IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Mathroo v. Edge-Partington, |
| 2015 BCSC 122 |
Date: 20150128
Docket: M150946
Registry:
New Westminster
Between:
Gurcharan Mathroo
Plaintiff
And
David Ian
Edge-Partington
Defendant
Before:
The Honourable Mr. Justice Schultes
Reasons for Judgment
Counsel for the Plaintiff: | R. Sidhu |
Counsel for the Defendant: | D. Fiorvento |
Place and Date of Trial: | New Westminster, B.C. |
Place and Date of Judgment: | New Westminster, B.C. |
iii. Ajaib
Lottay – Son-in-law
iv. Dr. Zarkadas
– Orthopedic Surgeon
v. Dr. Gandhi
– Family Physician
i. Credibility
and findings of fact
I.
INTRODUCTION
[1]
On the morning of April 13, 2012, Gurcharan Mathroo was hit by a truck
driven by David Edge-Partington as he and a friend were attempting to cross
84th Avenue at 132nd Street in Surrey on foot. Mr. Mathroos most serious
injury was a fracture to his right elbow, which required surgery to insert a
plate and screws into his arm.
[2]
The trial dealt with each partys degree of liability for the accident
and the extent of the damages that Mr. Mathroo should receive in relation
to his injuries.
[3]
Mr. Mathroo was 83 years old at the time of trial. He was born in
India and lived there until 1990, when he and his wife immigrated to Canada to
live with their daughter, who sponsored them. Once in Canada he worked as a
carpenter until his retirement in 2001. For the last 10 years he lived mainly with
his son and daughter-in-law on 132nd Street. About two weeks before the trial
began he moved in with his daughter and her husband in a different area of
Surrey.
[4]
He does not speak English, and instead testified with the assistance of
an interpreter.
II.
LIABILITY
(a)
Evidence
[5]
It is common ground that the accident occurred on a clear, dry morning
and that the weather and road conditions played no part in it.
[6]
Mr. Mathroo and a friend, who was also an elderly man, were
intending to walk to the Dasmesh Darbar Sikh temple. This was something he did
two or three times per week. He had a group of friends with whom he enjoyed
socializing at the temple and he also performed some volunteer work there. The
walk usually took him about half an hour.
[7]
He and his friend were walking northbound on the west side of 132nd
Street. There is a marked crosswalk at 84th Avenue, with a button on a light
standard that activates a pedestrian crossing signal when the light is green
for traffic on 132nd. This was Mr. Mathroos usual route to the temple and
he was very familiar with it.
[8]
When they reached that intersection, Mr. Mathroo pushed the button
and waited for the pedestrian signal. When it appeared, he felt it was safe to
cross and started walking. His friend was to his right. He said that the
traffic was flowing (I infer on 132nd) but that the cars were stopped at the
crosswalk that they wished to cross.
[9]
He agreed with the suggestion on cross-examination that he had not made
eye contact with any of the drivers of the stopped cars, to make sure that they
had seen him and that it was safe to cross. However, that is a practice that he
had begun to follow since this accident.
[10]
After he stepped into the intersection and proceeded two or three feet,
he was hit by a vehicle, causing him to fall over on to his right side. He did
not see this vehicle before it struck him and did not have time to take evasive
action in relation to it. He also had no idea of the force of the impact, or
whether he was thrown any distance by it.
[11]
His right arm was hurting badly and he noticed blood in his elbow area.
He was worried that he would be run over by other vehicles while lying on the
road. Someone assisted him to sit down on the side of the road. An ambulance
arrived and he was taken to hospital for treatment.
[12]
Mr. Mathroos friend was not called as a witness or referred to by
name in the evidence.
[13]
Mr. Edge-Partington testified that he was driving his truck east on
84th before the accident. He was intending to turn right and go south on 132nd,
to return to the location of his business. There are two lanes eastbound on
84th in that area — a left turn lane and a through lane. He was in the through
lane.
[14]
When he reached the intersection with 132nd, the light in his direction
was red so he came to a stop. There were one or two cars in the left turn lane.
His truck was stopped pointing slightly to the right. His right turn signal was
on. He looked to his right and saw a lamppost and a sidewalk, but no people.
[15]
Mr. Edge-Partington was referred to the photographs in evidence,
which show bushes along a fence beside the sidewalk. In cross-examination he
elaborated that the effect of these bushes was that from his position at the
stop line he could see only the lamppost and the corner of the sidewalk. This
is the direction from which Mr. Mathroo and his friend came.
[16]
He then looked to his left. There was a line of three cars going south
on 132nd, followed by a semi-truck. He intended to turn right after the cars
but before the semi. He was looking left for 8 – 10 seconds and then began to
move forward. He did not look right again before he began to move.
[17]
His movement forward consisted only of taking his foot off the brake,
which resulted in a speed of less than one kilometre per hour. He had not yet
applied the gas. The truck moved about two feet forward. He then realized that
two pedestrians were right in front of his truck. He was not able to say
whether or not they were in the crosswalk. They were hit by the middle of his
front bumper before he had time to avoid the collision.
