovic     Probability.
Part of the uncertainly is actually that there may be flare-ups of lower back
problems – he may actually have flare-ups of his shoulder. He may go one to
develop a frozen shoulder where he is completely immobilized and he is unable
to move his arm – so all these things are not completely predictable.

Mr. Chadwick  And
what your stating here in terms of the future are things that may happen
depending on certain clinical courses and they may not happen.

Dr. Petrovic     But
in terms of percentage, I think it’s probable it will be impaired enough to
actually to have a forced retirement at an early age.

Mr. Chadwick  You
have no way of predicting when that might actually happen.

Dr. Petrovic     No.

Mr. Chadwick  You
have already said that at least for the next 10 years you will not predict that
to happen.

Dr. Petrovic     No I think probably –
degenerative arthritis takes probably about 10 to 20 years to develop so we are
going 10 years to actually predict what exactly what level of disability he
will have. I know he will have some permanent disability from it but exactly
how much is difficult to determine.

[51]        
Dr. Petrovic was an unbiased witness, and I accept his opinions
regarding both the plaintiff’s pre and post-accident medical issues and his
prognosis for the future.

C.             
Dr. Arno Smit

[52]        
Dr. Smit is an orthopaedic surgeon. He first saw the plaintiff in early December
2010 and has been following the plaintiff’s progress since that time.

[53]        
His initial impression was that the plaintiff suffered an osteochondral
injury to the right glenoid because of the accident. He was left him with
marked loss of shoulder function. The initial plan was to try cortisone
injections, but the injections proved unsuccessful. The shoulder range of
motion remained unchanged.

[54]        
On February 5, 2011, he performed arthroscopic surgery that revealed
damage to the labrum and rotator cuff. He described what he saw:

The anterior labrum was markedly
disrupted … Extensive synovitis and fraying was present … This extended into
the biceps anchor … Extensive fraying and tearing was present of the
undersurface of the supraspinatus tendon.

[55]        
The surgery proved marginally beneficial. The plaintiff continued to
have restricted range of movement and over time, his pain level increased. He
continued to try to settle the pain with injections, without much success. A
second opinion was sought from Dr. Regan, a noted shoulder specialist.

[56]        
On October 29, 2011, Dr. Smit performed a second surgery on the right
shoulder under general anesthesia. This surgery is known as an arthroscopic
biceps tenotomy and extra-articular tenodesis. Simply put, the bicep tendon was
cut and re-attached to the shoulder. While the surgery helped reduce the pain
and increase function, it did not cure the problem. It did, however, result in
the plaintiff not requiring the right arm sling he used before the surgery. Dr.
Smit placed the plaintiff on a narcotic pain medication (Hydromorphone) to help
him tolerate the pain. Unfortunately, the plaintiff has become addicted to this
medication. He has been left with limited shoulder function and persistent pain
with physical dependency on narcotic medication.

[57]        
Subsequent treatment included further cortisone injections into the
shoulder that seemed to help to some degree. For the plaintiff to continue
functioning, Dr. Smit recommends ongoing monitoring and assessment in a
multi-disciplinary setting.

[58]        
His diagnosis is persistent capsulitis of the right shoulder, irreversible
injury to the glenoid’s articular surface, disruption of the biceps anchor, and
a partial-thickness rotator cuff tear. Given the damage, his prognosis includes
premature osteoarthritis in the shoulder slowly progressing to severe
degenerative changes in the next 10 – 20 years. He expects the plaintiff will
require shoulder replacement at some future point. He said:

The patient is currently only in
his early 40s, the likelihood of him having developed significant or end-stage
(bone on bone) posttraumatic osteoarthritis of the right shoulder in his 50s or
early 60s should be considered markedly increased, perhaps as high as 60-80%,
as opposed to less than 1% as a baseline risk.

[59]        
With replacement surgery, he expects the plaintiff to be off work
approximately four to six months.

[60]        
Dr. Smit presented as an unbiased and helpful witness, and I accept his
opinions regarding the cause of the plaintiff’s shoulder injury, prognosis for
the future and rehabilitation requirements.

D.             
Dr. Gabriel Hirsch

[61]        
Dr. Hirsch is a physiatrist specializing in physical medicine and
rehabilitation and was qualified as such without debate.

[62]        
Plaintiff’s counsel retained him to provide an opinion on the diagnosis,
prognosis and treatment recommendations for the plaintiff’s shoulder issues. He
produced two reports that were filed in evidence. The first is dated February
3, 2012 and the second August 9, 2013.

[63]        
He testified that the plaintiff has a “dyssynergistic movement pattern” in
his right shoulder. The plaintiff’s shoulder movement is unnatural and abnormal.
He has “winging of the shoulder blade” that is caused by him attempting to
obtain function from his shoulder with the least amount of pain; consequently,
he moves the shoulder abnormally. This abnormal movement has also caused a
myofascial pain disorder in the shoulder region.

[64]        
He was cross examined on the interaction between the plaintiff’s
pre-existing low back condition and the right shoulder problem. He agreed that
the plaintiff would have had challenges with his low back and would have been
restricted to some degree from heavier, repetitive activities at home and work,
when his back flared. He stated that Tridual and T3 would not be medications
prescribed for “minor” symptoms. They are both relatively heavy duty pain
medications.

[65]        
While he agreed that the plaintiff would have had challenges with his
low back before the accident, the plaintiff was nevertheless working and
functioning at a medium level physical job and likewise would have been capable
of working at medium level household tasks. He pointed out that the Functional
Capacity Evaluation (“FCE”) Ms. Zloty conducted disclosed the shoulder
restriction well before the low back restriction kicked in.

[66]        
Dr. Hirsch was generally a helpful witness and presented as an unbiased
expert. However, where his opinions differed from Drs. Smit and Petrovic, I
prefer the latter’s.

E.             
Kamila Zloty

[67]        
Ms. Zloty is an Occupational Therapist and was qualified as an FCE expert
who could make recommendations on future care costs. On February 21, 2013, she
conducted a FCE of the plaintiff. Her report is dated March 19, 2013 and was
filed as an exhibit by consent. She also testified by video link from Brazil.

[68]        
She was cross examined at length, and she presented as being very
knowledgeable and capable with FCEs and assessing function as it relates to
work, home activities and carpentry work. Her evidence and her report were
helpful in understanding the plaintiff’s right arm functional limitations and
future care needs.

[69]        
I accept her opinions on the plaintiff’s functional capacity as it was
in February 2013.

[70]        
She conducted the FCE in the OT Consulting offices. She did not attend
at Southridge. She testified that she has conducted numerous job site assessments
in lumber yard settings and is quite familiar with what the job entails.

[71]        
The assessment was intended to identify any functional limitations the
plaintiff may be having in all aspects of his life, not just at work.

[72]        
The FCE was done using standardized testing developed by OT Consulting
over the years. It disclosed significant restrictions and limitations with the
plaintiff’s ability to use his right arm in all planes of movement as well as
reduced strength. Sustained and repetitive use of the right arm was
particularly troublesome.

