IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140812

Docket: 88944

Registry:
Kelowna

Between:

Keira Hay

Plaintiff

And

Ernest E. Benzer
and Kathleen M. Benzer

Defendants

Before:
The Honourable Mr. Justice Cole

Reasons for Judgment

INTRODUCTION

[1]            
On December 15, 2008, the plaintiff, Keira Hay, was struck by a large
black truck operated by the defendant, Ernest Benzer, which ran a red light
when the plaintiff was crossing the intersection at Harvey Avenue and Burtch
Road in Kelowna. She was thrown a foot or foot and a half in the air, she fell
on her tailbone and hit her head on the pavement. Liability is admitted. The
defendant pled guilty to failure to stop at a red light and failure to render
assistance at the scene of an accident.

BACKGROUND

[2]            
The plaintiff was 19 years of age at the time of the accident. Prior to
the motor vehicle accident the plaintiff was in good health and had graduated
from high school with a “B” average. She was interested in the arts and moved
on her own to Kelowna in July of 2007 and enrolled in a digital film making
course at the Centre for Arts and Technology or CATO.

[3]            
In September of 2008, she graduated with her certificate in Digital
Filmmaking and then enrolled in another course in digital photography that she
expected to complete by September 2009. Although she did not know anyone in
Kelowna, she made friends quickly, was socially active, worked hard at school
and was planning to move to Vancouver when her courses were completed and get
into the photography business. The photography/film business was a dream of
hers and she felt that Vancouver was the best place for her to get a job and
training. She realized that she would have to do volunteer work and work as a
waitress while pursuing employment in the photography industry. She also realized
that the hours would be long and it would be physically demanding.

[4]            
After the accident the plaintiff was taken by ambulance to the Kelowna
hospital. She was diagnosed, given Tylenol 3, and discharged. The initial pain
was in her tailbone and that gradually spread throughout her body later on that
day and she had a massive headache. She attended a walk-in clinic the following
day, received more pain medication and two or three days later she flew home to
Bragg Creek, Alberta, a small community, to spend Christmas with her family.

[5]            
The pain was in her neck, back and shoulders, and she had headaches. This
was confirmed by her mother, Shauna Hay, and her roommate Melanie Shannon.

[6]            
Ms. Shannon described how the plaintiff could not lift her arms
above her head and how Ms. Shannon washed her hair and took over the
cleaning of the apartment for approximately two months.

[7]            
The plaintiff’s mother describes that her daughter was in pain when she
got off the airplane. The plaintiff was able to carry a bag for only short
periods of time when she would have to put it down and change hands. Mrs. Hay
also described how her daughter would use hot pads and cold pads to help
control her pain.

[8]            
The family drove to Saskatoon to visit grandparents. The trip is
normally seven hours but it took them ten hours on this occasion because the
plaintiff had to stop and get out of the car due to her ongoing pain.

[9]            
The plaintiff returned to school in January 2009 but missed many classes.
She was not socially active, stayed in her room a great deal of the time, and
she failed two courses. This necessitated her taking the two courses again and
her graduation was delayed for six months.

[10]        
Her boyfriend moved in with her in September of 2009. On April 4, 2010
she graduated from the digital photography course and in May or early June 2010
moved to Vernon with her boyfriend whose father was ill. While in Vernon she
worked for Pizza Hut until the end of December when she and her boyfriend
separated and she moved back to Bragg Creek to live with her parents.

[11]        
She started to work at a Safeway in Calgary from March 2011 to November
2012. She worked the night shift and that affected her ability to sleep. She
worked even though she suffered continual pain and in the summer of 2011 she
obtained additional employment as a waitress at the Wintergreen Golf Club and
continued that work until October of 2011, and then worked there again briefly
in September and October of 2012.

[12]        
At the end of July 2012 she started work as a waitress at the Bavarian
Inn, where she continues to work, and in February 2014 she completed her Level
1 Wine Certificate. She gave up her passion for photography and moving to Vancouver
because of the motor vehicle accident. She had ongoing pain in her neck,
shoulders and lower back, along with headaches and sleep interruption. She also
had pain to a lesser extent in her back and tailbone. Her concern was that she
could not put in the long hours required to make a go of photography in the
film industry. She says she lost her confidence in her ability to make the
transition from Kelowna to Vancouver and her decrease in energy and the
physical requirements of photography were of a real concern to her.