[18]
He immediately got out, helped them up and guided them over to the
sidewalk. The driver of the semi pulled over and spoke to the pedestrians, who
did not speak English. The driver also phoned for emergency services, and the
police, fire department and an ambulance all attended.
[19]
One of the pedestrians had a bleeding elbow and the other had a scrape.
[20]
The police officer who attended issued Mr. Edge-Partington with a
traffic violation ticket for failing to yield to a pedestrian. He said that he
did not dispute it because his business is very time-consuming and he did not
want to lose any more time dealing with this incident. I infer that he gave
this explanation because he does not necessarily concede his responsibility for
the ticket on the merits.
(b)
Discussion
[21]
Wisely, Mr. Edge-Partingtons counsel did not contend that there
should be no liability at all on his part. It seems clear that he committed one
of the classic lapses of care in the operation of a vehicle — allowing it to
move in one direction while looking in a different one. Instead, his counsel
argues that Mr. Mathroo failed to take reasonable care for his own safety
in the manner that he entered the road, and that liability should be
apportioned partly to him as a result.
[22]
To the extent that his liability is based on the premise that Mr. Mathroo
was unaware of the crosswalk or that he may have left the sidewalk outside of
it, that premise is not supported by his evidence.
[23]
Mr. Mathroo described the designated area where he was to cross
in his direct evidence and he did not accept the suggestion in
cross-examination that he was not paying attention to whether there was a
painted crosswalk there. In response to the suggestion that it is possible he
was outside the crosswalk he said that he had taken the route that he normally
took. The suggestion that he would have stepped off the curb at the left side
of the sidewalk (which according to the photos was outside the crosswalk
boundary) was interrupted by an objection by Mr. Mathroos counsel and was
not asked in that form again.
[24]
Mr. Edge-Partington is unable to assist on this point, other than
to maintain that his truck was not yet within the crosswalk when it came to its
initial stop before moving forward again. Consequently I think the possibility
that Mr. Mathroo was outside the crosswalk remains entirely speculative,
and so s. 180 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318,
which requires a pedestrian who crosses a highway outside of a crosswalk to yield
the right-of-way to a vehicle, is not applicable to the analysis of liability.
[25]
The potentially stronger argument in favour of attributing some degree
of contributory negligence is that Mr. Mathroo focussed entirely on the
appearance of the walk signal in deciding to enter the intersection, instead of
considering the presence and movement of vehicles that might pose a risk to
him, as a reasonably careful pedestrian should have done. Mr. Edge-Partingtons
counsel emphasizes that having the right to proceed under the legislation does
not absolve a pedestrian of the requirement to take care for his own safety.
The classic reference for that principle is British Columbia Electric
Railway Co. v. Farrer, [1955] S.C.R. 757.
[26]
However, it does not follow that a pedestrian will inevitably be
contributorily negligent for failing to watch out for dangerous actions of
approaching drivers. As was explained in Feng v. Graham (1988), 25
B.C.L.R. (2d) 116 (C.A.) at p. 120:
In my view the plaintiff in the
circumstances of this case was entitled to assume that the defendant was going
to obey the law and yield the right of way to her. Her right to rely on that
assumption continued until such time as she knew, or ought to have known, that
the defendant was not going to grant her the right of way, whereupon the
plaintiff’s obligation to avoid injury to herself superseded her right to
exercise her right of way. The onus is on the defendants to establish that the
plaintiff knew, or ought to have known, that the defendant driver was not going
to grant her the right of way, and that, at that point of time, the plaintiff
could reasonably have avoided the accident: see Mercer v. Mercer,
[1949] 2 W.W.R. 294 at 296, [1949] 3 D.L.R. 826 (Man. C.A.). [Emphasis added.]
[27]
A helpful application of these principles is found in Olesik v.
Mackin, 1987 CarswellBC 1066, [1987] B.C.J. No. 229 (S.C.):
6 The defendants contend that Mr. Olesik had
his head down as he was crossing the road, that he failed for this reason to
see their vehicle, and that he should accordingly be held at least partly to
blame for the accident.
7 It was a dark, rainy January evening and the
evidence suggests that Mr. Olesik was probably looking down, protecting
himself from the elements. But I find no adequate basis in the evidence for the
contention that his failure continually to watch approaching vehicles caused or
contributed to his injuries.
8 To meet the onus which rests on the defendants
to prove such an allegation of contributory negligence, they must, in my view,
establish much more than inadequate attention on Mr. Olesik’s part. They
must also establish: (i) at what distance a person in Mr. Olesik’s position
should have realized, from the speed of the approaching headlights, that the
defendants’ car was not going to yield him the right of way; (ii) that it would
then have been possible for such a pedestrian, by stopping, going back or
rushing forward, to avoid their car; and (iii) that a reasonable person in Mr. Olesik’s
circumstances a senior citizen pushing a cart would have taken and
succeeded in such evasive action.
9 The evidence being
quite inadequate to establish such a case, I find the defendants alone
responsible for his injuries.
[Emphasis
added.]