[73]        
Despite the plaintiff working full time, she opined that the plaintiff
did not meet his current job’s physical requirements. The fact that he is
currently managing in the job does not mean the situation is durable or long
term. He is taking large doses of medications to perform at work. In her view,
a person should not have to expend all of his or her available energy at work
and have nothing left at home. She testified:

Just because someone is working
doesn’t mean it is durable or long term. We look at a lot of things with
someone’s ability to work – so lots of people work because they have to not
necessarily because it is either safe for them to do or its durable – meaning
long term. Mr. Hanson takes very high dosages of pain medication to be able to
work and at the end of his work day he is not able to do anything else so he
doesn’t do any of the homemaking, he is not able to do any of the yard work –
he’s done at the end of the day. So all he is able to do is work and because he
is working he’s had to give up other activities outside the home so when you’re
looking at someone physical capacity for work you want to be able to comment on
what’s their ability to actually work so at the end of the work day they can go
home and make dinner and play with the kids and maybe mow the lawn and fold the
laundry as well. So it’s one thing to be able to work but if all you can do is
work then at the end of your work day and there is absolutely nothing else you
can do then to me that is an indication of that is too much, you shouldn’t be
100% done at the end of your work day you should have enough left in you that
you can go home and live the rest of your life and that’s the problem. I’m not
saying here that he can’t do his job at all, he’s doing his job and he’s
indicated that he wants to do his job, he’s been there for a long time, his
employer is very supportive, he has a very good work ethic so I think my
recommendations have gone on to try to help him stay at work because work is
very important and so I think that whatever we can do to help him to try to
able to continue to work is in his best interests but where he’s at right now –
he’s sort of on the fence with how long he is going to be able to last and how
is his sort of ability to cope with that pain ongoing long term.

[74]        
I agree with these comments.

[75]        
Her future care recommendations were designed to allow the plaintiff to
continue to function at work and cope at home.

[76]        
The FCE did not disclose a functional problem with the plaintiff’s lower
back.

[77]        
Ms. Zloty was an unbiased and helpful witness, and I accept her
evidence.

F.             
Mike Weismantel

[78]        
Mr. Weismantel was the Handy DART bus driver and witnessed the accident.
The Handy DART bus was about 20 feet long.

[79]        
He was eastbound on Highway 10 in the left hand lane and was stopped on
the west side of the 174th street intersection.

[80]        
He is very familiar with the area.

[81]        
He was referred to some of the scene photographs to establish his
location  west of the intersection. The bus was stopped approximately adjacent
to the end of the yellow painted meridian as photograph 2 shows.

[82]        
To his right was a stopped pickup truck. He estimates that both the
truck and the bus were stopped for about 3 minutes. By reference to the scene
photographs, specifically the bottom photo of page 5 of Exhibit 1(1), he said
the bus was located slightly behind the white vehicle.

[83]        
When he first saw the plaintiff’s van, it was stopped at the 174th stop
sign. The intersection was clear. The van pulled into the intersection and
passed by the bus about 10 feet in front. The van moved in a normal fashion.

[84]        
As the van passed in front, he saw a white Ford pass his bus on the left
by driving on the yellow painted meridian. He described it the Ford as a flash of
white past his driver’s window. His estimated the white car was travelling at
20 – 25 km/h. In other words, he said, the white car passed him rapidly.

[85]        
The Ford and plaintiff’s van collided. The point of impact was 10 feet
or so in front of his bus approximately on the second or third dotted yellow
lines as seen on the top photo of page 5 of Exhibit 1(1). The Ford’s front
struck the van’s left front. The Ford then struck the side of the bus.

[86]        
On October 15, 2010, he gave a statement to an adjuster (Exhibit 1(2)).
He agreed that his recollection of events was better then, but he had no reason
to believe that the statement was incorrect.

[87]        
I found Mr. Weismantel to be a straightforward and credible witness, and
I accept his evidence.

G.            
Jeremy Deane

[88]        
Mr. Deane is the Southridge’s sales and yard manager. Since the
plaintiff started there in 2005, he has been the plaintiff’s direct boss.

[89]        
He described the plaintiff as a hands-on employee who did a great job. His
duties included contract sales, customer service and deliveries. In addition to
the wholesale customers, he also worked the retail counter. He agreed that the
plaintiff’s job description was accurately set out on pages 13 and 14 of Ms. Zloty’s
report (Exhibit 1, Tab 9).

[90]        
Before the accident, the plaintiff did not miss any work due to medical
type issues and had a very good attendance record.

[91]        
The plaintiff’s job was often physical.

[92]        
The plaintiff made an attempt to return to work following the accident, but
he could not manage. He stayed off work until February 2012 when he started a
graduated return to work.

[93]        
The lumber sales job is competitive. It is about cultivating and
maintaining relationships. It took the plaintiff some time to re-establish
himself following his return.

[94]        
He testified that the plaintiff changed after the accident. He is no
longer the same hands-on person he was before the accident. He needs help from
co-workers to handle the heavier aspects of his job. He no longer works on the
retail counter or in the lumber yard. He seems frustrated with his restrictions.

[95]        
Southridge made a number of accommodations to help the plaintiff
re-integrate into the business.

[96]        
He describes the plaintiff as a dedicated and loyal employee with a good
work ethic. The wholesale and retail lumber sales market is ever-changing, and
how well they do is a function of the economy. Currently, he expects the
plaintiff will have job security with Southridge; however that expectation could
change rapidly with the economy. As much as he would like to keep the plaintiff
employed with Southridge, the realities are that nothing is guaranteed.

[97]        
The larger lumber companies have been buying up the smaller ones.
Southridge has been approached but has not made any decisions about selling at
this time.

[98]        
Mr. Deane was a credible witness, and I accept his evidence.

H.             
Dean Hudnuik

[99]        
Mr. Hudnuik is Southridge’s shipper/receiver and yard foreman and has
known the plaintiff for approximately nine years. He is in charge of the lumber
yard and its crew.

[100]     In the two
years before the accident, he frequently interacted with the plaintiff. He
stated the plaintiff would often work extra hours in the yard running a fork
lift and building loads of lumber. This work would take place in the early
morning from spring to fall before the plaintiff’s normal shift started.

[101]     He was
asked to comment on Exhibit 1 Tab 14, the letter from Ms. Cheng of Southridge
stating that the plaintiff worked no more than 15 – 20 hours per month doing
this extra work. Mr. Hudnuik stated the plaintiff worked more hours than that, but
he was unable to provide specifics.

[102]     He
described the operation of a fork lift. The controls always involve use of the
right hand. It is a physical job.

[103]     He was
complementary of the plaintiff as an employee and described him as an asset and
very good at his job.

[104]     Mr.
Hudnuik was a credible witness, and I accept his evidence.

I.                
Linda Zimmerman

[105]     Ms.
Zimmerman has known the plaintiff and his family since approximately 2003. She
testified about construction work the plaintiff had done for her in 2005. He installed
large posts in her yard. They were placed in concrete upon which he built an
arbour. She brought along three photographs of the plaintiff’s handiwork. The
end product looked impressive. She paid him $1,800 for his labour.

[106]     She
observed the plaintiff perform this work and did not see that he was having any
physical difficulties. In particular, she did not see that he was having any
back troubles.

[107]     In
September 2010, she moved to a townhome and later to another home and wanted to
hire the plaintiff to do other work for her. The plaintiff declined.

[108]     I accept
Ms. Zimmerman’s evidence.