[13]        
At the request of ICBC she saw Dr. O’Farrell on July 28, 2009. He
is an orthopaedic surgeon. He does a significant amount of work for ICBC and
appeared to me to be more of an advocate than an independent professional. He
found that the plaintiff would not have any long-term effects from the motor
vehicle accident. He had documents only from a physiotherapist dated June 16,
2009. Dr. O’Farrell did admit that if pain was still present two and a
half years after the accident that it would most likely be a long-term or
permanent pain. Dr. O’Farrell did not produce any notes of his assessment
claiming they were most likely in another file. I give Dr. O’Farrell’s
evidence very little weight.

[14]        
On April 12, 2012, the plaintiff attended, at the request of her
solicitor, at the offices of Dr. Stewart, an expert in physical medicine
and rehabilitation. The doctor impressed me as being very thorough, fair, and
objective. She noted the plaintiff’s complaints of neck and back pain and
headaches with moderate tenderness over the base of the skull, upper back, neck
and shoulders. There was tenderness and limitations in her lower back movement.
She states:

Based on her history and my
findings it is my opinion that she sustained soft tissue injuries to her neck
and back in the motor vehicle accident.

[15]        
She goes on and states:

At the time I saw her it had been more than 2.5 years since
her injury in the motor vehicle accident and she had noticed no recent
improvement in her symptoms. Given the duration of her symptoms, it is likely
that she will continue to experience all of her current symptoms and
limitations over the long term because of her injuries in the motor vehicle
accident.

Ms. Hay would be unable to do physically demanding work
because of her injuries from the accident. At the same time I saw her she was
finding that the physical demands of her job as a filing clerk at a grocery
store were aggravating her symptoms. Working nights on the job was adding to
the disruption of her sleep caused by neck and back pain and it would be better
for her to work regular hours during the daytime so that she could have a more
consistent sleep pattern.

If Ms. Hay were to do sedentary work she would require
the flexibility to change her work tasks and position periodically throughout
her work day. She would require good ergonomics in her work station. Ms. Ruggiero
has pointed out that Ms. Hay’s limitations with respect to her chosen
career of photography. It is likely that she will require to equipment
suggested by Ms. Ruggiero as well as some modification of her work
activities in order to continue the work over the long term.

I am in agreement with the future
care recommendations that Ms. Ruggiero made in her report.

[16]        
Lisa Le Poole is a physiotherapist at Bragg Creek Physiotherapy and
first treated the plaintiff on December 29, 2008, some two weeks after the
motor vehicle accident. Her notes on that initial assessment were as follows:

Stiffness and tightness across the back of the shoulder and
length of the arm, down to the forearm, aggravated by shoulder elevation and
sitting for extended periods of time.

Pain in the neck when looking up.

Elbow stiffness in both arms, aggravated by sustained flexion.

Tailbone pain with sitting, and rising from sit to stand.

Poor sleep quality, waking two or
three times per night due to discomfort.

[17]        
On January 10, 2013, Mrs. Le Poole did another assessment to
determine the plaintiff’s current status. Noting that the plaintiff was working
approximately thirty hours a week as a server in a local restaurant, Mr. Le
Poole concluded:

Mrs. Hay has experienced a
protracted recovery from the injuries resulting from the said motor vehicle
accident. She is capable of performing her job duties; however she is limited
in her ability to lift heavy items. She reports having discomfort as a result
of being on her feet for lengthy shifts at work and regular stiffness and
limited mobility in her neck and shoulders. Her participation in recreational
activities has returned to pre-accident level. She has been advised to continue
with her gym-based exercise program three times per week and continue with her
therapeutic exercise needed to alleviate her ongoing symptoms. Prior to said
motor vehicle accident Ms. Hay was capable of doing those tasks without
symptoms.