[28]
In this case it has certainly not been established that there were any
actions by Mr. Edge-Partington in the operation of his truck from which Mr. Mathroo
should have concluded that he was not going to be granted the right-of-way. On Mr. Edge-Partingtons
own evidence, he would have been stationary looking north in the direction of
the southbound traffic on 132nd at the point that Mr. Mathroo and his
friend entered the crosswalk. There was nothing in those circumstances to
suggest to a reasonable pedestrian that Mr. Edge-Partington would then
move forward without looking in their direction. The fact that it may be the
very safest course for pedestrians to interact defensively with all drivers who
are waiting to turn right on a red light, by making eye contact before entering
the intersection, does not mean that they fail to act reasonably to preserve
their own safety by proceeding without such contact.
[29]
Accordingly I will not be imposing any liability on Mr. Mathroo for
the accident, and find Mr. Edge-Partington 100% liable for it.
III.
DAMAGES
(a)
Evidence
i.
Treatment
[30]
Mr. Mathroo was taken to Surrey Memorial Hospital after the
accident. He had an abrasion on his right knee, but his most serious injury was
an open fracture to his right elbow, which means that the bone was exposed to
the outside as result of a wound in that area. The fracture was to the
olecranon — the bony point of the elbow.
[31]
Dr. Jackson, an orthopedic surgeon, operated on him that evening.
In essence, the surgery consisted of reducing the fracture (restoring it to its
correct alignment) and fixing it in place with the plate and screws. The
fracture was comminuted, meaning the bone was in several pieces, but
nevertheless Dr. Jackson felt that he was able to reduce it quite well.
[32]
Mr. Mathroo was kept in hospital until April 16, 2012. According to
Dr. Jackson this was mainly to ensure that the antibiotics he was given
had addressed the risk of infection from his open wound. He was released with a
cast on the injured area and a sling for the arm.
[33]
He testified that afterwards he experienced headaches, as well as
soreness in both hips and his back. He agreed that during his examination for
discovery he described suffering bruising only to his knee, but that is not
necessarily inconsistent with post-accident soreness in other areas of his
body. He said that he had some difficulty sleeping because of the pain as well.
These effects of the accident appear to have lasted for only a short period.
[34]
When Dr. Jackson saw Mr. Mathroo for a follow-up on May 7, he
observed that the plate below the skin was quite prominent. Mr. Mathroo
described suffering some bother from the plate when he put the arm down, put
any pressure on the plate, or banged it against anything. Dr. Jacksons
impression was that this situation was a minor bother to Mr. Mathroo.
[35]
Mr. Mathroos counsel objected to the admission of notes and a
medical letter by Dr. Jackson that described this conversation with Mr. Mathroo,
on the basis that it was properly characterized as an expert medical opinion
that had not been adduced in a proper form. In fact it became clear during his
evidence that by writing minor bother, Dr. Jackson was trying to convey
a sense of the severity of the problem as Mr. Mathroo was describing it to
him, not purporting to offer an opinion about its severity. However, the possible
inconsistency between his description of the severity of his symptoms to Dr. Jackson
and his evidence at trial was not put to Mr. Mathroo in cross-examination,
so it is difficult to give much weight to this material in assessing his
credibility.
[36]
Dr. Jackson and Mr. Mathroo discussed the option of having the
plate surgically removed. It appears from his answers in cross-examination that
Mr. Mathroo misunderstood the advice from Dr. Jackson on this point.
He testified that he was told that he could not have it removed because the
wound would not heal well. It could only be removed if he injured his elbow
again. In fact, as documented by Dr. Jackson, Mr. Mathroo was given a
choice, but elected not to have it removed at that point.
[37]
Following the recommendation of his family doctor, he attended 13
physiotherapy sessions for his arm, in October and November of 2012. He stopped
because of a trip to India that November. He did not receive any physiotherapy
while in India or resume it on his return.
ii.
Continuing effects
[38]
By the time of trial, this problem with his right arm was the only
continuing physical effect of the accident on Mr. Mathroo. In general he
described the arm as not functioning and said that it is quite a hardship
for him. He has difficulty putting weight on it. He is right handed, and so
when he attempts to use his right arm to do the tasks that he used to do with
it before the accident, it causes him pain, which requires him to take
medication. He is also generally in pain at night.
[39]
He tries to avoid taking pain medication unless he really needs it
because it has the side effect of causing constipation.
[40]
Having to rely mainly on his left arm makes it difficult for him to
bathe and dress himself, and especially to put on his turban properly. He has
taken to tying it only once a month, and in the interim just removing it from
and placing it back on his head while it is still tied.
[41]
This problem with his right arm prevented him from keeping up with a
vegetable garden that he used to maintain at his sons house when he was living
there.
[42]
He also walks less frequently than he did before the accident. He
explained that this was because he is in pain and because he cannot let his arm
dangle on the side, by which I infer he meant hang by his side as he walks.
In addition, he is scared of vehicles when he crosses a road. He did not
mention any anxiety about walking to his family doctor until recently. He
explained that this was because his doctor had never asked him about it.
Overall, he testified that he does not feel like walking.
[43]
Mr. Mathroo said that because of his inability to walk as much as
before the accident he now has to go to the Singh Sabah temple instead of
Dasmesh Darbar. He relies on a family member to drive him there. He did however
acknowledge in cross-examination that he has walked to Singh Sabah on occasion
and that this requires crossing one or possibly two intersections.