J.              
Byron McAvoy

[109]     Mr. McAvoy
is a framing contractor and has been using Southridge as his lumber and
construction materials supplier since approximately 2008. He met the plaintiff
through that connection.

[110]     He saw the
plaintiff at Southridge an average of two to three days per week before the
accident. From time to time, the plaintiff would travel to his worksite to
deliver lumber/materials as required. Before the accident, he did not observe
the plaintiff to be suffering from any difficulties with his back, nor did the
plaintiff ever complain of having back issues.

[111]     Since the
plaintiff returned to work in February 2012, he sees him up to five days per
week. He is the salesman that he deals with. His observations are that the
plaintiff is less physical than he was before he returned to work. He now only
delivers minor construction materials to the job site. If heavier materials
need to be loaded or delivered, the plaintiff arranges for others to do it.

[112]     Mr. McAvoy
presented as a straightforward and credible witness, and I accept his evidence.

K.             
Tamara Hanson

[113]     Mrs.
Hanson has been married to the plaintiff for 9 years. They were separated
between 2007 and 2009. She stated that the couple have a good marriage now. She
had been operating a day care out of her home for approximately 10 years until
her own motor vehicle collision in September 2012. Her injuries from that
collision are still being assessed, and she does not know when she will be able
to resume her business.

[114]     She
described the plaintiff as being hands on, active and outgoing man before the
collision. She stated that he did many activities such as mountain biking,
golfing, swimming, road hockey, rollerblading and carpentry work and did them
passionately and well. She stated that the couple would often socialize with
friends. She recalls that he had occasional lower back issues but it didn’t
really slow him down much. After a day of physical activity, he would sometimes
complain of a sore back at night. When his back was sore, he would control it
with medications. It didn’t stop them from living their lives.

[115]     He was a
worker and he would do whatever he could to find work.

[116]     She
testified that the plaintiff’s pre-accident depression issues were related to
her grandmother. She was living with them and was dying. The plaintiff was
close to her and he found it upsetting. She recalls the depression issues
lasting about one year.

[117]     She
described a different person after the collision. Until he was able to return
to work in February 2012, the plaintiff was a frustrated, angry and miserable
man who seemed to be in pain. He was frustrated that he could not return to
work that he enjoyed. He was miserable because he was stuck at home while she
was running her daycare. He was determined to return to work as soon as he
could.

[118]     He
borrowed money from her grandfather to fund the two private surgeries Dr. Smit performed.
They are repaying him on a monthly basis.

[119]     Despite
these surgeries and despite having returned to work, he continues to have severe
shoulder problems. He is depressed and anxious about the future and about
supporting his family.

[120]     After the
accident, the plaintiff could not maintain the yard although he tried. They
hired a gardener in 2013 to do the basic outside maintenance at a cost of $80 –
$100 per month. She stated that she had receipts from the gardener, but she cannot
find them.

[121]     The couple
split the inside homemaking chores 50/50 until the accident. She then performed
most of them because he was unable to. When she was injured in September 2012,
the plaintiff and her children did more of this work although the plaintiff
continues to have difficulties with tasks involving the right arm.

[122]     Since the
accident, she noticed that his interaction with their children suffered. He
used to roughhouse with them and now cannot. She said that the children are
afraid to touch him for fear of hurting him. As she put it, he no longer a
participant. He is now an observer.

[123]     The
plaintiff was in the courtroom when she testified. She appeared to be trying to
help him as best as she could, but she seemed somewhat guarded and awkward.

[124]     In my
view, having the plaintiff in a personal injury case in the court room -when
asking a witness to describe the plaintiff’s shortcomings, differences and how
the plaintiff’s injuries have negatively impacted him or her – is not the best
practice. First, it is difficult for a witness to talk openly about the
plaintiff in a negative way when the plaintiff is listening, and second, it is
difficult for the plaintiff to listen to those negative comments.

[125]     Nonetheless,
I found Mrs. Hanson to be mostly straightforward in her evidence, and I
generally accept what she said about the differences in the plaintiff since the
accident.

III.            
the defendant’s case

[126]     The defence
only called the defendant, Mr. Yun.

A.             
Jia Yun

[127]     Mr. Yun
lives in Surrey and works as a service technician. When the accident occurred, he
worked for Lottech Solutions Ltd, the co-defendant and owner of the Ford Focus
Mr. Yun was driving.

[128]     On August
27, 2010, he was travelling on Highway 10 in the left eastbound lane. He was
intending on turning left at the 176th street intersection to return to his
office. He was very familiar with the area having driven the road many times
before although he was not aware of 174th street being there.

[129]     He recalls
that traffic was busy up to the 176th street intersection. He stopped behind a
Handy DART bus for about 15 seconds. He was referred to photograph number 3 of
Exhibit 1, tab 1 and agreed that the bus was stopped in approximately the same
position as was marked on it. Specifically, the front of the bus was stopped
adjacent to the end of the yellow painted meridian. He saw an opening to the
left of the bus and decided to pass it. To do so, he drove over the painted
yellow median.

[130]     He
acknowledged that as he passed the bus, he did not have a clear view of the 174th
street intersection.

[131]     He
estimated his speed was between 10 – 20 km/h as he passed the bus.

[132]     As he was
beside the bus, he saw the plaintiff’s van. He had no time to react before
impact. He agreed that the impact occurred in the westbound merge lane of
Highway 10.

[133]     The impact’s
force pushed the rear of his car into the left side of the bus. The air bags
deployed. His vehicle was severely damaged and rendered a total loss.

[134]     On cross
examination, he agreed that he did not know what direction or speed the
plaintiff’s car was travelling.

IV.           
analysis

A.             
Liability

[135]    
The Motor Vehicle Act, R.S.B.C. 1996, c. 318 [“Act”] sets
out the rules of the road for drivers. These rules are regarded as guidelines
for assessing fault in motor vehicle collisions. In Salaam v. Abramovic,
2010 BCCA 212, the Court said:

[21]      In the end, a court
must determine whether, and to what extent, each of the players in an accident
met their common law duties of care to other users of the road. In making that
determination, a court will be informed by the rules of the road, but those
rules do not eliminate the need to consider the reasonableness of the actions
of the parties. This is both because the rules of the road cannot
comprehensively cover all possible scenarios, and because users of the road are
expected to exercise reasonable care, even when others have failed to respect
their right of way. While s. 175 of the Motor Vehicle Act and other
rules of the road are important in determining whether the standard of care was
met, they are not the exclusive measures of that standard.

[136]    
The Act’s relevant sections are:

Definitions

119(1) "traffic control device" means a
sign, signal, line, meter, marking, space, barrier or device, not
inconsistent with this Part, placed or erected by authority of the minister
responsible for the administration of the Transportation Act

[Emphasis added.]

Careless driving prohibited

144 (1) A person must not drive a motor vehicle on a highway

(a) without due care and attention,

(b) without reasonable
consideration for other persons using the highway, or

(c) at a speed that is excessive
relative to the road, traffic, visibility or weather conditions.