[18]        
Debbie Ruggiero, an occupational therapist, performed a function
capacity evaluation and cost of care requirements. Her report of June 8, 2011,
states:

Currently, Mrs. Hay is working in two part-time
positions, file clerk and food server. She experiences daily symptom increases
and as a result must decrease her participation in avocational activities to maximize
her tolerance for work. Based on this evaluation, Ms. Hay has limitations
for some of the key physical demands of her current and planned vocation
pursuits [emphasis added]. Her reduced tolerance for sustained reaching
especially above shoulder level and repetition or sustained bending are
problematic for her position as a server.

Additionally, there are some
concerns regarding Ms. Hay’s ability to tolerate all of the physical
demands of a Photographer. Current photo technology relies largely on digital
tools, specifically a computer for editing in addition to cameras and
associated accessories. Ms. Hay uses a laptop computer for storage and
editing of her work. This type of works demands sustained postures and
positions which according to results of this evaluation will be challenging for
her.

[19]        
The plaintiff says that she cannot maintain the difficult positions
required by a photographer. She has difficulty working with her arms in front
of her holding the camera and she has difficulty with backpack straps on her
shoulders or a camera strap hanging from her neck even though the camera
weighed only two or three pounds. Dr. O’Farrell agreed that this would be
problematic for someone seeking a career in photography.

[20]        
Dr. Michele Fercho is a psychologist and had been giving
psychological counselling to the plaintiff from 2003 to 2005 when she was
suffering from a skin pigmentation deficiency and resulting anxiety. Counselling
helped resolve these issues.

[21]        
In November 2013 the plaintiff started to see Dr. Fercho again
because, according to the plaintiff, she was “stuck” in a less than satisfying
lifestyle subsequent to and as a result of the motor vehicle collision. Dr. Fercho
stated:

Considering her current struggles,
it is evident to me that there are some lasting psychological effects from the
accident that occurred on December 2008. Typically, people are more prone to
experience longer lasting psychological effects of trauma if they have been
previously traumatized or have suffered other significant losses, and neither
of these situations pertain to Ms. Hay. Regardless, her history of dealing
with symptoms of anxiety and low self-esteem as a teenager may certainly be
identified as putting her more at risk of being traumatized by the accident,
but what is more pertinent is that the level of functioning that Ms. Hay
enjoyed before the accident is far better than the level of functioning she is
currently experiencing. At the conclusion of treatment in 2005 there was no
indication that she would have any issues moving forward with her life in a
meaningful way. She was a motivated and high achieving student, and aspired to
move away for college, eventually wanting to settle in Vancouver. After the
accident, she describes becoming very isolated, not wanting to be around
people, and was skipping classes at that time. Over time, this isolation did
lessen, but has not yet completed abated. And she has been lastingly impacted
in losing desire for her original career goal of working in the film industry,
since she associated that career with having to be “out” in the world, and no
longer feels comfortable doing this. She does not credit the accident for being
the sole cause of this career change, as she acknowledges that she has always
been on the shy and quiet side, but it does appear to be a contributing factor.

[22]        
Niall Trainor is a vocational rehabilitation consultant. He was
qualified to give expert opinion evidence with regards to vocational
rehabilitation assessments and consulting. His report was dated January 25,
2013. He could find only one job that was listed for a photographer and that
was in Terrace, British Columbia, and there were no jobs for photographers in
Calgary. He was of the view that not everyone would be advertising for jobs and
there still may be some jobs even though he was unable to find any. He was of
the view that in 2015 the job market would be improved. In his report he stated:

In Ms. Hay’s case the normal
problems associated with establishing a business have been exasperated by her
chronic pain and functional limitations, which have decreased her ability to
work diligently and for long hours. I would not preclude Ms. Hay from
eventually being successful with her quest to become self-employed as a Photographer,
but as long as she suffers from chronic pain and functional limitations her
capacity to become successful has likely been diminished because entrepreneurs
typically need to devote long hours to developing the business. Moreover,
according to Ms. Ruggiero who conducted a functional capacity assessment
of Ms. Hay in 2011, Ms. Hay has some limitation for prolonged use of a
computer for photo editing purposes.