[44]
The loss of the social interaction with friends at his former temple has
affected him negatively.
[45]
Mr. Mathroo agreed with the suggestion on cross-examination that he
and his family follow the values of traditional Sikh culture, which includes
different generations of the family living together in the same home. That is
the basis on which he and his wife lived with his son and daughter-in-law and,
in the weeks just before the trial, they have begun to live with his daughter
and son-in-law. At his sons home, he and his wife would look after their
grandchildren when they were needed. In general, his children have looked after
them since they have been in Canada. This is the expectation in his culture.
[46]
He also agreed that in this traditional type of household the women do
the cooking and cleaning. Since his wife has been ill his daughter-in-law and
now his daughter have taken over her housework responsibilities. He himself did
not do work around the house other than gardening. His main pastimes before the
accident were going to the temple and spending time with his family.
iii.
Ajaib Lottay – Son-in-law
[47]
He is married to Mr. Mathroos daughter. Mr. Mathroo and his
wife lived with them immediately after their arrival in Canada. From time to
time after that Mr. Mathroo would stay with them for brief periods when he
wanted to spend time with his daughter. He also lived with them from May to
August 2012, while he was recovering from the accident and after his return
from India in March 2013 (following a brief stay with his son). Mr. Mathroo
would then go back and forth between the two homes.
[48]
At the time that Mr. Lottay testified, Mr. Mathroo had been
back living with him and his wife for two-and-a-half weeks. He explained that Mr. Mathroo
does not get along with his sons wife.
[49]
After the accident, he visited Mr. Mathroo in hospital every day.
In addition to the elbow and knee injuries, Mr. Lottay also saw bruising
on Mr. Mathroos left side.
[50]
He confirmed Mr. Mathroos change to a different temple since the
accident and his reduced attendance at the new one. He elaborated that Mr. Mathroo
is unable to perform volunteer service at the temple because he would have to
use his right hand in order to provide the offering that visitors receive from
the volunteers.
[51]
In general Mr. Lottay has noted that Mr. Mathroo does not
want to go out because he is worried that he will get involved in another
accident.
[52]
The main focus of Mr. Lottays evidence was to describe the
assistance that family members have had to provide with Mr. Mathroos
care. He said that during the initial two weeks after the accident when Mr. Mathroo
was staying at his sons house, his daughter would go there and spend five or
six hours a day caring for him. Once Mr. Mathroo moved to their house in
May, she spent three to four hours a day on those tasks. After his return from
India she has spent three to four a day assisting him.
[53]
These days, which I take to mean since Mr. Mathroo has returned
to live with them, she spends four to five hours a day on that task. Her
assistance is with tasks like eating his food, washing his hair, tying his
turban, grooming his beard, dressing and putting his shoes and socks on. He was
independent in carrying out these tasks before the accident. He can do these
things himself, but his arms become tired and he needs to take a painkiller.
[54]
Her assistance is on top of her own household duties. She is a full-time
homemaker.
[55]
Mr. Lottay, his wife and their adult daughter have also been
required to drive Mr. Mathroo to the medical and physiotherapy appointments
that have been required by his injuries. Taking him to see Dr. Gandhi is a
two- or three-hour endeavour, because Dr. Gandhi is very busy and there is
a lot of time spent waiting.
[56]
Mr. Lottay provided some of the results of Internet searches that
he has conducted to find Punjabi-speaking care aides to assist Mr. Mathroo.
The cost of hiring such an aide is beyond his familys means, he said.
iv.
Dr. Zarkadas – Orthopedic Surgeon
[57]
He practices at Lions Gate Hospital. His sub-specialities include
injuries to the elbow, which currently make up 30% of his practice. In general
a large component of his current practice involves the management of orthopedic
trauma.
[58]
He noted Mr. Mathroos complaints of discomfort from the plate in
his arm, of having to avoid using his right upper arm because of elbow
discomfort, and of weakness in his right hand, in particular his inability to
make a fist.
[59]
During his examination, which took place in May of 2014, Dr. Zarkadas
observed that the plate in Mr. Mathroos arm was very prominent and tender
to the touch. He found a slight restriction in the range of motion in Mr. Mathroos
right elbow. The ability to straighten and bend it were each reduced by five
degrees compared to his left elbow.
[60]
He agreed with the suggestion in cross-examination that this was a very
functional range of motion.
[61]
Mr. Mathroos grip strength in his right hand was also slightly
less than on the left. This latter difficulty could have been caused by some
atrophying of muscle as a result of the trauma, which the physiotherapy that he
had received had been unable to remedy.
[62]
In his examination of an x-ray that was taken of Mr. Mathroos arm
in February of 2014, Dr. Zarkadas observed some indications of early
arthritis to the outside of the elbow. These degenerative changes were likely
the result of the accident, he thought.
[63]
Dr. Zarkadas gave a favourable prognosis and noted that Mr. Mathroos
surgical result has been very satisfactory to date. Overall, Mr. Mathroo
had mild residual pain and a degree of stiffness, with the stiffness likely
to be permanent.