Driving on laned roadway

151 A driver who is driving a vehicle on a laned roadway

(a) must not drive it from one lane
to another when a broken line only exists between the lanes, unless the driver
has ascertained that movement can be made with safety and will in no way affect
the travel of another vehicle,

(b) must not drive it from one lane
to another if that action necessitates crossing a solid line,

(f) must not pass a vehicle on the
left if that action necessitates driving on that part of the highway designated
for travel in the opposite direction, and

Passing on left

159 A driver of a vehicle must not drive to the left side of
the roadway in overtaking and passing another vehicle unless the driver can do
so in safety.

Clear view on passing

160 A driver of a vehicle must not drive to or on the left
side of the roadway, other than on a one way highway, unless the driver has a
clear view of the roadway for a safe distance, having regard for all the
circumstances.

Obedience to traffic control devices

161 Despite anything in this Act, if on or over a highway
there is

(a) one or more traffic control
devices indicating the direction vehicles must proceed, a person must not drive
a vehicle other than in the direction indicated,

(b) a traffic control device indicating
that a certain vehicle movement is prohibited, a person must not drive a
vehicle in a movement prohibited by the sign,

Entering through highway

175 (1) If a vehicle that is about to enter a through highway
has stopped in compliance with section 186,

(a) the driver of the vehicle must
yield the right of way to traffic that has entered the intersection on the
through highway or is approaching so closely on it that it constitutes an
immediate hazard, and

(b) having yielded, the driver may
proceed with caution.

(2) If a vehicle is entering a through highway in compliance
with subsection (1), traffic approaching the intersection on the highway must
yield the right of way to the entering vehicle while it is proceeding into or
across the highway.

Stopping at intersections

186 Except when a peace officer
directs otherwise, if there is a stop sign at an intersection, a driver of a
vehicle must stop

[137]    
In Cempel v. Harrison Hot Springs Hotel Ltd, [1997] B.C.J. No.
2853, the notion of “blameworthiness” was discussed. Lambert J.A., for the
majority, said at para. 19:

19        The Negligence Act
requires that the apportionment must be made on the basis of "the degree
to which each person was at fault". It does not say that the apportionment
should be on the basis of the degree to which each person’s fault caused the damage.
So we are not assessing degrees of causation, we are assessing degrees of fault.
In this context, "fault" means blameworthiness. So it is a gauge of
the amount by which each proximate and effective causative agent fell short of
the standard of care that was required of that person in all the circumstances.

[138]     He also
said at para. 24:

24        In the apportionment
of fault there must be an assessment of the degree of the risk created by each
of the parties, including a consideration of the effect and potential effect of
occurrences within the risk, and including any increment in the risk brought
about by their conduct after the initial risk was created. The fault should
then be apportioned on the basis of the nature and extent of the departure from
the respective standards of care of each of the parties.

[139]    
In Alberta Wheat Pool v. Northwest Pile Driving Ltd, [2000] BCCA
505, the Court also discussed the notion of blameworthiness:

46.       Fault or
blameworthiness evaluates the parties’ conduct in the circumstances, and the
extent or degree to which it may be said to depart from the standard of
reasonable care. Fault may vary from extremely careless conduct, by which the
party shows a reckless indifference or disregard for the safety of person or
property, whether his own or others, down to a momentary or minor lapse of care
in conduct which, nevertheless, carries with it the risk of foreseeable harm.”

[140]     Counsel
referred me to decisions concerning liability for accidents that occurred in
similar circumstances.

[141]     In Johel
v. Insurance Corporation of British Columbia, 2012 BCSC 166, Bernard J.
made three pertinent points regarding driver’s liability when entering an
intersection. First, the Motor Vehicle Act, does not eliminate the need
to consider the reasonableness of the parties’ actions in the accident. Second,
drivers become dominant drivers if they can enter an intersection and exit
before causing an immediate hazard to other vehicles. In other words, the dominant
driver is the first driver who safely enters the intersection and gains the
right of way. Third, dominant drivers must not exercise their right of way if
the result will be a collision that was reasonably foreseeable and reasonably
avoidable.

[142]    
In that case the Court quoted the decision of McEachern C.J.B.C. in Ferguson
v. All-Can Express Ltd. et al, 2001 BCCA 57. In that case, the plaintiff
was passing a large truck and trailer when the defendant entered the highway
from a road on the left into the passing vehicle’s path. Both parties had no
opportunity to see each other or avoid the collision. In finding the driver who
pulled out onto the highway into the passing vehicle’s path 100% at fault, the Court
held:

[23]      As I see it in this case, the plaintiff was clearly
in the position of the dominant driver. The defendant was the serviant driver.
The plaintiff could only be found to have not used reasonable care if he should
have become aware of the defendant’s failure to comply with the obligation cast
by law upon him and if the plaintiff had sufficient opportunity to avoid the
accident of which a reasonable, careful and skillful driver would have availed
himself.

[24]      As I see it there was no opportunity for the
plaintiff to avoid this accident. As he was engaged in a lawful maneuver I
cannot agree with the learned trial judge, with respect, when she found an
apportionment of liability should be made against the plaintiff.

[25]      In my judgment this
accident was caused solely by the failure of the defendant to comply with the
statutory requirements and with the common law that imposed upon him an
obligation not to put him in the position where an accident of this kind would
be inevitable once he entered upon the highway without making sure he could do
so without safety.

[143]    
In Aberdeen v. Langley (Township), 2007 BCSC 993, Groves J. said
the following regarding liability at paras. 66-67:

67        … the key inquiry in
assessing comparative blameworthiness is the relative degree by which each of
the parties departed from the standard of care to be expected in all of the
circumstances. This inquiry is informed by numerous factors, including the
nature of the departure from that standard of care, its magnitude, and the
gravity of the risk thereby created.

[144]     In Richards
v. Parker, 2003 BCSC 758, Burnyeat J. made two pertinent points regarding
driver’s liability when entering t-intersection. First, if the line in the road
is broken, a driver in a two-lane road can drive in the oncoming traffic lane
to pass a vehicle if that driver can clearly see oncoming traffic and can
safely do so. While this manoeuvre will likely violate the Motor Vehicle Act,
unless the violation causes or contributes to the accident, it will not be
negligent. Second, a driver on a two-lane road can pass a car in the left passing
lane at an unmarked t-intersection if that driver can clearly see oncoming
traffic.

[145]     The
evidence regarding what caused the accident in this case has been summarized
above. It is straightforward.

[146]     I find that
the evidence establishes the following facts:

a.       Highway
10 generally runs east/west and intersects 174th street at a “T”
intersection;

b.       Southridge’s
business premises are located on a dead end road that fronts Highway 10 between
174th and 176th streets. The plaintiff was working at Southridge the morning of
August 17, 2010 and had booked off work at noon. He intended to drive home and
then to Abbottsford;

c.       To
drive home, the plaintiff typically turns left from 174th street onto Highway
10 heading west. He has travelled that direction since starting at Southridge
in 2005;

d.       Eastbound
traffic on Highway 10 was backed up from the traffic light that had turned red
at 176th street and had stopped on both sides of the intersection. Vehicles in
both eastbound lanes, a pickup truck and a Handy DART bus, had stopped to the
west of the intersection of 174th street and the intersection was clear;

e.       The
plaintiff signalled his intention to turn left and after being stopped for at
least 30 seconds, he proceeded into the intersection accelerating to
approximately 25 kph. The intersection remained clear; he was making a routine
left turn from the stop sign at 174th to Highway 10 westbound in a clear
intersection driving in a normal fashion;

f.        As his
vehicle passed the front of the Handy DART bus, the defendant’s vehicle struck
it;

g.       The
defendant was travelling in the eastbound fast lane and stopped behind the
Handy DART bus. His intended to enter the left turn lane that commenced on the
eastside of the 174th street intersection and turn left onto 176th street.

h.       A
yellow painted meridian divides the westbound merge lane and the left hand
eastbound lane in that area;

i.        After
stopping behind the Handy DART bus for approximately 15 seconds, the defendant passed
the Handy DART on the left by driving over the meridian. As he made this
maneuver, he could not see around the bus and any vehicles that may have been
in the intersection;

j.        The
defendant’s speed was between 20 – 25 km/h;

k.       The
defendant’s vehicle collided with the plaintiff’s van in the area where the
westbound merge lane begins;

[147]     This case
is distinguishable from Richards v. Parker. In this case, unlike in Richards,
there was no lane of travel to the left of the Handy DART.