[23]        
Mr. Trainor also stated:

She may also be able to handle
working as a Production Assistant, though again I would have a level of concern
for the long hours that can be involved in such work. Production Assistants
provide support to the Director and Producer, and are responsible for various
aspects of production such as preparing schedules, setting up equipment, and
making travel arrangements. Several of the other jobs that she would have been
eligible for pre-morbidly are physically demanding, and now would be unsuitable
choices for her. This would include working as a Props Person, Set Dresser or Grip.

[24]        
Even at trial, some five and a half years after the collision, the
plaintiff still had pain in her neck and shoulders, worse on the left side than
the right, pain in her lower back and to a lesser degree pain in her mid-back
and tailbone. She continues to suffer from sleep interruption.

NON-PECUNIARY DAMAGES

[25]        
Non-pecuniary damages are awarded to compensate the plaintiff for pain,
suffering, loss of enjoyment of life and loss of amenities. The factors to
consider are set out in Stapley v. Hejslet, 2006 BCCA 34 at para. 46,
leave to appeal refused, [2006] S.C.C.A. No. 100. In this particular case
the plaintiff’s age is a relevant factor because she was only 20 years of age
when the accident occurred and I am satisfied her injuries are permanent. I
accept the evidence of Dr. Fercho that the plaintiff still has some
lasting psychological effects from the accident and that:

She has lastingly impacted and
losing desire for her original career goal of working the film industry, since
she associated that career with having to be “out” in the world and no longer
feels comfortable doing this.

Any assessment, of course must be fair to both parties and
must be decided on the facts of this particular case.

[26]        
The defendant says that an award of $30,000 is appropriate. That was
based on Laroche v. MacPhail, 2007 BCSC 1451. In that particular case
the plaintiff, 38 years of age at the time of the accident in 2004, suffered
severe neck pain and restricted range of motion along with some lower back pain.
She resumed housekeeping chores three months after the accident and after 2006
her neck had bothered her about one day every two weeks. She attended ten
massage therapy treatments between July and October 2006.

[27]        
The plaintiff argues that $75,000 is a more appropriate award and relies
on the case of Roy v. Storvick, 2013 BCSC 1198. The plaintiff in that
case was 27 years of age at the time of the accident. He had suffered severe
injury to his lumbar spine and moderate to severe injury to his cervical spine.
He also had headaches and trouble sleeping and he could no longer tolerate some
of the demanding work of being a carpenter. The court also found that the
plaintiff had taken all possible avenues to move his recovery forward.

[28]        
Here the plaintiff has suffered ongoing pain for five and a half years following
the accident. She has had, over the same period of time, 77 appointments with
physiotherapists and massage therapists. I am satisfied that the plaintiff was
more “vulnerable” than most people according to her psychologist Dr. Fercho.
The plaintiff’s injuries here however were not as serious or significant as
those in Roy v. Storvik. In view of the pain being chronic and expected
to be permanent or very long lasting, I am satisfied that an appropriate award in
her circumstances would be $55,000.

AWARD FOR RETRAINING

[29]        
Because of her physical restrictions and loss of faith in her ability to
pursue her career in film or photography, she has now taken a course to be a
sommelier, and has completed the first level of that course, at a cost of
$396.25. To complete the program the total amount will be $12,846.25.

[30]        
I am satisfied that it is more likely than not that the plaintiff will
have to retrain and that her present career path is in the wine/hospitality
industry. I am satisfied that the cost of the program is $12,846.25 and I award
that amount.

PAST WAGE LOSS

[31]        
The plaintiff submits that because of her delayed graduation of some six
months she should be compensated for lost income. I agree. Upon moving to
Vernon after her graduation she was working at Pizza Hut for six months and
earned approximately $3,000. That amount is what the defendant says the
plaintiff is entitled to for the delay in entering the workforce and nothing
else for past income loss because the plaintiff’s claim is too speculative.

[32]        
The plaintiff’s income for 2010 was $4,207, for 2011 it was $19,976, and
for 2012 it was $27,038.96. In 2013 it was $12,293 plus tips. Since 2010 up
until today she has earned approximately $91,880.