[64]
He agreed with the suggestion on cross-examination that there has been
an excellent recovery. Although he had used the term considerable
disability in the factual assumptions portion of his report, he also agreed
that such a term did not describe Mr. Mathroos situation.
[65]
He expected that Mr. Mathroo would continue to have difficulty
tying up his turban. He conceded however that the limited mobility of Mr. Mathroos
cervical spine that he noted in his examination would limit the tilting of his
neck, which could also increase the difficulty of putting the turban on.
[66]
Dr. Zarkadas saw no reason why Mr. Mathroo would have
difficulty walking short distances to his temple and did not expect that
dangling of his right arm would cause him any difficulties in that regard.
[67]
He saw no benefit to any further physiotherapy. He also did not think it
was likely that going to physiotherapy before October of 2012 would have
increased Mr. Mathroos range of motion.
[68]
He suggested that Mr. Mathroo should do as much with his right arm
as he could tolerate and strengthen it with a gentle resistance program.
Nevertheless, Mr. Mathroo has reached maximal medical recovery and further
improvements are likely to be very small.
[69]
He did not recommend Mr. Mathroo having a further operation to have
the plate removed, given his age and the risks associated with undergoing the
necessary anesthetic.
v.
Dr. Gandhi – Family Physician
[70]
He has been a doctor for more than forty years and has practised in
Canada since 1990. He holds a specialty in family medicine. He has been
treating Mr. Mathroo since 1999. He speaks Punjabi in addition to English
and so is able to communicate directly with Mr. Mathroo, who is usually
accompanied by a family member during his visits.
[71]
His report, which was written in March of 2014, described visits by Mr. Mathroo
in relation to his injuries from the accident between June 19, 2012 and July 2,
2013.
[72]
He describes complaints by Mr. Mathroo of difficulty in making a fist
with the right hand, and of pain in the right wrist, forearm and elbow. He
resisted the suggestion in cross-examination that his observations were
entirely subjective — he measured Mr. Mathroos grip strength and made
objective findings of tenderness over the plate.
[73]
He agreed that during the visits covered by the report, Mr. Mathroo
did not raise any concerns about anxiety in dealing with motor vehicles while
walking, or that the accident had restricted his ability to engage in
gardening. In a more recent visit, in September of 2014, Mr. Mathroo told
him that he is nervous when he goes for a walk and that the accident has
affected his gardening.
[74]
He also agreed that in addition to the accident injury, Mr. Mathroo
was being treated for a variety of other health complaints, such as
hypertension, eczema and prostate enlargement, all of which could adversely
affect the quality of his life.
[75]
In addition, he conceded that Mr. Mathroo had indications of
degenerative disc disease, which he explained is wear and tear on the joints
with age. The majority of his patients of Mr. Mathroos age have such
changes. Unlike Dr. Zarkadas, he did not think that a decrease in neck
mobility from disc degeneration would adversely affect Mr. Mathroos
ability to tie his turban. To his knowledge, the neck is held steady during
that process and it is more the hand movements that are important to tie the
turban.
[76]
He referred Mr. Mathroo for physiotherapy on the first
post-accident visit in June 2012 and again in October of 2012. As I have
described previously, it was following this second referral that Mr. Mathroo
actually attended. In response to the suggestion that in general injuries
resolve the sooner a person attends physiotherapy he said, It helps. In
re-examination he clarified his opinion to state that earlier attendance at
physiotherapy would not have made a difference with the complaints [that Mr. Mathroo
is] having.
(b)
Discussion
i. Credibility
and findings of fact
[77]
I found Mr. Mathroo to be a credible and reliable witness. For his
age he seems mentally sharp and there were only a few times when he needed
assistance to grasp the point of a question. Despite the barrier imposed by the
use of an interpreter, his evidence still came across as a blunt, direct and
mainly coherent recounting of actual experiences, without any indications of
exaggeration or bids for sympathy. He conceded points that were not supportive
of his claim without evasion or defensiveness, and he appeared genuinely taken
back at any suggestion that he might not be telling the truth. His approach to
the task of giving evidence seemed to be completely without guile.
[78]
I appreciate the caution that must be applied when assessing those of Mr. Mathroos
symptoms that go beyond what Dr. Gandhi or Dr. Zarkadas can confirm objectively.
But this does not strike me as a case in which additional effects of an
accident are being made up by him. My overall impression is rather that the
mechanical details of his injury that are revealed by medical examination do
not fully capture the day-to-day effects of this injury as he experiences them.
In particular, it is clear that he experiences the presence of the plate in his
arm as very troubling. When he showed it to me during his evidence he seemed
genuinely disturbed. That is consistent with the observations of both
orthopedic surgeons. To the objective observer, it appears very prominent on
his somewhat emaciated arm.
[79]
It is common ground that resting on the plate or bumping it would be
uncomfortable, given the lack of soft tissue protecting it, and it has not been
suggested that using the arm in a manner that avoids provoking such discomfort
would not cause him fatigue. I find it persuasive in this regard that he does
not claim that he cannot use the arm at all to do his former tasks, which would
be out of line with the medical evidence, but only that it tires him and causes
him pain to use, which seems realistic to me. The same is true for his ability
to make a fist — there is some measurable decrease in the grip strength in his
right hand and I do not consider it unrealistic that he would experience this
loss of strength in the way he has described.