[148]     The Act
does not specifically refer to painted meridians. S. 119, however, defines a
“traffic control device” as “a sign, signal, line, meter, marking.

[149]     I find
that the yellow painted meridian over which the defendant drove is a line or
marking and is therefore a traffic control device as the Act defines.
Meridians such as this one are painted on roadways to prohibit vehicles from
driving over them in order to avoid unsafe manoeuvers precisely like what
occurred in this case.

[150]     The
defendant should have recognized that the vehicles stopped at 174th street were
stopped for a reason, and he also should have recognized that a vehicle could
have been crossing the intersection in front of the stopped vehicles.

[151]     I find
that defendant was in a hurry and not prepared to wait his turn behind the bus.
He gambled that he could pass the bus on the left, drive over the meridian
through the intersection and into the left turn lane on the far side.

[152]     This
gamble did not pay off.

[153]     I find
that that plaintiff was the dominant driver. As such, the defendant was
required to yield to him.

[154]     The
defendant’s decision to pass the Handy DART bus on the left by driving over the
meridian without ensuring the intersection was clear was a momentary lapse of
care in conduct. It violated a number of provisions of the Act,
including ss. 144(1)(a), 151(a)(d), s. 159 and 160. Paraphrasing from McEachern
C.J.B.C. in Ferguson, this accident was caused solely by the defendant’s
failure to comply with the statutory requirements and with the common law that obligated
him to not create a situation where an accident of this kind would be
inevitable once he passed the bus by driving on the meridian without making
sure he could do so safely.

[155]     Whether
looked at in terms of who was the dominant driver and who was the servient
driver, or in terms of blameworthiness for the accident, the conclusion is the
same.

[156]     The
defendant is 100% at fault.

B.             
Damages

1.              
Non-Pecuniary Damages

[157]     General
damages provide solace.

[158]     Thus,
non-pecuniary damage awards should not solely depend upon the injury’s seriousness
but also upon its ability to ameliorate the victim’s condition considering his
or her particular situation. Consequently, the gravity of the injury alone is
not determinative. An appreciation of the individual’s loss is the key and the “need
for solace will not necessarily correlate with the seriousness of the injury” (Kenneth
D. Cooper-Stephenson and Iwan B. Saunders, Personal Injury Damages in Canada,
2nd ed. (Toronto: Carswell,1981) at 373).

[159]     In Shallow
v. Dyksterhuis, 2013 BCSC 1761, Kelleher J. said the following regarding
general damages at para. 85:

85        In Stapley v. Hejslet, 2006 BCCA 34, the
British Columbia Court of Appeal reviewed the factors to be generally
considered in awarding non-pecuniary damages at para. 46:

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

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss of 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 (QL), 2005 BCCA 54).

[160]     Counsel
provided a series of cases helpful where the quantum of general damages
involving plaintiffs with similar injuries was discussed.

[161]     In Wong
v. Hemmings, 2012 BCSC 907, Fitch J. awarded general damages of $100,000 to
a 36 year old food and beverage server who suffered left shoulder and left knee
injuries in two motor vehicle accidents. She had shoulder surgery that only
partially resolved her pain. While she continued to work as a server, she never
fully recovered and continued to experience chronic pain.

[162]     In Beagle
v. Cornelson Estate, 2012 BCSC 1934, Barrow J. awarded general damages of
$90,000 to a 48 year old cabinet installer who suffered intermittent neck pain
and chronic, significant low back pain in a motor vehicle accident. While the
plaintiff returned to work, he did so with difficulty. However, he was a stoic man
who worked hard at overcoming his pain.

[163]     In Kralik
v. Mt. Seymour Resorts Ltd., 2007 BCSC 258, Bennett J. awarded general
damages of $75,000 to a house painter who fractured his shoulder and tore his rotator
cuff while mounting a chairlift. He had shoulder surgery, but his pain
continued, and his cervical spine degenerated due to muscle spasms. He did
return to work for a short period, but due to ongoing pain in his arm, neck,
and back, he could not continue working. The Court of Appeal reduced his loss
of earning capacity award from $300,000 to $75,000, but it did not alter the
general damages award.

[164]     In Dycke
v. Nanaimo Paving and Seal Coating Ltd., 2007 BCSC 455, Warren J. awarded
general damages of $125,000 to a 33 year old bank branch manager who suffered
whiplash type injuries to her neck and shoulder in a motor vehicle accident.
She had two shoulder surgeries, but she continued to have neck and shoulder
pain; she likely would have permanent ongoing shoulder pain. While she did
return to work, she had to take days off due to pain and treatment.

[165]     In John
v. Landry, 2006 BCSC 1767, Wilson J. awarded general damages of $70,000 to
a retired 61 year old schoolteacher who dislocated and fractured his shoulder;
tore his rotator cuff; and dislocated the long head of his biceps when a car
struck him at a crosswalk. After the accident, his physical activities were
significantly reduced.

[166]     In Soligo
v. Turner, 2002 BCCA 73, the Court of Appeal affirmed a general damages
award of $150,000 to a 27 year old schoolteacher and former elite curler who
was struck by a car’s mirror. She suffered soft tissue injuries to her shoulder
that left her in constant pain and unable to continue curling. She had multiple
shoulder surgeries, but they only slightly reduced her pain.

[167]     In Driscoll
v. Thagard, [1999] B.C.J. No. 283, Ralph J. awarded general damages of
$100,000 to a 53 year old salesperson who suffered headaches, chronic fatigue,
post-traumatic stress disorder, and depression due to two motor vehicle
accidents. She could not return to work and had ongoing physical pain and
physiological injury.

[168]     In Kolberg
v. Gileff 2007 BCSC 1662, the plaintiff suffered injuries to his shoulder,
wrist and head in a motorcycle accident. The most serious injuries were a
fracture to both wrists and a left shoulder injury. His inability to work for 4
months was mainly due to his shoulder injury. It was expected that his symptoms
would continue into the future. General damages were assessed at $75,000.

[169]     The
plaintiff argues that the case law supports an award for general damages in the
$140,000 – $150,000 range. The defendant argues that damages in the $70,000 –
$75,000 range would be more appropriate.