[33]        
The plaintiff says that if she had obtained work as a full-time
photographer in 2010, she would have earned $20,447. This would translate to
approximately $111,460 for five and a half years. In Alberta the range of pay
is from $10 to $33/hour with a median wage of $21 per hour. Mr. Trainor
notes that:

Of late, the film industry in
British Columbia has reportedly been struggling as a result of competition from
other provinces. Apparently movie production companies have relocated business
away from British Columbia to Ontario, Quebec, Saskatchewan and to various U.S.
locations, which offer more lucrative tax incentives…. According to the B.C.
Film Commission there is presently one documentary film in production and six
television series.

A mentioned above, Mr. Trainor noted that there was
only one job that he could find in British Columbia and that was in Terrace and
no jobs were posted for Calgary.

[34]        
The plaintiff’s own evidence was that she would have had to work long
hours and supplemented her income by waitressing because jobs were difficult to
find in the film photography industry. Experience is often gained by
volunteering.

[35]        
Taking into account all reasonable contingencies such as sickness, lack
of work, and the difficulty securing employment in the film industry, I am
satisfied an appropriate sum for past wage loss, including the delay in
entering the employment market is the sum of $5,000.

LOSS OF FUTURE EARNING CAPACITY

[36]        
In view of the age of the plaintiff and the fact that she does not yet
have a career, the most appropriate approach would be an impaired or lost asset
approach as discussed in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.).
In Brown, Finch J., as he then was, states at para. 8:

The means by which the value of the lost, or impaired, asset
is to be assessed varies of course from case to case. Some of the
considerations to take into account in making that assessment include whether:

1.         The
plaintiff has been rendered less capable overall from earning income from all
types of employment;

2.         the
plaintiff is less marketable or attractive as an employee to potential
employers;

3.         the
plaintiff has lost the ability to take advantage of all job opportunities which
might otherwise have been open to him, had he not been injured; and

4.         The plaintiff is less valuable
to himself as a person capable of earning income in a competitive labour
market.

Also see Perren v. Lalari, 2010 BCCA 140 at paras. 11-12.

[37]        
The evidence satisfies me that she has a permanent injury and her
physical limitations will prevent her in the future to take advantages of all
job opportunities which might otherwise have been open to her. The defence says
that she is not entitled to any compensation because they say her photographic
career was unexplored, unfulfilled, and unlikely to succeed. I am satisfied
that but for this accident she would have moved to Vancouver and pursued her
dream in working in the film industry. I found her to be a credible witness.

[38]        
The plaintiff says that the range of damages should be between $90,000
and $250,000, relying on the statement in Small v. Upshaw, 2012 BCSC
1225.

[39]        
I am satisfied that because of her young age and her physical
limitations as set forth in the medical evidence, that an appropriate award
under these circumstances is the sum of $30,000.

[40]        
In respect to special damages, I am satisfied that they have been proven
and I award the sum of $10,901.91.

COST OF FUTURE CARE

[41]        
A cost of future care assessment must be looked at with a great deal of
skepticism. A lightweight vacuum cleaner is recommended at a cost of $200,
which would be replaced every three years. This recommendation makes me question
the objectivity of this cost of future care assessment. There is no evidence,
other than anecdotal, that a vacuum cleaner needs to be replaced every three
years. The plaintiff does not own a vacuum cleaner as she is living with her
parents, so when she moves out, which is the plan, she would in any event have
to purchase a new vacuum cleaner, and there is no evidence whatsoever that a
lightweight vacuum cleaner would be more expensive than a regular vacuum
cleaner.

[42]        
I am satisfied that there is medical evidence to support the plaintiff’s
claim for some physio, massage therapy, a gym pass, and some Robaxacet. I am
satisfied that an appropriate award for all these future costs is the sum of
$25,000.

SUMMARY

[43]        
In summary, I award the following:

[44]        
The plaintiff is entitled to her costs and pre-judgment interest under
the appropriate headings.

The
Honourable Mr. Justice F.W. Cole