[80]
I also think it is necessary to take into account, as a matter of common
sense and ordinary human experience, that a person of his age will be less
resilient in bouncing back from, and more focused on a relatively intrusive
injury like this. I think this increased focus accounts for symptoms like his
descriptions of the dangling of his arm while walking. The absence of a
medical basis to stop walking does not exclude a genuine hesitancy to continue
based on his own perceptions of his injury. I see this as an example of a defendant
taking his plaintiff as he finds him — an elderly man, frailer and more apt to
see an injury as life-changing in several different ways — rather than as excessive
or unreasonable sensitivity on Mr. Mathroos part. This is a case in which
the need for solace to address the disruption of the plaintiffs life does not
track the physical severity of his injuries precisely.
[81]
As to his fear of cars while walking, I do not view the absence until
very recently of any complaints about anxiety to Dr. Gandhi as
contradicting his evidence on this point. He described it as an emotional
reaction to the accident. He did not attempt to elevate it to a psychological
condition and I would not have expected him necessarily to have complained to
or sought assistance from a physician to deal with it. Mr. Lottay also
observed this fear in action. I accept his evidence that he suffers from this
fear and that it is part of the reason that he no longer feels like walking.
[82]
The loss of access to his friends at the Sikh temple would only have
endured for as long as he lived within walking distance of Dasmesh Darbar, no
longer felt comfortable walking there and could not access a family member to
drive him. That opportunity is now foreclosed to him, regardless of the
accident, by his move to his daughters house, which the evidence indicates, is
10 – 15 kilometres away from where his son lives. However to the extent that it
took an emotional toll on him while it was in effect, this lack of access to
his original temple was a legitimate consequence of his injuries.
[83]
However, I am unable to accept Mr. Lottays evidence about the
degree of care that Mr. Mathroo has required from his daughter and other
family members. Except perhaps for the acute phase immediately following his
release from hospital, I cannot imagine how the number of hours that Mr. Lottay
describes could possibly have been devoted to Mr. Mathroos care. Those
are the kinds of hours one would expect to be devoted to the care of a total
invalid, not a person in Mr. Mathroos situation, even after taking fully
into account the impact of the injuries on him and the tasks that Mr. Lottay
described.
ii.
Non-pecuniary damages
(c)
Submissions
[84]
Mr. Mathroos counsel submits that the range of non-pecuniary
damages that should be considered in this case is from $50,000 – $110,000.
[85]
The most helpful case in arriving at an appropriate award, she argues,
is Wong v. South Coast British Columbia Transportation Authority, 2013
BCSC 1118. In that case the plaintiff, an 84-year-old woman had fallen and
broken her hip when the bus she was riding in began moving abruptly before she
could take her seat. She had been very active before the accident and now
required more assistance with her mobility and basic activities of daily
living. Her son testified that she needed ten times more help than before.
The award of non-pecuniary damages was $90,000, although the plaintiff was also
found to be 25% contributorily negligent.
[86]
In addition, Mr. Mathroos counsel provided the following
decisions:
Name of Case | Circumstances of Plaintiff and | Non-pecuniary Damages Awarded |
Amini v. Khania, 2014 BCSC 1671 | · 61 years old at · Found to have · Prognosis of · Only able to resume | $70,000 |
Bouvier | · · | $110,000 |
Chow | · · · · | $50,000 |
Thorp | · · · | $50,000 |
|
|
|
|
|
|
[87]
Mr. Mathroos counsel also referred to what has been described as
the golden years doctrine, as illustrated in decisions such as Fata v.
Heinonen, 2010 BCSC 385:
[88] The retirement years
are special years for they are at a time in a person’s life when he realizes
his own mortality. When someone who has always been physically active loses his
physical function in these years, the enjoyment of retirement can be severely
diminished, with less opportunity to replace these activities with other
interests in life. Further, what may be a small loss of function to a younger
person who is active in many other ways may be a larger loss to an older person
whose activities are already constrained by age. The impact an injury can have
on someone who is elderly was recognized in Giles v. Canada (Attorney
General), [1994] B.C.J. No. 3212 (S.C.), rev’d on other grounds
(1996), 21 B.C.L.R. (3d) 190 (C.A.).
[88]
Finally under this head of damages, Mr. Mathroos counsel submits
that it is open to me, where the evidence of loss of future housekeeping
capacity is not specifically quantified, to make a general award as part of
non-pecuniary damages (see for example Eaton v. Regan, 2005 BCSC 3). She
suggests that $2,500 should be added to the award on this basis
[89]
Mr. Edge-Partingtons counsel argues that a much lower range of
damages should be considered, along the lines of $20,000 – $30,000. He relies
on the following decisions:
Name | Circumstances | Non-Pecuniary |
Rudman | · · | If |
Thomson | · · · · | $20,000 |
Borth | · · | $35,000 |
McMahon | · · · · | $20,000 |
|
|
|
|
|
|
[90]
Mr. Edge-Partingtons counsel rejects the application of the golden
years doctrine here. He points out that it does not automatically apply to all
elderly plaintiffs. In this case, Mr. Mathroo has maintained a sufficient
range of motion in his elbow to carry out the activities of daily living, he did
not engage in a wide range of activities before the accident, and can be
expected to suffer a decline in the quality of his life because of other
chronic ailments in any event. Instead, counsel relies on the decision in Olesik,
which I referred to in the liability section on the duties of a pedestrian, to
support the argument that the limited remaining life expectancy of a person in Mr. Mathroos
situation justifies a lower award than would otherwise result.