[170]     In this
case, the plaintiff has a permanent and progressively deteriorating injury to
the shoulder of his dominant arm. He is likely to face surgeries in the future
that will have an uncertain outcome. Has chronic pain and is managing to
function through the use of pain medication that he is now addicted to. Having
considered the cases, counsel have referred to, the evidence , the permanent
nature of the plaintiff right shoulder injury and the possibility that it will
deteriorate in the future and require shoulder replacement and considering the
principles that must be considered in awarding of general damages, I award
$120,000 under this head.

2.              
Past Loss of Income and Past Loss of Earning Opportunity

[171]     For years preceding
the collision, the plaintiff worked for Southridge in what was clearly a job
requiring a moderate degree of physical effort. Despite his pre-accident issues
with his low back, he functioned quite well. The few times per year that his
back flared, he simply took it easy and carried on until the back settled.

[172]     As the
evidence demonstrated, the pre-existing low back issue would probably have
limited the types of heavier physical labour type jobs he would have been able
to perform. Nevertheless, he continued to function and work full time, plus
occasional overtime. He did not miss work because of his low back.

[173]     The
shoulder injury resulted in him being off work more or less from the time of
the accident until February 1, 2012. He returned to work full time and he
gradually eased into his old job. By the summer or early fall of 2012, he was
performing his usual duties except the heavy work that others performed.

[174]     Tab 13 of
Exhibit 1 is an income loss summary Southridge prepared. It states that the
plaintiff’s gross income lost to January 15, 2012 is $80,000. The plaintiff
testified that the wage loss amount to February 1, 2012, the date he returned
to work, is $82,500. He stated that this amount does not include his overtime
loss of $3,000 – $5,000 per year.

[175]     During
submissions, counsel for the defendant agreed that the plaintiff has lost
income due to his injuries and agrees that the gross base salary loss is
$82,500. He submits that 20% should be used to calculate his net loss. The plaintiff
does not take issue with this suggestion. Accordingly, I award $66,000 ($82,500
x 80%) as the plaintiff’s net wage loss of his base salary from Southridge.

[176]     In
addition to this loss of base salary, the plaintiff claims a gross loss of
$21,963 for loss of his overtime work in the Southridge yard, lost bonuses of
$1,400 and lost weekend carpentry work of $6,000.

[177]     Because of
being off work, he lost much of the momentum he had been building up with
attracting new customers and servicing existing clients. Southridge hired two
equipment operators to take over the fork lift duties in the yard. When he
returned to work, another salesman had taken over his office.

[178]     I am
satisfied that the plaintiff did lose out on the overtime he would have worked
but for his injuries. Mr. Deane confirmed that the plaintiff worked 15 – 20
hours of overtime per month and that the letter from his payroll clerk (Exhibit
1, Tab 14) was accurate. The plaintiff was enthusiastic about working these
overtime hours. Had the plaintiff not been injured, Mr. Deane expects that the
plaintiff would have continued to work them.

[179]     The
plaintiff claims $21,964.60 in lost overtime based on the following
calculation:

9 mos/yr x 3 yrs
(2011, 2012, 2013) x 17.5 hrs/mo. x $43.28 = $20,449.80

plus overtime
for September and October, 2010 of $1,514.80.

While I am satisfied that the plaintiff did lose out on
overtime because of the accident, I am not satisfied that the lost overtime can
be precisely calculated. In my view, since the number of hours of overtime he
would have worked each year is uncertain, an assessment of the plaintiff’s lost
overtime is more appropriate. I assess his lost overtime, net of taxes, at $14,000.

[180]     Bonuses
for Southridge salesmen are typically based on performance. The plaintiff testified
that he lost annual bonuses because of his injuries. Mr. Deane confirmed this
assertion, but he was unable to provide the amount. I am satisfied that his
injuries and extended time off from work resulted in reducing his 2012 sales
performance which in turn resulted in reduced or no bonuses. The plaintiff
submits that the lost bonuses were $450.00 for 2010, $750.00 for 2011 and
$250.00 for 2012 for a total of $1,450.00. I accept that the evidence supports
this claim and I award $1,450.00 for loss of bonuses.

[181]     The plaintiff
must prove on a balance of probabilities that he has suffered a loss of
renovation or construction work during the weekends for friends and
acquaintances. The plaintiff’s evidence was that he would perform this work on
weekends from time to time. Ms. Zimmerman provided one example of work he had
done a number of years prior to the accident. She stated she attempted to hire
the plaintiff to do some handiwork after the accident but he could not do it. She
did not provide evidence of what she would have paid him.

[182]     The
plaintiff presented no persuasive evidence to demonstrate he suffered a loss,
so I will not make award for loss of income from renovation work.

[183]     In summary,
the plaintiff should be awarded $81,450 for past wage loss, net of taxes, as
follows:

1.       Past
loss of wages                                                  $66,000

2.       Loss of
overtime                                                     $14,000

3.       Loss of
bonuses                                                        $1,450

3.       Loss of
construction work nil

TOTAL Net Past
Wage Loss                                              $81,450

3.              
Loss of Future Earning Capacity – Future Loss of Income

[184]     The plaintiff
must prove on a balance of probabilities that there is a real and substantial
risk that not only has he suffered a reduced capacity to earn income in the
future but also that the reduction will result in lost future income. It cannot
be mere speculation (Rosvold v. Dunlop, 2001 BCCA 1; Perren v.
Lalari, 2010 BCCA 140).

[185]     The
plaintiff seeks an award of $180,000 (roughly three year’s salary) under this
head.

[186]     The
defendant says no award should be made. He says that the plaintiff has returned
to the same job he was doing before the accident, he has re-gained his
momentum, received a raise since returning and is able to perform his duties
quite capably. He argues that Southridge is very happy with the plaintiff, and
he is happy with Southridge. In fact, the plaintiff testified that he is
hopeful that he can work at Southridge until retirement.

[187]     However, the
evidence satisfies me that the plaintiff, already restricted to some extent by
his unrelated low back issue, has been compromised by his right shoulder injury.
It is a significant problem for him. Dr. Petrovic’s evidence is that he will
probably have to retire early. He now has far fewer options if he were to lose
his existing job for any reason. He is a relatively young man with a grade 11
education who has worked all his life in the lumber/construction industry.

[188]    
The FCE Ms. Zloty conducted disclosed significant functional limitation
with the plaintiff’s right shoulder. At p. 11 of her report, she states:

Over the assessment, Mr. Hanson demonstrated marked
difficulties to reaching with the right arm….

His tolerance is such that he
would be unable to replicated the demands of this assessment on a consecutive
or reliable basis. He would qualify for both full and part-time work at present
provided he is restricted from the activities which exacerbate his symptoms

And at p. 14:

He clearly does not meet the
requirements of his current occupation, and despite having made postural
accommodations at his desk and limiting any lifting or carrying involving the
right arm, work regularly aggravates his shoulder pain and limits what activity
he is able to do outside of work. He relies on high dosages of narcotic pain
medication…..

And at p. 15:

Mr. Hanson is currently working
on a full-time basis with difficulty and with reliance on high levels of pain
medication, and any further deterioration in his shoulder function would likely
result in him being unable to continue to work in his current capacity.

And pp. 13 and 14

Additionally, Mr. Hanson reported that for the first 1.5
hours of his work shift, he works at the service counter as a retain sales
clerk. This position is classified by the NOC under the heading Retail
Salespersons and Sales Clerks (NOC #6421). The main characteristics of
this job title include greeting customers to discuss the type, quality and
quantity of merchandise or services sought for purchase; providing quote
prices, warranties and delivery dates; and preparing/locating merchandise for
purchase. As per the NOC, the Physical Activity Factors of this
job titles include standing, walking, and upper limb coordination. This job
title is also considered to be within the light strength category.

Using the description provided
in the NOC, Mr. Hanson does not meet the requirements for upper limb
coordination (i.e., reaching) to work within this job title; he also does not
meet the full light strength requirements. As per his description of this part
of this job, it involves a lot of reaching to print receipts and hand them to
customers as well as retrieving certain products from the warehouse for the
customers. Mr. Hanson has indicated that after this part of his shift, his
shoulder is more tense and aggravated, and he has to take pain medication in
order to continue to work. He also reported that at times, he must retrieve boxes
of nails or screws which weigh an estimated 50 pounds; he indicated that he is
able to lift and carry these boxes with the left arm. He noted that this is
difficult for him to do, but as it is inly required a few times per week, he is
able to manage this task. Assessment findings indicate that while Mr. Hanson is
safe to unilaterally lift and carry 40 pounds, attempts to carry more weight
than this with the left arm resulted in deteriorated body mechanics as well as
pulling sensations across the shoulder. The assessment findings indicate that
this is not a job requirement that Mr. Hanson is safe to be performing, and his
deteriorated body mechanics when handling such loads place him at risk for
injury.

[189]    
Dr. Hirsch commented on the plaintiff’s vocational abilities in his
February 3, 2012 report:

At present, I would view Mr.
Hanson to be physically capable of working in occupations that are of sedentary
and light physical demands with some ongoing limitations in place. It is my
opinion that in the absence of the subject motor vehicle accident, he would
have been able to continue working full-time in his pre-motor vehicle accident
capacity, notwithstanding his chronic low back condition.

[190]    
In his August 9, 2013 report, he states further:

Mr. Hanson has been experiencing
chronic pain in his right shoulder for three years. In view of the described
clinical course, it is my opinion that he will continue to experience right
shoulder pain permanently. It is my opinion that his chronic painful right
shoulder condition will permanently narrow the spectrum of occupations which
would have been available to him in the absence of the right shoulder injury

[191]     Dr.
Hirsch’s comments make perfect sense, and I adopt them.

[192]     The
plaintiff stated that he planned on continuing to work to age 65. He stated
that he was concerned about his job security because lumber sales are a small
niche market and the industry is shrinking. His concern is that the forest
industry has an uncertain future.

[193]     The
permanent injury to his right shoulder caused by the accident is not going to
help his options. The medical evidence is persuasive that the plaintiff’s
shoulder will deteriorate over time. I find that he will continue to have
significant difficulties with his shoulder and that it will affect his
employability in the future. I find as well that there is a real and
substantial possibility that he will require a shoulder replacement sometime
before his expected retirement at age 65. When that will occur cannot be
determined with precision. It could be as late as when he is in his early 60’s.
It could be years sooner.

[194]     I must
also address the issue of his future ability to work the overtime hours he was
used to working before the accident. He has lost overtime since the accident.

[195]     On a
balance of probabilities, I find that there is a real and substantial
possibility that he will suffer a future loss of earnings as a result his
compromised and deteriorating shoulder condition. This loss will occur because
of one or a combination of lost overtime hours, recovery from shoulder
surgeries or shoulder replacement or seeking alternative employment.

[196]    
Having made that finding, I must now access his loss. It is impossible
to know with certainty what the future holds; however Pallos v. ICBC,
[1995] B.C.J. No. 2 (B.C.C.A.) assists in assessing loss. In that case, Finch,
J.A. (as he then was) stated at para. 43:

The cases to which we were
referred suggest various means of assigning a dollar value to the loss of
capacity to earn income. One method is to postulate a minimum annual income
loss for the plaintiff’s remaining years of work, to multiply the annual
projected loss times the number of years remaining, and to calculate a present
value of this sum. Another is to award the plaintiff’s entire annual income for
one or more years. Another is to award the present value of some nominal
percentage loss per annum applied against the plaintiff’s expected annual
income. In the end, all of these methods seem equally arbitrary. It has,
however, often been said that the difficulty of making a fair assessment of
damages cannot relieve the court of its duty to do so.

[197]     Given the
evidence in this case and my findings regarding the permanent and deteriorating
nature of the plaintiff’s right shoulder injury, possible shoulder replacement
surgery, ongoing treatment, education and work history, I award the $130,000
under this head. This amount takes into account the period of time he would
need to be off work if his shoulder is replaced, my assessment of the
likelihood of him being unemployed and having to seek work elsewhere and is
roughly equivalent to 2 years of his current annual earnings.

4.              
Cost of Future Care

[198]     The
plaintiff seeks an award of $100,000 under this head. The defendant suggests that
$30,000 is more appropriate.

[199]     The
plaintiff’s position is based on the present value of Ms. Zloty’s
recommendations. The plaintiff was asked to review the recommendations Ms.
Zloty made in her March 19, 2013 report (Exhibit 1, Tab 9). With the exception
of a long-handled shower brush, he would like to have the benefit of these
recommendations.

[200]    
Dr. Smit provided his opinion on what should occur to assist the
plaintiff in the future. At p. 12 of his report, he states:

Given the patient’s young age
and the responsibilities that he has at work and towards his family, any and
all efforts should be made to allow the patient to continue to function at his
present level. He will require significant ongoing monitoring and assessment,
in a multidisciplinary setting, involving family medicine, physiotherapy,
orthopedic surgery, possibly physiatry, possibly addiction/dependency assessment
by psychiatry or other.

[201]    
Dr. Hirsch reviewed Ms. Zloty’s report and future care recommendations
and felt they were reasonable given the extent of the plaintiff’s injuries. It
was his evidence that he has reviewed and been asked to comment on numerous
cost of future care reports and recommendations over the years. Many, in his
view, were excessive. But given the significance of the plaintiff’s injury, he
opined that Ms. Zloty’s recommendations were quite reasonable and he agreed
with them all. In his August 9, 2013 report he states:

It is my opinion that the
recommended future care needs as outlined by Ms. Zloty in her report of March
19, 2013, are reasonable and attributable to Mr. Hanson’s permanent right
shoulder impairment.

[202]      While I
am aware that the reasonableness of these recommendations is for the Court, not
Dr. Hirsch, to determine, I find that clear medical evidence justifies the
plaintiff’s claim for future care costs, and for the most part, they are
reasonable and will be required by the plaintiff in the future.

[203]     The
recommendations are broken down into the following categories:

a.       Medical/Rehabilitation
Services;

b.       Non-Medical
Services (Home and yard maintenance)

c.       Equipment

d.       Supplies

e.       Future
Considerations

Additionally, the plaintiff argues that other categories
were not included that should have been – such as future psychological
counseling and the costs of a pain clinic as mentioned by Drs. Petrovic and
Smit costing in the order of $4,000 – $8,000.

[204]     In
evidence is the report of Mr. Darren Benning, an economist with PETA
Consultants Ltd. He was asked to provide a present value for the future care
recommendations contained in Ms. Zloty’s report.