[91]
Counsel also argues that this is a case in which Mr. Mathroos
damages should be reduced because of his failure to mitigate his injuries, by
pursuing the recommended physiotherapy in a more timely way. He relies on Taylor
v. Grundholm, 2010 BCSC 860 and Taggart v. Yuan (11 January 2008),
Vancouver M062358 (B.C.S.C.).
(d)
Principles
[92]
The basic principles underlying an award on non-pecuniary damages are
not in issue. I will simply repeat my summary of them in Harris v. Zabaras,
2010 BCSC 97:
[62] The purpose of non-pecuniary damages is to
compensate a plaintiff for pain, suffering, loss of enjoyment of life and loss
of amenities: Jackson v. Lai, 2007 BCSC 1023 at para.134.
[63] A helpful list of factors to consider in assessing
the amount of such an award was set out by Kirkpatrick J.A. in Stapley v.
Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19 at para. 46:
46. The
inexhaustive list of common factors cited in Boyd [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 or impairment of life;
I would add the following factors,
although they may arguably be subsumed in the above list:
(g) impairment of family, marital
and social relationships;
(h) impairment of physical and
mental abilities;
(i) loss of lifestyle; and
(j) the plaintiff’s stoicism (as a
factor that should not, generally speaking, penalize the plaintiff: Giang v.
Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54).
[64] In the Stapley decision at para. 45,
Kirkpatrick J.A. also included the following helpful passage from Lindal v.
Lindal, [1981] 2 S.C.R. 629, 129 D.L.R. (3d) 263 at 267:
Thus the amount of an award for non-pecuniary
damage should not depend alone upon the seriousness of the injury but upon its
ability to ameliorate the condition of the victim considering his or her
particular situation. It therefore will not follow that in considering what
part of the maximum should be awarded the gravity of the injury alone will be
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" (Cooper-Stephenson and Saunders, Personal Injury Damages in
Canada (1981), at p. 373). In dealing with an award of this nature it
will be impossible to develop a "tariff". An award will vary in each
case "to meet the specific circumstances of the individual case"
[65] That said, other cases
will assist the court by serving as a guide in arriving at an award that is
just and fair to both parties: Kuskis v. Tin, 2008 BCSC 862.
(e)
Conclusion
[93]
To the extent that other decisions can serve as a guide to ensure
fairness to the parties, I would say that the injuries in Wong and Bouvier
can be characterized as more serious, or at least more intrusive, than what
Mr. Mathroo suffered. The injuries in Amini were chronic and
interfered quite substantially with the plaintiffs work and recreational
activities, which has not occurred here. Chow is comparable on the
plaintiffs personal circumstances, but Mr. Mathroos initial injury and
presence of the hardware is arguably more serious. The injury in Thorp is
quite similar, minus the insertion of hardware, but the impact on Mr. Mathroos
self-confidence and sense of well-being seems to have been greater.
[94]
As to the authorities provided on behalf of Mr. Edge-Partington,
the single-line reference to damages in Rudman, which was provided only
in the event that the liability decision, which consumed the rest of the
judgement, was found to be in error, cannot be treated as a considered decision
on quantum. Thomson lacks the surgical treatment with intrusion of
hardware or the inhibition to the same degree of the plaintiffs previous
pleasurable activities, although the injury itself is comparably serious. The
injury and the eventual surgical treatment in Borth are roughly
comparable, but I would say that the injury has had a greater impact on Mr. Mathroo.
I frankly do not know what to make of the award in McMahon, except to
say that it seems inordinately low to me and likely has been superseded by a
higher range in the 17 years since it was given. I also note that the
authorities cited to the judge by the plaintiff herself were only in the $12,000
– $15,000 range, which may account for the result.
[95]
The golden years doctrine has some limited applicability here, in that Mr. Mathroo
has experienced a decrease in his willingness to walk because of the effect of
his injuries on his perceptions of his physical condition and his feelings of
safety when walking, but I take the point made by Mr. Edge-Partingtons counsel
that he was not involved in that many activities beforehand, other than going
to the temple and gardening, so the curtailment of them has been more limited
than in other cases cited on his behalf.
[96]
I do not feel comfortable relying on Olesik to reduce the non-pecuniary
damages on the basis of Mr. Mathroos limited remaining life expectancy,
as urged by Mr. Edge-Partingtons counsel. Its applicability on that issue
has been questioned by other decisions of this Court. In Giles v. Attorney
General of Canada, [1994] B.C.J. No. 3212 (S.C.) varied on other
grounds (1996) 71 B.C.A.C. 319, Mr. Justice Fraser held that the principle
described in Olesik and the golden years doctrine essentially balanced
each other out, so that advanced age should not be a factor either way in
arriving at an appropriate award. This view was adopted more recently in Duifhuis
v. Bloom, 2013 BCSC 1180.