[205]     The
following table breaks down the future care costs with Mr. Benning’s valuations
and the parties’ positions regarding them:

a)             
Ergonomic Work Station

[206]     The
plaintiff testified that he already has what he needs at work, including a
chair with adjustable arms. But he did say that a more ergonomic keyboard may
be of assistance.

[207]     The
plaintiff has many years of work ahead of him and even though his current work
station seems to be working for him, over the years as his shoulder
deteriorates a further assessment and changes will likely be required.

[208]     I agree
that this is a reasonable expense and award $700.

b)             
Physiotherapy

[209]     The
defendant argues that the plaintiff is not currently using physiotherapy and
future physiotherapy is contingent on whether he will have additional
surgeries. In my judgment, an award for physiotherapy should be allowed and I award
$7,500.

c)             
Exercise Therapy/Kinesiology

[210]     The
defendant says it is unclear on what Ms. Zloty is basing her recommendation for
exercise therapy sessions and kinesiologist. In my view, as the plaintiff ages
and as his shoulder continues to deteriorate, an exercise therapist and
kinesiologist will be required although I agree that the frequency unknown. I award
$4,000.

d)             
Psychological Counselling

[211]     The
defendant argues that the medical evidence does not demonstrate  psychologist
or psychiatric assistance is required. And if it is, it will be an  assessment
rather than ongoing treatment. Counselling has been suggested to the plaintiff
in the past, and he has not pursued it.

[212]     I agree
with the defendant’s position and make no award under this heading. To the
extent psychiatric counselling will be required and I am not satisfied it will
be, the plaintiff’s medical plan will cover it.

e)             
Home and Yard Maintenance

[213]     The
defendant argues that the plaintiff’s evidence was that he could perform some
basic yard maintenance tasks, but he is unable to perform the heavier work.
Given the plaintiff’s background in the construction industry and his evidence
about the work he did around home, I am satisfied that he will need assistance
in the future for the heavier home and yard maintenance chores. I award $15,000.

f)               
Ice Packs

[214]     The
defendant does not argue that ice packs are not necessary or will not be
necessary in the future, but I am not satisfied that the plaintiff will indeed
use them, and I make no award.

g)             
Medication

[215]     The
defendant argues that the evidence is that the plaintiff will be weaned off the
morphine in the next one to two years. Dr. Petrovic, however, stated that if
this attempt is unsuccessful it is likely that he will be on this medication
permanently. In all the circumstances, I find that there is a substantial risk
that the plaintiff will continue to require Hydromorphone, Emtec, Wellbutrin
and Prozac into the future, but I am not satisfied that he will need it for his
lifetime. If he does continue to require his medication past age 65, when he is
expected to retire, the amount will likely drop off significantly. All things
considered, I award $30,000 for prescription medication.

h)             
Future Considerations

[216]     The
defendant argues that these items are speculative and have not been proven. I
disagree. It is more than likely the items under future considerations for such
things as MRI’s and occupational therapy will be required in the likely event
that shoulder surgery is needed. I award $4,000 under the items for future
considerations.

[217]     In summary
the award for future care cost is

1.       Ergonomic
Workstation                                                $700

2.       Physiotherapy                                                             7,500

3.       Exercise
Therapy/Kinesiology                                      4,000

4.       Home
and Yard Maintenance                                     15,000

5.       Medications                                                              30,000

6.       Future
Considerations                                                 4,000

TOTAL                                                                             $61,200

5.              
Loss of Housekeeping Capacity

[218]     Before the
accident, the plaintiff was responsible for virtually all of the outside yard
maintenance, which included mowing the lawn, weed eating and trimming hedges. He
also split the inside household chores 50/50 with his wife.

[219]     If any
maintenance or renovation type projects needed to be done, he did them. These
projects included painting, maintenance of the gutters, resurfacing and pouring
the concrete driveway and sidewalks.

[220]     Much of
this work now either does not get done, or he hires others to perform it. He
testified that he pays $80 – $100 per month to landscapers to maintain his
yard. No receipts were provided.

[221]     He
testified that his contribution to the inside chores has been reduced from 50%
to 20%.

[222]     The
evidence has persuaded me that the plaintiff is not able to perform some of the
home, yard and maintenance chores to the same level he did before the accident.
His right shoulder will continue to negatively impact his abilities in that
regard.

[223]     The plaintiff
seeks an award of $16,900 for past loss of housekeeping capacity based on an
estimated 5 hours per week of extra work that Mrs. Hanson testified that she
performed due to the plaintiff’s injuries until September 2012 when she was
injured in a separate collision. The plaintiff bases his claim on 5 hours per
week for 104 weeks at a rate of $32.50 per hour which he says is the going rate
for housekeeping services. Mrs. Hanson provided this hourly rate as an amount
she was provided when she looked into it. Despite both of them being injured,
the Hansons have managed without having to hire a homemaker to help with the
chores.

[224]     The
plaintiff does not seek an award for loss of future housekeeping services on
the basis that it is covered under the claim for future care costs.

[225]     The
plaintiff’s shoulder injury was significant. He was required to be in a sling
for roughly 15 months while he waited for, had, and recovered from two surgeries.
While I accept the plaintiff’s shoulder injury prevented him from performing
many of the homemaking and yard maintenance chores he did before the accident
and that he is entitled to a modest sum under this head, I am not satisfied on
the evidence that the amount can be calculated in the manner the plaintiff
suggests.

[226]     In all the
circumstances, I award $5,000 for past loss of homemaking capacity.

6.              
Special Damages

[227]     The
plaintiff has incurred out of pocket expenses directly related to his injuries.
A summary of them was filed as Exhibit 1, tab 12. He has been reimbursed for
the physiotherapy expenses of $2,040 and is therefore not pursuing that part of
the claim.

[228]     Most of
the claimed expenses relate to the cost of the two shoulder surgeries performed
by Dr. Smit at his private hospital. Each of the two surgeries cost $6,300. The
evidence is that the plaintiff paid to have these surgeries to be able to
return to work as soon as possible.

[229]     The
evidence from Drs. Smit and Petrovic was that the waiting list to have these
surgeries performed on the public system was at least 18 months.

[230]     In my
view, in the circumstances the plaintiff’s decision to have these two surgeries
performed privately was reasonable and the $12,600 claim is allowed.

[231]     The plaintiff
also claims the $80 cost of a medical/legal letter Dr. Petrovic prepared for
the plaintiff’s employer. This claim is also allowed.

[232]     The
balance of the claim relates to MRIs and an arthrogram that were conducted to
help assess the right shoulder injury. These total $2,945. The MRIs and
arthrogram were also reasonable expenses for the plaintiff to have incurred.

[233]     During his
submissions, Mr. Chadwick agreed these expenses were reasonable.

[234]     I award special
damages of $15,625.

V.             
summary

[235]     The
plaintiff is awarded judgment as follows:

General Damages                                                           $120,000

Past Wage Loss                                                                  81,450

Loss of Future
Earning Capacity                                        130,000

Cost of Future
Care                                                            61,200

Past Loss of
Housekeeping Capacity                                     5,000

Special Damages: $15,625

Total:                                                                             $413,275

VI.           
COSTS

[236]    
Subject to matters of which I am not aware, the plaintiff is entitled to
costs.

“G.P. Weatherill J.”