[97]
Similarly, I do not see how an argument about failure to mitigate can
survive the evidence of Dr. Gandhi and Dr. Zarkadas that Mr. Mathroos
current condition would not be any better if he had begun physiotherapy earlier
and so I cannot give effect to it.
[98]
In all the circumstances, before dealing with whether an amount should
be added to reflect a loss of Mr. Mathroos housekeeping capacity, I would
make an award of non-pecuniary damages of $60,000.
[99]
As to loss of future housekeeping capacity, I accept that Mr. Mathroo
will need some assistance in the future with things that he can now do only
with discomfort when using his right hand, and that such assistance will likely
come from his daughter. There may also be some driving provided by family
members in situations where he might previously have walked — perhaps to the
new temple.
[100] The first problem
with the evidence is the lack of evidence on which to base a valuation of those
services — the results of the Internet inquiries engaged in by Mr. Lottay
on the cost of a Punjabi-speaking care aide are hearsay, and not subject to any
exception that would make them admissible. The more fundamental problem is the
absence of evidence of the actual extent and frequency of the services, and how
much they overlap with care that will be provided to him in any case as a
result of the general family arrangements and his advancing age. His daughters
services to him certainly have value regardless of whether she is employed
outside of the home, but I have no reliable baseline of the care that she
already provides and will continue to provide against which his increased needs
due to the accident can be assessed. There is only Mr. Lottays recitation
of a list of tasks, with no evidence of what each one specifically required his
wife to do. There is a difference between a definite claim that cannot be
precisely quantified and speculatively making an award when the actual loss may
be minimal or non-existent. Accordingly I am unable to make an additional award
under this heading.
i. In
trust claim
[101]
It is common ground that the principles to be applied in assessing an
in-trust claim are set out in Bystedt v. Hay, 2001 BCSC 1735:
[180] From a review of these authorities one can construct
a summary of the factors to be considered in the assessment of "in
trust" claims:
(a) the services provided must
replace services necessary for the care of the plaintiff as a result of a
plaintiff’s injuries;
(b) if the services are rendered by
a family member, they must be over and above what would be expected from the
family relationship (here, the normal care of an uninjured child);
(c) the maximum value of such
services is the cost of obtaining the services outside the family;
(d) where the opportunity cost to
the care-giving family member is lower than the cost of obtaining the services
independently, the court will award the lower amount;
(e) quantification should reflect
the true and reasonable value of the services performed taking into account the
time, quality and nature of those services. In this regard, the damages should
reflect the wage of a substitute caregiver. There should not be a discounting
or undervaluation of such services because of the nature of the relationship;
and,
(f) the family members providing the services need not
forego other income and there need not be payment for the services rendered.
[102] As I have
said, I find Mr. Lottays estimates of his wifes time caring for Mr. Mathroo
to be unrealistic. While I could probably arrive at a lower and more reasonable
number of hours by drawing inferences from the descriptions of the tasks that Mr. Mathroo
says he has problems with, and applying some assumptions about the amount of
time it would take his daughter to assist him with them, I would still know
nothing about the quality and nature of those services for the purposes of
valuing them, because Mr. Mathroo was not forthcoming about what exactly he
needs done for himself and Mr. Lottays own involvement is largely with
driving. As a result, I am not able to make any award under this heading.
[103] I should
make it clear that my dismissal of the claim under this heading, and under loss
of future housekeeping capacity, are based on the shortcomings in the evidence
that has been provided. I would not have acceded to the argument made on behalf
of Mr. Edge-Partington that any additional care provided to Mr. Mathroo
would have been subsumed within the concept of filial piety as it was expressed
in decisions such as I.C.B.C. v. Chan, 2007 BCSC 1431 and Haczewski
v. British Columbia, 2012 BCSC 380. The evidence in this case has certainly
not established that the adult children in a traditional Sikh family will invariably
take on all of a parents accident-related care needs as a matter of course.
ii.
Future care costs
[104] Evidence
of the costs of Dr. Zakarass recommended gentle exercise program and of
the Ibuprofen that Mr. Mathroo takes occasionally has not been provided
and such costs are not well-known enough to be arrived at by judicial notice.
It is not sufficient to propose a nominal amount without such evidence, on
the theory that the true amount is likely to be greater. I am unable to make an
award under this heading.
iii.
Special damages
[105] The
special damages of $195 for physiotherapy user fees and $80 for ambulance costs
are certainly reasonable and he will receive them. The total award under this
heading is $275.
IV.
COSTS
[106] My
preliminary view is that Mr. Mathroo has achieved success on the only
really important issue in this case, and should therefore receive his costs.
However, counsel are free to make submissions concerning costs, orally or in
writing as they prefer, provided that they advise Supreme Court Scheduling
within 30 days of the judgment of their intention to do so.
The
Honourable Mr. Justice T.A. Schultes